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 .
Claim Status
Claims 1-5 and 7-20 are currently pending in the application. Claim 6 has been cancelled. Claims 12 and 13 are withdrawn from consideration.
Response to Amendment
The amendment to the claims filed on 11 December 2025 does not comply with the requirements of 37 CFR 1.121(c) because applicant did not underline the newly added portions of the currently amended claims. It is also unclear to the examiner why claims 2 and 4 are listed as “currently amended” . Amendments to the claims filed on or after July 30, 2003 must comply with 37 CFR 1.121(c) which states:
(c) Claims. Amendments to a claim must be made by rewriting the entire claim with all changes (e.g., additions and deletions) as indicated in this subsection, except when the claim is being canceled. Each amendment document that includes a change to an existing claim, cancellation of an existing claim or addition of a new claim, must include a complete listing of all claims ever presented, including the text of all pending and withdrawn claims, in the application. The claim listing, including the text of the claims, in the amendment document will serve to replace all prior versions of the claims, in the application. In the claim listing, the status of every claim must be indicated after its claim number by using one of the following identifiers in a parenthetical expression: (Original), (Currently amended), (Canceled), (Withdrawn), (Previously presented), (New), and (Not entered).
(1) Claim listing. All of the claims presented in a claim listing shall be presented in ascending numerical order. Consecutive claims having the same status of “canceled” or “not entered” may be aggregated into one statement (e.g., Claims 1–5 (canceled)). The claim listing shall commence on a separate sheet of the amendment document and the sheet(s) that contain the text of any part of the claims shall not contain any other part of the amendment.
(2) When claim text with markings is required. All claims being currently amended in an amendment paper shall be presented in the claim listing, indicate a status of “currently amended,” and be submitted with markings to indicate the changes that have been made relative to the immediate prior version of the claims. The text of any added subject matter must be shown by underlining the added text. The text of any deleted matter must be shown by strike-through except that double brackets placed before and after the deleted characters may be used to show deletion of five or fewer consecutive characters. The text of any deleted subject matter must be shown by being placed within double brackets if strike-through cannot be easily perceived. Only claims having the status of “currently amended,” or “withdrawn” if also being amended, shall include markings. If a withdrawn claim is currently amended, its status in the claim listing may be identified as “withdrawn—currently amended.”
(3) When claim text in clean version is required. The text of all pending claims not being currently amended shall be presented in the claim listing in clean version, i.e., without any markings in the presentation of text. The presentation of a clean version of any claim having the status of “original,” “withdrawn” or “previously presented” will constitute an assertion that it has not been changed relative to the immediate prior version, except to omit markings that may have been present in the immediate prior version of the claims of the status of “withdrawn” or “previously presented.” Any claim added by amendment must be indicated with the status of “new” and presented in clean version, i.e., without any underlining.
(4) When claim text shall not be presented; canceling a claim.
(i) No claim text shall be presented for any claim in the claim listing with the status of “canceled” or “not entered.”
(ii) Cancellation of a claim shall be effected by an instruction to cancel a particular claim number. Identifying the status of a claim in the claim listing as “canceled” will constitute an instruction to cancel the claim.
(5) Reinstatement of previously canceled claim. A claim which was previously canceled may be reinstated only by adding the claim as a “new” claim with a new claim number.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1-3, 5-11, and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Davis (US 20150197716 A1) in view of Weber (GB 1293981 A) with evidenced for claim 5 by Zurowska et al. (herein referred to as Zurowska, “The effect of UV-C irradiation on lipids and selected biologically active compounds in human milk”) and evidence for claims 3 and 14 by Henderson et al. (herein referred to as Henderson, “Examining the Role of Membrane Lipid Composition in Determining the Ethanol Tolerance of Saccharomyces cerevisiae”).
With regard to Claim 1, Davis teaches a method for producing a drink (abstract) comprising a step A of photocatalytically treating a mixture and a step B of heating the photocatalytically-treated product obtained in step A ([0089] Example 6, Davis reads such that the mixture is placed in front of a 500 W halogen bulb and the resulting product was then placed in a stainless steel tank and mixed with charred oak slabs and heated).
