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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 16 March 2026 has been entered.
Claim Status
Claims 1-16 are currently pending in the application. Claims 11-12 have been withdrawn.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-5, 10, and 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Maki et al. (herein referred to as Maki, JP 2018064496 A) in view of Norio ( JP 2013081417 A).
With regard to Claim 1, Maki teaches a beer-taste beverage ([0001]). Maki teaches the beverage comprises 4-vinylguaiacol in a range of 0.5 to 20 ppm and ethyl butyrate in a range of 0.12 to 1 ppm ([0006], one with ordinary skill in the art would recognize ethyl butyrate is the general or common name for ethyl n-butyrate). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. Maki teaches the raw materials of the beer-taste beverage do not contain beer fragrance (whole document). Per applicants specification, examples of beer fragrance include ethyl acetate, isoamyl acetate, n-propanol, isobutanol, acetaldehyde, ethyl caproate, and linalool (applicants specification [0046]). Maki does not include any of these components nor does it contain anything that would be considered a beer fragrance.
However, Maki is silent to the composition containing ϒ-nonalactone.
Norio teaches a flavor composition used for improving the flavor of beer-like beverages ([0001]). Norio teaches one embodiment which contains a ϒ-nonalactone as a sweetener ([0013]). Norio teaches the sweetening component is contained in an amount of 0.05 to 5.0 parts by weight per 100 parts by weight of the alcoholic component ([0015]).
Thus, in one embodiment, the calculated ratio would be as follows: Norio teaches 0.05 parts per hundred of ϒ-nonalactone, which converted to ppm would be 500 ppm. Therefore, it one embodiment the ratio would be 20ppm of ethyl butyrate/500 ppm ϒ-nonalactone which would be a ratio of 0.04 which is within the claimed range.
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Maki in view of Norio to include ϒ-nonalactone to improve the flavor of the beer flavored beverage with a sweetener ([0013]). The ratio of ethyl n-butyrate/ ϒ-nonalactone can be optimized through routine experimentation to obtained the desired flavor profile. See MPEP 2144.05(II)(A) Routine optimization, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 809, 10 USPQ2d 1843, 1848 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989)(Claimed ratios were obvious as being reached by routine procedures and producing predictable results).
With regard to Claim 2, Maki is silent to the content of ϒ-nonalactone being 3 ppb by mass or more.
Norio teaches one embodiment which contains a ϒ-nonalactone as a sweetener ([0013]). Norio teaches the sweetening component is contained in an amount of 0.05 to 5.0 parts by weight per 100 parts by weight of the alcoholic component ([0015]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Maki in view of Norio to include ϒ-nonalactone to improve the flavor of the beer flavored beverage with a sweetener ([0013]). The amount of ϒ -nonalactone can be optimized through routine experimentation to obtained the desired flavor profile. See MPEP 2144.05(II)(A) Routine optimization, 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).
With regard to Claim 3, Maki teaches the beverage comprises 4-vinylguaiacol in a range of 0.5 to 20 ppm and ethyl butyrate in a range of 0.12 to 1 ppm ([0006]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. In addition, Maki teaches the raw materials of the beer-taste beverage do not contain beer fragrance (whole document).
However, Maki is silent to the composition containing ϒ-nonalactone.
Norio teaches one embodiment which contains a ϒ-nonalactone as a sweetener ([0013]). Norio teaches the sweetening component is contained in an amount of 0.05 to 5.0 parts by weight per 100 parts by weight of the alcoholic component ([0015]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Maki in view of Norio to include ϒ-nonalactone to improve the flavor of the beer flavored beverage with a sweetener ([0013]). The ratio of the total content of ethyl n-butyrate and ϒ-nonalactone to the content of 4-vinylguaiacol [(ethyl n-butyrate + ϒ-nonalactone)/4-vinylguaiacol] can be optimized through routine experimentation to obtained the desired flavor profile. See MPEP 2144.05(II)(A) Routine optimization, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 809, 10 USPQ2d 1843, 1848 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989)(Claimed ratios were obvious as being reached by routine procedures and producing predictable results).
With regard to Claim 4, the combination of Maki and Norio teach a substantial identical composition to instant Claim 1. Per MPEP 2112.01(II) "Products of identical chemical composition can not have mutually exclusive properties." In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present.
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention, that the composition taught by the combination of Maki and Norio would have the same bitterness unit as claimed in Claim 4 because the compositions are substantially identical.
With regard to Claim 5, Maki teaches the beer-taste beverage is a fermented beer-taste beverage ([0034]).
