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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 December 8, 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 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 1-3 and 8-11 are rejected under 35 U.S.C. 103 as being unpatentable over Joshi et al. US 2014/0255585 in view of Possner et al. “Methanol contents of fruit juices and smoothies in comparison to fruits and a simple method for the determination thereof” (published February 2014) (herein referred to as “Possner”), Oh “Simultaneous Gas Chromatographic Quantitation of Ethanol and Methanol from Beer” (published February 2020) (herein referred to as “Oh”), Nakajima US 2016/0143339, Dorr et al. US 2008/0220121, and Teranishi et al. US 2015/0313271.
Regarding Claim 1, Joshi et al. discloses a beer taste beverage (‘585, Paragraphs [0006] and [0093]) obtained without using fruit, fruit skin, or fruit juice (beverage contains aqueous vegetable sugar containing extract) (‘585, Paragraph [0009]).
Joshi et al. discloses the beer taste beverage being made using aqueous vegetable sugar containing extract (‘585, Paragraph [0009]). However, Joshi et al. is silent regarding the methanol concentration of the beer taste beverage being 8.0 to 600 mg/L.
Possner et al. discloses that methanol occurs naturally in vegetables where it is bonded to pectins and can be released during processing to derived products like vegetable juice by enzymatic activities and that food additives that contain methanol in non-alcoholic beverages are dimethyldicarbonate (DMDC) which is added to increase microbiological stability and decomposes rapidly into carbon dioxide and methanol after being added (Possner, Page 65) wherein the methanol concentration of vegetable juices ranges from 12 mg/L to 200 mg/L (Possner, Page 66), which falls within the claimed methanol concentration range of 8.0 to 600 mg/L. Oh discloses methanol is present at low concentrations in various plant based products and dimethyl dicarbonate (DMDC) (Oh, Page 3249).
Both Joshi et al. and Possner are directed towards the same field of endeavor of vegetable based non-alcoholic beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the methanol concentration of the beverage of Joshi et al. to fall within the claimed methanol concentration range as taught by Possner et al. since where the claimed methanol concentration ranges encompasses methanol concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the methanol concentration within the non-alcoholic beverage comprising vegetable juices will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such methanol concentration of the non-alcoholic beverage comprising vegetable juices 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.). One of ordinary skill in the art would adjust the methanol concentration of the vegetable based non-alcoholic beverage of Joshi et al. based upon the desired microbiological stability as suggested by Possner et al. Furthermore, Oh teaches that methanol is already present at low concentrations in various plant based products and dimethyl dicarbonate (DMDC) (Oh, Page 3249).
Further regarding Claim 1, Joshi et al. modified with Possner et al. and Oh is silent regarding the total nitrogen content of the beer taste beverage to be 0.3 mg/100 mL or more.
Nakajima et al. discloses a non-alcoholic beer taste beverage (‘339, Paragraph [0001]) containing a nitrogen source composed of an amino acid containing material other than barley or malt, and hops (‘339, Paragraph [0033]) and an apparent extract concentration (‘339, Paragraphs [0034] and [0039]). Nakajima et al. further discloses a raw material having a comparatively high amino acid content such as protein (‘339, Paragraph [0029]) wherein the raw material protein is a soybean protein, which has good nutritional properties and exhibits good digestibility and absorbability (‘339, Paragraph [0038]).
Both modified Joshi et al. and Nakajima et al. are directed towards the same field of endeavor of non-alcoholic beer taste beverages. Although Nakajima et al. does not explicitly state that the nitrogen content of the beer taste beverage is 0.3 mg/100 mL or more, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beer taste beverage of modified Joshi et al. and adjust the nitrogen content that encompasses the soybean protein and amino acid content of the beer taste beverage and adjust the nitrogen content to be within the claimed nitrogen concentration range of 0.3 mg/100 mL or more since differences in the nitrogen concentration within the non-alcoholic beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such nitrogen concentration of the non-alcoholic beverage 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.). One of ordinary skill in the art would adjust the nitrogen content of the beer taste beverage of modified Joshi et al. based upon the desired digestibility and absorbability of the beverage as suggested by Nakajima et al. (‘339, Paragraph [0038]).
Further regarding Claim1, Joshi et al. modified with Possner et al., Oh, and Nakajima et al. is silent regarding the apparent extract concentration of the beer taste beverage to be 0.25 to 3.8% by mass.
