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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Claim 8 withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention, there being no allowable generic or linking claim. Applicant timely traversed the restriction (election) requirement in the reply filed on 06/27/2025.
Applicant's election with traverse of claims 1-7 in the reply filed on 06/27/2025 is acknowledged. The traversal is on the following grounds:
However, as provided at 37 C.F.R. § 1.475(b), a national stage application containing claims to different categories of invention can be considered to have unity of invention if the claims distinguishable over prior art are drawn only to a combination of (1) a product and a process specially adapted for the manufacture of said product. The pending claims are drawn to this category of invention. Accordingly, upon allowance of Group I (claims 1-7, drawn to a product), rejoinder is requested of Group II (claim 8, drawn to a process specially adapted for the manufacture of the product).
This is not found persuasive for the reasons as stated in the Restriction requirement mailed 05/15/2025. The inventions lack unity of invention because even though the inventions of these groups require the technical feature of a beer-taste beverage comprising 0.40 to 1.5 (v/v)% of ethanol and 5.8 (w/w)% or less of maltose, and having a pH value of 2.6 or more and less than 4.3, this technical feature is not a special technical feature as it does not make a contribution over the prior art in view of the references as cited in the Written Opinion for the Internation Search Authority for PCT/JP2021/016206. It is further noted that instant claims 1-7 have not been found allowable.
The requirement is still deemed proper and is therefore made FINAL.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Vanderhaegen (US 2019/0270954 A1) in view of Shinsuke (JP JP2012239460).
In regard to claims 1-3, Vanderhaegen discloses “low alcohol or alcohol free fermented malt based beverage, such as beer having a flavour profile very close to regular lager beer” ([0001]). In regard to the recitation of alcohol/ethanol content, Vanderhaegen discloses “[t]he fermented malt based beverage of the present invention has an alcohol content of not more than 0.7 vol. %, and may even have alcohol contents of not more than 0.1 vol. % or even 0.05 vol. % with a flavour profile which preferably remains very close to normal lager beer” ([0028]).
Vanderhaegen discloses beers obtained by the present invention (Ex1 to Ex13) ([0039], Table 1). The maltose content values for the beers of the present invention (Ex1 to Ex13) rae 0.38, 0.83, 0.48, 0.73, 0.38, 0.75, 0.74, 0.57, 0.70, 0.73, 0.58 and 0.67 g/100 ml.
Vanderhaegen discloses a low alcohol or alcohol free fermented malt based beverage, such as beer having a flavour profile very close to regular lager beer ([0001]). Vanderhaegen does not disclose the pH of the beverage. However, it is inferred that the pH of the beverage should be such as a low alcohol or alcohol free fermented malt based beverage resemblance the flavor profile of the regular lager beer.
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In regard to claims 1-3, Vanderhaegen does not disclose the specific pH values for the beer-taste beverage. Shinsuke discloses:
A method for producing a low alcohol fermented malt beverage characterized by adding an organic acid so that the final product has a pH of 3.5 to 4.4 at any point in the production process, wherein the organic acid is phosphorus In the method for producing a low alcohol fermented malt beverage as described above, which is at least one selected from the group consisting of acid, lactic acid, tartaric acid, malic acid, citric acid, phytic acid, gluconic acid, and acetic acid (Abstract of the machine translation).
Shinsuke discloses that there is a need in low-alcohol beer and non-alcohol beer having a flavor profile very close to regular lager (Description paragraph 2 of the machine translation):
In recent years, consumer needs for low-alcohol beer and non-alcohol beer with low alcohol concentration while having the same taste as beer are increasing. These low-alcohol beers generally have the same taste as beer except for the alcohol concentration because they are drunk as a substitute for beer when beer with a high alcohol concentration cannot be drunk. Is preferred. For this reason, development of the low alcohol beer which has the taste more equivalent to beer is desired.
Shinsuke discloses that adjusting pH to between 3.5 and 4.4 leads to a good balance between the sweetness from unfermentable sugars and sourness from organic acids:
By adjusting the pH of the final product to 3.5 to 4.4 using an organic acid, a good balance between the sweetness derived from a large amount of non-fermentable carbohydrates and the sourness derived from the organic acid was maintained. As a result, a low alcohol fermented malt beverage having an excellent taste and flavor similar to beer can be produced. When the pH of the final product is lower than 3.5, the acidity derived from the organic acid becomes excessive, and the flavor balance may be impaired (Description, machine translation):
Shinsuke discloses that adjusting pH below 4.4 leads to inhibiting growth of undesired microorganisms and improved storage stability:
In addition, the low alcohol fermented malt beverage has a problem that microorganisms are easier to propagate than the alcohol fermented malt beverage having a relatively high alcohol concentration. In the method for producing a low alcohol fermented malt beverage of the present invention, the pH of the final product is adjusted to 4.4 or lower. Therefore, the obtained low alcohol fermented malt beverage is difficult for microorganisms to propagate and has excellent storage stability (Description, machine translation):
Both references describe the need in low alcoholic or non-alcoholic fermented malt beverage having a flavor profile that resembles regular beer. One of ordinary skill in the art would have been motivated to modify Vanderhaegen in view of Shinsuke and to adjust the pH of the beer-taste beverage between 3.5 to 4.4 in order to obtain a beverage having a flavor profile that resembles regular beer, to obtain good balance between the sweetness from unfermentable sugars and sourness from organic acids, and also to inhibit growth of undesired microorganisms and improve storage stability as suggested by Shinsuke.
Claim 4 recites the limitations of “mugi-derived ingredient”. According to the instant specification, mugi refers to grains such as barley, wheat, rye, wild oats, oats, adlay, or Avena sativa ([0043] of PGPUB US 20230174906 A1). In regard to claim 4, Vanderhaegen discloses barley ([0036], [0037)].
In regard to claim 5, Vanderhaegen discloses addition of hops during wort boiling ([0029], [0038]).
In regard to claim 6, Vanderhaegen discloses “[t]he fermented malt based beverage of the present invention has an alcohol content of not more than 0.7 vol. %”. Hence, Vanderhaegen discloses ethanol/alcohol. Ethanol/alcohol could also be obtained by distillation. In this case the claim is directed to a product/composition comprising ethanol/alcohol, not the process of obtaining ethanol. The particular process for production of ethanol would not impart any patentable distinction to a composition/product.
In regard to claim 7, Shinsuke discloses:
A method for producing a low alcohol fermented malt beverage characterized by adding an organic acid so that the final product has a pH of 3.5 to 4.4 at any point in the production process, wherein the organic acid is phosphorus In the method for producing a low alcohol fermented malt beverage as described above, which is at least one selected from the group consisting of acid, lactic acid, tartaric acid, malic acid, citric acid, phytic acid, gluconic acid, and acetic acid (Abstract of the machine translation).
Conclusion
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/VERA STULII/ Primary Examiner, Art Unit 1791