With regard to Claims 10, Maki teaches the beverage comprises 4-vinylguaiacol in a range of 0.5 to 20 ppm and ethyl butyrate in a range of 0.12 to 1 ppm ([0006]). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions. In addition, Maki teaches the raw materials of the beer-taste beverage do not contain beer fragrance (whole document). Maki teaches the raw materials of the beer-taste beverage do not contain beer fragrance (whole document). Per applicants specification, examples of beer fragrance include ethyl acetate, isoamyl acetate, n-propanol, isobutanol, acetaldehyde, ethyl caproate, and linalool (applicants specification [0046]). Maki does not include any of these components nor does it contain anything that would be considered a beer fragrance.
However, Maki is silent to the composition containing ϒ-nonalactone.
Norio teaches one embodiment which contains a ϒ-nonalactone as a sweetener ([0013]). Norio teaches the sweetening component is contained in an amount of 0.05 to 5.0 parts by weight per 100 parts by weight of the alcoholic component ([0015]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Maki in view of Norio to include ϒ-nonalactone to improve the flavor of the beer flavored beverage with a sweetener ([0013]). The ratio of the total content of ethyl n-butyrate and ϒ-nonalactone to the content of 4-vinylguaiacol [(ethyl n-butyrate + ϒ-nonalactone)/4-vinylguaiacol] can be optimized through routine experimentation to obtained the desired flavor profile. See MPEP 2144.05(II)(A) Routine optimization, see Merck & Co. Inc. v. Biocraft Lab. Inc., 874 F.2d 804, 809, 10 USPQ2d 1843, 1848 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989)(Claimed ratios were obvious as being reached by routine procedures and producing predictable results).
With regard to Claims 13 and 14, Maki teaches the raw materials for the beer-taste beverage consist of water, barley malt, and wheat malt ([0034], [0043])
With regard to Claims 15 and 16, Maki teaches the beverage comprises 4-vinylguaiacol in a range of 0.5 to 20 ppm (500 ppb – 20,000 ppb). Maki teaches 4-vinylguaiacol has a ripe banana aroma and within the specified range the ripe banana aroma is felt more strongly ([0007]-[0008]).
It would have been obvious to one with ordinary skill in the art to eliminate or decrease the amount of 4-vinylguaiacol to achieve the desired flavor profile in the case wherein a ripe banana aroma may not be desired. See MPEP 2173.05(c)(II) Some terms have been determined to have the following meanings in the factual situations of the reported cases: the term "up to" includes zero as a lower limit, In re Mochel, 470 F.2d 638, 176 USPQ 194 (CCPA 1974); and "a moisture content of not more than 70% by weight" reads on dry material, Ex parte Khusid, 174 USPQ 59 (Bd. App. 1971).
Claims 6 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Maki (herein JP 2018064496 A) in view of Norio ( JP 2013081417 A) and Kozaki (US 20170121657 A1).
With regard to Claim 6, Maki and Norio are silent to the beer-taste beverage has an original extract (0-Ex) concentration of 4.0 to 20.0% by mass.
Kozaki teaches a beer-taste beverage wherein original wort extract concentration is at least 10% ([0001], [0013]). Kozaki teaches the original wort extract concentration refers to content of sugar contained in the beer-taste beverage, and affects the taste such as “umami” of the beer-taste beverage. In the present invention, the original wort extract concentration is preferably at least 10% (v/v %). In this way, it is possible to more reliably improve “umami”. ([0040]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Maki and Norio to incorporate the original extract as taught by Kozaki to reliably improve the umami taste ([0040]).
With regard to Claim 7, Maki and Norio are silent the beer-taste beverage has a total polyphenol content of 60 to 300 ppm by mass.
Kozaki teaches the beer-taste beverage with a total polyphenol content of 140ppm or less ([0037]). Kozaki teaches the total polyphenol is related to “umami”, refreshing feeling and “kire” of the beer-taste beverage ([0037], Kire in Japanese approximately translates to “beautiful”, “pretty”, “lovely” or “clean”).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Maki and Norio to incorporate polyphenols in the amount taught by Kozaki to achieved the desired “umami” taste as well and give the beer-taste beverage a refreshing feeling ([0037]).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Maki (herein JP 2018064496 A) in view of Norio ( JP 2013081417 A) and Uchida (WO 2014057954 A1).
With regard to Claim 8, Maki and Norio are silent to the beer-taste beverage has a proline concentration of 3.5 to 60.0 ppm by mass.