Dorr et al. discloses a nonalcoholic beer taste beverage comprising an apparent extract sweetener of 2.40 wt% (‘121, Table 11), which falls within the claimed apparent extraction concentration of 0.25 to 3.8% by mass. Teranishi et al. also discloses a non-alcohol non-fermented beer taste beverage (‘271, Paragraph [0013]) wherein the total amount of extract components affects the foam formed on the surface of the non-alcohol beer taste beverage (‘271, Paragraph [0022]) wherein non-alcohol beer taste beverages are often produced without fermenting the ingredients since fermentation produces alcohol (‘271, Paragraph [0003]) wherein the total amount of the extract components is the sum of the extract component contained in the non-alcohol beer taste beverage (‘271, Paragraph [0021]) wherein the total amount of the extract component is in the range of between 0.1% to 2% by weight to provide a sufficient quality of high foam retention to the foam formed on the surface to provide a beer like appearance (‘271, Paragraph [0022]) wherein soybean saponin and soybean plant protein additives are used (‘271, Paragraph [0054]). The disclosure of the total amount of extract being in the range of between 0.1% to 2% by weight overlaps the claimed apparent extract concentration of 0.25 to 3.8% by mass.
Modified Joshi et al., Dorr et al., and Teranishi et al. are all directed towards the same field of endeavor of nonalcoholic beer taste beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparent extract concentration of the beer taste beverage of modified Joshi et al. and incorporate an extract concentration that falls within the claimed apparent extract concentration as taught by Dorr et al. and Teranishi et al. since where the claimed apparent extract concentration ranges overlaps apparent extract concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the apparent extract concentration of the beer taste beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such apparent extract concentration 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.). One of ordinary skill in the art would adjust the apparent extract concentration of modified Joshi et al. based upon the desired foaming abilities as taught by Teranishi et al. (‘271, Paragraph [0022]).
Regarding Claim 2, Joshi et al. discloses the beverage to be an unfermented non-alcoholic beer taste beverage (‘585, Paragraphs [0001] and [0093]). Joshi et al. discloses the beer taste beverage being made using aqueous vegetable sugar containing extract (‘585, Paragraph [0009]). However, Joshi et al. is silent regarding the methanol concentration of the beer taste beverage being 8.0 to 600 mg/L.
Possner et al. discloses that methanol occurs naturally in vegetables where it is bonded to pectins and can be released during processing to derived products like vegetable juice by enzymatic activities and that food additives that contain methanol in non-alcoholic beverages are dimethyldicarbonate (DMDC) which is added to increase microbiological stability and decomposes rapidly into carbon dioxide and methanol after being added (Possner, Page 65) wherein the methanol concentration of vegetable juices ranges from 12 mg/L to 200 mg/L (Possner, Page 66), which falls within the claimed methanol concentration range of 8.0 to 600 mg/L. Oh discloses methanol is present at low concentrations in various plant based products and dimethyl dicarbonate (DMDC) (Oh, Page 3249).
Both Joshi et al. and Possner are directed towards the same field of endeavor of vegetable based non-alcoholic beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the methanol concentration of the beverage of Joshi et al. to fall within the claimed methanol concentration range as taught by Possner et al. since where the claimed methanol concentration ranges encompasses methanol concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the methanol concentration within the non-alcoholic beverage comprising vegetable juices will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such methanol concentration of the non-alcoholic beverage comprising vegetable juices 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.). One of ordinary skill in the art would adjust the methanol concentration of the vegetable based non-alcoholic beverage of Joshi et al. based upon the desired microbiological stability as suggested by Possner et al. Furthermore, Oh teaches that methanol is already present at low concentrations in various plant based products and dimethyl dicarbonate (DMDC) (Oh, Page 3249).
Further regarding Claim 2, Joshi et al. modified with Possner et al. and Oh is silent regarding the total nitrogen content of the beer taste beverage to be 0.3 mg/100 mL or more.
Nakajima et al. discloses a non-alcoholic beer taste beverage (‘339, Paragraph [0001]) containing a nitrogen source composed of an amino acid containing material other than barley or malt, and hops (‘339, Paragraph [0033]) and an apparent extract concentration (‘339, Paragraphs [0034] and [0039]). Nakajima et al. further discloses a raw material having a comparatively high amino acid content such as protein (‘339, Paragraph [0029]) wherein the raw material protein is a soybean protein, which has good nutritional properties and exhibits good digestibility and absorbability (‘339, Paragraph [0038]).
