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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 January 5, 2026 has been entered.
Claims 1-7 are pending. Prior objections and rejections not included below are withdrawn in view of Applicant’s arguments and amendments.
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) 1-5 and 7 are rejected under 35 U.S.C. 103 as being unpatentable over Kitagawa (JP 2011142901, reference is made to the provided machine translation) in view of Vandecan (“Optimisation of specialty malt volatile analysis by headspace solid-phase microextraction in combination with gas chromatography and mass spectrometry”, DOI: 10.1016/j.aca.2010.05.009, June 2010).
Regarding Claim 1, Kitagawa teaches a beer-like, alcohol-free beverage (Abstract). The beverage comprises hops (Page 2, Claim 4).
Kitagawa does not address the amount of 2,3-diethyl-5-methylpyrazine in the beverage.
Vandecan teaches that the concentration of 2,3-diethyl-5-methylpyrazine in a dry roasted malt utilized for beer is 0.95 micrograms / 6 grams, which is 158.3 ppb (Page 59, Table 4, “Roasted malt”). Vandecan teaches that pyrazine compounds are found in beer above the flavour threshold (Page 1, Column 2, Line 1).
Where Kitagawa teaches the same steps as the instant Specification at [0046-0047], i.e. preparing water and malt [Page 2, Claim 8], and adding hops during a boiling step [Page 2, Claim 9], and where the instant Specification teaches that such steps result in a beverage comprising 2,3-diethyl-5-methylpyrazine [0051 of the instant Specification], one having ordinary skill would expect the beverage of Kitagawa to comprise the compound as claimed in the amounts as claimed. Note that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." See MPEP 2112.01 I.
Additionally, note that it would have been obvious to utilize the roasted malt of Vandecan in the beverage of Kitagawa. One would have been motivated to make such a modification since Vandecan teaches that dry roasted malts are utilized to provide flavour for beer, and Kitagawa provides for a beer-like beverage.
Regarding Claim 2, Kitagawa teaches the addition of tartaric acid (Page 2, second to last paragraph).
Regarding Claim 3, Kitagawa does not address the amount of tartaric acid. However, where Kitagawa teaches that tartaric acid imparts a desired flavor to beer (Page 2, second to last paragraph), one of ordinary skill would have been able to have adjusted the amount of tartaric acid to arrive at the amounts as claimed through no more than routine experimentation.
Regarding Claim 4, Kitagawa does not address the ratio of tartaric acid to 2,3-diethyl-5-methylpyrazine. However, where Kitagawa teaches that tartaric acid imparts a desired flavor to beer (Page 2, second to last paragraph), and Vandecan teaches that 2,3-diethyl-5-methylpyrazine is a known flavor compound in beer, one of ordinary skill would have been able to have adjusted the amounts of tartaric acid and 2,3-diethyl-5-methylpyrazine to arrive at the claimed ratios through no more than routine experimentation.
Regarding Claim 5, Kitagawa teaches that the amount of ethanol is less than 1 wt% (Page 2, Paragraph 6). Note that v/v and w/w are approximately equivalent in an aqueous beverage.
Regarding Claim 7, Kitagawa teaches that the beverage is not fermented (Abstract).
Claim(s) 6 is rejected under 35 U.S.C. 103 as being unpatentable over Kitagawa view of Vandecan as applied to Claim 1, above, and further in view of Elert (https://hypertextbook.com/facts/2000/SeemaMeraj.shtml, reference is made to the provided archival version, January 2001)
Regarding Claim 6, Kitagawa teaches that the beverage is carbonated via an “ordinary soft drink manufacturing process” (Page 2, last line). Kitagawa does not specifically address the carbon dioxide gas pressure. However, typical soft drink pressures range from 117-620 kPa (Elert, Table 1), which is 1.2-6/3 kg/cm2. It would therefore have been obvious to have carbonated the beverage of Kitagawa to the pressures claimed.
Response to Arguments
Applicant’s arguments filed 1/5/2026 have been fully considered but they are not persuasive.
Applicant’s arguments with respect to claim(s) 1-7 in Sections (1) and (2), Pages 3-6 of the Remarks have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to DEBORAH LIU whose telephone number is (571)270-5685. The examiner can normally be reached 12-8 Eastern Time.
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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.
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/D.L./
Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791