DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The amendment filed April 2, 2026 has been entered. Claim 23 is new. Claims 1-5, 10-12, 14, 16-18 and 21-23 are pending.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 23 rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
New claim 23 requires “wherein the hops are in the form of pellets and step (d) involves recirculating the suspension and simultaneously pulverizing the hop pellets. The specification as originally filed provides support to claim that subsequent to adding hops to the beer at a dosage of 350 g hop/hL the beer is recirculated for 1 day at 2°C using a pump which simultaneously pulverizes the hop pellets. There is not support to claim recirculating the suspension for anytime and pulverizing the hop pellets by any method.
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 16-22 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 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 as 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).
Regarding claim 23, modified Haslbeck et al. disclose all of the claim limitations as set forth above. Haslbeck et al. disclose adding the hops pellets directly into beer bottles, capping the beer bottles and then turning the bottles over five times to complete the distribution of pellet particles (i.e., circulating the hops and breaking the pellets up in the beer (p. 170/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 April 2, 2026 have been fully considered but they are not persuasive.
Applicant submits “the Examiner ignores how these xanthohumol and isoxanthohumol levels are to be achieved.” Applicant explains the brewing process is designed such that the claimed levels of xanthohumol and isoxanthohumol can be achieved. Applicant argues “[c]onsidering that a claimed property-here the levels of xanthohumol and isoxanthohumol-would be inherent to or would naturally flow from a hypothetical composition or process is a legal error.” Applicant suggest the facts of this case or similar to those in Ex Parte Vigano (Appeal No. 2010007666, March 13, 2012).
The Examiner does not ignore how the xanthohumol and isoxanthohumol levels are achieved. Claim 1 requires adding hops in step (a) before or after wort boiling but also in step (c) after subjecting the alcoholic malt beverage to de-alcoholization. Frankenberg-Dinkel teach that it was known to add hops before or after wort boiling. Haslbeck et al. disclose adding hops to after subjecting an alcoholic malt beverage to de-alcoholization.
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 as claimed. Here, Hagemann et al. provides the evidence that the xanthohumol in hops added after boiling, as in step (c), do not isomerize. Therefore, the given the combination of Haslbeck et al. and Frankenberg-Dinkel teach a process substantially similar to that presently claimed wherein hops is added to make an alcoholic beer and hops is added after dealcoholization, since Hagemann et al. teach xanthohumal in hops added after wort boiling does not isomerize, it necessarily follow the resulting beer would have a ratio of xanthohumal and isoxanthohumol within that range presently claimed.
Applicant explain “Example 1 not only demonstrates that the claimed process indeed resolves the problems of poor-tasting non-alcoholic beers in general and IPAs in particular, but also that the obtained low-alcohol IPA is of unprecedented quality. Moreover, the election of specifically a top-fermented alcoholic malt beverage in step (a), the hops dosing amount in steps (c) and the fermentation conditions of step (d) are crucial in obtain this high-quality low-alcoholic IPA.”
Step (d) is not directed to a fermentation process. Rather, step (d) defines the conditions after the hops are added to the low alcohol malt beverage, i.e., keeping the suspension between 1 hour and 20 days at a temperature between -2 and 10°C to produce a low alcohol IPA. With respect to fermentation, claim 1 only requires at step (a) “producing a malt beverage having an alcohol content of 2-12% ABV by a process comprising adding hops and/or hop extract before or during wort boiling, and fermenting the boiled wort so obtain with top fermenting yeast.” The requirements of step (a) are known steps to produce an IPA beer. Frankenberg-Dinkel teach es the process of step (a) is known. Haslbeck et al. disclose adding hops in the amount claimed in step (c). Here, it is not clear what steps in the process are not only critical to making a “high-quality low-alcoholic IPA” but also inventive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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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