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 of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 21 November 2025 is acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) the 112(a) rejections of claims 1-5, 7-8, and 10-12 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-5, 7-8, and 10-13
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: 6 and 9
Amended claims: 1, 3, 5, and 10
New claims: 13
Claims currently under consideration: 1-5, 7-8, and 10-13
Currently rejected claims: 1-5, 7-8, and 10-13
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 1-2 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Foster et al. (WO 2018/236621 A1, cited on the IDS filed on 17 August 2022) in view of Withouck et al. (Withouck et al., “Upstream Beer Stabilisation during Wort Boiling by Addition of Gallotannins and/or PVPP”. Brewing Science; 2010; vol. 63; iss. 1-2; pp. 14-22), Gernat et al. (Gernat, D.C., Brouwer, E., and Ottens, M. “Aldehydes as Wort Off-Flavours in Alcohol-Free Beers—Origin and Control”. Food Bioprocess Tech; 2019; vol. 13; pp. 195-216.), and Ferreira et al. (Ferreira et al., "Impact of Wort Amino Acids on Beer Flavour: A Review". Fermentation; 2018; vol. 4; iss. 23; pp. 1-13, cited on the IDS filed on 17 August 2022), and as also evidenced by Ferreira et al.
Regarding claim 1, Foster teaches a method of improving flavor stability (i.e., controlling off-flavors) of a low-alcohol beer – “This invention provides compositions and methods for stabilizing the flavor of a fermented beverage made from a fermentable medium by adding a composition comprising a tannin and a solid carrier to the fermentable medium.” ([0029]). The fermented beverage can be beer ([0042]), and the beer may be low-alcohol beer ([0070]). The method comprising:
mashing a selected malted barley ([0005], [0071]) variety in a mash conversion vessel forming a mash – This is part of the standard brewing process as disclosed by Foster; “The malt bill, which may actually be a blend of malts (i.e., standard brewer's malt, high color, low amylase malt, specialty malts, etc.), is ground and mixed with 2.5 to 4 times its weight of warm water in large tubs and mashed at 35-40°C for 5 to 15 minutes until it forms a thick malt mash.” ([0006]).
separating the mash forming a wort – This is part of the standard brewing process as disclosed by Foster; “Lautering or mash filtration consists of the removal of the liquid, now termed ‘wort’, from the insoluble husks or ‘spent grains’.” ([0009]).
transferring the wort to a kettle – This is part of the standard brewing process as disclosed by Foster; “The clear wort is then pumped into a brewing kettle.” ([0009]);
and adding an amount of tannic acid (i.e., gallotannin ([0031]-[0032], [0073]-[0074])) to the wort in the kettle to yield a fermentable liquid at the end of boiling the wort – “The method comprises adding a composition comprising a tannin and a solid carrier to a fermentable medium prior to fermentation in an amount effective to stabilize flavor and thereafter fermenting the medium to prepare a fermented beverage having a stable flavor. In this method, the tannin can be a gallotannin…the fermentable medium is wort and the composition is added to the wort before boiling of the wort.” ([0042]). “…the pellets [comprising the gallotannin composition] poured into the desired container or a part of the process, such as a mash tun vessel at start of mash or later to the brew kettle.” ([0083]).
fermenting the fermentable liquid using a stop fermentation technique to yield the low-alcohol beer – “The method comprises adding a composition comprising a tannin and a solid carrier to a fermentable medium prior to fermentation in an amount effective to stabilize flavor and thereafter fermenting the medium to prepare a fermented beverage having a stable flavor.” ([0042]). “Non-alcoholic malt beverage (less than 0.5 volume percent alcohol) that closely simulates conventional beer flavor, taste and mouthfeel may be produced by a number of processes included arrested fermentation [i.e., “stop fermentation”], distillation of the beer alcohol, or beer ultrafiltration.” ([0015]).
wherein the amount of tannic acid precipitates precursors or inhibits reactions that lead to the formation of Strecker aldehydes in the low-alcohol beer ([0042], [0085]) – This is seen as an inherent property of the tannic acid. Foster discloses that, “Generally, tannins are capable of binding to and precipitating proteins and various other organic compounds including amino acids [i.e., Strecker aldehyde precursors] and alkaloids.” ([0073]). Gallotannin is a chelating agent ([0075], [0092]), which sequesters divalent metal cations, thereby reducing their availability for reactions that produce Strecker aldehydes. As evidenced by Ferreira, “Strecker aldehydes can be produced from compounds by direct reaction with amino acids or via transition metal ion-catalysed oxidation of the Amadori compound.” (p. 4, ¶ 1 and Figure 1). See MPEP § 2112.01(I), which states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.”
Foster does not specifically teach that the amount of tannic acid is added during the boiling of the wort. Foster also does not teach that a measurement of total staling aldehydes in the low-alcohol beer, measured as a sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, is less than 800 µg/L.
However, Withouck teaches that addition of gallotannins (i.e., tannic acid) 3 minutes before the end of wort boiling decreases sensitive proteins through precipitation by 54-70% (p. 15, col. 2, § 3.1.1, ¶ 1-2), and “regardless of the aging period, the gallotannin beers always received the lowest overall ageing score” (p. 16, col. 2, § 3.3, ¶ 2), where a lower score indicates a fresher-tasting beer (p. 15, col. 1, § 2.4), indicating improved flavor stability upon adding gallotannin during wort boiling.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Foster with the teachings of Withouck to add the gallotannin composition to the wort during boiling. First, Foster discloses that “In another embodiment…the composition is added to the wort”, albeit before the boiling of the wort, and that “The composition may be added to the fermentable medium at any time prior to, or during the early stages of fermentation of the fermentable medium.” ([0090]). Since Withouck teaches that adding gallotannins to wort 3 minutes before the end of the boil has the benefit of producing beer with better aging scores (p. 16, col. 2, § 3.3, ¶ 2), one of ordinary skill in the art would have been motivated to add gallotannins to the boiling wort, and would have been successful in meeting the stated goal of stabilizing the flavor of the fermented beverage.
