DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on September 17, 2025 has been entered.
Claim 22 is new. Claims 1-5, 10-12, 14 and 16-22 are pending examination.
Claim Objections
Claim 22 is objected to because of the following informalities: In line 1, the term “is an” should be removed. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 10 is rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Regarding claim 10, the recitation “[t]he method according to claim 9” renders the claim indefinite because a claim cannot depend from a cancelled claim. For purpose of examination, claim 10 will be interpreted as depending from claim 1.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-5, 10, 12 and 16-21 are rejected under 35 U.S.C. 103 as being unpatentable over Haslbeck et al. (“Investigations into the Transfer Rate of Volatile Compounds in Dry Hopping Using an Octanol-Water Partition Coefficient Model”, Journal of the American Society of Brewing Chemists, 76:3, (2018), pp. 169-177) in view of Frankenberg-Dinkel (Biotechnology – History of biotechnology and classical applications in food biotechnology, (2015), pp. 3-24) and Hagemann et al. (“Chance for Dry-hopped Non-alcoholic Beverages? Part 2: Health Properties and Target Consumers”, Brewing Science, Vol. 70, (2017), pp. 118-123), and as evidenced by Mussatto et al. (“16- Beer” in Engineering Aspects of Food Biotechnology, Eds. Teixeira, J., and Vicente, A., Taylor & Francis, 2014, pp. 429-440).
Regarding claims 1, 10, 12, 16-20 and 22, Haslbeck et al. disclose a process of making a low alcohol beer (i.e., malt beverage), the processing comprising the steps of: (a) obtaining a nonalcoholic beer (i.e., 0.1% (v/v) alcohol); (b) adding hop pellets directly to the nonalcoholic beer and hopping for 7 days at either 1º, 4º or 20ºC); and (c) filtering the hopped nonalcoholic beer (p. 170/Beer samples for dry hopping; Single-variety dry hopping on a laboratory scale, p.172/Effect of temperature on extraction, p. 173/Table 3).
Haslbeck et al. disclose that the dosage for hopping was based on the essential oil content of the hops (p.170 /Single-variety dry hopping on a laboratory scale). Specifically, Haslbeck et al. disclose adding 1.5 and 7.3 g/L (i.e., 150 or 730 g/hl) of Tettnanger, 1.64 g/L (i.e., 164 g/hl) Cascade , 1.09 g/L (i.e., 109 g/hl) Hallertau Blanc or 0.55 g/L (i.e., 55 g/hl) Eureka hops (p. 171/Table 1).
Haslbeck et al. disclose making 0.5 L batches of beer and is silent with respect to scaling up the batch size to quantities of at least 10 hl. The claimed batch size does not patentably distinguish over Haslbeck et al. Absent persuasive evidence the that batch size is significant, the person of ordinary skill in the art prior to the effective filing date of the present application would have found it obvious to merely scale up the process of Haslbeck et al. to obtain a desired amount of beer. In this case, Haslbeck et al. disclose adding hops to the low alcohol beer in amounts as presently claimed (i.e., at least 20-500 g/hl).
Haslbeck et al. disclose that the nonalcoholic beer is made from a bottom-fermented, 11.4º P lager beer (i.e., about 4.6% alcohol by volume) that is dealcoholized to 0.1% (v/v) (p. 170/Beer samples for dry hopping).
While Haslbeck et al. disclose a nonalcoholic beer (i.e., 0.1% (v/v alcohol) made from dealcoholized beer, the reference is silent with respect to the steps of making the beer and to producing an India Pale Ale (IPA) wherein the boiled wort is fermented with top fermenting yeast.
Frankenberg-Dinkel teaches a procedure for brewing beer (p. 12-14/1.3.2 Beer brewing). Frankenberg-Dinkel teaches the procedure comprises the steps of: (a) obtaining malted barley; (b) crushing the dried malt into fine powder and mixing with hot water to form a mash; (c) lautering the mash (i.e., filtering) to obtain a clear liquid called wort and the residual grains; (d) boiling the wort to sterilize the liquid; (e) adding hops to the boiling wort; (f) adding cultured yeast (bottom- or top-fermenting yeast) to the boiled wort and fermenting to produce a beer with alcohol (p. 12-14/1.3.2 Beer brewing).
