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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on June 3, 2026 has been entered.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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 1, 14-15, 42-43, 63-64, and 67-68 are rejected under 35 U.S.C. 103 as being unpatentable over Festersen et al. US 2007/0148741 in view of Dr. Lambic “Tannins in Sour Beer” <https://www.sourbeerblog.com/tannins-in-sour-beer/> (published August 2, 2015) (herein referred to as “Dr. Lambic”), Aerts et al. US 2007/0254063, and Cuevas et al. US 2018/0163191 (cited on Information Disclosure Statement filed February 6, 2023).
Regarding Claim 1, Festersen et al. discloses a method for production of a brewer’s wort (‘741, Paragraph [0057]) mashing a grist comprising sorghum (‘741, Paragraph [0057]) in the presence of an exogenously supplied enzyme composition (‘741, Paragraph [0058]) comprising a tannin (polyphenol) enzyme to provide the brewer’s wort (‘741, Paragraph [‘741, Paragraphs [0027] and [0035]). Festersen et al. also discloses steeping by mixing the barley kernels with water then germinating the wet barley by maintaining at a suitable temperature and humidity level until adequate modification, i.e. degradation of the starch and activation of enzymes has been achieved wherein low temperature kilning is more appropriate for malts when it is essential to preserve enzymatic activity (‘741, Paragraph [0024]) and that the mashing process is conducted over a period of time at various temperatures to activate the endogenous malt enzymes responsible for the degradation of proteins and carbohydrates (‘741, Paragraph [0025]). Although Festersen et al. does not explicitly disclose the enzyme composition retaining at least 80% catalytic activity after incubation in a 2 mg/mL catechin solution measured by a turbidity cross linking assay, Festersen et al. establishes that adjusting the temperature at which the wet barley is germinated and adjusting the kilning temperature influences the enzymatic activity. Differences in the catalytic activity of the enzyme composition after incubation in a catechin solution will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such catalytic activity of the enzyme composition is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Further regarding Claim 1, Festersen et al. is silent regarding the grist comprises at least 130 µM CAE per gram of grist in the presence of the exogenously supplied enzyme composition and the tannin uninhibited raw starch degrading α-amylase having at least 98% sequence identity to SEQ ID NO:2 or an amylase active fragment thereof to provide the brewer’s wort.
Dr. Lambic discloses a highly attenuated sour beer of gueuze comprising tannins adding structure and fullness to the body and mouthfeel of a sour beer as well as a dryness in the finish which are characteristic to the style (Dr. Lambic, Page 3) wherein flanders reds and a wide range of fruit sour beers also have moderate to high tannin content wherein flanders red tannins are extracted from wood during the beer’s long aging in oak or chestnut barrels whereas fruit sours like wine derive tannins directly from the skins and seeds of the fruit being added (Dr. Lambic, Page 4) wherein hydrolysable tannins are fairly large molecules which comes bound to sugar groups and produce a softer bitterness and astringency which is desirable in many sour beers which tannins occur in high concentration in oak and chestnut woods (Dr. Lambic, Pages 4-5) wherein tannins are extracted from grain during mashing (Dr. Lambic, Page 2). Aerts et al. discloses a method for brewing beer comprising the addition of polyphenol rich extracts prepared from hops at specific steps during or after the brewing process to enhance the mouthfeel, reducing power, and stability of the beer (‘063, Paragraph [0002]) comprising tannins (gallotannins) (‘063, Paragraph [0155]) wherein the content of different polyphenolic components is expressed as mg/100 g hop product except for procyanidin B3 and prodelphinidin B3 which are expressed in mg per 100 g hop product as catechin equivalents (‘063, Paragraph [0203]) wherein polyphenol extracts impart varying sensory impressions to beer depending on the varietal origin wherein the addition of total hop polyphenol extract affects the sensory properties of bitterness, fullness, astringency, and stickiness (‘063, Paragraph [0117]).