Regarding the measurement of total staling aldehydes as the sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, in the low-alcohol beer being less than 800 µg/L, Gernat teaches that the staling aldehydes in four examples of alcohol-free beers total less than 200 µg/L (p. 210, Figure 11). It is noted that not all claimed staling aldehydes are measured in Gernat; Gernat measures 2-methylpropanal (2-MP), 2-methylbutanal (2-MB), 3-methylbutanal (3-MB), and 2-fufural (FF), but not methional and phenylethanol. However, Ferreira discloses methional as a Strecker aldehyde contributing cooked potato and worty off-flavors (p. 5, Table 3), and 2-phenylethanol (i.e., phenylethanol) as a higher alcohol “directly involved in the formation of off-flavor in the beer quality” (p. 7, ¶ 1). Looking to the instant disclosure, methional and phenylethanol contribute approximately 120 µg/L to the total staling aldehydes in the untreated control sample ([0033], Table 6). Therefore, Gernat and Ferreira teach measuring at least 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol as total staling aldehyde contributors. Considering the data from Gernat and the evidence from the instant specification, the claimed total staling aldehydes are shown to be controllable to a sum of at most about 320 µg/L, and since they are undesirable compounds known to contribute to off-flavors, one of ordinary skill in the art would have been motivated to reduce the staling aldehydes to an amount approaching zero.
MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages”, and “It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions.”
Because Foster as modified by Withouck teaches the addition of tannic acid during the boiling of the wort in preparing a low-alcohol beer with the aim of improving flavor stability by reducing the amount of staling aldehydes (Foster, [0029], [0070]), a change in form, proportion, or degree of adding the tannic acid to control the total staling aldehydes in the low-alcohol beer will not sustain a patent. Because Gernat and Ferreira, with evidence from the instant specification, teach an amount of total staling aldehydes in a range of alcohol-free beers of less than 320 µg/L, one of ordinary skill in the art would have found it obvious, before the effective filing date of the claimed invention, to adjust the amount of tannic acid of Foster by routine experimentation to achieve at most 320 µg/L of total staling aldehydes, measured as the sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, aiming for an amount approaching zero, with the goal of controlling off-flavors in the finished product. The disclosed range of less than 320 µg/L lies inside the claimed range of less than 800 µg/L.
For these reasons, claim 1 is rendered obvious.
Regarding claim 2, Foster, Withouck, Gernat, and Ferreira teach the method of claim 1 as described above.
Foster also teaches that the precipitation of the precursors or the inhibition of the reactions reduce a total amount of Strecker aldehydes in the low-alcohol beer when compared to an amount of Strecker aldehydes that form in the low-alcohol beer without adding the amount of tannic acid ([00111], Table 6). As described regarding claim 1 above, the addition of gallotannin to the fermentable product as disclosed necessarily results in the precipitation of the precursors or inhibition of the reactions that lead to formation of Strecker aldehydes. In a comparative tasting study, after 32 and 56 weeks of aging, between a beer to which a composition comprising gallotannin powder and a solid hop powder carrier was added during brewing and a control beer to which no such composition was added, Foster reports a “significant positive impact in reducing the development of several off-taste stale aldehydes in the aged beer” ([00109], [00111]. Table 6 ([00111]) shows that the Strecker aldehydes 3-methylbutanal and 2-methylbutanal were reduced in the test beer versus the control beer (after 32 weeks: -3.36% and -4.12%, respectively, and after 56 weeks: -2.64% and -4.70%, respectively). As 3-methylbutanal and 2-methylbutanal contribute to the claimed total staling aldehydes, Foster teaches that the total amount of Strecker aldehydes as claimed is reduced.
Claim 2 is therefore obvious.
Regarding claim 13, Foster, Withouck, Gernat, and Ferreira teach the method of claim 1 as described above.
The cited prior art does not discuss that the amount of methional is greater than the amount of phenylethanol in the low-alcohol beer.
However, MPEP § 2112.01(I) provides that when the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). ‘When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).”
Where the cited prior art teaches the claimed method steps, it is presumed that the properties of the resulting composition are present in the composition of the prior art. As evidenced by the instant specification, a low-alcohol beer produced by the claimed method exhibits a greater amount of methional than phenylethanol across 6 samples ([0033], Table 6, bottles 1-6). As such, one would expect that the low-alcohol beer produced by the method taught by the prior art likewise would have a greater amount of methional than phenylethanol as claimed.
Therefore, where claim 1 is obvious, so too is claim 13.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Foster et al. in view of Gernat et al. and Ferreira et al., and as evidenced by Yokogawa (Yokogawa Corporation of America, "Brewing Process," 2021, retrieved Apr. 2, 2021 from https://www.yokogawa.com/us/library/resources/application-notes/brewing-process/, 6 pages, cited on the IDS filed on 17 August 2022).