Both modified Joshi et al. and Nakajima et al. are directed towards the same field of endeavor of non-alcoholic beer taste beverages. Although Nakajima et al. does not explicitly state that the nitrogen content of the beer taste beverage is 0.3 mg/100 mL or more, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beer taste beverage of modified Joshi et al. and adjust the nitrogen content that encompasses the soybean protein and amino acid content of the beer taste beverage and adjust the nitrogen content to be within the claimed nitrogen concentration range of 0.3 mg/100 mL or more since differences in the nitrogen concentration within the non-alcoholic beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such nitrogen concentration of the non-alcoholic beverage 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.). One of ordinary skill in the art would adjust the nitrogen content of the beer taste beverage of modified Joshi et al. based upon the desired digestibility and absorbability of the beverage as suggested by Nakajima et al. (‘339, Paragraph [0038]).
Further regarding Claim 2, Joshi et al. modified with Possner et al., Oh, and Nakajima et al. is silent regarding the apparent extract concentration of the beer taste beverage to be 0.26 to 2.8% by mass.
Dorr et al. discloses a nonalcoholic beer taste beverage comprising an apparent extract sweetener of 2.40 wt% (‘121, Table 11), which falls within the claimed apparent extraction concentration of 0.26 to 2.8% by mass. Teranishi et al. also discloses a non-alcohol non-fermented beer taste beverage (‘271, Paragraph [0013]) wherein the total amount of extract components affects the foam formed on the surface of the non-alcohol beer taste beverage (‘271, Paragraph [0022]) wherein non-alcohol beer taste beverages are often produced without fermenting the ingredients since fermentation produces alcohol (‘271, Paragraph [0003]) wherein the total amount of the extract components is the sum of the extract component contained in the non-alcohol beer taste beverage (‘271, Paragraph [0021]) wherein the total amount of the extract component is in the range of between 0.1% to 2% by weight to provide a sufficient quality of high foam retention to the foam formed on the surface to provide a beer like appearance (‘271, Paragraph [0022]) wherein soybean saponin and soybean plant protein additives are used (‘271, Paragraph [0054]). The disclosure of the total amount of extract being in the range of between 0.1% to 2% by weight overlaps the claimed apparent extract concentration of 0.26 to 2.8% by mass.
Modified Joshi et al., Dorr et al., and Teranishi et al. are all directed towards the same field of endeavor of nonalcoholic beer taste beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparent extract concentration of the beer taste beverage of modified Joshi et al. and incorporate an extract concentration that falls within the claimed apparent extract concentration as taught by Dorr et al. and Teranishi et al. since where the claimed apparent extract concentration ranges overlaps apparent extract concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the apparent extract concentration of the beer taste beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such apparent extract concentration 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.). One of ordinary skill in the art would adjust the apparent extract concentration of modified Joshi et al. based upon the desired foaming abilities as taught by Teranishi et al. (‘271, Paragraph [0022]).
Regarding Claim 3, Joshi et al. modified with Possner et al., Oh, Nakajima et al., Dorr et al., and Teranishi et al. is silent regarding a ratio of the total nitrogen content to the apparent extract concentration being 0.15 to 150. However, Nakajima et al. discloses a non-alcoholic beer taste beverage (‘339, Paragraph [0001]). The non-alcoholic beer taste beverage comprises a nitrogen source composed of an amino acid containing material other than barley or malt, and hops (‘339, Paragraph [0033]) and an apparent extract concentration (‘339, Paragraphs [0034] and [0039]). Nakajima et al. further discloses the raw material having a comparatively high amino acid content such as protein (‘339, Paragraph [0029]) wherein the raw material protein is a soybean protein, which has good nutritional properties and exhibits good digestibility and absorbability (‘339, Paragraph [0038]). Teranishi et al. also discloses a non-alcohol non-fermented beer taste beverage (‘271, Paragraph [0013]) wherein the total amount of extract components affects the foam formed on the surface of the non-alcohol beer taste beverage (‘271, Paragraph [0022]) wherein non-alcohol beer taste beverages are often produced without fermenting the ingredients since fermentation produces alcohol (‘271, Paragraph [0003]) wherein the total amount of the extract components is the sum of the extract component contained in the non-alcohol beer taste beverage (‘271, Paragraph [0021]) wherein the total amount of the extract component is in the range of between 0.1% to 2% by weight to provide a sufficient quality of high foam retention to the foam formed on the surface to provide a beer like appearance (‘271, Paragraph [0022]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the ratio of the total nitrogen content to the apparent extract concentration of the beer taste beverage of modified Joshi et al. since differences in the ratio of the total nitrogen content to the apparent extract concentration within the non-alcoholic beverage comprising vegetable juices of modified Joshi et al. will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such methanol concentration of the non-alcoholic beverage comprising vegetable juices 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.). One of ordinary skill in the art would adjust the ratio of the total nitrogen content to the apparent extract concentration of the beer taste beverage of modified Joshi et al. based upon the desired digestibility and absorbability as taught by Nakajima et al. (‘339, Paragraph [0038]) as well as the desired foam retention as taught by Teranishi et al. (‘271, Paragraph [0022]).