Davis teaches the photocatalytically treated mixture is an otherwise unprocessed distilled rum, which contains ethyl decanoate ([0078]). Ethyl decanoate is a fatty acid ester containing 12 carbon atoms and is specifically derived from decanoate acid which is a fatty acid containing 10 carbon atoms. Per applicants specification esters of fatty acids are included in applicant’s definition of fatty acids (instant specification [0031]). Davis clearly states the presence of Carboxylic precursor acids, which would include decanoate acid ([0004])
Davis clearly teaches Step B as claimed but is silent to the production of linear saturated aliphatic aldehyde.
Weber teaches irradiating a mixture of molasses and ethyl alcohol which is used in the production of rum (Example 2, page 17 lines 5-13). Weber teaches that after the irradiation step, the mixture is distilled including specifically being heated after the irradiation step, thus reading on the instant claims Step B (page 4, lines 36-52) Weber shows the distillate subjected to irradiation shows an increased aldehyde content (Example 2, page 17 lines 33-36). Weber teaches aldehyde is a secondary substance and teaches the secondary substances in a distilled spirit provide specialized characteristics (Page 1 lines 55-73).
Therefore, it would have been obvious to one with ordinary skill in the art that step B as defined in the instant claims and taught by Davis and Weber would produce a linear saturated aliphatic aldehyde which advantageously would provide specialized characteristics to the spirit. See MPEP 2112.02 Ex parte Novitski, 26 USPQ2d 1389 (Bd. Pat. App. & Inter. 1993).
With regard to Claim 2, Davis teaches the lipid, containing the fatty acid, is derived from yeast cells ([0004] Davis reads such that the carboxylic precursor acids, i.e. decanoate acid, are derived from yeast).
With regard to Claims 3 and 14, The applicant defines lipids containing a fatty acid having 10 to 18 carbon atoms as including free fatty acids having 10 to 18 carbon atoms, esters of a fatty acid having 10 to 18 carbon atoms and glycerol (i.e. neutral lipids), monovalent esters of a fatty acid having 10 to 18 carbon atoms and a higher alcohol (i.e. wax), complex esters of a fatty acid having 10 to 18 carbon atoms, alcohol, phosphoric acids and a nitrogen compound (i.e. phospholipid), and complex esters of a fatty acid having 10 to 18 carbon atoms, alcohol, sugar and a nitrogen compound (i.e. glycolipid) ([Instant specification [0031]).
In addition, the specification teaches palmitic acid (C16:0), palmitoleic acid (C16:1), stearic acid (C18:0), and oleic acid (C18:1) are examples of phospholipids of a fatty acids (instant specification [0031]-[0035]). One with ordinary skill in the art would recognize that the listed acids are all carboxylic acids.
Davis teaches carboxylic acid esters can be responsible for the fruity aromas and tastes in distilled spirits. Carboxylic precursor acids are derived from the yeast and bacteria during fermentation ([0004]). This is in accordance with the applicants above definition of lipids containing a fatty acid having 10 to 18 carbon atoms and in accordance with the examples listed by the applicant in specification because the examples listed are all carboxylic acids.
Therefore, because Davis teaches the lipid can be a carboxylic acid ester from a Carboxylic precursor acid derived from the yeast and the applicants instant specification reads such that carboxylic acids are examples of phospholipids of a fatty acids, Davis thus reads on the instant claim that the lipid contains a phospholipid of a fatty acid having 10 to 18 carbon atoms.
With regard to Claim 5, Davis teaches the phototactically treating a lipid containing a fatty acid ([0089] Example 6, Davis reads such that the mixture is placed in front of a 500 W halogen bulb). Davis teaches the presence of ethyl decanoate in the treated lipid which is a fatty acid ester ([0078]).
Inherently, when a fatty acid, or fatty acid ester is exposed to light it will undergo lipid peroxidation thus forming a lipid peroxide. This is evidenced by Zurowska which teaches when undergoing photooxidation, low molecular weight compounds such as esters can be oxidized and the resulting volatile compounds can significantly influence the sensory properties of food products (1. Introduction). More specifically, Zurowska teaches the increase in lipid peroxidation products after milk, containing fatty acids and fatty acid esters, is exposed to light (Table 2, Zurowska reads such that human milk contains nearly 50% unsaturated fatty acids ).