Regarding claim 3, Foster teaches a method of improving flavor stability (i.e., controlling off-flavors) in beer – “This invention provides compositions and methods for stabilizing the flavor of a fermented beverage made from a fermentable medium by adding a composition comprising a tannin and a solid carrier to the fermentable medium.” ([0029]). The fermented beverage can be beer ([0042]). The method comprising:
mashing an amount of malt in a container – This is part of the standard brewing process as disclosed by Foster; “The malt bill…is ground and mixed with 2.5-4 times its weight in warm water in large tubs and mashed…” ([0006]).
wherein the mashing introduces oxygen into the malt – it is reasonably understood that mashing introduces oxygen into the malt as there is no mention of using de-aerated or deoxygenated water in the method of Foster. As evidenced by Yokogawa, “…oxygen reacts with many compounds present in the mash, wort, and beer, which has an impact on the quality of the product…by far the largest uptake of oxygen comes from the brewing water (in mashing and sparging) which unless de-aerated will contribute around 30 ppm oxygen per kilo of malt mashed.” (p. 2, ¶ 5-6).
and adding an antioxidant to the container while mashing the amount of malt to form a mash – Foster discloses, “In one embodiment, the composition further comprises at least one antioxidative ingredient. Further, in this embodiment, the at least one antioxidative ingredient may be selected from the group consisting of antiradical enzymes, antioxidative amino acids, chelating agents, malt polyphenol fractions, and mixtures thereof.” ([0039]). Additionally, Foster teaches, “Tannins are to be used as an antioxidant and/or chelating agent for the fermentable medium applied thereto.” ([0075]). Foster teaches, “a process is described for mixing dry gallotannin powder with spent hop powder and/or malt fines/flour and water to form a 3-to-20 minute, slow dissolving pellet. The flavor stability pellet is then added to the malt mash-in vessel at the very start of the incoming water for the hydration of the malt at the mash-in process…” ([0047]).
separating the mash forming a wort – This is part of the standard brewing process as disclosed by Foster; “Lautering or mash filtration consists of the removal of the liquid, now termed ‘wort’, from the insoluble husks or ‘spent grains’.” ([0009]).
boiling the wort to yield a fermentable liquid – This is part of the standard brewing process as disclosed by Foster; “The wort is boiled vigorously for 1-2.5 hours in the brew kettle.” ([0010]). “After boiling, the wort is strained or spent through centrifugal action to remove the kettle break solids, or "trub," and the wort is then cooled to a temperature of about 12-16°C. Fermentation is initiated when the wort is pitched with the proper amount of a pure brewer's yeast culture” ([0012]). Hence, the boiled wort yields a fermentable liquid.
fermenting the fermentable liquid using a stop fermentation technique to yield the beer – “The method comprises adding a composition comprising a tannin and a solid carrier to a fermentable medium prior to fermentation in an amount effective to stabilize flavor and thereafter fermenting the medium to prepare a fermented beverage having a stable flavor.” ([0042]). “Non-alcoholic malt beverage (less than 0.5 volume percent alcohol) that closely simulates conventional beer flavor, taste and mouthfeel may be produced by a number of processes included arrested fermentation [i.e., “stop fermentation”], distillation of the beer alcohol, or beer ultrafiltration.” ([0015]).
Foster does not specifically teach that the antioxidant interacts with a first portion of the oxygen, and wherein a second portion of the oxygen that has not interacted with the antioxidant is inadequate to form a predetermined amount of Strecker aldehydes such that a measurement of total staling aldehydes in the beer, measured as a sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, is less than 800 µg/L.
However, Foster teaches, “the usage of the flavor stability pellet comprising gallotannin powder and a solid hop powder carrier in which the hop bitter resins were removed using super-critical CO2 extraction in mashing had a significant, positive impact in reducing the development of several off-taste stale aldehydes in the aged beer” ([00111]). Foster discloses, “The CDH hop polyphenols appeared to retard the ROS staling reactions in the malt mash by both antioxidative hydrogen abstraction and transition metal chelation.” ([00113]).
Gernat teaches that the staling aldehydes in four examples of alcohol-free beers total less than 200 µg/L (p. 210, Figure 11). It is noted that not all claimed staling aldehydes are measured in Gernat; Gernat measures 2-methylpropanal (2-MP), 2-methylbutanal (2-MB), 3-methylbutanal (3-MB), and 2-fufural (FF), but not methional and phenylethanol. However, Ferreira discloses methional as a Strecker aldehyde contributing cooked potato and worty off-flavors (p. 5, Table 3), and 2-phenylethanol (i.e., phenylethanol) as a higher alcohol “directly involved in the formation of off-flavor in the beer quality” (p. 7, ¶ 1). Looking to the instant disclosure, methional and phenylethanol contribute approximately 120 µg/L to the total staling aldehydes in the untreated control sample ([0033], Table 6). Therefore, Gernat and Ferreira teach measuring at least 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol as total staling aldehydes contributors. Considering the data from Gernat and the evidence from the instant specification, the claimed total staling aldehydes are shown to be controllable to a sum of at most about 320 µg/L, and since they are undesirable compounds known to contribute to off-flavors, one of ordinary skill in the art would have been motivated to reduce the staling aldehydes to an amount approaching zero.
MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages”, and “It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions.”
Since Foster discloses mashing the malt ([0006]), which introduces oxygen, as evidenced by Yokogawa (p. 2, ¶ 5-6), and that adding an antioxidant to the container while mashing ([0047]) reduces ROS staling reactions and has a positive impact in reducing the development of several off-flavor staling aldehydes in aged beer ([00111], [00113]), a change in form, proportion, or degree of adding the antioxidant to control the total staling aldehydes in the beer will not sustain a patent. Because Gernat and Ferreira, with evidence from the instant specification, teach an amount of total staling aldehydes in a range of alcohol-free beers of less than 320 µg/L, one of ordinary skill in the art would have found it obvious, before the effective filing date of the claimed invention, to adjust the amount of antioxidant of Foster by routine experimentation such that the antioxidant interacts with a first portion of the oxygen, and a second portion of the oxygen that has not interacted with the antioxidant is inadequate to achieve at most 320 µg/L of total staling aldehydes, measured as the sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, aiming for an amount approaching zero, with the goal of controlling off-flavors in the finished product. The disclosed range of less than 320 µg/L lies inside the claimed range of less than 800 µg/L.