Uchida teaches a beer-taste beverage (page 1) which contains proline (page 6) Uchida teaches proline is an amino acid that has both sweet and bitter tastes. It is present in wort and contributes to the malt-derived flavor, which has a favorable effect on beer-flavored beverages (page 6). Uchida teaches he range of the proline content in the beer-taste beverage of the present invention is preferably 0.00008 to 0.1 mass%, more preferably 0.0002 to 0.05 mass%, more preferably 0.0002 to 0.01 mass%, even more preferably 0.0003 to 0.01 mass%, even more preferably 0.0006 to 0.008 mass%, and especially preferably 0.001 to 0.005 mass% (page 7). In addition Uchida teaches the content of proline varies based on the desire effect such as imparting flavor or balancing between the mildness of the malt odor and the aftertaste (page 6). See MPEP 2144.05 Obviousness of Similar and Overlapping Ranges, Amounts, and Proportions.
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Maki and Norio to include proline in the amount taught by Uchida to give the composition a sweet and bitter taste or contribute to the malt-derived flavor, which has a favorable effect on beer-flavored beverages (page 6).
Claim 9 is rejected under 35 U.S.C. 103 as being unpatentable over Maki (JP 2018064496 A) in view of Norio ( JP 2013081417 A) and Sano et al. (herein referred to as Sano, JP 2019180333 A).
With regard to Claim 9, Maki and Norio are silent to the composition having a malt ratio of 50 to 100%.
Sano teaches a beer-taste beverage (abstract) which has a malt ratio which is not particularly limited and for example 1% (% by weight) or more, 25% or more, 50% or more, 67% or more, 80% or more, 90% or more, Moreover, they are 99% or less, 90% or less, 80% or less, 67% or less, 66% or less, less than 50%, and less than 25% ([0022] Sano teaches The “malt ratio” is specifically the ratio of the weight of malt to the total weight of materials other than water and hops used in the production of beer-taste beverages ([0022]).
Therefore, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify the combination of Maki and Norio to include the malt ration taught by Sano to optimize the ratio of malt to the total weight of other materials to produce the desired taste of the beer-taste beverage.
Response to Arguments
Applicant's arguments filed 16 March 2026 have been fully considered but they are not persuasive.
Applicant argues that Norio’s flavor-improving agent that is defined as a sweetener is an additive containing beer fragrance. The applicant points to their specification which states in paragraph [0007] “Specifically, the beer- taste beverage according to one aspect of the present invention includes any carbonated beverage having beer flavor by the addition of a beer fragrance including ester or a higher alcohol (e.g., isoamyl acetate, ethyl acetate, n-propanol, isobutanol, acetaldehyde, ethyl caproate, linalool, and 4-vinylguaiacol), unless otherwise specified.” Applicant furthers their argument by saying based on the above definition a “higher alcohol” is defined as a “beer fragrance”.
The examiner disagrees with the applicants interpretation of the above definition. First, it is not absolutely clear if the disclosure in paragraph [0007] can be considered a definition because the paragraph states, ““Specifically, the beer- taste beverage according to one aspect of the present invention…” therefore the disclosure is only referring to “one aspect” wherein a definition would apply to all aspects not just one. As a result it is unclear if that disclosure is the definition of beer fragrance or merely giving an example of one aspect. Continuing, based on applicants disclosure, the applicant is assuming that all higher alcohols are considered “beer fragrances”. Rather the definition in the applicants specification reads that the fragrance can include a “higher alcohol” or an ”ester”. But just because the additive contains a higher alcohol or ester does not classify it explicitly as a beer-fragrance. Applicants specification further states in paragraph [0046] that “the beer fragrance is used for conferring beer-like flavor.” Applicants further seem to contradict the assertion that all esters and all higher alcohols are considered beer fragrances by requiring an ester (ϒ-nonalactone ) in the same claim that requires no beer fragrances. Furthermore, applicant argues that Norio’s flavor-improving agent contains alcoholic components including higher alcohol and esters. However, Norio teaches the sweetening agent is ϒ-nonalactone (Norio [0013]) which the examiner agrees is an ester (lactone is a cyclic ester) but does not confer a “beer-like flavor” as based on applicants specification ϒ-nonalactone cannot be considered a beer fragrance. Norio teaches the sweetener component is “at least one selected from the group consisting of sugarone, sotolon, furaneol, γ-nonalactone, and γ-decalactone.”. By using the phrase “at least one” Norio reads such that in some embodiments the sweetener only contains ϒ-nonalactone which thus reads on the limitation of the claim and as discussed above ϒ-nonalactone would not be considered a “beer fragrance”. Since only ϒ-nonalactone is present in the sweetener than there are no other additional higher alcohols or esters that would potentially classify the sweetener taught by Norio as a “beer fragrance” as described by the applicant. Therefore Norio does read on the limitations of the claim and thus, applicants argument is not found to be persuasive.
Conclusion
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792