Regarding Claim 8, Joshi et al. discloses the beverage being carbonated so it contains 100% to 500% by volume of carbon dioxide (‘585, Paragraph [0031]), which falls within the claimed carbon dioxide concentration of 0.460% by mass or more. Where the claimed carbon dioxide concentration ranges overlaps carbon dioxide concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the carbonation levels of the beer taste beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such carbonation levels 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.). One of ordinary skill in the art would adjust the carbonation levels of modified Joshi et al. based upon the carbonation and mouthfeel of the final beer taste beverage.
Regarding Claim 9, Joshi et al. discloses the beer taste beverage being a packaged beverage (‘585, Paragraph [0094]). Furthermore, it is known in the art to package beverages to storage and for later shipping.
Regarding Claim 10, Joshi et al. discloses a beer taste beverage (‘585, Paragraphs [0006] and [0093]) obtained without using fruit, fruit skin, or fruit juice (beverage contains aqueous vegetable sugar containing extract) (‘585, Paragraph [0009]).
Joshi et al. discloses the beverage containing aqueous vegetable sugar containing extract (‘585, Paragraph [0009]). However, Joshi et al. is silent regarding the beverage being supplemented with dimethyl dicarbonate.
Possner et al. discloses that methanol occurs naturally in vegetables where it is bonded to pectins and can be released during processing to derived products like vegetable juice by enzymatic activities and that food additives that contain methanol in non-alcoholic beverages are dimethyldicarbonate (DMDC) which is added to increase microbiological stability and decomposes rapidly into carbon dioxide and methanol after being added (Possner, Page 65). Oh discloses methanol is present at low concentrations in various plant based products and dimethyl dicarbonate (DMDC) (Oh, Page 3249).
Both Joshi et al. and Possner are directed towards the same field of endeavor of vegetable based non-alcoholic beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Joshi et al. supplement the vegetable based non-alcoholic beverage of Joshi et al. based upon the desired microbiological stability as suggested by Possner et al. Furthermore, Oh teaches that methanol and dimethyl dicarbonate (DMDC)is already present at low concentrations in various plant based products (Oh, Page 3249).
Further regarding Claim 10, Joshi et al. modified with Possner et al. and Oh is silent regarding the total nitrogen content of the beer taste beverage to be 0.3 mg/100 mL or more.
Nakajima et al. discloses a non-alcoholic beer taste beverage (‘339, Paragraph [0001]). The non-alcoholic beer taste beverage contains a nitrogen source composed of an amino acid containing material other than barley or malt, and hops (‘339, Paragraph [0033]) and an apparent extract concentration (‘339, Paragraphs [0034] and [0039]). Nakajima et al. further discloses the raw material having a comparatively high amino acid content such as protein (‘339, Paragraph [0029]) wherein the raw material protein is a soybean protein, which has good nutritional properties and exhibits good digestibility and absorbability (‘339, Paragraph [0038]).