For these reasons, claim 3 is rendered obvious.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Foster et al. in view of Gernat et al., and Ferreira et al. as applied to claim 3 above, and further in view of Borisenko et al. (RU 2294361 C1).
Regarding claim 4, Foster, Gernat, and Ferreira teach the method of claim 3 as described above.
The cited prior art does not teach that the antioxidant is ascorbic acid.
However, Borisenko teaches that adding 300-400 g/ton of ascorbic acid as an antioxidant to the mash increases the activity of hydrolytic enzymes of the mash, increases wort yield, improves filterability, and enhances the taste and colloidal stability of the beer (p. 2, ¶ 6-7).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate the addition of ascorbic acid as the antioxidant in Foster as disclosed by Borisenko. First, Foster teaches that “In one embodiment, the composition further comprises at least one antioxidative ingredient.” ([0039]), and “The flavor stability pellet is then added to the malt mash-in vessel at the very start of the incoming water for the hydration of the malt at the mash-in process…” ([0047]). Since Borisenko teaches that adding 300-400 g/ton of ascorbic acid as an antioxidant to the mash increases the activity of hydrolytic enzymes of the mash, increases wort yield, improves filterability, and enhances the taste and colloidal stability of the beer (p. 2, ¶ 6-7), one of ordinary skill in the art would have recognized that adding ascorbic acid to the mash as the antioxidant in the method of Foster would meet the stated goal of stabilizing the flavor of the fermented beverage.
Claim 4 is therefore rendered obvious.
Claims 5, 7, and 10-12 are rejected under 35 U.S.C. 103 as being unpatentable over Foster et al. in view of Withouck et al., Gernat et al., and Ferreira et al., and as evidenced by Yokogawa and Ferreira et al.
Regarding claim 5, Foster teaches a method of improving flavor stability (i.e., controlling off-flavors) in a nonalcoholic beer – “This invention provides compositions and methods for stabilizing the flavor of a fermented beverage made from a fermentable medium by adding a composition comprising a tannin and a solid carrier to the fermentable medium.” ([0029]). The fermented beverage can be beer ([0042]). “Non-alcoholic malt beverage (less than 0.5 volume percent alcohol) that closely simulates conventional beer flavor, taste and mouthfeel may be produced by a number of processes included arrested fermentation, distillation of the beer alcohol, or beer ultrafiltration.” ([0016]). The method comprising:
mashing a grist in a container – This is part of the standard brewing process as disclosed by Foster; “The malt bill…is ground [i.e., forming a grist] and mixed with 2.5-4 times its weight in warm water in large tubs and mashed…” ([0006]).
wherein mashing the grist introduces oxygen into the mash – it is reasonably understood that mashing introduces oxygen into the mash as there is no mention of using de-aerated or deoxygenated water in the method of Foster. As evidenced by Yokogawa, “…oxygen reacts with many compounds present in the mash, wort, and beer, which has an impact on the quality of the product…by far the largest uptake of oxygen comes from the brewing water (in mashing and sparging) which unless de-aerated will contribute around 30 ppm oxygen per kilo of malt mashed.” (p. 2, ¶ 5-6).
adding an antioxidant in the container while mashing the grist to form a mash – Foster discloses, “In one embodiment, the composition further comprises at least one antioxidative ingredient. Further, in this embodiment, the at least one antioxidative ingredient may be selected from the group consisting of antiradical enzymes, antioxidative amino acids, chelating agents, malt polyphenol fractions, and mixtures thereof.” ([0039]). Additionally, Foster teaches, “Tannins are to be used as an antioxidant and/or chelating agent for the fermentable medium applied thereto.” ([0075]). Foster teaches, “a process is described for mixing dry gallotannin powder with spent hop powder and/or malt fines/flour and water to form a 3-to-20 minute, slow dissolving pellet. The flavor stability pellet is then added to the malt mash-in vessel at the very start of the incoming water for the hydration of the malt at the mash-in process…” ([0047]).
separating the mash forming a wort – This is part of the standard brewing process as disclosed by Foster; “Lautering or mash filtration consists of the removal of the liquid, now termed ‘wort’, from the insoluble husks or ‘spent grains’.” ([0009]).
adding an amount of tannic acid (i.e., gallotannin ([0031]-[0032], [0073]-[0074])) to yield a fermentable liquid at the end of boiling the wort – “The method comprises adding a composition comprising a tannin and a solid carrier to a fermentable medium prior to fermentation in an amount effective to stabilize flavor and thereafter fermenting the medium to prepare a fermented beverage having a stable flavor. In this method, the tannin can be a gallotannin…the fermentable medium is wort and the composition is added to the wort before boiling of the wort.” ([0042]). “…the pellets [comprising the gallotannin composition] poured into the desired container or a part of the process, such as a mash tun vessel at start of mash or later to the brew kettle.” ([0083]).