Given Haslbeck et al. disclose a process of making a nonalcoholic beer from, since Frankenberg-Dinkel teaches the known process of brewing a top- or bottom-fermented beer, it would have been obvious to have made the starting beer of Haslbeck et al. by applying the brewing steps taught by Frankenberg-Dinkel with a reasonable expectation of success. One of ordinary skill in the art would have chosen the type of fermentation, i.e. top-or bottom-fermentation, based on the style of beer desired, including an IPA.
While Haslbeck et al. disclose adding hops (i.e., hop pellets) to a low alcohol beer, the reference is silent with respect to xanthohumol and isoxanthohumol.
Hagemann et al. teach the health aspect of alcohol free beer (i.e., low alcohol beer) (p. 118-119/Health aspects of alcohol-free beer). Hagemann et al. teach that prenylflavonoid (e.g., xanthohumol), derives exclusively from hops and has been shown to have anti-cancerogenic and dementia mitigating properties as well as obesity reducing properties (p. 119/Health aspects of alcohol-free beer).
Hagemann et al. teach when hops are added prior to boiling, the xanthohumol get converted into the less active isoxanthohumol (p. 119/ Health effects of dry-hopped alcohol-free beer). Hagemann et al. teach that because dry-hopping is applied after the wort boiling, the added hop metabolites do not get isomerized (p. 119/Health effects of dry-hopped alcohol-free beer). Hagemann et al. teach the aim for any xanthohumol mediated health beneficial effect in a beverage is to achieve a concentration between 0.4 and 3.5 mg l-1 (i.e., between 400 and 3500 µg/L -p. 119/Health effects of dry-hopped alcohol-free beer).
Given Hagemann et al. teach that to maintain the health benefits of xanthohumol, a hop derived prenylflavonoid, isomerization must be minimized to achieve concentrations of between 0.4 and 3.5 mg l-1 in beer, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have optimized the dry hopping process of Haslbeck et al. to obtain a low alcohol beer having the healthful benefits of xanthohumol. Moreover, if the process is optimized to obtain a low alcohol beer comprising xanthohumol in an amount of 0.4 and 3.5 mg l-1, the low alcohol beer would comprise a ratio of xanthohumol and isoxanthohumol in a ratio was claimed.
Regarding claim 2, modified Haslbeck et al. disclose all of the claim limitations as set forth above. Haslbeck et al. does not disclose adding ethyl acetate or isoamyl acetate to the low alcohol beer (p. 170/Beer samples for dry hopping; Single-variety dry hopping on a laboratory scale).
Regarding claims 3-5, modified Haslbeck et al. disclose all of the claim limitations as set forth above. Haslbeck et al. does not disclose acetate esters, ethyl esters or flavors to the low alcohol beer (p. 170/Beer samples for dry hopping; Single-variety dry hopping on a laboratory scale).
Claims 11 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Haslbeck et al. (“Investigations into the Transfer Rate of Volatile Compounds in Dry Hopping Using an Octanol-Water Partition Coefficient Model”, Journal of the American Society of Brewing Chemists, 76:3, (2018), pp. 169-177) in view of Frankenberg-Dinkel (Biotechnology – History of biotechnology and classical applications in food biotechnology, (2015), pp. 3-24) and Hagemann et al. (“Chance for Dry-hopped Non-alcoholic Beverages? Part 2: Health Properties and Target Consumers”, Brewing Science, Vol. 70, (2017), pp. 118-123) and as evidenced by Mussatto et al. (“16- Beer” in Engineering Aspects of Food Biotechnology, Eds. Teixeira, J., and Vicente, A., Taylor & Francis, 2014, pp. 429-440) as applied to claim 1, and further in view of Andrés-Iglesias et al. (“Simulation and flavor compound analysis of dealcoholized beer via one-step distillation”, Food Research International, 76, (2015), pp. 751-760).