Festersen et al. discloses a method of making any type of beer (‘741, Paragraph [0063]). Festersen et al., Dr. Lambic, and Aerts et al. are all directed towards the same field of endeavor of methods of producing beer. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of tannin associated with sour beers as taught by Dr. Lambic based upon the type of beer desired to be made as well as to adjust the structure and fullness to the body and mouthfeel and the desired dryness in the finish characteristic to the desired style of beer (Dr. Lambic, Page 3). Additionally, although Aerts et al. does not explicitly disclose the grist comprising the claimed concentration of CAE per gram of grist, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of CAE per gram of grist of modified Festersen et al. and adjust said concentration to the claimed amounts since differences in concentration of catechins in the grist will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of catechins in the grist is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Aerts et al. establishes that polyphenols such as tannins imparts varying sensory impressions to the beer such as bitterness, fullness, astringency, and stickiness. One of ordinary skill in the art at the time of the invention would adjust the catechin concentration in the grist of modified Festersen et al. based upon the desired bitterness, fullness, astringency, and stickiness levels as suggested by Aerts et al.
Further regarding Claim 1, Festersen et al. discloses steeping barley kernels with water to activate the metabolic processes of the dormant kernel at a suitable temperature until adequate modification using degradation of starch and activation of enzymes wherein the temperature regime in the kiln and amount of enzymes which survive for use in the mashing process determines the color of the barley malt wherein low temperature kilning is more appropriate for malts when it is essential to preserve enzymatic activity (‘741, Paragraph [0024]) wherein the mashing process is conducted over a period of time at various temperatures in order to activate the endogenous malt enzymes responsible for the degradation of proteins and carbohydrates (‘741, Paragraph [0025]) wherein traditional lager beer has often been brewed using a step infusion method which is a mashing procedure involving a series of rests at various temperatures each favoring one of the necessary endogenous enzyme activities comprising preparing two separate mashes utilizing a cereal cooker for boiling adjuncts and a mash tun for well modified, highly enzymatically active malts (‘741, Paragraph [0026]) wherein the mash contains tannins (‘741, Paragraph [0028]) and the enzyme is alpha amylase (‘741, Paragraph [0025]). The disclosure of a mash containing well modified, highly enzymatically active malts reads on the claimed uninhibited raw starch degrading α-amylase.
Further regarding Claims 1 and 42, Festersen et al. modified with Dr. Lambic and Aerts et al. is silent regarding the tannin uninhibited enzyme being a raw starch degrading enzyme having at least 98% sequence identity to SEQ ID NO:2 or an amylase active fragment thereof. Claims 1 and 42 contemplates wherein the alpha amylase is represented by the polypeptide sequence set forth in SEQ ID NO: 2.
Cuevas et al. teaches an alpha amylase variant sharing 100% identity relative to SEQ ID NO: 2 (see sequence alignment below). It should be noted that the sequence depicted in the alignment below is described in Example 4 of Cuevas et al. In Example 4, Cuevas et al. specifically teaches a Cytophaga alpha amylase; namely C16E-AY-Y301A, comprising S360A/R375Y mutations. These are highlighted in the sequence alignment. Introducing these mutations into parent sequence of Cuevas et al. (i.e. SEQ ID NO: 1) yield the C16E-AY-Y301A variant which shares 100% identity with instant SEQ ID NO: 2.