and fermenting the fermentable liquid using a stop fermentation technique to yield the nonalcoholic beer – “The method comprises adding a composition comprising a tannin and a solid carrier to a fermentable medium prior to fermentation in an amount effective to stabilize flavor and thereafter fermenting the medium to prepare a fermented beverage having a stable flavor.” ([0042]). “Non-alcoholic malt beverage (less than 0.5 volume percent alcohol) that closely simulates conventional beer flavor, taste and mouthfeel may be produced by a number of processes included arrested fermentation [i.e., “stop fermentation”], distillation of the beer alcohol, or beer ultrafiltration.” ([0015]).
wherein the amount of tannic acid precipitates precursors or inhibits reactions that lead to the formation of Strecker aldehydes in the low-alcohol beer ([0042], [0085]) – This is seen as an inherent property of the tannic acid. Foster discloses that, “Generally, tannins are capable of binding to and precipitating proteins and various other organic compounds including amino acids [i.e., Strecker aldehyde precursors] and alkaloids.” ([0073]). Gallotannin is a chelating agent ([0075], [0092]), which sequesters divalent metal cations, thereby reducing their availability for reactions that produce Strecker aldehydes. As evidenced by Ferreira, “Strecker aldehydes can be produced from compounds by direct reaction with amino acids or via transition metal ion-catalysed oxidation of the Amadori compound.” (p. 4, ¶ 1 and Figure 1). See MPEP § 2112.01(I), which states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established.”
Foster does not specifically teach:
selecting a malt variety which forms a grist having an amount of total staling aldehydes that is controlled to be lower than a threshold amount that is based on grist with malt varieties that have not been selected to control the amount of total staling aldehydes.
that the antioxidant interacts with a first portion of the oxygen, and wherein a second portion of the oxygen that has not interacted with the antioxidant is inadequate to form a predetermined amount of Strecker aldehydes in the nonalcoholic beer.
that the amount of tannic acid is added during the boiling of the wort.
that a measurement of total staling aldehydes in the nonalcoholic beer, measured as a sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, is less than 800 µg/L.
However, regarding the selection of the malt variety, Foster teaches that staling aldehydes and stable adducts thereof are detrimental to flavor stability, and they may survive boil and fermentation and ultimately end up in packaged products ([0023]).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to select a malt variety that minimizes the potential for staling aldehyde-derived off-flavors in the final nonalcoholic beer. First, common sense dictates that in an effort to reduce staling aldehydes in the finished product, one of ordinary skill in the art would look to all steps of the process, including the selection of starting materials. Since Foster teaches that staling aldehydes and stable adducts thereof are detrimental to flavor stability, and that they may survive boil and fermentation and ultimately end up in packaged products ([0023]), one of ordinary skill would have recognized that selecting a malt variety low in staling aldehydes would help to reduce the amount of staling aldehydes that make it through the brewing process and contribute to off-flavors in the nonalcoholic beer by providing fewer staling aldehydes or staling aldehyde precursors to begin with. Intuitively, one of ordinary skill in the art would have known to make the selection by comparing malt varieties suitable for a given recipe, choosing those that are low in staling aldehydes and using proportions suitable for producing the desired style of beer while reducing the amount of staling aldehydes in the malt bill compared to a non-optimized malt bill. This limitation is therefore obvious.
Regarding the limitation that the antioxidant interacts with a first portion of the oxygen, and wherein a second portion of the oxygen that has not interacted with the antioxidant is inadequate to form a predetermined amount of Strecker aldehydes, MPEP § 2144.05(II)(A) states, "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages."
Since Foster discloses mashing the malt ([0006]), which introduces oxygen, as evidenced by Yokogawa (p. 2, ¶ 5-6), and that adding an antioxidant to the container while mashing ([0047]) reduces ROS staling reactions and has a positive impact in reducing the development of several off-flavor staling aldehydes in aged beer ([00111], [00113]), it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to optimize the amount of antioxidant to add by routine experimentation such that the antioxidant interacts with a first portion of the oxygen, and a second portion of the oxygen that has not interacted with the antioxidant is inadequate to form a predetermined amount of Strecker aldehydes, thereby achieving the desired result of controlling the off-flavors of the nonalcoholic beer.
Regarding adding the amount of tannic acid during the boiling of the wort, Withouck teaches that addition of gallotannins (i.e., tannic acid) 3 minutes before the end of wort boiling decreases sensitive proteins through precipitation by 54-70% (p. 15, col. 2, § 3.1.1, ¶ 1-2), and “regardless of the aging period, the gallotannin beers always received the lowest overall ageing score” (p. 16, col. 2, § 3.3, ¶ 2), where a lower score indicates a fresher-tasting beer (p. 15, col. 1, § 2.4), indicating improved flavor stability upon adding gallotannin during wort boiling.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the method of Foster with the teachings of Withouck to add the gallotannin composition to the wort during boiling. First, Foster discloses that “In another embodiment…the composition is added to the wort”, albeit before the boiling of the wort, and that “The composition may be added to the fermentable medium at any time prior to, or during the early stages of fermentation of the fermentable medium.” ([0090]). Since Withouck teaches that adding gallotannins to wort 3 minutes before the end of the boil has the benefit of producing beer with better aging scores (p. 16, col. 2, § 3.3, ¶ 2), one of ordinary skill in the art would have been motivated to add gallotannins to the boiling wort, and would have been successful in meeting the stated goal of stabilizing the flavor of the fermented beverage.
