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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 5, 2026 has been entered.
Claim Status
The status of the claims upon entry of the present amendments stands as follows:
Pending claims:
1, 5-9, 12-15, 27
Withdrawn claims:
None
Previously canceled claims:
4, 10, 11, 17-24
Newly canceled claims:
2-3, 16, 25, 26, 28
Amended claims:
1
New claims:
None
Claims currently under consideration:
1, 5-9, 12-15, 27
Currently rejected claims:
1, 5-9, 12-15, 27
Allowed claims:
None
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 5-7, 9, 12-15 and 27 are rejected under 35 U.S.C. 103 as being unpatentable over Duan (US 2009/0169691 A1) in view of Gaspar (Gaspar, Leonor, et al. “Development of Potential Yeast Protein Extracts for Red Wine Clarification and Stabilization”. Frontiers Microbiology, Vol. 10, published October 8, 2019 [accessed online January 28, 2025]) and IOC (“FYNEO”, Institut Œnologique de Champagne, version February 23, 2015 [accessed online July 23, 2025] https://web.archive.org/web/20220815042531/https://ioc.eu.com/wp-content/uploads/documents/ioc/ft/FT%20FYNEO%20(EN).pdf).
Regarding claim 1, Duan teaches a fining formulation comprising pectin and using pectin in a fining process to produced fined beverages (Abstract). Duan also teaches low methoxy pectin having a degree of esterification (“DE”) of 50% or less ([0023]), which overlaps with the claimed range of “5% to less than 50%”. Duane also teaches that the fining formulation is useful for clarifying fermented beverages such as beer ([0010]). Duan also teaches adding pectin solution into beer at a final concentration of 75 ppm ([0197]).
With respect to the overlapping ranges, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Duan does not teach yeast extract in the fining formulation, the percent composition of the yeast extract and pectin, wherein the yeast extract contains yeast protein in an amount of 20% to 80% by weight of the yeast extract, or a total combined amount of pectin and yeast extract of 25-300 ppm of a total beverage volume.
Regarding the use of yeast extract in the fining formulation, Gaspar teaches using yeast extract as a clarifier in wine (Abstract).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the clarifier comprising pectin taught by Duan with the addition of the yeast protein extracts taught by Gaspar. Because pectin and yeast extract are both known for the same purpose of clarifying beverages, it would be obvious to one of ordinary skill to combine the two. MPEP §2144.06(I) states "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 there having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Regarding the yeast extract containing yeast protein in an amount of 20 to 80% by weight of the yeast extract and the amount of pectin added in ppm, IOC teaches of protein yeast extracts that are excellent for flocculation in wine in order to clarify and stabilize it, and that protein yeast extracts must have a minimum protein content of 50% of dry weight (p. 2, ¶ 1), which lies in the claimed range of “20 to 80% by weight”. IOC also teaches a minimum dosing rate of yeast extract as 5 g/hL (p. 1, section DOSE RATE), which equates to 50 ppm.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the clarifying agent taught by Duan modified by Gaspar with the use of a protein yeast extract comprising 50% protein as taught by IOC. One would be motivated to make this modification because IOC teaches that the protein yeast extracts are excellent for flocculation in order to clarify wine (p. 2, ¶ 1).
Additionally, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add the 50 ppm of yeast protein extract taught by IOC to the 75 ppm of pectin taught by Duan to obtain a clarifier comprising both pectin and yeast extract at 125 ppm of the beverage volume, which falls within the claimed range of “25-300 ppm”. Because pectin and yeast extract are both known for the same purpose of clarifying beverages, it would be obvious to one of ordinary skill to combine the two. MPEP §2144.06(I) states "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 there having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Although Duan, Gaspar, and IOC do not teach the percent composition of the pectin and yeast extract, one of ordinary skill in the art would have adjusted the percent composition by weight of the two ingredients during routine optimization to find the composition that results in the best clarifying of the beverage. MPEP §2144.05(II) states where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). Further, the combination of two compositions used for the same purpose would at least be obvious for equal amounts of those components as starting concentrations from which optimization may proceed. The claimed method would thus be obvious, including the claimed component concentrations of 10-75 wt% pectin and 25-90 wt% yeast extract.
Regarding claims 5 and 6, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above. Duan also teaches low methoxy pectin having a degree of esterification (“DE”) of 50% or less ([0023]) and that CF020 pectin used in experiments has a DE of 27-32% (p. 30, Table 1), which renders the claimed ranges of 15%-35% (claim 5) and 27%-32% (claim 6) obvious.
Regarding claim 7, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above. Duan also teaches that CF020 pectin used in experiments has a degree of amidation (“DA”) of 18-23% (p. 30, Table 1), which encompasses the claimed value of “20%”.
With respect to the overlapping range, MPEP §2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 9, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above.
Duan does not teach wherein the yeast extract comprises extract from Saccharomyces spp.