Alignment of Instant SEQ NO: 2 against the Sequence described in Example 4 of ‘191
Query Match 100.0%; Score 2655; Length 483;
Best Local Similarity 100.0%;
Matches 483; Conservative 0; Mismatches 0; Indels 0; Gaps 0;
Qy 1 AATNGTMMQYFEWYVPNDGQQWNRLRTDAPYLSSVGITAVWTPPAYKGTSQADVGYGPYD 60
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 1 AATNGTMMQYFEWYVPNDGQQWNRLRTDAPYLSSVGITAVWTPPAYKGTSQADVGYGPYD 60
Qy 61 LYDLGEFNQKGTVRTKYGTKGELKSAVNTLHSNGIQVYGDVVMNHKAGADYTENVTAVEV 120
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 61 LYDLGEFNQKGTVRTKYGTKGELKSAVNTLHSNGIQVYGDVVMNHKAGADYTENVTAVEV 120
Qy 121 NPSNRYQETSGEYNIQAWTGFNFPGRGTTYSNWKWQWFHFDGTDWDQSRSLSRIFKFHGK 180
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 121 NPSNRYQETSGEYNIQAWTGFNFPGRGTTYSNWKWQWFHFDGTDWDQSRSLSRIFKFHGK 180
Qy 181 AWDWPVSSENGNYDYLMYADYDYDHPDVVNEMKKWGVWYANEVGLDGYRLDAVKHIKFSF 240
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 181 AWDWPVSSENGNYDYLMYADYDYDHPDVVNEMKKWGVWYANEVGLDGYRLDAVKHIKFSF 240
Qy 241 LKDWVDNARAATGKEMFTVGEYWQNDLGALNNYLAKVNYNQSLFDAPLHYNFYAASTGGG 300
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 241 LKDWVDNARAATGKEMFTVGEYWQNDLGALNNYLAKVNYNQSLFDAPLHYNFYAASTGGG 300
Qy 301 AYDMRNILNNTLVASNPTKAVTLVENHDTQPGQSLESTVQPWFKPLAYAFILTRSGGYPA 360
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 301 AYDMRNILNNTLVASNPTKAVTLVENHDTQPGQSLESTVQPWFKPLAYAFILTRSGGYPA 360
Qy 361 VFYGDMYGTKGTTTYEIPALKSKIEPLLKARKDYAYGTQRDYIDNPDVIGWTREGDSTKA 420
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 361 VFYGDMYGTKGTTTYEIPALKSKIEPLLKARKDYAYGTQRDYIDNPDVIGWTREGDSTKA 420
Qy 421 KSGLATVITDGPGGSKRMYVGTSNAGEIWYDLTGNRTDKITIGSDGYATFPVNGGSVSVW 480
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Db 421 KSGLATVITDGPGGSKRMYVGTSNAGEIWYDLTGNRTDKITIGSDGYATFPVNGGSVSVW 480
Qy 481 VQQ 483
|||
Db 481 VQQ 483
Both modified Festersen et al. and Cuevas et al. are directed towards the same field of endeavor of methods of making beer beverages comprising an α-amylase enzyme. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the generic alpha amylase used in the grist of modified Festersen et al. to have 100% sequence identity as set forth in SEQ ID NO:2 as taught by Example 4 of Cuevas et al. since the selection of a known material (the sequence as set forth in the claimed SEQ ID NO:2) based on its suitability for its intended use (an alpha amylase used in a beer brewing process) supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Furthermore, the simple substitution of one known element (using a generic alpha amylase in a beer brewing method) for another (using alpha amylase having a sequence as set forth in the claimed SEQ ID NO:2) to obtain predictable results is prima facie obvious (MPEP § 2143.I.(B)).
Regarding Claim 14, Festersen et al. discloses the grist further comprising corn, barley, wheat, rye, millet, or rice (‘741, Paragraph [0057]).
Regarding Claim 15, Festersen et al. discloses extraction recovery, filterability, and wort clarity is affected by the standard of the grist, e.g. the barley malt and the types of adjunct as well as the applied mashing procedure. However, Festersen et al. modified with Dr. Lambic is silent regarding the grist comprising at least 140 or 150 µM CAE/g of grist.
Aerts et al. discloses a method for brewing beer comprising the addition of polyphenol rich extracts prepared from hops at specific steps during or after the brewing process to enhance the mouthfeel, reducing power, and stability of the beer (‘063, Paragraph [0002]) comprising tannins (gallotannins) (‘063, Paragraph [0155]) wherein the content of different polyphenolic components is expressed as mg/100 g hop product except for procyanidin B3 and prodelphinidin B3 which are expressed in mg per 100 g hop product as catechin equivalents (‘063, Paragraph [0203]) wherein polyphenol extracts impart varying sensory impressions to beer depending on the varietal origin wherein the addition of total hop polyphenol extract affects the sensory properties of bitterness, fullness, astringency, and stickiness (‘063, Paragraph [0117]).
