DETAILED ACTION
Claim Objections
Applicant is advised that should claim 71 be found allowable, claim 72 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 31, 33-35, 69, 77-79 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 31 and 69 depend on each other. Thus, it not clear how or what claims they further limit.
Claims 33-35 and 77-79 are rejected as they depend on or rely on claim 31 and 69.
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.
Claim(s) 1, 3, 10, 12-13, 16-18, 20-24, 29, 36, 44-45, 58-63, 67, 70-72, 75, 80-86, 88-95, 99-104 is/are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. 2009/0087526 (TANIGUCHI).
At the outset, it is noted that the Examiner has grouped claims not in numerical order but based on complex dependency of the claims.
Claim 1
TANIGUCHI teaches a method for making an alcoholic beverage.
As to step a), Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033]. The mixture is expressed in terms of a dipping ratio. With respect to the dipping ratio, the frozen material is added generally in amount of from about 10 g to 200 g per 1 L of alcohol [0036]. However, TANIGUCHI expressly teaches that by adjusting the conditions (for example, extraction time, alcohol degree, amount of the fruit and so on) in the step (c), the flavor and components of the final product can be controlled. Thus, it would have been obvious to vary the rate based on the desired flavor and components of the final product.
As to step b), TANIGUCHI teaches freezing and microgrinding the material [0036]. In particular, TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or blew. Thus, it would have been obvious to provide a range of freezing form 0oC to -196oC. This overlaps that claimed (i.e., 114oC to 5oC). As to grinding the material before or after extraction, it would have been obvious to do either. Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.).
As to step c), in [0045], it is taught that the fruit and vegetable material can be filtered out [0045]. It would have been obvious to remove solid material and obtain a drink.
Claims 3 and 61
Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033].
Claims 10, 12-13, 16, 18, 29, 58-60, 62-63
As to claims 59-60, TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or below. Thus, it would have been obvious to provide a range of freezing form 0oC to -196oC. This overlaps that claimed (i.e., -114oC to -5oC). As to the maintaining period, the extraction time generally ranges from about half a day to several months [0036]. This overlaps the claimed period of time.
TANIGUCHI teaches that the extraction time generally ranges from about half a day to several months [0036].
Claim 10
TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or blew. Thus, it would have been obvious to provide a range of freezing form 0oC to -196oC. This overlaps that claimed (i.e., -114oC to -5oC). As to the maintaining period, the extraction time generally ranges from about half a day to several months [0036]. This encompasses the claimed period of time.
Claim 12
TANIGUCHI teaches freezing and microgrinding the material [0036]. In particular, TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or below. Thus, it would have been obvious to provide a range of freezing form 0oC to -196oC. As to the size of the microgrinding, the micro grinding is conducted until an average grain size of about 1 μm to about 100 μm [0031]. This overlaps that claimed.
Claim 13
TANIGUCHI teaches freezing and microgrinding the material [0036] which would naturally result in lysing at least 50% of the cells. “At least” includes 90%.
Claims 16, 18
TANIGUCHI teaches freezing and microgrinding cellular material [0036] such as citrus fruit cellular material [0031] and mixing (i.e., blending as set forth in claim 16) the frozen material with an alcohol extract [0033]. It would have been obvious to have the material frozen before contact with the provide a liquid extractant.
Claims 58 and 62-63
As to claim 58 and 62-63, TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or below. Thus, it would have been obvious to provide a range of freezing form 0oC to -196oC. As to the maintaining period, the extraction time generally ranges from about half a day to several months [0036]. This encompasses or overlaps the claimed period of time.
Claim 29
In [0031], TANIGUCHI does teach using oil sacs of citrus fruits, it would have been obvious to use pulp.
Claim 17
As to claim 17, TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or below. Thus, it would have been obvious to provide a range of freezing from 0oC to -196oC.
Claims 20-23, 67, 70-72
Claim 20
TANIGUCHI teaches in [0045] that the fruit and vegetable material can be filtered out [0045]. It would have been obvious to remove solid material and obtain a drink.
Claims 21-23
In Examples 1-2 [0045]-[0046], the material is frozen and filtered with no mention of defrosting. Thus, it would have been obvious to filter at a temperature of 0oC to -196oC. This overlaps that claimed (i.e., -114oC to 5oC).
At [0100], it is taught that the alcohol and fruit material mixture extraction can be obtained and diluted to obtain an alcoholic beverage. It would have been obvious to vary the dilution based on the final desired alcohol content.
Claim 67
At [0100], it is taught that the alcohol and fruit material mixture extraction can be obtained and diluted. It would have been obvious to vary the dilution based on the final desired alcohol content.
Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033]. 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) (The prior art taught carbon monoxide concentrations of "about 1-5%" while the claim was limited to "more than 5%." The court held that "about 1-5%" allowed for concentrations slightly above 5% thus the ranges overlapped.); In re Geisler, 116 F.3d 1465, 1469-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997). Moreover, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claim 70
TANIGUCHI teaches that the fruit can be pressed [0023].
Claims 71-72
TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Given TANIGUCHI teaches freezing the product, it would have been obvious to dilute or mix any material with ice.
Claim 24
Taniguchi teaches that the extraction mixture can be distilled [0038]. In [0003] vacuum distilling processes can be used. It would have been obvious to use vacuum distillation.
Claim 36
At [0100], it is taught that the alcohol and fruit material mixture extraction can be obtained and diluted. It would have been obvious to vary the dilution based on the final desired alcohol content. This would necessarily involve taking into account the ethanol concentration of the liquid extractant and the determined water content of the cellular material. In this regard, Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033].
Claims 44, 80-84, 95
TANIGUCHI teaches a method for making an alcoholic beverage.
As to step a), Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033]. At [0100], it is taught that the alcohol and fruit material mixture extraction can be obtained and diluted. It would have been obvious to vary the dilution based on the final desired alcohol content. In [0037], TANIGUCHI teaches that by adjusting the conditions (for example, extraction time, alcohol degree, amount of the fruit and so on) in the step (c), the flavor and components of the final product can be controlled. It would have been obvious to take into consideration the weight ratio (z) is selected based upon the determined water content (x) and the ethanol concentration (y), and wherein the weight ratio (z) is selected to provide the desired alcohol concentration (w) of the alcoholic beverage; and separating a portion or all of the cellular material from the extraction mixture thereby providing the alcoholic beverage with a desired alcohol concentration (w).
As to claims 80-84 and 95, TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or below. Thus, it would have been obvious to provide a range of freezing form 0oC to -196oC. This overlaps that claimed (i.e., -114oC to -5oC). As to the maintaining period, the extraction time generally ranges from about half a day to several months [0036]. This overlaps the claimed period of time. Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033]. At [0100], it is taught that the alcohol and fruit material mixture extraction can be obtained and diluted. It would have been obvious to vary the dilution based on the final desired alcohol content.
Claims 85-86, 88-94
As to claims 85-86, in [0037], TANIGUCHI teaches that by adjusting the conditions (for example, extraction time, alcohol degree, amount of the fruit and so on) in the step (c), the flavor and components of the final product can be controlled. It would have been obvious to determine the alcohol content by taking into consideration the weight ratio of cellular material to liquid extractant. Thus, it would have been obvious to determine the weight ratio of the cellular material for use in step a) to the liquid extractant for use in step a) to achieve a desired alcohol concentration of the extraction mixture or alcoholic beverage, wherein the determining is based upon the ethanol concentration of the liquid extractant and the determined water content of the cellular material. This would include using published, water content data.
As to claims 88-94, at [0100], it is taught that the alcohol and fruit material mixture extraction can be obtained and diluted. It would have been obvious to vary the dilution based on the final desired alcohol content. Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033].
Claims 45, 99-104
TANIGUCHI teaches a method for making an alcoholic beverage.
As to step a), Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033]. The mixture is expressed in terms of a dipping ratio. With respect to the dipping ratio, the frozen material is added generally in amount of from about 10 g to 200g per 1 L of alcohol [0036]. In [0037], TANIGUCHI teaches that by adjusting the conditions (for example, extraction time, alcohol degree, amount of the fruit and so on) in the step (c), the flavor and components of the final product can be controlled. It would have been obvious to take into consideration the water content of the raw material.
As to the water content, TANIGUCHI teaches that by adjusting the conditions (for example, extraction time, alcohol degree, amount of the fruit and so on) in the step (c), the flavor and components of the final product can be controlled. It would have been obvious to take into consideration the water content of the raw material. Given the water content impacts the final product, it would have been obvious to determine water content or obtain the water content from publications such as material data sheets.
As noted above, TANIGUCHI teaches in [0037] that by adjusting the conditions (for example, extraction time, alcohol degree, amount of the fruit and so on) in the step (c), the flavor and components of the final product can be controlled. It would have been obvious to adjust and calculate the alcohol content based on the desired final product.
