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 .
Status
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 1/15/2026 has been entered.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over KR20000063258 (HYEONG) in view of WO2019130724 and United States Patent No. 6,238,712 (NAKASHIMA). USPGPUB 2020/0329740 (YOSHIDA) is the English language equivalent for WO2019130724 and relied upon in this Official Action.
An English language translation has been previously provided for HYEONG.
Claim 1
HYEONG teaches an alcoholic beverage with 0.0001-5 wt% chitosan( 1 to 50,000 ppm) (abstract). Thus, this overlaps the claimed range of chitosan. The molecular weight of the chitosan is 10,000 to 100000 Da (10 to 100 kDa) (abstract). Thus, this encompasses the claimed range of 40-100 kDa.
The alcoholic beverage can be Cheongju (i.e., Korean rice wine) (last paragraph pf. 3), sake (see Examples 1-3, pg. 4 ) (i.e., 10-25% ABV) and other alcoholic beverages .
HYEONG does not teach packaging the alcoholic beverage.
However, YOSHIDA teaches in [0036] that one can package a for long-term storage at normal temperature. YOSHIDA also teaches a method for making an alcohol containing tea beverage that contains chitosan. The chitosan is added in a concentration of 1-80 ppm [0012]. This overlaps the claimed range. The addition of chitosan would naturally reduce pungency. The beverage is poured into a bottle or can [0035]. The beverage can be an alcoholic drink [0032]. YOSHIDA teaches that chitosan can be used in non-alcoholic beverages having 1% or less or ethanol.
It would have been obvious to one skilled in the art to provide an unheated packaged alcoholic beverage where the bottle is filled and packaged at normal temperatures (i.e., unheated) to provide a long term stable storage environment .
HYEONG , and YOSHIDA are silent as to the addition of distilled liquor.
However, NAKASHIMA teaches a tea with alcohol (col. 2, lines 60-65). The alcohol can be from distilled liquor (col. 2, lines 60-65). The sake, wine, whiskey, brandy, vodka, shao-hsing rice wine, shochu (white distilled liquor), etc. (col. 2, lines 60-65).
Given NAKASHIMA teaches that tea can be mixed with a variety of alcoholic beverages (e.g., sochu that contains distilled alcohol) (col. 2, lines 60-65), it would have been obvious to one skilled in the art to combine tea with distilled alcohol.
“It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious). **
As to claim 2, claim 2 is dependent on claim 1. Claim 1 includes a distilled liquor. Heating is a crucial step in the distillation process of distilled liquor. Claim 2 is interpreted as meaning the packaging of the beverage step of the beverage does not require heating.
HYEONG does not teach packaging the alcoholic beverage.
However, YOSHIDA teaches in [0036] that one can package a for long-term storage at normal temperature. In [022] of YOSHIADA, sterilization is optional. Thus, the packaged beverage can be unheated. It would have been obvious to provide an unheated package.
As to claim 3, HYEONG teaches an alcoholic beverage with 0.0001-5 wt% chitosan( 1 to 50,000 ppm) (abstract). Thus, this overlaps the claimed range of chitosan. The molecular weight of the chitosan is 10,000 to 100000 Da (10 to 100 kDa) (abstract). Thus, this encompasses the claimed range of 40-80 kDa.
As to claim 4, HYEONG teaches organic acid can be added such as lactic acid (pg. 4, first paragraph).
As to claims 5-6, HYEONG teaches an alcoholic beverage with 0.0001-5 wt% chitosan( 1 to 50,000 ppm) (abstract). Thus, this overlaps the claimed range of chitosan. The molecular weight of the chitosan is 10,000 to 100000 Da (10 to 100 kDa) (abstract). Thus, this encompasses the claimed range of 40-100 kDa.
The alcoholic beverage can be Cheongju (i.e., Korean rice wine) (last paragraph pf. 3), sake (see Examples 1-3, pg. 4 ) (i.e., 10-25% ABV) and other alcoholic beverages .
