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 .
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 Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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 2-4, 7-10, and 17-20 are rejected under 35 U.S.C. 103 as being unpatentable over Cardoso, “Kombuchas from green and black teas have different phenolic profile, which impacts their antioxidant capacities, antibacterial and antiproliferative activities”, Food Research International, February 2020 in view of US 2021/0007384 (Mahadevan) OR US 2020/0109163 (Tang).
Regarding claims 1, 2 and 7, Cardoso teaches green and black fermented teas having a pH of less than 5 (page 4 discloses 3.2 and 3.5 for green and black tea, respectively). The amount of yeast for green tea Kombucha is within the standard of deviation of 106 cfu/ml and is below 106 cfu/ml for black tea as shown in Figure 2. The amount of bacteria is above 101. The method of fermentation includes fermenting to the pH stated above and includes the step of filtering which inherently removes part of the yeast and bacteria (Section 2.1). The step of packaging in claim 1 is optional. The acetic acid in both green and black kombuchas has a concentration close to 3g/L.
Cardoso does not disclose an amount of carbon dioxide in the beverage, but it is known to provide carbon dioxide to beverages to provide a sparkling or carbonation feel.
Mahadevan discloses beverages and discloses carbonation levels known in literature indicating the amount of carbon dioxide provided in various commercially-available beverages. For instance, lightly sparkling beverages have 4 g/L carbonation (carbon dioxide) and fruit juices have 5 g/L. The range for beverages is 4-10 g/L carbonation (Table 4).
Tang discloses carbonated beverages such as kombucha where carbon dioxide is present in a preferred amount of 2-10 g/L [0056].
It would have been obvious to one of ordinary skill in the art to provide carbon dioxide in the amounts disclosed as known in the art by Mahadevan OR Tang to the beverage of Cardoso to provide a sparkling or carbonation to the beverage to enhance the consumer’s experience.
Regarding claim 3, the claim limitation does not expressly require packaging and storage and given the similarity of the fermented beverage and method of making the beverage to the instant disclosure, one of ordinary skill would reasonably expect the cfu for yeast and bacteria to be maintained in storage.
Regarding claim 4, Cardoso teaches that sugar is added and that the higher the amount of sugar may be responsible for higher microbial counts (section 3.3). It would have been obvious to add the amount of sugar desired in order to adjust the fermentation reaction and adjust the amount of microbials in the final product.
Regarding claims 7 ad 9, the vegetal base is tea and is aqueous and Cardoso does not disclose addition of sugar to the tea prior to fermentation.
Regarding claim 8, Cardoso does not teach the presence of any of the listed ingredients.
Regarding claim 10, the beverage is not a dairy-alternative.
Regarding claims 12-13 and 17-18, Cardoso teaches the bacteria is approximately 105-106 CFU/ml and the same for yeast counts (section 3.3, page 5). This is seen to anticipate the claimed ranges of 101-106, 102-106, with sufficient specificity since the range of Cardoso falls within these ranges.
Regarding claims 14-15 and 19-20, Cardoso teaches the bacteria is approximately 105-106 CFU/ml and the same for yeast counts (section 3.3, page 5). The range disclosed by Cardoso overlaps the claimed ranges of 101-105, and 104-105 and is prima facie obvious.
Claim(s) 5 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over Cardoso, “Kombuchas from green and black teas have different phenolic profile, which impacts their antioxidant capacities, antibacterial and antiproliferative activities”, Food Research International, February 2020 as evidenced by or, alternatively, in view of Amarasekara, A comparison of kombucha SCOBY bacterial cellulose purification methods, SN Applied Sciences, January 2020 in view of US 2021/0007384 (Mahadevan) OR US 2020/0109163 (Tang).
Cardoso teaches the use of SCOBY which stands for “symbiotic culture of bacteria and yeast” but does not state what bacteria and yeast are present. Amarasekara teaches that SCOBY is used to ferment tea and that while microbial populations in a SCOBY may vary, generally it includes Acetobacter bacterial species, various Saccharomyces yeast species and a number of other types of yeasts. (Introduction). Based upon the common knowledge of the bacteria and yeasts used in SCOBY, it is reasonable to ascertain that Acetobacter and Saccharomyces are present in the SCOBY of Cardoso. Alternatively, based upon the teaching of Amaresekara that SCOBY generally has Acetobacter and Saccharomyces, this generally known composition of SCOBY used for fermenting kombucha successfully and thus would have been an obvious selection for use in Cardoso with a reasonably expectation of successfully fermenting tea to form kombucha.
Response to Arguments
Applicant’s amendments and arguments, filed 01/12/2026 with respect to the 102 over Cardoso have been fully considered and are persuasive. Thus, the 102 rejection over Cardoso has been withdrawn. However, a new rejection under 103 over Cardoso in view of Mahadevan OR Tang is introduced above.
The amendments to claims 1 and 2 have overcome the 103 rejections relying on Ayed and Liu. Thus, these rejections have been withdrawn.
Allowable Subject Matter
Claims 1, 11-15 and 21-22 are allowed.
The following is a statement of reasons for the indication of allowable subject matter: the prior art of record does not disclose the steps of fermenting the claimed mixture to provide a fermented beverage having a pH of 5 or lower, 106-109 cfu/ml of yeast, and 106-109 cfu/ml bacteria, coupled with removing a part of the yeast and bacteria to provide a fermented beverage comprising 103-105 cfu/ml of yeast and 103-105 cfu/ml of bacteria.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/Primary Examiner, Art Unit 1793