Both modified Festersen et al. and Aerts et al. are directed towards the same field of endeavor of methods of brewing beer. Although Aerts et al. does not explicitly disclose the grist comprising the claimed concentration of CAE/g of grist, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of CAE/g of grist of modified Festersen et al. and adjust said concentration to the claimed amounts since differences in concentration of catechins in the grist will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of catechins in the grist is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Aerts et al. establishes that polyphenols such as tannins imparts varying sensory impressions to the beer such as bitterness, fullness, astringency, and stickiness. One of ordinary skill in the art at the time of the invention would adjust the catechin concentration in the grist of modified Festersen et al. based upon the desired bitterness, fullness, astringency, and stickiness levels as suggested by Aerts et al.
Regarding Claim 43, Festersen et al. discloses the exogenously supplied enzyme composition (‘741, Paragraph [0058]) further comprising a protease (‘741, Paragraph [0059]).
Regarding Claims 63-64, Festersen et al. discloses fermenting the brewer’s wort to obtain an alcoholic beverage of beer (‘741, Paragraph [0062]).
Regarding Claim 67, Festersen et al. discloses steeping by mixing the barley kernels with water then germinating the wet barley by maintaining at a suitable temperature and humidity level until adequate modification, i.e. degradation of the starch and activation of enzymes has been achieved wherein low temperature kilning is more appropriate for malts when it is essential to preserve enzymatic activity (‘741, Paragraph [0024]) and that the mashing process is conducted over a period of time at various temperatures to activate the endogenous malt enzymes responsible for the degradation of proteins and carbohydrates (‘741, Paragraph [0025]). Although Festersen et al. does not explicitly disclose the enzyme composition of α-amylase retaining at least 90% catalytic activity after incubation in a 2 mg/mL catechin solution, Festersen et al. establishes that adjusting the temperature at which the wet barley is germinated and adjusting the kilning temperature influences the enzymatic activity. Differences in the catalytic activity of the enzyme composition after incubation in a catechin solution will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such catalytic activity of the enzyme composition is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.).
Regarding Claim 68, Cuevas et al. discloses the α-amylase having the claimed sequence identity of SEQ ID NO:2. The limitations “wherein the α-amylase exhibits a specific catechin cross-linking activity ≤ 2AU/µg” are limitations regarding the properties of the claimed α-amylase. Since Cuevas et al. uses the same enzyme with the same SEQ ID as claimed, where the claimed and prior products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). One of ordinary skill in the art would expect the α-amylase disclosed by Cuevas that is identical to that claimed to behave in the same manner as claimed.
Claim 4 is rejected under 35 U.S.C. 103 as being unpatentable over Festersen et al. US 2007/0148741 in view of Dr. Lambic “Tannins in Sour Beer” <https://www.sourbeerblog.com/tannins-in-sour-beer/> (published August 2, 2015) (herein referred to as “Dr. Lambic”), Aerts et al. US 2007/0254063, and Cuevas et al. US 2018/0163191 (cited on Information Disclosure Statement filed February 6, 2023) as applied to claim 1 above in further view of Dianabuja “Brewing Sorghum Beer in Burundi, 19th Century and Now” <https://dianabuja.wordpress.com/2011/05/18/brewing-sorghum-beer-in-burundi-19th-century-and-now> (published May 18, 2011) (herein referred to as “Dianabuja”).
Regarding Claim 4, Festersen et al. discloses the grist comprising sorghum (‘741, Paragraph [0057]). However, Festersen et al. modified with Dr. Lambic, Aerts et al., and Cuevas et al. is silent regarding the grist comprising red sorghum.
Dianabuja discloses a method of brewing beer made from sorghum comprising the steps of placing red sorghum into cold water to swell and germinate then drying in the sun and then pounding into flour, pouring the flour into boiling water to make a porridge that is continually stirred while progressively adding cold water (Dianabuja, Page 1).