Both modified Joshi et al. and Nakajima et al. are directed towards the same field of endeavor of non-alcoholic beer taste beverages containing fruit juice and a nitrogen source composed of an amino acid containing material other than barely or malt and hops. Although Nakajima et al. does not explicitly state that the nitrogen content of the beer taste beverage is 0.3 mg/100 mL or more, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beer taste beverage of modified Joshi et al. and adjust the nitrogen content that encompasses the soybean protein and amino acid content of the beer taste beverage and adjust the nitrogen content to be within the claimed nitrogen concentration range of 0.3 mg/100 mL or more since differences in the nitrogen concentration within the non-alcoholic beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such nitrogen concentration of the non-alcoholic beverage 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.). One of ordinary skill in the art would adjust the nitrogen content of the beer taste beverage of modified Joshi et al. based upon the desired digestibility and absorbability of the beverage as suggested by Nakajima et al. (‘339, Paragraph [0038]).
Further regarding Claim 10, Joshi et al. modified with Possner et al., Oh, and Nakajima et al. is silent regarding the apparent extract concentration of the beer taste beverage to be 0.25 to 3.8% by mass.
Dorr et al. discloses a nonalcoholic beer taste beverage having an apparent extract sweetener of 2.40 wt% (‘121, Table 11), which falls within the claimed apparent extraction concentration of 0.25 to 3.8% by mass. Teranishi et al. also discloses a non-alcohol non-fermented beer taste beverage (‘271, Paragraph [0013]) wherein the total amount of extract components affects the foam formed on the surface of the non-alcohol beer taste beverage (‘271, Paragraph [0022]) wherein non-alcohol beer taste beverages are often produced without fermenting the ingredients since fermentation produces alcohol (‘271, Paragraph [0003]) wherein the total amount of the extract components is the sum of the extract component contained in the non-alcohol beer taste beverage (‘271, Paragraph [0021]) wherein the total amount of the extract component is in the range of between 0.1% to 2% by weight to provide a sufficient quality of high foam retention to the foam formed on the surface to provide a beer like appearance (‘271, Paragraph [0022]) wherein soybean saponin and soybean plant protein additives are used (‘271, Paragraph [0054]). The disclosure of the total amount of extract being in the range of between 0.1% to 2% by weight overlaps the claimed apparent extract concentration of 0.25 to 3.8% by mass.
Modified Joshi et al., Dorr et al., and Teranishi et al. are all directed towards the same field of endeavor of nonalcoholic beer taste beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparent extract concentration of the beer taste beverage of modified Joshi et al. and incorporate an extract concentration that falls within the claimed apparent extract concentration as taught by Dorr et al. and Teranishi et al. since where the claimed apparent extract concentration ranges overlaps apparent extract concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the apparent extract concentration of the beer taste beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such apparent extract concentration 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.). One of ordinary skill in the art would adjust the apparent extract concentration of modified Joshi et al. based upon the desired foaming abilities as taught by Teranishi et al. (‘271, Paragraph [0022]).
Regarding Claim 11, Joshi et al. discloses the beer taste beverage to be an unfermented non-alcoholic beer taste beverage (‘585, Paragraphs [0001] and [0093]).
Joshi et al. discloses the beverage containing aqueous vegetable sugar containing extract (‘585, Paragraph [0009]). However, Joshi et al. is silent regarding the beverage being supplemented with dimethyl dicarbonate.
Possner et al. discloses that methanol occurs naturally in vegetables where it is bonded to pectins and can be released during processing to derived products like vegetable juice by enzymatic activities and that food additives that contain methanol in non-alcoholic beverages are dimethyldicarbonate (DMDC) which is added to increase microbiological stability and decomposes rapidly into carbon dioxide and methanol after being added (Possner, Page 65). Oh discloses methanol is present at low concentrations in various plant based products and dimethyl dicarbonate (DMDC) (Oh, Page 3249).
Both Joshi et al. and Possner are directed towards the same field of endeavor of vegetable based non-alcoholic beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Joshi et al. supplement the vegetable based non-alcoholic beverage of Joshi et al. based upon the desired microbiological stability as suggested by Possner et al. Furthermore, Oh teaches that methanol and dimethyl dicarbonate (DMDC)is already present at low concentrations in various plant based products (Oh, Page 3249).
Further regarding Claim 11, Joshi et al. modified with Possner et al. and Oh is silent regarding the total nitrogen content of the beer taste beverage to be 0.3 mg/100 mL or more.
Nakajima et al. discloses a non-alcoholic beer taste beverage (‘339, Paragraph [0001]) containing a nitrogen source composed of an amino acid containing material other than barley or malt, and hops (‘339, Paragraph [0033]) and an apparent extract concentration (‘339, Paragraphs [0034] and [0039]). Nakajima et al. further discloses a raw material having a comparatively high amino acid content such as protein (‘339, Paragraph [0029]) wherein the raw material protein is a soybean protein, which has good nutritional properties and exhibits good digestibility and absorbability (‘339, Paragraph [0038]).
