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 .
Status of Application
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 7/17/2025 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 (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.
Claims 1, 9-10, 12-14 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. 2014/0271996 (PRAKASH) and United States Patent Application Publication No. 2009/0117225 (SUZUKI).
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PRAKASH teaches a beverage with ethanol in an amount of 625 ppm to 10,000 ppm [0280]. Prakash does not limit the beverage to non-alcoholic beverages. Rather, Prakash points out that certain ingredients (i.e., not claimed) must be used in limited amounts when added to an alcoholic beverage [0280], [0345]. In [0005], it is taught to D-psicose should be limited in alcoholic beverages. It would have been obvious to vary the alcohol content based on ingredients used and FDA regulations.
Preservatives such as sodium benzoate can be added [0348]. In Tables 26-29, it is shown that sodium benzoate can be added in an amount of 0.018 g/100ml beverage. However, it would have been obvious to use this amount in other types of beverage, as PRAKASH teaches sodium benzoate is a preservative for beverages. Moreover, it would have been obvious to one skilled in the art to vary the amount of preservative based on the level of stability needed.
A sweetener enhancer such as rebaudioside D can be added. Reb D can be added in an amount of 1 ppm to 500ppm. [0010, 0016]. This encompasses the claimed range. However, it would have been obvious to vary this amount based on the desired sweetness.
PRAKASH teaches that sugar can be added with other sweeteners [0148]. Sucrose is in an amount of 0.5 to 10% by weight [0150]. This overlaps the claimed amount as 0.5 to 10% by weight is equivalent to 0.5 g to 10 g per 100 ml. However, it would have been obvious to vary the amount of sugar based on the desired sweetness.
The pH of the beverage may be from about 2.5 to 4.2 [0179]. This overlaps the claimed range. The preferred pH is 3.3. This falls within that claimed.
The beverage can be bottled [0422]. It would have been obvious to bottle beverages so that the beverage can be stored and distributed.
In [0026] of PRAKASH, the beverage is carbonated.
Ethanol can be added in an amount of 635ppm to about 10,000ppm [0280]. 10,000ppm is equivalent to 1 v/v%. However, it would have been obvious to vary the amount of ethanol based on desired final flavor.
However, PRAKASH does not specifically teach adding lemon juice with a content of 0.1 to 20 w/v% in terms of straight juice basis.
SUZUKI teaches that 20 w/v% lemon juice can be used [0064] to provide a lemon flavor. In Table 2, the beverage contains 4.9 to 5.0% alcohol [0051].
Thus, it would have been obvious to one skilled in the art to use lemon juice in the recited concentration as SUZUKI teaches a desirable lemon flavor is provided.
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In [0358], electrolytes are added to improve hydration. This includes sodium. It would have been obvious to one skilled in the art to vary the amount of sodium based on the amount of hydration needed.
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The pH of the beverage may be from about 2.5 to 4.2 [0179]. This overlaps the claimed range. The preferred pH is 3.3. This falls within that claimed.
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PRAKASH teaches that ethanol can be added in an amount of 635ppm to about 10,000ppm [0280]. 10,000ppm is equivalent to 1 v/v%.
It is also noted that SUZUKI teaches in Table 2 that the beverage contains 4.9 to 5.0% alcohol [0051].
In this regard, it would have been obvious to one skilled in the art to use lemon juice in the recited concentration as SUZUKI teaches a desirable lemon flavor is provided.
However, it would have been obvious to vary the amount of ethanol based on desired final flavor and alcohol content.
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As to claims 13-14, PRAKASH teaches the pH of the beverage may be from about 2.5 to 4.2 [0179]. This overlaps the claimed range. The preferred pH is 3.3. This falls within that claimed.
Response to Arguments
Applicant's arguments filed 10/21/2025 have been fully considered but they are not persuasive. The filing of the third Declaration Under 37 CFR §1.132 on 10/21/2025 is acknowledged and has been considered but it is insufficient to overcome the rejection of claims 1 and 9-14 based upon PRAKASH in view of SUZUKI as set forth in the last office action for the reasons below.
Applicant argues that the Third Declaration provides evidence of unexpected results where the results set forth in the Third Declaration are commensurate in scope with the claims.
However, TABLE A-2 contains shows the samples of the present invention contain citric acid and sodium citrate and do not exclude ingredients of PRAKASH such as lemon lime flavor and D-psicose.
It is also argued that the claimed invention may be compared with the closest subject matter that exists.
However, as noted above, the issue is that the experimental results are still not commensurate with what is in the claims.
Moreover, any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected. (MPEP 716.02). The ingredients set forth in the claims are known ingredients acting in a known manner.
Moreover, the claimed invention is directed to a recipe for an alcoholic beverage. The applicant is also respectfully reminded that while food items are patentable, the culinary creativity of chefs is not the type of creativity which meets the standards for patentability. See General Mills v. Pillsbury Co.,378 F.2d 666 (8th Cir.1967) (first commercially successful one step mix for angel food cakes is not patentable because of nonobviousness standard since alleged invention is only the exact proportion of an already known leavening agent). In this regard, courts have taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In re Levin, 178 F.2d 945, 948 (C.C.P.A.1949) (butter substitute not patentable).
Conclusion
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