However, in the same field of endeavor, Gaspar teaches that yeast species for the yeast protein extract including Saccharomyces bayanus (BCVII 3) and Saccharomyces cerevisiae (BCVII 5) (p.3, right-hand column, ¶ Yeast Protein Extracts).
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to modify the invention of Duan with the addition of Saccharomyces strains of yeast taught by Gaspar. One would be motivated to make this modification because, as taught by Gaspar, BCVII 3 and BCVII 5 were among the best yeast protein extracts when it came to color characterization after fining (p. 7, left-hand column, ¶ Color Characterization).
Regarding claim 12, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above. Duan also teaches the fining agents are used particularly in fermented beverages such as beer or wine ([0010]) and that fining agents are typically used after the fermentation is complete when the beer is in storage (i.e., during maturation, [0028]).
Regarding claim 13, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above. Duan also teaches that the finings formulation is added to water until solubilized, and then mixed with beer ([0079]-[0080]).
Duan does not teach wherein the pectin extract and yeast extract are dissolved and added separately. However, MPEP §2144.04(IV)(C) states “Selection of any order of mixing ingredients is prima facie obvious.” In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930). Therefore, it would have been obvious to dissolve the pectin and yeast extract in water separately before adding each solution individually to the beverage.
Regarding claim 14, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above. Duan also teaches that a dry finings formulation is dry blended and then is added to water until solubilized, and then mixed with beer ([0079]-[0080]).
Duan does not teach wherein the pectin extract and yeast extract are dissolved together. However, MPEP §2144.04(IV)(C) states “Selection of any order of mixing ingredients is prima facie obvious.” In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930). Therefore, it would have been obvious to add the pectin and yeast extract together.
Regarding claim 15, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above. Duan also teaches that the fining formulation is useful for clarifying fermented beverages ([0010]).
Regarding claim 27, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above.
Duan also teaches adding pectin solution into beer at a final concentration of 75 ppm ([0197]).
Duan does not teach the amount of yeast extract added.
However, IOC teaches a minimum dosing rate of yeast extract as 5 g/hL (p. 1, section DOSE RATE), which equates to 50 ppm.
It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the claimed invention to add the 50 ppm of yeast protein extract taught by IOC to the 75 ppm of pectin taught by Duan to obtain a clarifier comprising both pectin and yeast extract at 125 ppm of the beverage volume, which falls within the claimed range of “25-200 ppm”. Because pectin and yeast extract are both known for the same purpose of clarifying beverages, it would be obvious to one of ordinary skill to combine the two. MPEP §2144.06(I) states "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 there having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Duan (US 2009/0169691 A1) in view of Gaspar (Gaspar, Leonor, et al. “Development of Potential Yeast Protein Extracts for Red Wine Clarification and Stabilization”. Frontiers Microbiology, Vol. 10, published October 8, 2019 [accessed online January 28, 2025]) and IOC (“FYNEO”, Institut Œnologique de Champagne, version February 23, 2015 [accessed online July 23, 2025] https://web.archive.org/web/20220815042531/https://ioc.eu.com/wp-content/uploads/documents/ioc/ft/FT%20FYNEO%20(EN).pdf) as applied to claim 1 above, as evidenced by Angel (“Everything you need to know about Yeast Extract”, Angel Yeast Co., LTD, published Mar 22, 2020 [accessed online July 24, 2025] https://web.archive.org/web/20200627070708/https://en.angelyeast.com/blog/yeast-extract-savory/what-is-yeast-extract.html).
Regarding claim 8, Duan modified by Gaspar and IOC teaches all elements of claim 1 as described above. Although the cited prior art does not teach wherein the yeast extract further comprises yeast cell wall material and/or yeast carbohydrates, yeast extract inherently comprises yeast carbohydrates. Therefore, the yeast extract taught by Gaspar would necessarily comprise yeast carbohydrates. Evidence to support that yeast extract necessarily comprises yeast carbohydrate is provided by Angel. Angel teaches that yeast extract is made up of proteins and carbohydrates from the yeast cell (p. 1, ¶ 3).
Response to Arguments
Claim Objections: Applicant has overcome the objections to the claims based on amendments in the Claims. Accordingly, the objections have been withdrawn.
Claim Rejections – 35 U.S.C. §103 of claims 1-7, 9-16, 25, and 27 over Duan, Gaspar, and IOC; claims 8, 26, and 28 over Duan, Gaspar, IOC, evidenced by Angel: Applicant’s arguments filed February 5, 2026 have been fully considered but they are not persuasive.
Applicant stated that the Remarks in the previously filed response are incorporated herein by reference in their entirety (Remarks, p. 7, ¶ [1]).
In response to the incorporation by reference of the previous remarks, all of the response to arguments presented in the Final Rejection are maintained by the Examiner.
