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 .
Application Status
Amended claim 1-6, 17-19 and new claim 20 are under examination.
Claim 7 and 9-12 are withdrawn from examination.
Claim 8, 13, 14, 15 and 16 are cancelled.
Claim 1-6 and 17-20 are rejected.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on 08/06/2026 was filed after the mailing date of the Non-Final Rejection on 05/18/2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
Withdrawn Rejection
The objection over claim 1 as set forth in previous office action has been withdrawn in light of Applicant’s amendment.
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) 1-6 and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Sarens et al. (US 2016/0058028 A1) as evidenced by Sales et al. (Ref. U, Volatile, Microbial, and Sensory Profiles and Consumer Acceptance of Coffee Cascara Kombuchas) and by Rodrigo Jose Gomes et al. (Acetic Acid Bacteria in the Food Industry: Systematics, Characteristics and Applications).
Regarding claim 1-6, 17 and 19, Sarens et al. (Sarens) discloses a fermented beverage (beverage composition/ready to drink beverage) (‘028, [0092]-[0093]) comprising fermented coffee material (fermented cascara), including coffee berries (cascara) and coffee beans (‘028, [0020]-[0031], [0105]). It is well known coffee berries includes husks or skins (cascara) of the coffee bean. With respect to the organic compounds as recited in claim 1-5 and 19, and weight ratios; Sarens clearly discloses fermentation of the coffee berries (cascara) and coffee beans with yeast strain, Pichia kluyveri produces increase flavor profiles of natural compounds of fruity flavor taste (‘028, [0021], including isoamyl acetate (‘028, [0023]) also known as isopentyl acetate. Saerens’ fermented beverage (beverage composition/ready to drink beverage) comprising the natural compounds fruity of fruity flavor taste (‘028, [0021] including 2-pheylehtyl acetate, benzaldehyde, isobutyl acetate, 3-mehtylbutanol, and hexyl acetate as evidenced by Sales et al. (Ref. U, pg. 16-19, Table 3). While Saren as evidenced by Sales et al., does not explicitly disclose weight ratios of the natural compounds fruity of fruity flavor taste (‘028, [0021] including isopentyl acetate, 2-pheylehtyl acetate, benzaldehyde, isobutyl acetate, 3-mehtylbutanol, and hexyl acetate; as Sarens uses like materials, coffee berries (cascara) with yeast strain, Pichia kluyveri to obtain the fermented beverage product; it would therefore be expected that Saren’s fermented beverage (beverage composition/ready to drink beverage) will have the same characteristics claimed, particularly the that the amount ratios of the natural compounds fruity of fruity flavor taste including isopentyl acetate, 2-pheylehtyl acetate, benzaldehyde, isobutyl acetate, 3-mehtylbutanol, and hexyl acetate, absence a showing of unexpected results.
With respect to the new limitation of claim 1, “…no acetic acid bacteria…”, Sarens clearly discloses fermentation of the coffee berries (cascara) and coffee beans with the yeast strain, Pichia kluyveri produces increase flavor profiles of natural compounds of fruity flavor taste (‘028, [0021]); wherein Sarens’ Pichia kluyveri is not an acetic acid bacteria as evidenced by Rodrigo Jose Gomes (pg. 139, Introduction, 1st-3rd paragraphs); hence Sarens’ method comprises no acetic acid bacteria.
With respect to claim 1 and 17, Sarens discloses the fermented coffee material (fermented cascara), including coffee berries (cascara) and coffee beans (‘028, [0020]-[0031], [0105]). It is well known coffee berries includes husks or skins (cascara) of the coffee bean. Saren’s fermented coffee material includes fermented coffee berries (cascara), which is considered a fermented cascara extract and a fermented cascara, wherein the husk/skins are a part of the whole coffee berries.
Regarding claim 18, Saren’s fermented beverage (beverage composition/ready to drink beverage) does not disclose an ethanol content in other words a zero amount of ethanol content, which is in range with the cited range of below 1.2 wt%. It is noted that the cited range encompasses a zero amount of ethanol content.
