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 .
The amendment filed February 25, 2026 is acknowledged. Claims 1-3 and 5-11 are pending in the application. Claims 4 and 12 have been cancelled. Claims 7-11 are withdrawn from consideration.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 25, 2026 has been entered.
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.
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 and 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over Zurcher et al. (hereinafter “Zurcher”) in view of Shinsuke et al. JP 2012-239460 (hereinafter “Shinsuke”) (refer to the corresponding machine translation).
With respect to claim 1, Zurcher teaches a beer beverage (C2, L12-13).
Regarding the recitation of comprising less than 0.07 ppm by mass of diacetyl, 0.5 (v/v)% or more and less than 1.5 (v/v)% of ethanol, having an H2S content of less than 5 ppb by mass in claim 1, Zurcher teaches the beverage comprises an alcohol (ethanol) content of greater than about 0.5% and less than or equal to about 1.5% (C4, claim 13). Additionally, it is noted that the claimed amount of H2S includes zero. The beverage of Zurcher does not include H2S (C2, L52-C3, L10). Hence, the beverage of Zurcher meets the claimed H2S content.
Zurcher does not expressly disclose the beverage comprises less than 0.07 ppm by mass of diacetyl. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to adjust the diacetyl content in Zurcher through routine experimentation with the expectation of successfully preparing an organoleptically desirable beverage product. One of ordinary skill in the art would have been motivated to do so because Zurcher teaches the beverage comprises 0.11 ppm of vicinal di-ketones which are understood in the art as flavor compounds including diacetyl that are generated during the fermentation process in preparation of the beer beverage (C3, L10), the final flavor of the beer is a matter of choice and can be obtained by adjusting the process parameters during production of the beverage, and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
Regarding the recitation of comprising 7 (w/w)% or more and 10 (w/w) or less of real extract concentration, comprising 1.7 ppm by mass or more of ethyl acetate, and comprising 0.6% to 6.0% by mass of maltose in claim 1, Zurcher teaches the beverage comprises 6.6% of actual (real) extract, an ethyl acetate content of 3.1 ppm, and a maltose content of 2.6% in the example (C2, L55-69). It is apparent that the instantly claimed real extract concentration and that taught by Zurcher are so close to each other that the fact pattern is similar to the one in In re Woodruff , 919 F.2d 1575, USPQ2d 1934 (Fed. Cir. 1990) or Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 227 USPQ 773 (Fed.Cir. 1985) where despite a “slight” difference in the ranges the court held that such a difference did not “render the claims patentable” or, alternatively, that “a prima facie case of obviousness exists where the claimed ranges and prior art ranges do not overlap but are close enough so that one skilled in the art would have expected them to have the same properties”. In light of the case law cited above and given that there is only a “slight” difference between the real extract quantity taught in Zurcher (6.6%) and the range disclosed in the present claim (7% to 10%), it therefore would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention that the concentration of real extract disclosed in the present claim is but an obvious variant of that taught in Zurcher, and thereby one of ordinary skill in the art would have arrived at the claimed invention.
Additionally, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the real extract concentration in the beverage of Zurcher through routine experimentation with the expectation of successfully preparing an organoleptically desirable product. One of ordinary skill in the art would have been motivated to do so because the flavor of the beverage product is contingent upon the final components produced during production, such as the real extract concentration, and their quantities and can be adjusted as desired, Zurcher teaches the beverage has similar flavor to regular beer (C2, L12-16), the flavor is a matter of choice and does not provide a patentable feature over the prior art, and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
Regarding the recitation of comprising 50 to 1000 ppm by mass of lactic acid and 50 to 1000 ppm by mass of phosphoric acid in claim 1, Zurcher does not expressly disclose this limitation.
Shinsuke teaches a low alcohol beer composition. The beverage has an alcohol (ethanol) concentration of 4% by volume or less and comprises 100 to 600 ppm of lactic acid and 100 to 600 ppm phosphoric acid (paragraphs [0012], [0019], [0020], and [0047]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Shinsuke, to select lactic acid and phosphoric acid in the beverage of Zurcher based in their suitability for their intended purpose with the expectation of successfully preparing an organoleptically desirable product. One of ordinary skill in the art would have been motivated to do so because Shinsuke and Zurcher similarly teach low alcohol beer beverages, Shinsuke teaches the beverage product has excellent, well-balanced flavor that is similar to regular beer and has excellent storage stability (paragraphs [0001], [0002], [0011], and [0016]), Zurcher teaches the beverage has similar flavor to regular beer (C2, L12-16), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected result. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
With respect to claim 2, modified Zurcher is relied upon for the teaching of the beverage of claim 1 as addressed above.
Regarding the recitation of comprising 55 ppm by mass or less of ethyl acetate in claim 2, modified Zurcher teaches this limitation since Zurcher is relied upon for the teaching of the ethyl acetate content as addressed above in claim 1, and Zurcher teaches the beverage has an ethyl acetate content of 3.1 ppm in the example (C2, L69).
With respect to claim 3, modified Zurcher is relied upon for the teaching of the beverage of claim 1 as addressed above.
Regarding the recitation of having a pH value of less than 4.0 in claim 3, Zurcher as modified by Shinsuke teaches this limitation since Shinsuke is relied upon for the teaching of lactic acid and phosphoric acid as addressed above in claim 1, and Shinsuke teaches the pH of the final product is 4.4 or less (paragraphs [0016] and [0020]). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
With respect to claim 5, modified Zurcher is relied upon for the teaching of the beverage of claim 1 as addressed above.
Regarding the recitation of having a real extract concentration of 7.7 (w/w)% or more in claim 5, modified Zurcher does not expressly disclose this limitation. However, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to optimize the real extract concentration in the beverage of Zurcher through routine experimentation with the expectation of successfully preparing an organoleptically desirable product. One of ordinary skill in the art would have been motivated to do so because the flavor of the beverage product is contingent upon the final components produced during production, such as the real extract concentration, and their quantities and can be adjusted as desired, Zurcher teaches the beverage has similar flavor to regular beer (C2, L12-16), the flavor is a matter of choice and does not provide a patentable feature over the prior art, and it is understood that, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. There would have been a reasonable expectation of success. “[W]here 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05 II).
With respect to claim 6, modified Zurcher is relied upon for the teaching of the beverage of claim 1 as addressed above.
Regarding the recitation of wherein the beer-taste beverage is a fermented beer-taste beverage in claim 6, modified Zurcher teaches this limitation since Zurcher teaches the beverage is a fermented beer beverage (C3, claim 1).
Response to Amendment
The Declaration under 37 CFR 1.132 filed February 25, 2026 is acknowledged. The arguments are directed to Casey which was used as the primary reference in the previous Office Action (see the Final Rejection of November 26, 2025). These arguments have been considered but are moot as this reference is no longer being used in the current rejection.
Response to Arguments
Applicant’s remarks filed February 25, 2026 are acknowledged.
Due to the amendments to claims, the 35 USC 103 rejection of claims 1-6 over Casey in view of Shinsuke in the previous Office Action has been withdrawn. Upon further searching and consideration, a new ground of rejection has been made. As addressed above, modified Zurcher teaches a beverage that is substantially similar to that as presently claimed. Applicant’s arguments with respect to Casey have been considered but are moot as the reference is not being used in the current rejection.
Conclusion
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
/T.L.M/Examiner, Art Unit 1793
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