Both modified Joshi et al. and Nakajima et al. are directed towards the same field of endeavor of non-alcoholic beer taste beverages. Although Nakajima et al. does not explicitly state that the nitrogen content of the beer taste beverage is 0.3 mg/100 mL or more, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beer taste beverage of modified Joshi et al. and adjust the nitrogen content that encompasses the soybean protein and amino acid content of the beer taste beverage and adjust the nitrogen content to be within the claimed nitrogen concentration range of 0.3 mg/100 mL or more since differences in the nitrogen concentration within the non-alcoholic beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such nitrogen concentration of the non-alcoholic beverage 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.). One of ordinary skill in the art would adjust the nitrogen content of the beer taste beverage of modified Joshi et al. based upon the desired digestibility and absorbability of the beverage as suggested by Nakajima et al. (‘339, Paragraph [0038]).
Further regarding Claim 11, Joshi et al. modified with Possner et al., Oh, and Nakajima et al. is silent regarding the apparent extract concentration of the beer taste beverage to be 0.26 to 2.8% by mass.
Dorr et al. discloses a nonalcoholic beer taste beverage comprising an apparent extract sweetener of 2.40 wt% (‘121, Table 11), which falls within the claimed apparent extraction concentration of 0.26 to 2.8% by mass. Teranishi et al. also discloses a non-alcohol non-fermented beer taste beverage (‘271, Paragraph [0013]) wherein the total amount of extract components affects the foam formed on the surface of the non-alcohol beer taste beverage (‘271, Paragraph [0022]) wherein non-alcohol beer taste beverages are often produced without fermenting the ingredients since fermentation produces alcohol (‘271, Paragraph [0003]) wherein the total amount of the extract components is the sum of the extract component contained in the non-alcohol beer taste beverage (‘271, Paragraph [0021]) wherein the total amount of the extract component is in the range of between 0.1% to 2% by weight to provide a sufficient quality of high foam retention to the foam formed on the surface to provide a beer like appearance (‘271, Paragraph [0022]) wherein soybean saponin and soybean plant protein additives are used (‘271, Paragraph [0054]). The disclosure of the total amount of extract being in the range of between 0.1% to 2% by weight overlaps the claimed apparent extract concentration of 0.26 to 2.8% by mass.
Modified Joshi et al., Dorr et al., and Teranishi et al. are all directed towards the same field of endeavor of nonalcoholic beer taste beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the apparent extract concentration of the beer taste beverage of modified Joshi et al. and incorporate an extract concentration that falls within the claimed apparent extract concentration as taught by Dorr et al. and Teranishi et al. since where the claimed apparent extract concentration ranges overlaps apparent extract concentration ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the apparent extract concentration of the beer taste beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such apparent extract concentration 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.). One of ordinary skill in the art would adjust the apparent extract concentration of modified Joshi et al. based upon the desired foaming abilities as taught by Teranishi et al. (‘271, Paragraph [0022]).
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Joshi et al. US 2014/0255585 in view of Possner et al. “Methanol contents of fruit juices and smoothies in comparison to fruits and a simple method for the determination thereof” (published February 2014) (herein referred to as “Possner”), Oh “Simultaneous Gas Chromatographic Quantitation of Ethanol and Methanol from Beer” (published February 2020) (herein referred to as “Oh”), Nakajima US 2016/0143339, Dorr et al. US 2008/0220121, and Teranishi et al. US 2015/0313271 as applied to claim 1 above in further view of Takeuchi et al. US 2017/0318848.
Regarding Claim 6, Dorr et al. discloses the beer taste beverage comprising preservatives (‘271, Paragraph [0051]). However, Joshi et al. modified with Possner et al., Oh, Nakajima, Dorr et al., and Teranishi et al. is silent regarding the preservative being benzoic acid, benzoate, or benzoic acid ester.
Takeuchi et al. discloses a non-alcoholic beer comprising a flavor improving agent or flavor composition (‘848, Paragraph [0047]) comprising an antibacterial agent of benzoic acid or sodium benzoate (‘848, Paragraph [0033]).
