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 Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-5 are rejected under 35 U.S.C. 103 as being unpatentable over English translation Matsubayashi(WO-2009104660A1) in view of full English translation of JP 2016-013115(provided by the office).
Regarding claims 1,4, Matsubayashi teaches a packaged carbonated beverage having
A content of carbon dioxide(example 4, beverage contains carbonated water)
A pH of 3.0 to 4.5(p.8, 6th full paragraph)
An alcohol content of greater than 9v/v%(p.4)
Sodium and potassium content(p.6, 4th full paragraph, potassium and sodium malate).
An acidity of 0.655g/100ml(example 8)
Matsubayashi is silent on the pressure of the carbon dioxide gas, the sodium content and weight ratio of potassium content to sodium content.
However, JP ‘115 teaches a packaged alcoholic carbonated beverage having
A carbon dioxide gas pressure of from 0.8 to 3.5kgf/cm^2(claim 3)
A sodium content of 0.03 to 1.1g/L(3 to 110mg/100ml)(claim 1)
A molar ratio of sodium content of (Na/K) of 0.5 to 60(claim 1), which equates to a molar ratio of 2 to 0.017(1/0.5 to 1/60) for K/Na. This further equates to a weight ratio of K/Na of 0.03 to 3.39(K molar mass of 39g/mol and Na has molar mass of 23g/mol).
JP ‘115 teaches that the carbonated beverage has an enhanced alcohol taste with “a complex taste composed of sweetness, bitterness, complex taste, weight, irritation, and the like peculiar to alcoholic beverages when drinking alcoholic beverages”( p.2, 1st full paragraph).
It would have been obvious to modify Matsubayashi to have a carbon dioxide gas pressure of from 0.8 to 3.5kgf/cm^2, a sodium content of 0.03 to 1.1g/L(3 to 110mg/100ml), and a weight ratio of K/Na of 0.03 to 3.39 as taught in JP ‘115 in order to provide an enhanced alcohol taste with “a complex taste composed of sweetness, bitterness, complex taste, weight, irritation, and the like peculiar to alcoholic beverages when drinking alcoholic beverages.”
Matsubayashi teaches forming the beverage by adjusting the acidity(in terms of citric acid) of the beverage to be 0.655mg/100ml(example 8). As stated above, it would have been obvious to adjust the sodium content and weight ratio of potassium content to sodium content of the beverage in view of JP ‘115.
Regarding claim 2, Matsubayashi does not specifically teach a fruit juice content of 0 to 9w/w% but also states that “the amount of fruit juice or fragrance is not limited”(p.7,2nd full paragraph). Therefore, it would have been obvious to adjust the amount of fruit juice depending on the amount of fruit flavor desired.
Regarding claims 3,5, Matsubayashi teaches the presence of potassium ions such as potassium chloride but does not require the use of potassium citrate(p.7, 1st full paragraph). Therefore, it would have been obvious to use another form of potassium salt such as potassium chloride, which renders obvious a concentration of 0mg/100ml potassium citrate(i.e. less than 20mg/100ml as claimed).
Response to Arguments
Applicant's arguments filed 4/13/2026 have been fully considered but they are not persuasive.
The applicant argues that it would not have been obvious to combine Matsubayashi with JP ‘3115 since Matsubayashi has an alcohol content of greater than 9v/v% and JP ‘3115 has a lower alcohol content of at most 3%. However, Matsubayashi teaches that the benefit of the carbon dioxide and Na/K content is to provide an enhanced alcohol taste with “a complex taste composed of sweetness, bitterness, complex taste, weight, irritation, and the like peculiar to alcoholic beverages when drinking alcoholic beverages.” Therefore, one of ordinary skill in the would still combine the references to enhance the alcohol taste of Matsubayashi, particularly if such taste was desired.
While JP ‘3115 may prefer a lower alcohol content, it does not show that a higher alcohol would not produce the enhanced alcohol taste effect. In fact, at 3%, the beverage still rated as “liquor flavor is somewhat perceived”(see table 3).
The applicant argues that Matsubayashi teaches a higher fruit juice content and does not teach 0 to 9w/w% as claimed. However, Matsubayashi also states that “the amount of fruit juice or fragrance is not limited”(p.7,2nd full paragraph). Therefore, it would have been obvious to adjust the amount of fruit juice depending on the amount of fruit flavor desired.
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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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791
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