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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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.
Claim(s) 1 and 2 is/are rejected under 35 U.S.C. 103 as being unpatentable over Spevacek et al (Beer metabolomics: molecular details of the brewing process and the differential effects of late and dry hopping on yeast purine metabolism) in view of Caluwaerts (US 5384135 A) and Niu et al (Malt derived proteins: Effect of protein Z on beer foam stability).
In regard to claims 1 and 2, Spevacek et al discloses a study where “nuclear magnetic resonance (NMR) metabolomics was used to follow the progression of 76 metabolites in four different late or dry hopped beers (brewed in triplicate) at five time points throughout the brewing process” (Abstract). Spevacek et al discloses that the presence of 2′-deoxyadenosine was detected in beers after both primary and secondary fermentations (after primary, p = 1.1 × 10−2, after secondary, p = 3.2 × 10−5) (Abstract). Spevacek et al discloses beers containing approximately 175 µM (late hopped) or approximately 110 µM (dry hopped) of 2′-deoxyadenosine (Fig. 3B). The amount of 2′-deoxyadenosine (molecular weight 251.24 g/mol) contained in these beers is approximately 44.1 ppm (late hopped) and 27.7 ppm (dry hopped).
Spevacek et al does not disclose a non-alcoholic beer. Caluwaerts discloses process for the manufacture of an alcohol-free pale beer (AFB) whose organoleptic properties are those of a lager beer by dealcoholization of the alcoholic pale beer, by evaporation, under high vacuum, of at least about 50% of the volume of this beer (Abstract). In regard to the increasing demand in alcohol-free beers Caluwaerts discloses:
There is currently an increasing demand for low-alcohol or alcohol-free beers among a population which is concerned about its health, about diet or about safety in the workplace or within the framework of the road traffic. There are also countries where alcohol consumption is completely forbidden by law but where consumers would like to have a drink which, although free of alcohol, has nevertheless organoleptic properties which are as close as possible to one of the conventional types of beer.
One of ordinary skill in the art would have been motivated to modify Spevacek et al in view of Caluwaerts and to remove alcohol from beer in order to produce an alcohol-free beer beverage according to the increased demand in such beverages.
Further in regard to the concentration recitations, it is noted 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. "[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 A).
Further, regarding the concentration ranges as examined above, it is noted that in the case where the claimed ranges “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). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Spevacek et al does not disclose the presence of protein having molecular weight of 35 to 50kDa. Niu et al discloses that the addition of purified protein Z from barley (Hordeum vulgare) malt into the finished beer could enhance the beer foam stability (Abstract). Niu et al discloses adding protein Z having molecular weight of 43kDa to beer in the amount of 20 mg/l (ppm) to improve foam stability (fig. 4). Niu et al discloses “[w]hen 10 mg purified protein Z was added into 500 mL beer, the beer foam stability value reached 210 s, which was 12.3% higher than the beer without addition of exogenous protein Z” (3.6. Effect of purified protein Z on beer foam stability).
One of ordinary skill in the art would have been motivated to modify the combination of Spevacek et al and Caluwaerts in view of Niu et al and to add protein Z to a beer beverage in order to improve foam stability. One of ordinary skill in the art would have been motivated to vary the amount of protein Z based on the desire foam stability effect.
Further in regard to the concentration recitations, it is noted 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. "[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 A).
Further, regarding the concentration ranges as examined above, it is noted that in the case where the claimed ranges “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). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Response to Arguments
Applicant's arguments filed 02/18/20256 have been fully considered but they are not persuasive.
In response to Applicant’s arguments regarding the concentration of 2′-deoxyadenosine in beer, it is noted that Spevacek et al discloses a study where “nuclear magnetic resonance (NMR) metabolomics was used to follow the progression of 76 metabolites in four different late or dry hopped beers (brewed in triplicate) at five time points throughout the brewing process” (Abstract). Spevacek et al discloses that the presence of 2′-deoxyadenosine was detected in beers after both primary and secondary fermentations (after primary, p = 1.1 × 10−2, after secondary, p = 3.2 × 10−5) (Abstract). Spevacek et al discloses beers containing approximately 175 µM (late hopped) or approximately 110 µM (dry hopped) of 2′-deoxyadenosine (Fig. 3B). The amount of 2′-deoxyadenosine (molecular weight 251.24 g/mol) contained in these beers is approximately 44.1 ppm (late hopped) and 27.7 ppm (dry hopped). Hence, Spevacek et al suggests that 2′-deoxyadenosine is present in beer, the concentration of 2′-deoxyadenosine decreases after sequential fermentations and is lower when beer is dry-hopped as opposed to the beer being late hopped. Spevacek et al discloses that only four beers where tested. Spevacek et al did not provide the study of all possibly existing beers. Spevacek et al does not preclude from the lower concentrations of 2′-deoxyadenosine. It is further noted that lower concentration of hops employed in dry hopping would result in lower content of 2′-deoxyadenosine. It is further noted that removal of alcohol from beer also leads to a removal of various aromatic compounds from beer.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Neither Caluwaerts nor Niu et al are relied upon as a teaching of 2′-deoxyadenosine. Caluwaerts is relied upon as a teaching of dealcoholization of beer. Niu et al is relied upon as a teaching of addition of purified protein Z from barley (Hordeum vulgare) malt into the finished beer to enhance the beer foam stability. The concentration of purified protein Z is seen to have been result-effective variable which is routinely determinable. One of ordinary skill in the art would have been motivated to vary the amount of protein Z based on the desire foam stability effect.
Further in regard to the concentration recitations, it is noted 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. "[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 A).
Further, regarding the concentration ranges as examined above, it is noted that in the case where the claimed ranges “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). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
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.
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/VERA STULII/Primary Examiner, Art Unit 1791
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