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 .
Claim Objections
Claim 1 is objected to because of the following informalities: Claim 1 recites “non-fermental” instead of “non-fermented”. Appropriate correction is required.
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.
Claims 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Takagi WO 2009/078360 (hereafter referred to as Takagi, WIPO translation used for reference herein), Schuh USPGPub 20160073673 (hereafter referred to as Schuh) and Teranishi USPGPub 20140328993 (hereafter referred to as Teranishi).
Regarding claim 1, Takagi teaches a beer taste beverage comprising [0013]
1.3 mg/L or more maltol
0.5 mg/L or more furaneol
Takagi includes embodiments in which the beverage is produced without a fermentation step. [0044]
Takagi is silent regarding the content of β-damascenone and the caloric content of the beer taste beverage disclosed.
Schuh teaches that β-damascenone can impart a fruity aroma to beverages and can be employed in beer beverages in a quantity of 0.0002-0.01 mg/L and whiskey in a quantity of 0.001-0.1 mg/L. ([0073], Table 4A) Schuh also teaches that a consumer can add additional quantities of the flavor/aroma compounds disclosed to alter the flavor and/or aroma of the beverage. [0061]
Takagi and Schuh are both directed towards beer flavored beverages. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have ensured a β-damascenone concentration sufficient to impart a desired quantity of fruity flavor as taught by Schuh in the beer taste beverage of Takagi. While Schuh teaches proportions of β-damascenone for beer slightly lower than those claimed, Schuh recognizes that the concentrations of the components disclosed can be optimized depending on the flavor/aroma desired in the beverage and that higher quantities can be utilized in the final beverages produced. As such, it would have been obvious to one of ordinary skill in the art at the time the application was filed to have optimized the proportion of β-damascenone in Takagi depending on the fruity flavor properties desired. As such, the proportion of β-damascenone recited in claim 1 is merely an obvious variant of the prior art.
Teranishi teaches a beer taste beverage. [0077] Teranishi teaches that for low calorie beer taste beverages, the caloric density is preferably 5.0 kcal/100 mL or less. [0102]
Takagi and Teranishi are both directed to beer taste beverages. It would have been obvious to one of ordinary skill in the art at the time the application was filed to have controlled the caloric content of the beer taste beverage of Teranishi to be 5.0 kcal/100 mL or less in order to produce a low-calorie beer taste beverage.
The proportions of maltol, furaneol and β-damascenone and the caloric density in the modification of Takagi with Schuh and Teranishi overlap or encompass the proportions recited in claim 1. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art" a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP 2144.05 I)
Therefore, the modification of Takagi with Schuh and Teranishi renders obvious the limitations of claim 1.
Regarding claims 2-4, applicant’s specification defines the recitations of no artificial flavor, artificial sweetener or sweetener, as precluding these ingredients when they are added with “a special intent” or “a specific intention”. ([0031,0033,0035] of applicant’s specification) Given that it is not possible to determine the intention of an ingredient in a composition, these recitations are product-by-process limitations that define the claimed beverage by the intention of the beverage producer. Takagi encompasses embodiments where artificial flavor, artificial sweetener or sweetener are not added with intention and therefore the modification of Takagi with Schuh and Teranishi renders obvious the invention of claims 2-4.
Regarding claims 5 and 6, Takagi teaches what has been recited above but is silent regarding the protein and fat content of the beer taste beverage disclosed.
Teranishi teaches that the caloric contribution of protein is 4 kcal/g protein and for fat the contribution is 9 kcal/g. [0103]
Given that it would have been obvious to limit the caloric density of the beer taste beverage of Takagi, it would have been obvious to one of ordinary skill in the art at the time the application was filed to have limited the amount of fat and protein in the beer taste beverage of Takagi in order to achieve an appropriate caloric density for a low-calorie beer taste beverage. As such, the proportions of fat and protein recited in claims 5 and 6 is merely an obvious variant of the prior art.
Regarding claim 7, Takagi is silent regarding the carbon dioxide content of the beer taste beverage.
Teranishi teaches a beer taste beverage having a carbon gas pressure 4.0 kg/cm2 or less.
It would have been obvious to one of ordinary skill in the art at the time the application was filed to have optimized the pressure of carbon dioxide gas in the beer taste beverage of Takagi to have a pressure of 4.0 kg/cm2 or less since this range is disclosed Teranishi to be suitable and it would be obvious to adjust the CO2 gas content depending on the effervescence desired. Therefore, the carbon dioxide gas pressure recited in claim 7 is merely an obvious variant of the prior art.
Response to Arguments
Applicant's arguments filed 26 November 2025 have been fully considered but they are not persuasive.
Applicant asserts on pages 2-4 of the remarks that because Takagi discloses fermented embodiments, the explicit disclosure of a non-fermented embodiment is not relevant to the instantly pending claims. However, “A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments. Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989)”. (MPEP 2123) As such, applicant’s assertion is not found persuasive.
Applicant asserts on pages 4-5 of the remarks that Takagi cannot achieve the maltol content claimed because Takagi includes examples that do not have the claimed maltol content of 0.15-0.80 mg/L. The instantly pending claims do not recite this range of maltol content. Instead, the instant claims recite a maltol content of 0.05-8.00 mg/L. Nonetheless, applicant’s calculations based on dilution of the examples of Takagi are not relevant as they do not address the merits of the rejection which relied on the explicit disclosure of a maltol content of 1.3 mg/L or greater, or roughly 1.3 ppm or greater. As such, this assertion is not found persuasive in light of the explicit disclosure of a maltol content of 1.3 mg/L or greater.
Applicant again argues that the fermentation step of Takagi is essential on page 5 of the remarks, however, even if this argument were found persuasive, the recitation that the beverage is non-fermented is merely a product-by-process limitation that does not add any materially distinguishing characteristics to the claims because it would not be possible to determine if the beverage of Takagi had been fermented or was merely the result of blending components found in fermented beverages. As such, applicant’s arguments are not found persuasive.
Conclusion
THIS ACTION IS MADE FINAL. 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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/Michele L Jacobson/Primary Examiner, Art Unit 1793