Regarding claim 11, modified Haslbeck et al. disclose all of the claim limitations as set forth above. While Haslbeck et al. disclose beer that has been dealcoholized to 0.1% (v/v), the reference is silent with respect to vacuum distillation.
Andrés-Iglesias et al. teach there are two main strategies for producing low alcohol beer products including biological and physical methods (p. 752/Introduction). Andrés-Iglesias et al. teaches that the most common physical separation process used for beer dealcoholization are membrane-based processes and heat treatment (p. 752/Introduction). Andrés-Iglesias et al. teach vacuum evaporation (i.e. distillation) is the most economical of the large scale dealcoholization techniques (p. 752/Introduction).
Haslbeck et al and Andrés-Iglesias et al. are combinable because they are concerned with the same field of endeavor, namely, production of low alcohol beer. Given Haslbeck et al. disclose a general process where beer is dealcoholized, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have used vacuum distillation to dealcoholize the beer of Haslbeck et al. because Andrés-Iglesias et al. teach that it is a known process that is more economical than others.
Regarding claim 14, modified Haslbeck et al. disclose all of the claim limitations as set forth above. Haslbeck et al. does not disclose separately preparing a second low alcohol beer and combining with the first low alcohol beer.
Andrés-Iglesias et al. teach there are two main strategies for producing low alcohol beer products including biological and physical methods (p. 752/Introduction). Andrés-Iglesias et al. teach the biological methods aim at controlling the alcohol production during the fermentation process (p. 751/Introduction). Andrés-Iglesias et al. teach the biological methods can be achieved by either restricting ethanol formation or shortening the fermentation process (p. 751/Introduction).
Andrés-Iglesias et al. also teach that it is well known that aroma compounds are lost in alcohol free beers during production by thermal processes (e.g., vacuum distillation – p. 752/Introduction). Andrés-Iglesias et al. teach to compensate these disadvantages by blending dealcoholized beer with a small quantity of original beer (p. 752/Introduction).
Given Andrés-Iglesias et al. teach that the dealcoholizing processes, e.g., vacuum distillation, are known to produce low alcohol beers with a damaged aroma profile and less pleasant flavors, since Andrés-Iglesias et al. teach it was known to blend small amounts of beer into the dealcoholized beer to compensate for the loss of aroma, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have blended the dealcoholized beer of Haslbeck et al. with a yeast fermented beer to produce a low alcohol beer with an improved flavor profile. Moreover, given Andrés-Iglesias et al. teach that it was known to produce low alcohol beer by restricting alcohol formation in the fermentation process (i.e., contacting heat-treated wort with yeast under conditions of restricted fermentation to produce a low alcohol beer), the skilled artisan would have been motivated to blend the yeast fermented low alcohol beer of Andrés-Iglesias et al. with the dealcoholized beer of Haslbeck et al. for the purpose of producing a low alcohol beer with an improved flavor profile. One of ordinary skill in the art would understand that a larger proportion of the yeast fermented low alcohol beer could be blended with the dealcoholized beer while still maintain an alcohol content required for a low alcohol beer.
Response to Arguments
Applicant's arguments filed September 17, 2025 have been fully considered but they are not persuasive.
Applicant finds the central determination on obviousness of the claims turns on whether, from the point of view of the ordinarily skilled persons, “the laboratory scale studies of Haslbeck et la. can be scaled to 10 hl batches with a reasonable expectation of success.” Applicant submits “scale-ups are not performed in the abstract, there is some expectation the attempt will result in an acceptable product, for example an India Pale Ale” Therefore, Applicant argues “it would not have escaped the skilled reader that Haslbeck provides no information about the impact of the lab-scale dry hopping on the taste of ins non-alcoholic lager beer.”