Regarding claim 20, the limitation of “has been fermented with a yeast colony comprising Pichnia Kluyveri NYSC 5485” is considered a process limitation in a product claim. Attention is directed to MPEP 2113,
I. PRODUCT-BY-PROCESS CLAIMS ARE NOT LIMITED TO THE MANIPULATIONS OF THE RECITED STEPS, ONLY THE STRUCTURE IMPLIED BY THE STEPS
"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Response to Arguments
Applicant's arguments filed 08/06/2026 have been fully considered but they are not persuasive.
Applicant asserts “…amended independent claim 1 to recite that the beverage composition includes a fermented cascara extract and that a weight ratio of 2-phenylethyl acetate to benzaldehyde is greater than 20. Applicant respectfully submits that such a combination of limitations demonstrates unexpected and significant results, and therefore that Sarens and Sales, either alone or in proper combination… the present specification in Example 1 demonstrates that the fermented cascara extract was made "by fermenting the infusion with different starter cultures, including Pichia kluyveri NYSC 5485 (CNCM 1-5525), P. kluyveri NCYC 246 (the type strain of Pichia kluyveri), commercial brewer's yeast Saccharomyces cerevisiae (SafAle S-33, LeSaffre, France) and a symbiotic culture of bacteria and yeasts (SCOBY) pellicle from Kombucha tea fermentation After the incubation, the cascara was discarded and infused water underwent filter sterilization (0.2 um)." (1 [0089]) (emphasis added).
Applicant’s remarks are not convincing. The claims are directed to a product and are not process claims hence Applicant’s remarks does not commensurate the claims. It is not clear as to what Applicant is relating as unexpected and significant results.
Additionally, the limitation of new claim 20 “has been fermented with a yeast colony comprising Pichnia Kluyveri NYSC 5485” is considered a process limitation in a product claim. Attention is directed to MPEP 2113,
I. PRODUCT-BY-PROCESS CLAIMS ARE NOT LIMITED TO THE MANIPULATIONS OF THE
RECITED STEPS, ONLY THE STRUCTURE IMPLIED BY THE STEPS
"[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
Sales is relied upon evidence to the natural compounds fruity of fruity flavor taste (‘028, [0021] including 2-pheylehtyl acetate, benzaldehyde, isobutyl acetate, 3-mehtylbutanol, and hexyl acetate. (pg. 16-19, Table 3).
Additionally, the organic compounds as recited in claim 1-5 and 19, and weight ratios; Sarens clearly discloses fermentation of the coffee berries (cascara) and coffee beans with yeast strain, Pichia kluyveri produces increase flavor profiles of natural compounds of fruity flavor taste (‘028, [0021], including isoamyl acetate (‘028, [0023]) also known as isopentyl acetate. Saerens’ fermented beverage (beverage composition/ready to drink beverage) comprising the natural compounds fruity of fruity flavor taste (‘028, [0021] including 2-pheylehtyl acetate, benzaldehyde, isobutyl acetate, 3-mehtylbutanol, and hexyl acetate as evidenced by Sales et al. (Ref. U, pg. 16-19, Table 3). While Saren as evidenced by Sales et al., does not explicitly disclose weight ratios of the natural compounds fruity of fruity flavor taste (‘028, [0021] including isopentyl acetate, 2-pheylehtyl acetate, benzaldehyde, isobutyl acetate, 3-mehtylbutanol, and hexyl acetate; as Sarens uses like materials, coffee berries (cascara) with yeast strain, Pichia kluyveri to obtain the fermented beverage product; it would therefore be expected that Saren’s fermented beverage (beverage composition/ready to drink beverage) will have the same characteristics claimed, particularly the that the amount ratios of the natural compounds fruity of fruity flavor taste including isopentyl acetate, 2-pheylehtyl acetate, benzaldehyde, isobutyl acetate, 3-mehtylbutanol, and hexyl acetate.
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 HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792
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