DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed July 22, 2025 has been entered. Claims 1-14 are pending examination.
The previous rejections of claims 3, 13 and 14 under 35 U.S.C. 112 (b) have been withdrawn in light of Applicant’s amendment filed July 22, 2025.
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.
Claims 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Kozaki et al. (US 2017/0121657) as evidenced by Schutter et al. (“Characterization of Volatiles in Unhopped Wort”, J. Agric. Food Chem., 56, (2008), pp. 246-254).
Regarding claims 1, 2, 4, 11 and 13, Kozaki et al. disclose a beer-taste beverage comprising a bitterness value of at least 10, a total polyphenol content of 140 ppm or less and a total nitrogen content of at least 40 mg/100 mL (Abstract, [0030], [0037], [0039]). These amounts overlap or encompass those recited in claim 1. 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) (MPEP §2144.05 I).
Kozaki et al. teach the beer-taste beverage is made by: (a) providing a pre-fermentation liquid (i.e., wort) made from malt; and (b) fermenting the pre-fermentation liquid by adding yeast and maintaining the fermentation liquid at a predetermined temperature for a predetermined time to obtain a beer-taste beverage comprising flavor components, taste components and ethanol ([0045]-[0053]).
Kozaki et al. disclose the bitterness value (i.e., IBU) of the beer-taste beverage is at least 10 ([0030]). Kozaki et al. also disclose that the bitterness value of the beer-taste beverage can be adjusted by adding a bittering agent during production ([0032]). While Kozaki et al. disclose a beer-taste beverage having a bitterness value of at least 10, the reference acknowledges the bitterness value can be adjusted merely by the addition of a bittering agent. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have adjusted, in routine processing, the amount and type of bittering agent to obtain a beer-taste beverage with a desired bitterness level.
Kozaki et al. is silent with respect to 2,3-diethyl-5-methylpyrazine.
As evidenced by Schutter et al., 2, 3, diethyl-5-methylpyrazine is a volatile compound known to be found in beer wort at a low concentration (p. 248-249/Table 1, p. 252/Pyrazines). Schutter et al. teach pyrazines are characteristic compounds of roasted malt often characterized by nutty and roasted flavors (p. 252/Pyrazines). Schutter et al. also teach, given pyrazines were detected in pilsner wort, these compounds appear to be formed in more gentle conditions than a roasting process (p. 252/Pyrazines).
Given Schutter et al. teach 2, 3, diethyl-5-methylpyrazine is a known volatile flavor component found in wort produced from malt, it necessarily follows the wort of Kozaki et al. would comprise the component and at a concentration in the claimed range.
Regarding claim 3, Kozaki et al. disclose all of the claim limitations as set forth above. Kozaki et al. disclose a beer-taste beverage having a bitterness value of at least 10 ([0032]). Kozaki et al. disclose the bitterness value can be adjusted by the addition of a bittering agent wherein the bittering agent is a hop extract ([0035]). Here, the bitterness agent is a raw material other than hops.
Regarding claim 5, Kozaki et al. disclose all of the claim limitations as set forth above. Kozaki et al. disclose the original wort extract is at least 10% and at most 15% (v/v) (approximately % by mass (g/100g) – [0040]). 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) (MPEP §2144.05 I).
Regarding claim 6, Kozaki et al. disclose all of the claim limitations as set forth above. Kozaki et al. disclose a beer-taste beverage comprising a total polyphenol content of 140 ppm or less and a total nitrogen content of at least 40 mg/100 mL (Abstract, [0030], [0037], [0039]). Therefore, when the beer-taste beverage of Kozaki et al. comprise a total nitrogen content of 40 mg/100 m: and a total polyphenol content of 140 ppm, the ratio of total nitrogen: total polyphenol content is about 0.3. Moreover, when the beer-taste beverage of Kozaki et al. has a total nitrogen content of 100 mg/100 mL and a total polyphenol content of 100 ppm, the ratio of total nitrogen: total polyphenol content is about 1. Kozaki et al. clearly envisions beer-taste beverage products having a total nitrogen content: total polyphenol content ratio overlapping the claimed 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 (MPEP §2144.05) .