Applicant stated that claim 1 has been amended to be commensurate with the examples by reciting that the yeast protein content of the yeast extract (YE) is 20 to 80% by weight to overcome the Examiner’s argument against demonstration that one wouldn’t have motivation to use YE comprising cell wall components and mannoproteins (Remarks, p. 7, ¶ [2]).
This argument has been considered but is unpersuasive. However, it is noted that the features upon which applicant relies (i.e., the present of cell wall compounds and mannoproteins) are not required in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). Additionally, the data provided still does not demonstrate a showing of unexpected results. MPEP § 716.02(d) states “the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).” The data provided in the examples does not provide data outside of the claimed range to demonstrate the criticality of the claimed range.
Applicant further argued that claim 1 is presently amended to recite that the beverage clarified is beer or cider and recites a dose rate for the fining agent. Applicant further stated that the specification describes 6 yeast extracts with different protein contents. Applicant stated that for these reasons, the showing of synergy is commensurate with the full scope of claim 1 Remarks, p. 7-9, ¶ [3]).
This argument has been considered. However, the data provided still fails to demonstrate a showing of unexpected results. MPEP § 716.02(d) states “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)” and “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).” The data provided in the examples does not provide data outside of the claimed range to demonstrate the criticality of the claimed range. Additionally, the data provided in the Affidavit filed 02/05/2026 does not test the full range of doses as claimed in claim 1.
Furthermore, both the examples and the experiments performed in the Affidavit have listed a hold time. Hold time is known in the art to have an impact on the clarity of a beverage being refined. Because claim 1 does not recite the hold times used in the experiments, the data presented is not commensurate in scope with the claimed invention.
Applicant further argued that the synergistic results obtained by the claimed fining agent would rebut the asserted case of obviousness (Remarks, p. 9-10, ¶ [4]).
This argument has been considered. However, for the reasons stated above, the Applicant has failed to provide a showing of synergistic results commensurate in scope with the claimed invention. Thus, the combination of Duane in view of Gaspar and IOC renders the claimed invention obvious.
The declaration under 37 CFR §1.132 filed February 5, 2026 (hereinafter “Kadam Declaration”) is insufficient to overcome the rejection of the claims based upon Duan, Gaspar, and IOC as set forth in the office action.
MPEP §716.01(c)(III) states “In assessing the probative value of an expert opinion, the examiner must consider
1) the nature of the matter sought to be established,
2) the strength of any opposing evidence,
3) the interest of the expert in the outcome of the case, and
4) the presence or absence of factual support for the expert’s opinion.
Ashland Oil, Inc. v. Delta Resins & Refractories, Inc., 776 F.2d 281, 227 USPQ 657 (Fed. Cir. 1985), cert. denied, 475 U.S. 1017 (1986).”
The Kadam Declaration seeks to establish nonobviousness of combining pectin and yeast extract for the purpose of fining a beverage regarding the rejection of claim 1.
Regarding the nature of the matter sought to be established the Kadam Disclosure seeks to provide evidence that the present invention produces the same results for cider that were produced for beer in the instant specification.
Regarding the strength of the opposing evidence, Applicant performed experiments using 10% LM pectin and 90% yeast extract at a dose rate of to 200 ppm and compared with a control with no fining agent after 24 hours (Kadam Disclosure, [10]-[12]). Applicant further asserts that yeast extracts of variable protein contents were shown in Fig. 3, and that there was no substantial difference when added to beer samples (Kadam Disclosure, [13]).
The data provided by the Kadam Disclosure is insufficient to demonstrate a showing of unexpected synergistic results. Claim 1 recites that the fining agent comprises 10% to 75% by weight of pectin and 25% to 90% by weight of yeast extract. Because the experiments of Kadam Disclosure only test 10% LM pectin and 90% yeast extract, they are not commensurate in scope with the claims. Furthermore, claim 1 recites 25-300 ppm of pectin and yeast extract used, whereas the Kadam Disclosure only tests a range of 40-200 ppm. “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960).”
Regarding the interest of the expert in the outcome of the case, the Kadam Declaration is submitted by one of the inventors, who is considered an interested party in the outcome of the case. An affidavit of an applicant as to the advantages of their claimed invention, while less persuasive than that of a disinterested person, cannot be disregarded for this reason alone. Ex parte Keyes, 214 USPQ 579 (Bd. App. 1982); In re McKenna, 203 F.2d 717, 97 USPQ 348 (CCPA 1953). As such, the Kadam Declaration is being considered as an expert opinion of an interested party.
Regarding the presence of absence of factual support for the expert’s opinion, it has been found that the statements of surprising/unexpected results are conclusory and unsupported by factual evidence. Although the Kadam Declaration provides additional experimentation with the claimed invention use with cider, the disclosure fails to remedy the lack of showing of unexpected results. As discussed above, the data provided by the Kadam Declaration and the instant specification are not commensurate in scope with the claimed invention.
The rejections of claims 1, 5-9, 12-15, 27 have been maintained herein.
Conclusion
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/A.S.H./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793