In this case, Haslbeck et al. disclose a study evaluating the transfer rate of volatile compounds in dry hopping. Clearly, Haslbeck et al. is concerned with the flavor hops imparts to beer, specifically volatile components. Haslbeck et al. is not concerned with the bitter taste components of hops. While Haslbeck et al. does not disclose the total amount of transferred essential oil into dry-hopped low alcohol beer having an alcohol content of between 0 and 1% ABV, the reference clearly shows a relationship between alcohol content and transfer of volatile compounds from hops during the dry hopping process. Given the results of Haslbeck et al. the skilled artisan would have been able to adjust the amount of added hops to the low alcohol beers to obtain hops flavor with a reasonable expectation of success.
Regardless of the chemistry, Haslbeck et al. disclose adding hops to a low alcohol beer in amounts presently claimed. Haslbeck et al. disclose that the dosage for hopping was based on the essential oil content of the hops (p.170 /Single-variety dry hopping on a laboratory scale). Specifically, Haslbeck et al. disclose adding 1.5 and 7.3 g/L (i.e., 150 or 730 g/hl) of Tettnanger, 1.64 g/L (i.e., 164 g/hl) Cascade , 1.09 g/L (i.e., 109 g/hl) Hallertau Blanc or 0.55 g/L (i.e., 55 g/hl) Eureka hops (p. 171/Table 1). If a person of ordinary skill in the art were to do a direct scaling up of Haslbeck’s process, the claimed amount of hops would be added. Claims 1 requires adding hops in an amount of at least 20-500 g/hl to produce at least 10 hl of a suspension.
Applicants submit Haslbeck’s study was carried out using a nonalcoholic bottom ferment beer. In contrast, Applicants explain IPAs require fermenting wort with top fermenting yeast.
While Haslbeck et al. disclose making a nonalcoholic beer using drying hoping, given the disclosure of Frankenberg-Dinkel teaches processes of brewing a top- or bottom-fermented beer, it would have been obvious to have made the starting beer of Haslbeck et al. by applying the brewing steps taught by Frankenberg-Dinkel with a reasonable expectation of success. One of ordinary skill in the art would have chosen the type of fermentation, i.e. top-or bottom-fermentation, based on the style of beer desired, including an IPA.
Applicants “the main reason for using drying hopping in the product of these ales is to “impart an intense and unique hop flavour which is a typical and important attribute of these ales.” Applicants argue “[n]othing in Haslbeck would have suggested to the ordinarily skilled brewer that its study of bottom-fermented lager would have “obviously” transferred to top-fermented IPA’s.
Here, Haslbeck et al. used a dry hopping procedure using a beer fermented with a bottom-fermenting yeast. If dry hopping is known to be used in brewing ales, it is not clear why a person of ordinary skill in the art would not have tried the Haslbeck et al. process on an nonalcoholic beer made from an ale styled beer (i.e., top-fermented).
Note, while Haslbeck et al. does not report on the perceived flavor (i.e., sensory properties) of their beer, given Haslbeck et al. reports on the transfer of hop volatiles into the nonalcoholic beer, it is reasonable to expect a flavor impact.
Applicants submit “the Examiner appears to conclude that Haslbeck’s results demonstrate that dry hopping of low alcohol beer is less effective than dry hopping of alcohol beer, leading to an unsatisfactory beer quality.” Applicants explain the date of Haslbeck et al. show that the effect of alcohol is different for each hop volatile and that it would be impossible to reverse the effect of alcohol content reduction from 5.0 to 0.1% by simply increasing the amount of hops used for dry hopping.
Here, the Examiner does not suggest adjusting hop content to produce a dry hopped alcohol-free beer having the same flavor profile as a dry hopped alcoholic beer. Rather, the Examiner is suggesting that the process of Haslbeck et al. can be scaled up with a reasonable expectation of success (i.e., obtaining a beer with hop volatiles). As noted above, there is nothing in the claims that require a specific hop volatile profile in the resulting claimed low alcoholic IPA.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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