DETAILED ACTION
Information Disclosure Statement
The information disclosure statement filed 9/9/2025 fails to comply with the provisions of 37 CFR 1.98(a)(4) because it lacks the appropriate size fee assertion. It has been placed in the application file, but the information referred to therein has not been considered as to the merits.
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 1-3, 8, 11-16 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. 2013/0202762 (KAEHNE) and JP2015027309 (TAICHI). A translation for TAICHI is provided with this Official Action.
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KAEHNE teaches enhancing the taste of beer by adding mineral salts [0009].
An acid in the form of citric acid, phosphoric acid and others can be present [0059] to control pH.
In [0067], it is taught that preferably elements are maintained in a form capable of impacting on taste.
One of those elements is magnesium chloride [0069]. Magnesium chloride can be added as a partial source of magnesium [0069]. In [0010], it is taught that magnesium can range from 1.3 to 52 mg/l (1 mg/l = 1ppm). While this teaches the overall amount of magnesium, it is taught that magnesium chloride might be added as a partial but not sole source. It would have been obvious to add magnesium chloride as a portion of the 1.3 to 52 mg/l. Moreover, as the “elements” are used to modify taste [0067], it would have been obvious to vary the amount of magnesium chloride (i.e., one of the elements [0069]) based on the desired taste of the beer.
Another element is potassium chloride [0069]. Potassium chloride can be added as a partial source of potassium[0069]. In [0010], it is taught that potassium can range from 12 to 490 mg/l (1 mg/l = 1ppm). It would have been obvious to add potassium chloride as a portion of the 12 to 490 mg/l. While this relates to the overall amount of potassium, it is taught that potassium chloride might be added as a partial but not sole source [0071]. Moreover, as the “elements” are used to modify taste [0067], it would have been obvious to vary the amount of potassium chloride based on the desired taste of the product.
In [0166], is taught that bitterness is a taste component which is created in beers by adding hops to the wort in sufficient quantity to produce isomerization of resins to a range of acids which stimulate the consumer's “bitter” taste receptors to a level which is considered pleasant and therefore acceptable. Thus, the hop acids are flavor compounds.
Paragraphs [0031] to [0039] teach that the alcohol content can vary from 2.5 to 7% based on the strength of the beer. This fall within the claimed amount of 2 to 8% by volume.
KAEHNE is silent as to some of the flavor compounds found in beer.
TAICHI teaches that beer comprises a number of flavors such as limonene (lines 226-229).
It would have been obvious to add limonene to KAEHNE, as TAICHI teaches that it improves the flavor of beer.
“It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious). **
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KAEHNE teaches that an acid such as phosphoric acid can be present in the final diluent in an amount of 0.1 to 0.75 g per liter of the final diluent [0095] (0.1 g/L = about 100ppm; 0.75g= about 750ppm; e.g., 1 g/l = 1 x 1001/142303 part/million = 100.11) . Thus, the acidulant of KAEHNE in the final diluent overlaps that claimed.
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As to claims 3 and 8, KAEHNE teaches the food grade acidulant can be citric acid [0059].
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KAEHNE is silent as to adding exogenous sweeteners.
TAICHI teaches that sweeteners can be added (lines 276-301).
This includes caloric and non-caloric sweeteners such as sugar (i.e., caloric sugar such as sucrose at line 282) and non-caloric (i.e., sucralose at line 278).
It would have been to add sugar or erythritol to KAEHNE, as TAICHI teaches that one can change the taste and sweetness of the beer by adding these compounds.
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While KAEHNE teaches that the beer has a natural sweetness there is no teaching that exogenous sweeteners are added to the beverage [0166].
Claim 9, 15 and 18 are rejected under 35 U.S.C. 103 as being unpatentable over KAEHNE and TAICHI as applied to claim 1 above, and further in view of United States Patent Application Publication No. 2010/0119667 (LIVAICH) (see IDS of 7/1/2024).
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KAEHNE [0059] and TAICHI (lines 247-251) both teach adding citric acid but does not provide a specific range for the citric acid.
LIVAICH teaches that the ready-to-drink beverage can comprise less than or equal to 0.9 weight percent citric acid, based on the total weight of the ready-to-drink beverage. Given that a small amount of citric acid may be desirable to produce astringency, in some embodiments the citric acid concentration is about 0.3 to 0.9 (i.e., 3,000 to 9, 000 ppm; X(ppm) = 10000 - x/.4) weight percent [0012]. This overlaps the claimed amount.
It would have been obvious to use the range taught by LIVAICH in the refences based on the desired astringency of the drink.
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KAEHNE and TAICHI are silent as to the degrees of BRIX.
LIVAICH teaches that sweeteners such as sucrose (i.e., caloric) and erythritol (non-caloric) can be added to sweeten beverages [0013]. This includes beer [0008], [0059]. In Example 1 at [0066], it is taught that the finished concentrate has a brix value of 11.5±0.5 brix as measured by refractometer at 20° C., a pH of 3.6±0.2 at 20° C. However, LIVAICH teaches that the amount of sugar can be varied. Indeed, LIVAICH teaches that suitable amounts for each type of sweetener can be selected by one of ordinary skill in the art without undue experimentation. It would have been obvious to vary the amount of sweetener (i.e., and resulting Brix content) based on the desired sweetness of the drink.
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KAEHNE and TAICHI are silent as to the caloric content.
LIVAICH teaches that sweeteners such as sucrose (i.e., caloric) and erythritol (non-caloric) can be added to sweeten beverages [0013]. When a sweetened but reduced calorie beverage is desired, the amount of bulk sweetener can be about 8 to about 15 weight percent [0013]. Thus, LIVAICH does teach reduced calorie beverages (i.e., mid-calorie to low-calorie beverages). It would have been obvious to lower the sweetener and resulting type of beverage (i.e., mid-calorie to low-calorie beverages) based on the desired final caloric content. Indeed, LIVAICH teaches that suitable amounts for each type of sweetener can be selected by one of ordinary skill in the art without undue experimentation [0013].
Response to Arguments
Applicant's arguments filed 9/4/2025 have been fully considered but they are not persuasive.
The applicant argues that neither Kaehne nor Livaich disclose the alcoholic carbonated beverages of the amended claims.
However, TAICHI is now cited to teach the flavor compounds of amended claim 1.
Furthermore, applicant argues that neither Kaehne nor Livaich render obvious the unexpected properties of the claimed beverages. In particular, it is argued that the inclusion of the magnesium chloride and potassium chloride improves the flavor profile of the claimed beverage compared to a corresponding beverage without these mineral salts.
However, it is noted that magnesium chloride and potassium chloride are known flavor potentiators as taught by KAEHNE. In this regard, the compounds perform as expected and the obviousness rejection is maintained.
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