Regarding the measurement of total staling aldehydes as the sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, in the low-alcohol beer being less than 800 µg/L, Gernat teaches that the staling aldehydes in four examples of alcohol-free beers total less than 200 µg/L (p. 210, Figure 11). It is noted that not all claimed staling aldehydes are measured in Gernat; Gernat measures 2-methylpropanal (2-MP), 2-methylbutanal (2-MB), 3-methylbutanal (3-MB), and 2-fufural (FF), but not methional and phenylethanol. However, Ferreira discloses methional as a Strecker aldehyde contributing cooked potato and worty off-flavors (p. 5, Table 3), and 2-phenylethanol (i.e., phenylethanol) as a higher alcohol “directly involved in the formation of off-flavor in the beer quality” (p. 7, ¶ 1). Looking to the instant disclosure, methional and phenylethanol contribute approximately 120 µg/L to the total staling aldehydes in the untreated control sample ([0033], Table 6). Therefore, Gernat and Ferreira teach measuring at least 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol as total staling aldehydes contributors. Considering the data from Gernat and the evidence from the instant specification, the claimed total staling aldehydes are shown to be controllable to a sum of at most about 320 µg/L, and since they are undesirable compounds known to contribute to off-flavors, one of ordinary skill in the art would have been motivated to reduce the staling aldehydes to an amount approaching zero.
MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages”, and “It is a settled principle of law that a mere carrying forward of an original patented conception involving only change of form, proportions, or degree, or the substitution of equivalents doing the same thing as the original invention, by substantially the same means, is not such an invention as will sustain a patent, even though the changes of the kind may produce better results than prior inventions.”
Because Foster as modified by Withouck teaches the addition of tannic acid during the boiling of the wort in preparing a low-alcohol beer with the aim of improving flavor stability by reducing the amount of staling aldehydes (Foster, [0029], [0070]), a change in form, proportion, or degree of adding the tannic acid to control the total staling aldehydes in the low-alcohol beer will not sustain a patent. Because Gernat and Ferreira, with evidence from the instant specification, teach an amount of total staling aldehydes in a range of alcohol-free beers of less than 320 µg/L, one of ordinary skill in the art would have found it obvious, before the effective filing date of the claimed invention, to adjust the amount of tannic acid of Foster by routine experimentation to achieve at most 320 µg/L of total staling aldehydes, measured as the sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, aiming for an amount approaching zero, with the goal of controlling off-flavors in the finished product. The disclosed range of less than 320 µg/L lies inside the claimed range of less than 800 µg/L.
For these reasons, claim 5 is rendered obvious.
Regarding claim 7, Foster, Withouck, Gernat, and Ferreira teach the method of claim 5 as described above.
Foster also teaches that the precipitation of the precursors or the inhibition of the reactions reduces a total amount of Strecker aldehydes in the nonalcoholic beer when compared to an amount of Strecker aldehydes in the nonalcoholic beer that form without adding the amount of tannic acid ([00111], Table 6). As described regarding claim 5 above, the addition of gallotannin to the fermentable product as disclosed necessarily results in the precipitation of the precursors or inhibition of the reactions that lead to formation of Strecker aldehydes. In a comparative tasting study, after 32 and 56 weeks of aging, between a beer to which a composition comprising gallotannin powder and a solid hop powder carrier was added during brewing and a control beer to which no such composition was added, Foster reports a “significant positive impact in reducing the development of several off-taste stale aldehydes in the aged beer” ([00109], [00111]. Table 6 ([00111]) shows that the Strecker aldehydes 3-methylbutanal and 2-methylbutanal were reduced in the test beer versus the control beer (after 32 weeks: -3.36% and -4.12%, respectively, and after 56 weeks: -2.64% and -4.70%, respectively). As 3-methylbutanal and 2-methylbutanal contribute to the claimed total staling aldehydes, Foster teaches that the total amount of Strecker aldehydes as claimed is reduced.
Claim 7 is therefore rendered obvious.
Regarding claims 10 and 12, Foster, Withouck, Gernat, and Ferreira teach the method of claim 7 as described above.
Foster also teaches that after mashing the grist ([0006]), the method further comprises:
transferring the wort to a kettle – This is part of the standard brewing process as disclosed by Foster; “The clear wort is then pumped into a brewing kettle.” ([0009]).
and adding an amount of tannic acid (i.e., gallotannin ([0031]-[0032], [0073]-[0074])) to the wort in the kettle – “The method comprises adding a composition comprising a tannin and a solid carrier to a fermentable medium prior to fermentation in an amount effective to stabilize flavor and thereafter fermenting the medium to prepare a fermented beverage having a stable flavor. In this method, the tannin can be a gallotannin…” ([0042]). “…the pellets [comprising the gallotannin composition] poured into the desired container or a part of the process, such as a mash tun vessel at start of mash or later to the brew kettle.” ([0083]).
Foster does not specifically teach that the amount of tannic acid is added during the boiling of the wort (re: claim 10) at the end of a predetermined boiling time period of the wort (re: claim 12).
However, Withouck teaches that addition of gallotannins 3 minutes before the end of wort boiling decreases sensitive proteins through precipitation by 54-70% (p. 15, col. 2, § 3.1.1, ¶ 1-2), and “regardless of the aging period, the gallotannin beers always received the lowest overall ageing score” (p. 16, col. 2, § 3.3, ¶ 2), where a lower score indicates a fresher-tasting beer (p. 15, col. 1, § 2.4), indicating improved flavor stability upon adding gallotannin during wort boiling.
It would have been obvious for one of ordinary skill in the art, prior to the effective filing date of the claimed invention, to modify the method of Foster to add the gallotannin composition to the wort during boiling (re: claim 10), and at the end of a predetermined boiling time period of the wort (re: claim 12). First, Foster discloses that “In another embodiment…the composition is added to the wort”, albeit before the boiling of the wort, and that “The composition may be added to the fermentable medium at any time prior to, or during the early stages of fermentation of the fermentable medium.” ([0090]). Since Withouck teaches that adding gallotannins to wort 3 minutes before the end of the boil has the benefit of producing beer with better aging scores (p. 16, col. 2, § 3.3, ¶ 2), one of ordinary skill in the art would have been motivated to add gallotannins to the boiling wort, and would have been successful in meeting the stated goal of stabilizing the flavor of the fermented beverage.