As to the order of steps, the selection of any order of mixing ingredients is prima facie obvious Ex parte Rubin, 128 USPQ 440 (Bd. App. 1959) (Prior art reference disclosing a process of making a laminated sheet wherein a base sheet is first coated with a metallic film and thereafter impregnated with a thermosetting material was held to render prima facie obvious claims directed to a process of making a laminated sheet by reversing the order of the prior art process steps.). See also In re Burhans, 154 F.2d 690, 69 USPQ 330 (CCPA 1946) (selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results); In re Gibson, 39 F.2d 975, 5 USPQ 230 (CCPA 1930) (Selection of any order of mixing ingredients is prima facie obvious.). Moreover, the absence of any proof in the record that the order of performing the steps produces any new and unexpected results. See In re Gibson, 39 F.2d 975, 17 C.C.P.A., Patents, 1090; In re Lang et al., 97 F.2d 626, 25 C.C.P.A., Patents, 1322; In re McKee, 83 F.2d 819, 23 C.C.P.A., Patents, 1187.
TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or below. Thus, it would have been obvious to provide a range of freezing form 0oC to -196oC. This overlaps that claimed (i.e., -114oC to -5oC). As to the maintaining period, the extraction time generally ranges from about half a day to several months [0036].
TANIGUCHI teaches that the ethanol content in the alcohol varies from 15 to 100% [0033].
Claim(s) 27-28, 74 and 76 is/are rejected under 35 U.S.C. 103 as being unpatentable over TANIGUCHI as applied to claim 60 above, and further in view of United States Patent Application Publication No. 2007/0269574 (KUTYEV).
Taniguchi is cited for the reasons noted above.
TANIGUCHI does teach that process improves the stability of the product [0037]. TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028].
TANIGUCHI is silent as to the storage temperature of the beverages.
KUTYEV teaches a beverage production method provides that involves for introducing nitrous oxide into a liquid base in of a liquid base and maintaining a temperature for long term storage and before serving the beverage with a range from 1-25oC to help preserve the flavor of the beverage [0007]. This overlaps the claimed temperature.
It would have been obvious to provide the same temperature to preserve the flavor of the beverage.
Claims 31, 33-35, 69, 77-79 is/are rejected under 35 U.S.C. 103 as being unpatentable over TANIGUCHI in view of H-D. Isengard, Rapid Water Determination In Foodstuffs, Terms in Food Science & Technology, Trends in Food Science & Technology May 1995 [Vol. 6] (ISENGARD).
TANIGUCHI teaches a method for making an alcoholic beverage [0033], [0035], and [0041]-[0046].
TANIGUCHI is silent as how to calculate the water content.
Isengard teaches that it is the water content is of great significance in determining the physical characteristics, technological processes, microbiological stability, shelf life and sensory properties of foods (abstract).
Starting at pg. 157, Isengard teaches that a microwave can be used to determine water content. The basic principle of microwave drying is similar to that of the infrared drying technique in that the sample is exposed to a drying process on a built-in balance. Usually, a frequency of 2450MHz is used to excite the water molecules, to induce them to rotate and, eventually, evaporate. The mass is continuously monitored and the stop criteria are as for the infrared method, with the microwave power, rather than the temperature, being variable
As noted above, TANIGUCHI does seek to provide beverages with certain alcohol contents. It would have been necessary to take into consideration the water content to obtain the correct alcohol content. Thus, it would have been obvious to measure the water content and the manner of deterring the water content via a microwave technique as taught by Isengard, as the water content is of great significance in determining the physical characteristics, technological processes, microbiological stability, shelf life and sensory properties of foods.
TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Given TANIGUCHI teaches freezing the product, it would have been obvious to dilute any material with ice.
Claim(s) 73 is/are rejected under 35 U.S.C. 103 as being unpatentable over TANIGUCHI as applied to claim 24 above, and further in view of United States Patent Application Publication No. 20070281052 (GOODWIN).
TANIGUCHI teaches distilling [0038] but silent as to using vacuum distillation.
GOODWIN teaches that vacuum distillation provide an improved quality of alcoholic condensate [0044].
Thus, it would have been obvious to one skilled in the art to use vacuum distillation in TANIGUCHI, as vacuum distillation provides an improved quality of alcoholic condensate [0044].
Claim 87 is rejected under 35 U.S.C. 103 as being unpatentable over TANIGUCHI as applied to claim 44 above, and further in view of H-D. Isengard, Rapid Water Determination In Foodstuffs, Terms in Food Science & Technology, Trends in Food Science & Technology May 1995 [Vol. 6] (ISENGARD).
TANIGUCHI teaches a method for making an alcoholic beverage [0033], [0035], and [004]-[0046].
TANIGUCHI is silent as how to calculate the water content.
Isengard teaches that it is the water content is of great significance in determining the physical characteristics, technological processes, microbiological stability, shelf life and sensory properties of foods (abstract).
