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 .
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.
Claims 11-14 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent No. 5,384,135 (Caluwaerts).
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Caluwaerts teaches providing a fermented liquid in the form of HM beer that is subjected to decarbonization (i.e., col. 4, lines 1-18). The beer is a lager type pale ale, thus, it would have been obvious that the to use a lager with at least 1.5% (i.e., 15mg/g) ethanol and volatile flavors.
The HM beer is subjected to decarbonation where carbon dioxide , ethanol and flavors are removed (col. 3, lines 10-15). Caluwaerts does teach what is considered alcohol-free and low-alcohol can vary by country (col. 1, lines 20-30). The legal definitions of a "low-alcohol" or "alcohol-free" beer, or at least one which is generally accepted, varies from one country to another. A low alcohol beer is for example defined in Germany as a beer assaying 0.5-1.5% (i.e., 5-15 mg/g which touches on applicant’s ranges) by weight of ethanol, and an alcohol-free beer as a beer assaying less than 0.5% ethanol. It would have been obvious to one skilled in the art to vary the amount of ethanol present in the final beverage and that removed during the process based on country standards and desired final alcohol content.
A distillation with the ethanol is extracted and recovered. The distillation would naturally contain flavor components and dilution is obtained and combined with water (col. 3, lines 15-19 and col. 3, lines 30-35).
The distillation can be carbonated and supplemented with sucrose (col. 4, lines 55-58 and col. 3, lines 52-60). The ratio of dilution of the concentrate with water for dilution is determined following organoleptic tests so that the finished product assays 4.0 Brix (i.e., up to 960mg/g water) (col. 3, lines 20-30). As to the water content, would have been obvious that the remainder would be water and would vary based on the desired amounts of flavor ingredients and final brix. Moreover, it would have been obvious to vary the level of carbonation based on the desired flavor profile and fizziness.
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As to claims 12-14, Caluwaerts teaches proving a fermented liquid in the form of HM beer prior to dealcoholization (i.e., col. 4, lines 1-18). A decarbonation stage at a pressure of 0.06-0.1 bar (i.e., 60 to 100mbar), during which a portion of the ethanol and the flavor compounds are entrained by CO2 and partially condensed. The temperature is 50-550C (col. 3, lines 10-20).
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over United States Patent No. 5,384,135 (Caluwaerts) in view of United States Patent Application Publication No 2015/0017280 (VANDERHAGEN).
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At the outset, it is noted that 0-4 mg/g starch hydrolysis indicates that no starch hydrolysis is required (i.e., 0 means non need be present).
Caluwaerts teaches proving a fermented liquid in the form of HM beer prior to dealcoholization (i.e., col. 4, lines 1-18). The beer is a lager type pale ale, thus, it would have been obvious that the to use a lager with at least 1.5% (i.e., 15mg/g) ethanol and volatile flavors.
The HM beer is subjected to decarbonation where carbon dioxide , ethanol and flavors are removed (col. 3, lines 10-15).
A distillation with the ethanol would naturally contain flavor components and dilution is obtained and combined with water (col. 3, lines 15-19 and col. 3, lines 30-35).
Non-volatile components are optional (i.e., 0 means non need be present).
The distillate can be carbonated (col. 4, lines 55-58).
The ethyl acetate, isoamyl acetate and C3-C5 alcohols are naturally present given HM beer (i.e., a similar starting material is used and decarbonized). The ratio of dilution of the concentrate with water for dilution is determined following organoleptic tests so that the finished product assays 4.0 Brix (i.e., up to 960mg/g water) (col. 3, lines 20-30). As to the water content, it would have been obvious that the remainder would be water and would vary based on the desired amounts of flavor ingredients.
However, the actual amount of ethyl acetate, isoamyl acetate and C3-C5 alcohols are not taught.
VANDERHAGEN teaches ethyl acetate [0040] isoamyl acetate [0035] and C3-C5 alcohols (i.e., in the form of propanol [0041]) are flavor components of beer.
It would have been obvious to add ethyl acetate, isoamyl acetate and propanol , as they are known flavor components. Given they contribute to the flavor, it would have been obvious to vary their amounts to vary the flavor of the composition.
Response to Arguments
Applicant's arguments filed 3/5/2025 have been fully considered but they are not persuasive.
The applicant argues that the claimed process is tailored for the production of an alcoholic beverage—that is, one comprising 15-60 mg/g ethanol. The applicant argues that Caluwaerts concerns the production of a non-alcoholic beverage.
The applicant also argues that the process distinctions are also non-obvious. It is argued that Caluwaerts teaches to reintroduce an aqueous flavour solution that is obtained during decarbonation into a dealcoholized beer, but without the alcohol. So the solution is alcohol-free and is directly added back to the dealcoholized beer.
However, as noted above, the Caluwaerts beer is subjected to decarbonation where carbon dioxide , ethanol and flavors are removed (col. 3, lines 10-15). Caluwaerts teaches what is considered alcohol-free and low-alcohol can vary by country (col. 1, lines 20-30). The legal definitions of a "low-alcohol" or "alcohol-free" beer, or at least one which is generally accepted, varies from one country to another. A low alcohol beer is for example defined in Germany as a beer assaying 0.5-1.5% (i.e., 5-15 mg/g which touches on applicant’s ranges) by weight of ethanol, and an alcohol-free beer as a beer assaying less than 0.5% ethanol. It would have been obvious to one skilled in the art to vary the amount of ethanol present and removed in the process based on country standards and desired final alcohol content.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791