DETAILED ACTION
Claim Objections
Claims 1, 3, 10, 12-13, 16-18, 20-24, 27-29, 31, 33-36, 44-45 and 58-59 are objected to because of the following informalities: Independent claims start with “A or An” whereas dependent claims should start with “The”. Appropriate correction is required.
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, 27-29, and 58-68 is/are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application Publication No. 2009/0087526 (TANIGUCHI).
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 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 wither. 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.
Claim 3
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].
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 overlaps the period of time.
Claim 12
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 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.
Claims 16-18
TANIGUCHI teaches freezing and microgrinding the material [0036] and mixing (i.e., blending as set forth in claim 16) the frozen material with an alcohol extract [0033]. 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. It would have been obvious to provide a liquid extractant with a freezing temperature range from 0oC to -196o based on the type of extraction.
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.
Claim 21
TANIGUCHI teaches freezing and microgrinding the material [0036] and mixing the frozen material with an alcohol extract [0033]. 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. Thawing is optional prior to further processing [0032]. 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).
Claims 22 and 23
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 that the dilution occurs with the frozen material. TANIGUCHI also teaches that frozen fruit material can be frozen via air freezing, blast freezing, contact freezing, brine freezing and liquid nitrogen freezing [0028]. Taniguchi teaches that liquid nitrogen 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 5oC to -196oC.
Claim 24
Taniguchi teaches that the extraction mixture can be distilled [0038].
Claim 29
TANIGUCHI teaches that the fruit can be pressed [0023].
Claims 58-59
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 falls within the period of time.
TANIGUCHI teaches that the extraction time generally ranges from about half a day to several months [0036].
Claims 60-61, 67
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.
Claims 62-65, 66, 68
TANIGUCHI teaches that the extraction time generally ranges from about half a day (i.e., 12 hours) to several months [0036]. TANIGUCHI also teaches that frozen fruit material can be frozen and ground with 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. The grinding of the frozen material is a micro grinding [0033]. Thus, it would have been obvious to one skilled in the art to extract the material from about half a day (i.e., 12 hours) to several months [0036] at a temperature ranging from -196oC to 0oC.
Claim 66
TANIGUCHI teaches freezing and microgrinding the material [0036] and mixing the frozen material with an alcohol extract [0033]. 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. Thawing is optional prior to further processing [0032]. 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).
Claims 31, 33, 34, 35, 36, 44, 45, 69 is/are rejected under 35 U.S.C. 103 as being unpatentable over TANIGUCHI as applied to claim 29 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).
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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.
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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]. It would have been obvious to freeze the material prior to determining the final water content via a microwave, as the water content could change based on the humidity and type of freezing used.
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TANIGUCHI teaches a method for making an alcoholic beverage [0033], [0035], and [004]-[0046].
TANIGUCHI does seek to provide beverages with certain alcohol contents [0033], [0035], and [004]-[0046]. This includes determining the ethanol concentration of the alcohol beverage via the water content. In [0037], TANIGUCHI teaches that by adjusting the conditions (for example, extraction time, alcohol degree, amount of the fruit and so on), 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 water content, cellular material and/or pulp fraction. Likewise, it would have been obvious to determine the alcohol/ethanol concentration of the liquid extractant as this would be a way to control the flavor and components of the final product [0037].
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TANIGUCHI teaches that frozen and ground material can be diluted to obtain the desired sensory evaluation (i.e., taste) [0100] and [0111]. This would naturally include determining the desired amount of ethanol. The manner in which the ethanol content is determined would have to take into consideration the other ingredients present in the beverage.
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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 water content, cellular material and/or pulp fraction.
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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 by taking into consideration the water content, cellular material and/or pulp fraction.
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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.
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].
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. .
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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.
Claim(s) 27-28 is/are rejected under 35 U.S.C. 103 as being unpatentable over TANIGUCHI as applied to claim 1 above, and further in view of United States Patent Application Publication No. 2007/0269574 (KUTYEV).
Claims 27 and 28
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 bene obvious to provide the same temperature to preserve the flavor of the beverage.
Conclusion
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791