Both modified Festersen et al. and Dianabuja are directed towards the same field of endeavor of methods of making beer. The beers of modified Festersen et al. and Dianabuja are both derived from sorghum. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beer brewing method of modified Festersen et al. and use red sorghum as a component of the grist as taught by Dianabuja since the selection of a known material (red sorghum) based on its suitability for its intended use (to make beer) supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Dianbuja teaches that there was known utility in the beer making art to make beer from red sorghum.
Response to Arguments
Examiner notes that the previous new matter rejections under 35 USC 112(a) have been withdrawn in view of the amendments.
Applicant's arguments filed June 3, 2026 with respect to the previous obviousness rejections under 35 USC 103(a) to Festersen et al. in view of Dr. Lambic, Aerts et al., and Cuevas et al. have been fully considered but they are not persuasive. It is noted that the secondary references of Hempen et al. and Sanders are not currently being relied upon in the current rejection. The secondary references of Hempen et al. and Sanders were previously relied upon to render obvious the previously presented limitations pertaining to the final mash viscosity of ≤ 100 cP, which limitations to the final mash viscosity have been deleted in the amendment.
Examiner notes that applicant’s comments on Pages 5-6 of the Remarks that the cited references do not teach or suggest the claimed combination including the recited high CAE sorghum mash context together with the catechin assay performance requirements does not specifically and distinctly point out the supposed errors of the Office Action. Although Aerts et al. does not explicitly disclose the grist comprising the claimed concentration of CAE/g of grist, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of CAE/g of grist of modified Festersen et al. and adjust said concentration to the claimed amounts since differences in concentration of catechins in the grist will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of catechins in the grist is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Aerts et al. establishes that polyphenols such as tannins imparts varying sensory impressions to the beer such as bitterness, fullness, astringency, and stickiness. One of ordinary skill in the art at the time of the invention would adjust the catechin concentration in the grist of modified Festersen et al. based upon the desired bitterness, fullness, astringency, and stickiness levels as suggested by Aerts et al. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986).
Applicant argues on Page 6 of the Remarks that the Examiner’s reliance on In re Best and related inherency principles does not resolve the obviousness inquiry for the claimed invention directed to a brewing method carried out in a defined high tanning sorghum mas context and not merely to the α-amylase in isolation. Applicant maintains the position that the identity of the enzyme sequence in Cuevas et al. does not by itself establish that the cited art teaches or suggests the claimed method including the recited high CAE grist environment and catechin assay defined functionality.
With respect to applicant’s assertion that the identity of the enzyme sequence in Cuevas et al. does not by itself establish that the cited art teaches or suggests the claimed method including the recited high CAE grist environment and catechin assay defined functionality, Examiner maintains that where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP §2112.01.I.). Also, products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). Additionally, although Aerts et al. does not explicitly disclose the grist comprising the claimed concentration of CAE/g of grist, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the concentration of CAE/g of grist of modified Festersen et al. and adjust said concentration to the claimed amounts since differences in concentration of catechins in the grist will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of catechins in the grist is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Aerts et al. establishes that polyphenols such as tannins imparts varying sensory impressions to the beer such as bitterness, fullness, astringency, and stickiness. One of ordinary skill in the art at the time of the invention would adjust the catechin concentration in the grist of modified Festersen et al. based upon the desired bitterness, fullness, astringency, and stickiness levels as suggested by Aerts et al. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Applicant argues on Page 6 of the Remarks with respect to Claim 4 that Dianabuja is relied upon only for the general proposition that red sorghum has been used in beer production and Dianabuja does not each or suggest the claimed combination of red sorghum with a grist comprising at least 130 µM CAE per gram of grist and an exogeneously supplied tannin uninhibited raw starch degrading α-amylase meeting the recited catechin assay and sequence requirements.
Examiner argues Dianabuja is being relied upon to teach the limitations regarding using red sorghum as required by Claim 4. Dianabuja is not being relied upon to render obvious the other limitations of Claim 1, which limitations of Claim 1 were rendered obvious by Festersen et al. in view of Dr. Lambic, Aerts et al., and Cuevas et al. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Conclusion
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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