Regarding claims 7 and 8, Kozaki et al. disclose all of the claim limitations as set forth above. Kozaki et al. disclose malt and/or corn are a source of nitrogen in the beer-taste beverage ([0025], [0028], [0039]).
Regarding claim 9, Kozaki et al. disclose all of the claim limitations as set forth above. Kozaki et al. disclose the use of ratio of malt is at least 50% ([0024], [0027]). 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) (MPEP §2144.05 I).
Regarding claim 10, Kozaki et al. disclose all of the claim limitations as set forth above. While Kozaki et al. disclose the use ratio of malt is at least 50%, the reference also disclose that is possible to use other raw materials as nitrogen sources including ungerminated barley, wheat, rye, oat, pea, corn, rice or soybean ([0028]). Kozaki et al. disclose the raw materials have an influence on the flavor and taste of the beer-taste beverage and should be selected to meet the preferences of the drinkers. Therefore, it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have used other raw materials, other than malt, in the beer-taste beverage of Kozaki et al. to obtain a desired flavor profile.
Regarding claim 12, Kozaki et al. disclose all of the claim limitations as set forth above. Kozaki et al. disclose that the alcohol contained in the beer-taste beverage it not limited to alcohol obtained by fermenting the raw materials such as the malt, but it is possible to add drinking alcohol in order to adjust the alcohol content or to meet the preferences of the drinkers ([0029]).
Regarding claim 14, Kozaki et al. disclose all of the claim limitations as set forth above. Kozaki et al. disclose the use of ratio of malt is at least 50% ([0024], [0027]). 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) (MPEP §2144.05 I).
Kozaki et al. also disclose that besides malt, corn can also be used as a nitrogen source (i.e., assimilated by the yeast as a nitrogen source – [0028]).
Response to Arguments
Applicant's arguments filed July 22, 2025 have been fully considered but they are not persuasive.
Applicants note “Schutter is cited as evidence showing that 2, 3, diethyl-5-methylpyrazine is a volatile compound known to be found in beer wort at a low concentration.” Applicants argue “there is not evidence that the content of 2,3,diethyl-5-methylpyrazine is 0.1 ppb by mass or more in Schutter or Kozaki”
Schutter et al. is used to show 2,3,diethyl-5-methylpyrazine is a volatile compound known to be found in beer wort at a low concentration (p. 248-249/Table 1, p. 252/Pyrazines). Schutter et al. teach pyrazines are characteristic compounds of roasted malt often characterized by nutty and roasted flavors (p. 252/Pyrazines). Schutter et al. also teach, given pyrazines were detected in pilsner wort, these compounds appear to be formed in more gentle conditions than a roasting process (p. 252/Pyrazines). In this case, given Kozaki et al. teach a beer-taste beverage made by a process substantially similar to that presently claimed and disclosed in the present invention, since Schutter et al. teach 2,3,diethyl-5-methylpyrazine is known to be found in beer wort, inherently the beer-taste beverage of Kozaki et al. would comprise the claimed amount of 2,3,diethyl-5-methylpyrazine (see MPEP §2112.01 I).
Applicants argue “[g]iven the bitterness value defined in Kozaki, the beverage is give a moderate bitterness and a beer-like taste”, “Kozaki teaches away from setting the bitterness value to be less than 10 and from the claimed bitterness value of 9 Bus [sic] or less.”
Kozaki et al. disclose that the bitterness value of the beer-taste beverage can be adjusted by adding a bittering agent during production ([0032]). While Kozaki et al. disclose a beer-taste beverage having a bitterness value of at least 10, the reference acknowledges the bitterness value can be adjusted merely by the addition of a bittering agent. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have adjusted, in routine processing, the amount and type of bittering agent to obtain a beer-taste beverage with a desired bitterness level. Kozaki et al. does not disclose the beer-like taste is dependent on the bitterness units (BUs).
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 ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759