Therefore, one with ordinary skill in the art would deduce that step A taught by Davis would inherently produce a lipid peroxide. See MPEP 2112.02 Ex parte Novitski, 26 USPQ2d 1389 (Bd. Pat. App. & Inter. 1993)
With regard to Claims 7 and 18, Davis teaches step B is carried out in a sealed vessel or under reflux ([0062]). One with ordinary skill in the art would recognize that in both a sealed vessel and under reflux the levels of oxygen can be controlled for the desired reaction. Thus, Davis reads on the limitation of Step B being “substantially oxygen free” because through routine optimization the oxygen levels can be controlled. See MPEP 2144.05 [W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
With regard to Claim 8, It is first important to note that the applicant refers to “fermenting mash” in the instant specification as an intermediate material of an alcoholic beverage which is obtained by fermentation and can be an aqueous liquid (See [0048] of the applicants instant specification).
Continuing, Davis teaches heating the photocatalytically treated product ([0089]). Specifically the product is unprocessed heavy pot distilled rum ([0089]). In view of the applicants specification the unprocessed distilling rum would be an intermediate aqueous liquid in the fermenting process. Davis teaches heating the photocatalytically treated product to about 170℃ for 48 hours ([0090]). One with ordinary skill in the art would recognize ethanol boils at 173℃ which would be the approximate temperature at which distillation would begin.
However, Davis is silent to the heating being a distillation process.
In support of Davis, Weber teaches a method of irradiating an intermediate product from which an alcoholic beverage is made (Claim 1). Weber teaches the process of the present invention provides for an accelerated aging or maturation of the alcoholic beverage which can provide essential flavor compounds (page 6 lines 1-5, page 1 lines 55-60).
One with ordinary skill in the art would recognize an “intermediate product” in the production of alcohol would include intermediates in which further processing, such as distillation, would be required for a final product. Thus, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Davis in view of Weber to distill the photocatalytically treated product to for an accelerated aging or maturation of the alcoholic beverage which can provide essential flavor compounds.
With regard to Claim 9, Davis teaches the drink is a distilled liquor ([0022]).
With regard to Claim 10, Davis teaches a photocatalytically-treated and heated lipid containing a fatty acid having 10 to 18 carbon atoms ([0004], [0078], [0089]). With regard to the limitation of “incorporating”, since it is unclear into what the photocatalytically-treated and heated lipid containing a fatty acid is being incorporated into this limitation cannot be examined. See MPEP 2173.06, In re Steele, 305 F.2d 859, 134 USPQ 292 (CCPA 1962), a rejection under 35 U.S.C. 103 should not be based on considerable speculation about the meaning of terms employed in a claim or assumptions that must be made as to the scope of the claims.
With regard to Claim 11, Davis teaches a step of heating an object to be reacted, wherein the object to be reacted is a photocatalytically treated product of a lipid containing a fatty acid having 10 to 18 carbon atoms ([0089] Example 6, Davis reads such that the object is placed in front of a 500 W halogen bulb and the resulting product was then placed in a stainless steel tank and mixed with charred oak slabs and heated)
Davis teaches the photocatalytically treated object is an otherwise unprocessed distilled rum, which contains ethyl decanoate ([0078]). Ethyl decanoate is a fatty acid ester, specifically derived from decanoate acid which is a fatty acid containing 10 carbon atoms. Therefore, one with ordinary skill in the art could deduce that the detectable presence of ethyl decanoate indicates the presence decanoate acid, and therefore the unprocessed distilled rum would inherently contain a fatty acid having 10 carbon atoms. Davis clearly states the presence of Carboxylic precursor acids, which would include decanoate acid ([0004]).
With regard to Claim 19, Davis teaches step B is carried out in a sealed vessel or under reflux ([0062]). One with ordinary skill in the art would recognize that in both a sealed vessel and under reflux the levels of oxygen can be controlled for the desired reaction. Thus, Davis reads on the limitation of Step B being “substantially oxygen free” because through routine optimization the oxygen levels can be controlled. See MPEP 2144.05 [W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Claims 4, 15, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Davis (US 20150197716 A1) in view of Weber (GB 1293981 A) and Omasa (JP 2003250514 A).
With regard to Claims 4 and 15, Davis is silent to the photocatalyst containing titanium oxide.
