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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 02/09/2026 has been entered.
Application Status
Amended claim 1-7 are under examination.
Claim 1-7 are rejected.
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.
Claim(s) 1-7 are rejected under 35 U.S.C. 103 as being unpatentable over Someya T. (JP 2015027309-A) in view of Kitamura Y. (TW 201424606-A).
Regarding claim 1, 5 and 6, Someya T. (Someya) discloses a beer-flavored (beer-taste) drink comprising no alcohol, ethanol (‘309, pg. 1, 1st – 3rd paragraph). Someya discloses an amount of no alcohol, ethanol (‘309, pg. 1, 1st – 3rd paragraph) is in range with the cited range of less than 1.0 (v/v) %, in other words zero amount of amount of no alcohol, ethanol. Someya discloses the beer-flavored (beer taste) drink comprising a beer flavor improving agent including (‘309, pg. 2, 5th paragraph) 2-methyl-2-pentenoic acid (‘309, pg. 5, 3rd paragraph; pg. 11, 10th paragraph) with a range of 0.0000001 to 0.05% by weight (‘309, pg. 12, 4-5th paragraph), which corresponds to 1 ppb to 500,000 ppb by weight (mass) and overlaps the cited range of 50 to 10,000 ppb. 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).
Someya discloses the beer-flavored (beer taste) drink comprising carbon dioxide gas and amount in gas volume (‘309, pg. 9, 3rd paragraph). Someya does not disclose the carbon dioxide gas in cited amount and units. However Kitamura Y. (Kitamura) discloses a beverage including non-alcoholic beverage (‘606, pg. 5, middle page, under Drink) comprising carbon dioxide gas of 1.0 to 3.5 kg/cm2 (‘606, pg. 6, 2nd paragraph), which overlaps the cite range. Someya and Kitamura are of the same field of endeavor of carbonated non-alcoholic beverage. It would have been composition to one of ordinary skill in the art to be motivated to use Kitamura’s amount of carbon dioxide gas in Someya’s drink to provide a desired carbonation in carbonated non-alcoholic beverage are known and successful.
Regarding claim 2, modified Someya discloses the beverage comprising the beer flavor improving agent including (‘309, pg. 2, 5th paragraph) including lactic acid (‘309, pg. 12, 2nd paragraph). Someya discloses the beer flavor improving agent including (‘309, pg. 2, 5th paragraph) including the lactic acid, with a range of 0.0000001 to 0.05% by weight (‘309, pg. 12, 4-5th paragraph), which corresponds to 0.001 ppm to 500 ppm by weight (mass), and is in range with the cited range.
Regarding claim 3, modified Someya discloses the beverage comprising the beer flavor improving agent including (‘309, pg. 2, 5th paragraph) including phosphoric acid (‘309, pg. 12, 2nd paragraph). Someya discloses the beer flavor improving agent including (‘309, pg. 2, 5th paragraph) including the phosphoric acid, with a range of 0.0000001 to 0.05% by weight (‘309, pg. 12, 4-5th paragraph), which corresponds to 0.001 ppm to 500 ppm by weight (mass), and overlaps the cited range. 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).
Regarding claim 4, Someya does not disclose a pH range. However Kitamura discloses the beverage comprising a pH range of 4.0 or less (‘606, pg. 11, claim 1) which overlaps the cited range. Someya and Kitamura are of the same field of endeavor of carbonated non-alcoholic beverage. It would have been composition to one of ordinary skill in the art to be motivated to use Kitamura’s pH range in Someya’s drink to provide a desired taste (‘606, pg. 2, 4th-5th paragraph).
Regarding claim 7, Someya discloses the beverage comprising natural fragrances (raw materials) including hops (‘309, pg. 2, 6th - 7th paragraph; pg. 10, under Claims, (A) Natural flavors…hops).
Response to Arguments
Applicant asserts “…In this respect, the presently claimed invention clearly provide a stimulus to the throat, while suppressing the content of carbon dioxide gas, and suppresses astringency as an unsuitable aftertaste (see [0007], [Table 1]). This is an unexpected result which is commensurate with the scope of claim 1.…”.
Applicant's arguments filed 02/09/2026 have been fully considered but they are not persuasive. Someya clearly discloses the beer-flavored (beer-taste) drink comprising no alcohol, ethanol (‘309, pg. 1, 1st – 3rd paragraph). Someya teaches the beer-flavored (beer taste) drink comprising a beer flavor improving agent including (‘309, pg. 2, 5th paragraph) 2-methyl-2-pentenoic acid (‘309, pg. 5, 3rd paragraph; pg. 11, 10th paragraph) with a range of 0.0000001 to 0.05% by weight (‘309, pg. 12, 4-5th paragraph), which corresponds to 1 ppb to 500,000 ppb by weight (mass) and overlaps the cited range. 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).
Applicant asserts “…the examples in the specification of the present application demonstrate that including 2m2p in the specified amount results in unexpected and significant effects in terms of throat irritation and bitterness. Furthermore, the examples in the specification of the present invention demonstrate that incorporating 2m2p in a specified amount results in significant effects in terms of throat irritation and bitterness. When an Applicant demonstrates substantially improved results and states that the results were unexpected, this should suffice to establish unexpected results in the absence of evidence to the contrary. Jn re Soni, 34 USPQ2d 1684, 1688 (Fed. Cir. 1995)…”.
In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., effects in terms of throat irritation and bitterness) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the "objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support." In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980) (Claims were directed to a process for removing corrosion at "elevated temperatures" using a certain ion exchange resin (with the exception of claim 8 which recited a temperature in excess of 100°C). Appellant demonstrated unexpected results via comparative tests with the prior art ion exchange resin at 110°C and 130°C. The court affirmed the rejection of claims 1-7 and 9-10 because the term "elevated temperatures" encompassed temperatures as low as 60°C where the prior art ion exchange resin was known to perform well. The rejection of claim 8, directed to a temperature in excess of 100°C, was reversed.). See also In re Peterson, 315 F.3d 1325, 1329-31, 65 USPQ2d 1379, 1382-85 (Fed. Cir. 2003) (data showing improved alloy strength with the addition of 2% rhenium did not evidence unexpected results for the entire claimed range of about 1-3% rhenium); In re Grasselli, 713 F.2d 731, 741, 218 USPQ 769, 777 (Fed. Cir. 1983) (Claims were directed to certain catalysts containing an alkali metal. Evidence presented to rebut an obviousness rejection compared catalysts containing sodium with the prior art. The court held this evidence insufficient to rebut the prima facie case because experiments limited to sodium were not commensurate in scope with the claims.)
To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range. In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960). Additionally, Table 1, discloses other components lactic acid, phosphoric acid, carbon dioxide gas with corresponding a specific amount (emphasis) which does not commensurate with the claimed invention for unexpected results of Table 1, with respect to instant claim 1. Furthermore, Table 1 lacks Applicant’s assertions to terms of “throat irritation and bitterness” for unexpected results.
Conclusion
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/HONG T YOO/Primary Examiner, Art Unit 1792