Starting at pg. 157, Isengard teaches that a microwave can be used to determine water content. The basic principle of microwave drying is similar to that of the infrared drying technique in that the sample is exposed to a drying process on a built-in balance. Usually, a frequency of 2450MHz is used to excite the water molecules, to induce them to rotate and, eventually, evaporate. The mass is continuously monitored and the stop criteria are as for the infrared method, with the microwave power, rather than the temperature, being variable
As noted above, TANIGUCHI does seek to provide beverages with certain alcohol contents. It would have been necessary to take into consideration the water content to obtain the correct alcohol content. Thus, it would have been obvious to measure the water content and the manner of deterring the water content via a microwave technique as taught by Isengard, as the water content is of great significance in determining the physical characteristics, technological processes, microbiological stability, shelf life and sensory properties of foods.
Claims 96-98 is/are rejected under 35 U.S.C. 103 as being unpatentable over TANIGUCHI as applied to claim 44 above, and further in view of United States Patent Application Publication No. 20070281052 (GOODWIN).
TANIGUCHI provides an alcoholic beverage but silent as to adding additional ingredients such as sugar.
GOODWIN teaches that sugar can be used in fermentation to make alcoholic beverages and as a sweetener [0090] . Burnt sugar can be added to improve color [0018].
It would have been obvious to vary the amount of sugar based on the desired sweetness and type of alcoholic beverage (i.e., and corresponding alcohol content)
Thus, it also would have been obvious to one skilled in the art to add burnt sugar to change the color of the beverage.
Response to Arguments
Applicant's arguments filed 5/13/2026 have been fully considered but they are not persuasive.
The applicant argues that Taniguchi teaches a process in which cellular material is frozen and then reduced in size (i.e. ground) before the ground solid is then contacted with liquid extractant. As such, it is alleged that Taniguchi does not disclose a step of reducing in size cellular material that is present in the extraction mixture as required by Claim 1. Applicant submits the instant process achieves a clear technical effect and therefore does not fall within routine workshop modification The alleged technical effect associated with the difference between the instant process and Taniguchi is that a better extraction of flavor providing molecules is obtained from the cellular material in the process of the invention.
However, no criticality is established. Applicants may rebut a prima facie case of obviousness based on optimization of a variable disclosed in a range in the prior art by showing that the claimed variable was not recognized in the prior art to be a result-effective variable. E.I. Dupont de Nemours & Company v. Synvina C.V., 904 F.3d 996, 1008, 128 USPQ2d 1193, 1202 (Fed. Cir. 2018). As to the present situation, no data or results are presented that suggest the order in steps is critical.
The applicant argues that TANIGUCHI pursues size reduction to minimize the dispersion of cellular structures and polymers as the solid frozen material will shatter and shear more cleanly than when in a liquid environment. This allegedly stands in contrast to the claimed invention which seeks to provide a better extraction. However, TANIGUCHI expressly teaches that by adjusting the conditions (for example, extraction time, alcohol degree, amount of the fruit and so on) in the step (c), the flavor and components of the final product can be controlled. Thus, TANIGUCHI does teach an extraction and seeks to optimize the conditions to improve the extraction.
The applicant also argues that one skilled in the art would have found Taniguchi as teaching away from the formation of hydrocolloid structures so as to not negatively impact the subsequent filtration step carried out in the Taniguchi process.
However, Taniguchi teaches an extraction mixture is formed with alcohol and frozen fruit and vegetable material. The ethanol content in the alcohol varies from 15 to 100% [0033]. The mixture is expressed in terms of a dipping ratio. With respect to the dipping ratio, the frozen material is added generally in amount of from about 10 g to 200 g per 1 L of alcohol [0036]. It would have been obvious to vary the rate based on the desired flavor and components of the final product. TANIGUCHI freezing and microgrinding the material [0036]. In particular, TANIGUCHI teaches that the freezing methods can be air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen liquid freezing can be at -196oC. Air freezing would be at 0oC or blew. Thus, it would have been obvious to provide a range of freezing from 0oC to -196oC. This overlaps that claimed (i.e., -114oC to 5oC). As to grinding the material before or after extraction, it would have been obvious to do either. Taniguchi does not teach away from that claimed. .
It is also alleged that a key finding underlying the process of the present invention is that the very low temperature and high ethanol concentration of the extractant used means that the polarity of the ethanol is reduced, which surprisingly has been found to cause an increased agglomeration and precipitation of dispersed polymers and other cellular structures in the extraction mixture. This means that, surprisingly, the extraction mixtures used in the instant process can be filtered effectively and quickly to produce the alcoholic beverage, despite hydrocolloid formation, due to the blending step in the presence of a liquid. The applicant cites to paragraph 3 of page 9 and paragraph 4 of page 12 as evidence.
However, again, no evidence is actually presented in the passaged cited by applicant. There is no evidenced of criticality of the relationship very low temperature and high ethanol concentration.
It is also argued that the Examiner is using impermissible hindsight in regards to claims 44 and 45. In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971).
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
Prosecution Insights