Claims 10 and 12 are therefore rendered obvious.
Regarding claim 11, Foster, Withouck, Gernat, and Ferreira teach the method of claim 10 as described above.
Foster also teaches that the amount of tannic acid added is in a range of 2.0 g/HL to 4.0 g/HL of the wort – “The tannin is in the composition in a range from about 3 weight % to about 20 weight %, based on a total weight of the composition…” ([0076]). “In one embodiment, a composition comprising a tannin and a solid carrier is added to the fermentable medium in an amount ranging from 1 to 1500 parts per million (ppm) by weight.” ([0087]). As an example, assume that the tannin is in the composition at 20% weight, and the composition is dosed at 4.0 g/HL. For simplicity, also assume that the mass of 1 HL of the nonalcoholic beer is 100 kg, based on the density of water. The amount of tannin in the nonalcoholic beer is calculated as 0.2 x 4.0 g/HL x 1 HL/100 kg = 0.008 g/kg = 8 mg/kg, or 8 ppm. Therefore, the claimed range lies inside the disclosed range of 1-1500 ppm. “In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists”, MPEP § 2144.05(I). Furthermore, MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” Therefore, it also would have been obvious for one of ordinary skill in the art to optimize the amount of tannin to add by routine experimentation to achieve the desired result of controlling the off-flavors of the nonalcoholic beer.
For these reasons, claim 11 is rendered obvious.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Foster et al. in view of Withouck et al., Gernat et al., and Ferreira et al. as applied to claim 7 above, and further in view of Borisenko et al. (RU 2294361 C1).
Regarding claim 8, Foster, Withouck, Gernat, and Ferreira teach the method of claim 7 as described above.
Foster does not teach that the antioxidant is ascorbic acid, and wherein an amount of the ascorbic acid added to the container is dosed at a level of 3.75 g/kg to 4.6 g/kg of the grist in the container.
However, Borisenko teaches that adding 300-400 g/ton of ascorbic acid as an antioxidant to the mash increases the activity of hydrolytic enzymes of the mash, increases wort yield, improves filterability, and enhances the taste and colloidal stability of the beer (p. 2, ¶ 6-7).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate the addition of ascorbic acid as the antioxidant in Foster as disclosed by Borisenko. First, Foster teaches that “In one embodiment, the composition further comprises at least one antioxidative ingredient.” ([0039]), and “The flavor stability pellet is then added to the malt mash-in vessel at the very start of the incoming water for the hydration of the malt at the mash-in process…” ([0047]). Since Borisenko teaches that adding 300-400 g/ton of ascorbic acid as an antioxidant to the mash increases the activity of hydrolytic enzymes of the mash, increases wort yield, improves filterability, and enhances the taste and colloidal stability of the beer (p. 2, ¶ 6-7), one of ordinary skill in the art would have recognized that adding ascorbic acid to the mash as the antioxidant in the method of Foster would meet the stated goal of stabilizing the flavor of the fermented beverage.
Regarding the amount of ascorbic acid added to the container dosed at a level of 3.75 g/kg to 4.6 g/kg of malt in the container, Foster teaches that “The composition may be added to the fermentable medium in any amount effective to improve the flavor stability of the fermented beverage” ([0085]). Borisenko teaches that adding 300-400 g/ton of ascorbic acid to the mash increases the activity of hydrolytic enzymes of the mash, increases wort yield, improves filterability, and enhances the taste and colloidal stability of the beer (p. 2, ¶ 6-7).
However, using the conversion factor of 1 metric ton = 1000 kg, the dosage of Borisenko amounts to ascorbic acid dosed at 0.3-0.4 g/kg of malt. MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.”
Therefore, since Foster discloses that the composition may be added in any amount effective to improve the flavor stability of the fermented beverage, it would have been obvious for one of ordinary skill in the art to optimize the amount of ascorbic acid to add by routine experimentation to achieve the desired result of improving the flavor stability of the nonalcoholic beer, using the dosage of Borisenko as a starting point. As such, the claimed ascorbic acid dosage range of 3.75 g/kg to 4.6 g/kg of malt in the container would have been obvious.
For these reasons, claim 8 is rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 112:
Applicant has overcome the 35 U.S.C. § 112(a) rejections of claims 1-5, 7-8, and 10-12 based on amendment to the claims. Accordingly, the 35 U.S.C. § 112(a) rejections have been withdrawn.
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 21 November 2025 have been fully considered, but they are not persuasive.
Applicant first argued that several features in the pending claims are neither taught nor suggested, either expressly or inherently, in any of the cited references (p. 6, ¶ 5), namely that the claimed staling aldehydes are kept at less than 800 µg/L and that the type of fermentation is stop fermentation (pp. 6-7, bridging ¶). Applicant argued 1) that the rejection attempts to cite Applicant’s specification as prior art where no such admission of prior art has been made, and 2) one of ordinary skill in the art would not consider the references as a whole and arrive at the method of producing low-alcohol beer using stop fermentation that also has the recited list of staling aldehydes in an amount under 800 µg/L (p. 7, last ¶ – p. 8, ¶ 3).