Omasa teaches a method for sterilizing microorganisms in a brew without heating, not to damage inherent flavor and fragrance of the neat brew (abstract). Omasa’s method utilizes a photocatalyst which sterilizes the microorganisms without evaporating or decomposing the alcohol and sugar thus diminishing the flavor and aroma ([0020], [0028]). Omasa teaches titanium oxide is a good catalyst and is advantageous in that it reacts not only to ultraviolet light but also to visible light ([0035]).
Therefore, it would have been obvious to one with ordinary skill in the art to modify Davis in view of Omasa to include titanium oxide as the photocatalyst because the process utilizing titanium oxide does not diminish the flavor or aroma and specifically titanium oxide is advantageous because it reacts not only to ultraviolet light but also to visible light.
With regard to Claim 20, Davis teaches step B is carried out in a sealed vessel or under reflux ([0062]). One with ordinary skill in the art would recognize that in both a sealed vessel and under reflux the levels of oxygen can be controlled for the desired reaction. Thus, Davis reads on the limitation of Step B being “substantially oxygen free” because through routine optimization the oxygen levels can be controlled. See MPEP 2144.05 [W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Claims 16 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Davis (US 20150197716 A1) in view of Weber (GB 1293981 A) and Omasa (JP 2003250514 A) with evidence provided from Henderson et al. (herein referred to as Henderson, “Examining the Role of Membrane Lipid Composition in Determining the Ethanol Tolerance of Saccharomyces cerevisiae”)
With regard to Claims 16 and 17, Davis is silent to the photocatalyst containing titanium oxide.
Omasa teaches a method for sterilizing microorganisms in a brew without heating, not to damage inherent flavor and fragrance of the neat brew (abstract). Omasa’s method utilizes a photocatalyst which sterilizes the microorganisms without evaporating or decomposing the alcohol and sugar thus diminishing the flavor and aroma ([0020], [0028]). Omasa teaches titanium oxide is a good catalyst and is advantageous in that it reacts not only to ultraviolet light but also to visible light ([0035]).
Therefore, it would have been obvious to one with ordinary skill in the art to modify Davis in view of Omasa to include titanium oxide as the photocatalyst because the process utilizing titanium oxide does not diminish the flavor or aroma and specifically titanium oxide is advantageous because it reacts not only to ultraviolet light but also to visible light.
Response to Arguments
First, the examiner would like to note the 25 U.S.C. 112(b) rejections or claims 1-11 and 14-20 have been withdrawn.
Applicant's arguments filed 11 December 2025 have been fully considered but they are not persuasive.
The examiner acknowledges the amendment to claim 1 and notes that as claim 6 has been amended into claim 1 the rejection for claim 6 has been brought into claim 1 to meet the newly added limitation. In regard to applicants arguments regarding Weber applicant argues that Weber does not teach a linear aliphatic aldehyde having 6 carbon atoms to 10 carbon atoms. Applicant argues that Weber teaches furfural or pyromucic aldehyde and such aldehydes are distinct from the linear aliphatic aldehyde having 6 carbon atoms to 10 carbon atoms limited in the claim. The examiner would like to point out that Weber teaches the aldehydes that are present in such spirits and similar alcoholic beverages result from the oxidation of the ethyl alcohol. Furfural or pyromucic aldehyde is formed at the beginning of distillation and diminishes somewhat as the spirit develops during aging (page 2 lines 16-22). Weber does not exclusively teaches Furfural or pyromucic aldehyde are the only aldehydes produced during distillation. The examiner would like to draw attention to Example 2, wherein Weber teaches instantly claimed Step B (page 4, lines 36-52) and that irradiation shows an increased aldehyde content (Example 2, page 17 lines 33-36). Thus, because Weber teaches the claim process and the claimed process produced aldehyde, it would have been obvious to one with ordinary skill in the art that the process would inherently product the claimed product. See MPEP 2112.01(I) 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). Therefore, it would have been obvious to one with ordinary skill in the art that step B defined as defined in the instant claims and taught by Weber would produce a linear saturated aliphatic aldehyde. In addition Weber teaches aldehyde is a secondary substance and teaches the secondary substances in a distilled spirit provide specialized characteristics (Page 1 lines 55-73). So in addition Weber provides ample motivation to achieve the desire aldehyde to provide the desired special characteristics. Thus, Applicant’s argument is not found to be persuasive.
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 KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792