HYEONG does not teach packaging the alcoholic beverage.
However, YOSHIDA teaches in [0036] that one can package a beverage by heating and sterilizing the ingredients during preparation and then filling the container for long-term storage at normal temperature. YOSHIDA also teaches a method for making an alcohol containing tea beverage that contains chitosan. The chitosan is added in a concentration of 1-80 ppm [0012]. This overlaps the claimed range. The addition of chitosan would naturally reduce pungency. The beverage is poured into a bottle or can [0035]. The beverage can be an alcoholic drink [0032]. YOSHIDA teaches that chitosan can be used in non-alcoholic beverages having 1% or less or ethanol.
It would have been obvious to one skilled in the art to provide an unheated packaged alcoholic beverage where the bottle is filled and packaged at normal temperatures (i.e., unheated) to provide a long term stable storage environment .
HYEONG , and YOSHIDA are silent as to the addition of distilled liquor.
However, NAKASHIMA teaches a tea with alcohol (col. 2, lines 60-65). The alcohol can be from distilled liquor (col. 2, lines 60-65). The sake, wine, whiskey, brandy, vodka, shao-hsing rice wine, shochu (white distilled liquor), etc. (col. 2, lines 60-65).
Given NAKASHIMA teaches that tea can be mixed with a variety of alcoholic beverages (e.g., sochu that contains distilled alcohol) (col. 2, lines 60-65), it would have been obvious to one skilled in the art to combine tea with distilled alcohol.
As to claims 7-9, the container-packed beverage of YOSHIDA is in a resin made container such as a PET container, a can, a bottle, a container such as a paper container [0035].
It would have been obvious to use the packaging of YOSHIDA, as YOSHIDA teaches that this is suitable for storing alcoholic beverages.
Response to Arguments
Applicant’s arguments of 1/15/2026 have been considered but are not persuasive.
The applicant argues that one skilled in the art would not have combined HYEONG and YOSHIDA. The applicant argues that HYEONG relates to the antimicrobial effects of chitosan and YOSHIDA teaches at paragraph [027] that chitosan is expected to exhibit antimicrobial and other biological activities.
However, HYEONG teaches an alcoholic beverage with 0.0001-5 wt% chitosan( 1 to 50,000 ppm) (abstract). Thus, this overlaps the claimed range of chitosan. The molecular weight of the chitosan is 10,000 to 100000 Da (10 to 100 kDa) (abstract). Thus, this encompasses the claimed range of 40-100 kDa. YOSHIDA teaches a method for making an alcohol containing tea beverage that contains chitosan. The chitosan is added in a concentration of 1-80 ppm [0012]
Thus, both references are directed to alcoholic beverages that contain chitosan. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious). **
The applicant also argues that the present invention exhibits unexpected results.
However, the claims are not commensurate in scope with the claimed invention. The applicant cites to Table 1 but Table 1 is based on different packaged alcoholic beverages with an alcohol content of 5 v/v%. To be specific, an alcohol (neutral spirits; alcohol content: 59 v/v%), an acidulant (citric acid, malic acid, or lactic acid), and chitosan (average degree of polymerization: about 500; average molecular weight: about 60 kDa) were sequentially added to pure water to prepare alcoholic beverages. The prepared alcoholic beverages were packed in packages to give unheated packaged alcoholic beverages which were not subjected to heat sterilization. In this experiment, an acidulant was added to the beverages to a concentration of 0.3% (3000 ppm). The beverages had a pH of about 2.5, a Brix value of about 0.3, and an acidity of about 0.3 g/100 mL (in terms of citric acid).
The claims make no mention of acidulants, pH, the degree of polymerization of other parameters. Thus, the claims are not commensurate in scope with appellant’s arguments or the assertion that the present invention exhibits unexpected results.
NAKASHIMA is cited to teach the addition of a distilled alcohol.
Conclusion
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/PHILIP A DUBOIS/Examiner, Art Unit 1791 /Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791