Both modified Joshi et al. and Takeuchi et al. are directed towards the same field of endeavor of non-alcoholic beer taste beverages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beer taste beverage of modified Joshi et al. and supplement the beer taste beverage with benzoic acid as taught by Takeuchi et al. since the selection of a known material based on its suitability for its intended use 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). Takeuchi et al. establishes that there was known utility in the beverage art to incorporate benzoic acid into a beer taste beverage.
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Joshi et al. US 2014/0255585 in view of Possner et al. “Methanol contents of fruit juices and smoothies in comparison to fruits and a simple method for the determination thereof” (published February 2014) (herein referred to as “Possner”), Oh “Simultaneous Gas Chromatographic Quantitation of Ethanol and Methanol from Beer” (published February 2020) (herein referred to as “Oh”), Nakajima US 2016/0143339, Dorr et al. US 2008/0220121, and Teranishi et al. US 2015/0313271 as applied to claim 1 above in further view of Oono et al. US 2006/0016513.
Regarding Claim 7, Joshi et al. discloses adding hops for additional bitterness (‘585, Paragraph [0087]). However, Joshi et al. modified with Possner et al., Oh, Nakajima, Dorr et al., and Teranishi et al. is silent regarding the beer taste beverage having a bitterness unit of 5 to 50 BUs.
Oono et al. discloses a method of making beer taste low alcoholic beverages (‘513, Paragraph [0002]) wherein extracts such as malt extract, barley extract, wheat extract, and rice extract are added (‘513, Paragraph [0038]) and dietary fibers are added (‘513, Paragraph [0042]) wherein hop pellets, hop extracts, and isomerized hop are added to contribute to adjustment of bitter taste in the range of the amount of 5-30 BU (‘513, Paragraph [0032]), which falls within the claimed bitterness unit range of 5 to 50 BUs.
Modified Joshi et al. and Oono et al. are directed towards the same field of endeavor of low or non-alcoholic beer taste beverages comprising dietary fibers and having a bitter flavor. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the bitterness of the beer taste beverage of modified Joshi et al. to have a bitterness unit that falls within the claimed bitterness unit range as taught by Oono et al. since where the claimed bitterness unit ranges overlaps bitterness unit ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the bitterness unit of the beer taste beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such bitterness unit 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.). One of ordinary skill in the art would adjust the apparent extract concentration of modified Joshi et al. based upon the desired bitterness of the final beer taste beverage.
Response to Arguments
Applicant’s arguments with respect to the obviousness rejections of Claims 1-3 and 6-11 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
O’Connell et al. US 2004/0105923 discloses a beverage product comprising a container holding a liquid beverage component and sufficient nitrogen gas to give a gas pressure in the head space of at least about 3.3 bar at 5°C wherein the liquid beverage comprises an organoleptically acceptable foam maintaining system such that when the liquid beverage is poured from the container a foam is generated (‘923, Paragraph [0003]) wherein the liquid beverage component is any consumable liquid such as alcoholic or alcohol free drinks (‘923, Paragraph [0006]).
Yanagawa et al. US 2015/0030747 discloses a method of producing a nitrogen infused beverage (‘747, Paragraphs [0007] and [0017]) comprising providing a beverage (‘747, Paragraph [0017]), adding a foaming agent to the beverage, and dispensing the beverage into a can (‘747, Paragraph [0031]) and adding nitrogen to the beverage (‘747, Paragraph [0034]) wherein the beverage is a sparkling alcoholic or non-alcoholic beverage (‘747, Paragraphs [0016]-[0017]).
Giardino et al. US 2017/0055553 discloses a machine to inject a gas into a liquid to form a consumable flavored beverage wherein the machine injects nitrogen and/or carbon dioxide gas alone or in combination as a mixed gas composition into the liquid wherein the concentration of gas is adjusted to various levels (‘553, Paragraph [0034]).
Spelman et al. US 2011/0008514 discloses a method of making a nitrogen infused beverage (‘514, Paragraph [0018]) comprising providing a beverage, adding a foaming agent (foam stabilizer) to the beverage (‘514, Paragraph [0028]) and adding nitrogen to the beverage (‘514, Paragraph [0026]).
Sahai et al. US 2013/0266713 discloses a beverage comprising nitrogen (‘713, Paragraph [0012]).