Applicant’s argument has been considered, but it is not persuasive. Regarding item 1), the rejection does not cite Applicant’s specification as prior art, but rather points to data in the specification as evidence of the amounts of methional and phenylethanol that would be expected in a low-alcohol beer produced by stop fermentation. The rejection uses this information, in addition to the disclosures of Gernat and Ferreira to demonstrate that one of ordinary skill in the art would have had a reasonable expectation of success in reducing the amounts of the claimed staling aldehydes to an amount under the claimed 800 µg/L. Even without the data from the specification, and regarding item 2), Gernat and Ferreira teach that the claimed staling aldehydes contribute to off-flavors in beer, and are therefore undesirable. Foster as modified by Withouck teaches the addition of tannic acid during the boiling of the wort in preparing a low-alcohol beer with the aim of improving flavor stability by reducing the amount of staling aldehydes. The rejection states that it would have been obvious for one of ordinary skill in the art to adjust the amount of tannic acid of Foster by routine experimentation to achieve total staling aldehydes in an amount approaching zero.
Additionally, MPEP § 2112.01(I) provides that when the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). ‘When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.’ In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).”
Where the cited prior art teaches the claimed method steps, it is presumed that the properties of the resulting composition are present in the composition of the prior art. As evidenced by the instant specification, a low-alcohol beer produced by the claimed method exhibits a “total staling aldehydes in the low-alcohol beer, measured as a sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, is less than 800 µg/L” across 6 samples ([0033], Table 6, bottles 1-6). As such, one would expect that the low-alcohol beer produced by the method taught by the prior art likewise would have the total staling aldehydes in an amount less than 800 µg/L as claimed.
Applicant next argued that the cited art does not disclose or suggest an amount of methional of phenylethanol that overlaps or is close enough to an amount that could render obvious an amount of total staling aldehydes being under 800 µg/L. Applicant argued that Table 3 of Ferreira does not include phenylethanol, and discloses a flavor threshold of methional as 4200 µg/L, converted from 4.2 mg/L. Applicant argued that Ferreira is not directed toward making low- or non-alcoholic beer, and so would not be considered by one of ordinary skill in the art as relevant to the list of aldehydes in claim 1, which exist after a stop fermentation technique in a method of making low-alcohol beer (p. 8, ¶ 4).
Applicant’s arguments have been considered, but they are not persuasive. Ferreira discloses methional as a Strecker aldehyde contributing cooked potato and worty off-flavors (p. 5, Table 3), and 2-phenylethanol (i.e., phenylethanol) as a higher alcohol “directly involved in the formation of off-flavor in the beer quality” (p. 7, ¶ 1). Therefore, methional and phenylethanol are undesirable compounds and one of ordinary skill in the art would seek to reduce their presence in a beer product, as described in the rejection and in the response above, regardless of the alcohol content. It is also noted that the reference that Ferreira relied upon for the values in Table 3 (reference 19 of Ferreira, Saison et al.) reports the threshold values in ppb, i.e., µg/L, (see screenshot below). Therefore, the units of mg/L in Ferreira are incorrect. It is further noted that Table 3 was not relied on for the rejection of the claims, so this error does not affect the rejections.
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Applicant further argued that Gernat discloses that the flavor threshold amount of furfural is 18 times the claimed total amount of staling aldehydes (p. 9, ¶ 1). Applicant argued that Gernat shows aldehydes of beers produced by vacuum distillation and cold contact fermentation, neither of which processes equates to the claimed stop fermentation (p. 9, ¶ 2), and that different brewing techniques have different effects on the components in beer, including aldehydes (pp. 9-10, bridging ¶ ). Applicant asserted that given this knowledge, one of ordinary skill in the art would not consider the combination of references and think to arrive at the claimed series of steps, let alone the claimed steps which result in a low-alcohol beer where “a measurement of total staling aldehydes in the low-alcohol beer, measured as a sum of an amount of 2-methylpropanal, 2-methylbutanal, 3-methylbutanal, 2-furfural, methional, and phenylethanol, is less than 800 µg/L”, as recited in claim 1 (p. 10, ¶ 2). Applicant argued that Foster and Withouck do not remedy the deficiencies of Ferreira and Gernat, thus, the claims are patentable over the cited prior art (p. 10, ¶ 3).
Applicant’s arguments have been considered, but they are not persuasive. The Examiner recognizes that the data presented in Fig. 11 of Gernat are from alcohol-free beers produced by vacuum distillation and cold contact fermentation, and that stop/arrested fermentation is a different technique. The rejection uses the cold contact fermentation data from Gernat in the calculation of the amount of staling aldehydes in low-alcohol/nonalcoholic beer because cold contact fermentation is more similar to stop/arrested fermentation than is vacuum distillation. Moreover, regardless of the method used, it still stands that staling aldehydes are demonstrated to be undesirable compounds in the cited prior art, and one of ordinary skill in the art would have been motivated to reduce the amount of staling aldehydes in the final beer product to an amount approaching zero. The data from Gernat are intended to demonstrate that it is known in the art that achieving low levels of staling aldehydes in a low-alcohol/nonalcoholic beer is possible. Foster uses the approach of adding gallotannin and antioxidants to the mash and/or wort to reduce the amount of staling aldehydes in the final product. One of ordinary skill in the art would have had a reasonable expectation of success in controlling the degree of reduction of the amount of staling aldehydes by increasing the amount of gallotannin/antioxidant such that a minimal amount of staling aldehydes are present in the final product.
For at least these reasons, Applicant’s arguments are not found to be persuasive. Accordingly, the 35 U.S.C. § 103 rejections of claims 1-5, 7-8, and 10-12 are maintained.
Conclusion
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.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793