DeWille et al. US 6,475,539 discloses a high nitrogen beverage (‘539, Column 7, lines 12-20)
Kleinrichert US 9,623,383 discloses a system to prepare nitrogen infused beverages comprising infusing beverages with nitrogen by dispensing a combination of nitrogen and carbon dioxide into chilled coffee or tea.
Hinton et al. US 2020/0040289 discloses a method of making nitrogen infused sparkling wine comprising infusing wine with nitrogen (‘289, Paragraph [0019]) wherein beer typically has a foam component referred to as “beer’s head” that is generated by the wort protein, hops, and yeast residue which are brought to the top of a poured beer by carbon dioxide which is typically generated by the beer fermentation process or nitrogen used to give beer’s head a more creamy or frothy characteristic (‘289, Paragraph [0007]).
Campbell US 2016/0136590 discloses an apparatus for mixing a gas and liquid including carbon dioxide infused beverages and/or nitrogen infused beverages (‘590, Paragraph [0003]) wherein the beverage is beer (‘590, Paragraph [0015]).
Hilldebrand et al. GB 1266351 discloses an aerated beer stout dispensing in such a manner that a head of foam is formed in the drinking vessel (‘351, Page 1, lines 32-44) comprising mixed gases comprising carbon dioxide and an inert nitrogen gas assists in the formation of a fine, regular, and enduring head on the beverage when it is dispensed (‘351, Page 2, lines 44-57) wherein the beer is packed with a mixture of carbon dioxide and inert gas in the solution in the liquor and in the headspace (‘351, Page 4, lines 66-81).
Holl “Good Beer Gas: Nitro Beers Explained” <https://www.craftbeer.com/craft-beer-muses/good-beer-gas-nitro-beers-explained> (published January 24, 2013) discloses a typical nitrogenated beer contains about 70 percent nitrogen and 30 percent carbon dioxide.
Weikert “Fine Tuning Stouts: It’s All in the Details” <https://www.beerandbrewing.com/fine-tuning-stouts-it-s-all-in-the-details> (published May 31, 2017) discloses a method of making stout beer comprising balancing sweetness of the stout by adjusting the flavor intensity of things already present in the stout including roast and bittering levels and adjusting the percentage of roast malts present in the grist with more of it acting as a balance to sweetness and the level of roast on the grains used wherein higher Lovibond levels correlate to more intense roastiness.
Kaneko JP 2016/007138 discloses a non-alcoholic beer flavored beverage that does not use barley or malt as an ingredient and contains a foaming agent and dietary fiber (‘138 Machine Translation, Paragraph [0001]) wherein the dietary fiber is soybean dietary fiber (‘138 Machine Translation, Paragraph [0008]).
Kato JP 2019/004755 discloses a beer taste beverage comprising soybean dietary fiber (‘755 Machine Translation, Paragraph [0027]).
Funtowicz US 2019/0174798 discloses a composition and method for adding an aroma to foods and consumable liquids comprising spraying essential oil compositions that provide an aroma without significantly altering the taste of the food or liquid (‘798, Paragraph [0002]).
Aerts US 2010/0303994 discloses a fermented non-alcoholic beer beverage made from cereal grains with or without addition of fruits or fruit extracts (‘994, Paragraph [0042]).
Aerts et al. US 2010/0040731 discloses a non-alcoholic fermented beer beverage having increased levels of soluble arabionxylo-oligosaccharides to improve the taste and/or mouthfeel of such beer or fermented beverage (‘731, Paragraph [0002]) with or without addition of fruits or fruit extracts (‘731, Paragraph [0043])
Kohler et al. US 2020/0377831 discloses a malted non-fermented liquid of beer optionally including fruit extracts (‘831, Paragraph [0022]).
Saerens et al. US 2016/0010042 discloses an alcohol free beverage with enhanced levels of fermentation derived flavor compounds comprising a step of fermentation of a wort with pichia kluyveri yeast strain (‘042, Paragraph [0001]).
Shimamura et al. US 6,265,000 discloses a method of making an alcoholic beverage comprising a mixture of malt and an amylaceous starchy raw material such as barley and/or rice added with a koji and optionally a fruit.
Stuchlik et al. US 2011/0256298 discloses beer contains vegetable fibers formed by polysaccharides of the cereal malt cell walls such as celluloses, hemicelluloses, and beta-glucans wherein the content of the fibers depends on the percentage of malt present (‘298, Paragraph [0012]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792