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 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.
Claim(s) 1-2, 4, 6-8 and 11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Ohashi et al (JP 2017006077 A) ( machine translation provided in the IDS filed 06/20/2023).
In regard to claims 1 and 2, Ohashi et al discloses a beer-tase beverage having beer-like bitterness and sharpness comprising 0.3-5 ppm quassin (claim 1, Problem to be solved, Solution on page 1 of the machine translation). Ohashi et al discloses the numerical range of 0.3-5 ppm quassin which lies within the claimed ranges of quassin as recited in claims 1, 2 and 3.
In regard to the recitation of the phenol content in claims 1 and 6, Ohashi et al discloses:
The beer taste according to (1), further comprising at least one bitter material selected from the group consisting of black tea polyphenol, naringin, dandelion, assembly, guarana, yuzu polyphenol, chlorogenic acid and grape seed extract ([0008]).
Hence, Ohashi et al discloses the presence of the phenolic compounds in the beverage.
In regard to the concentration of the phenolic compounds in the beverage, Ohashi et al discloses:
The beer-taste beverage of the present invention is at least one bitter taste selected from the group consisting of black tea polyphenol, naringin, dandelion, assembly, guarana, yuzu polyphenol, chlorogenic acid, and grape seed extract in addition to quassin and / or quinine In the case of comprising a material (hereinafter referred to as “other bitter material”), the amount of tea polyphenol added is preferably 0.4 ppm or more and 4 ppm or less, more preferably of the beer-taste beverage, relative to the total capacity of the beer-taste beverage. It is 0.6 ppm or more and 3.2 ppm or less with respect to the total volume, and the addition amount of naringin is preferably 0.5 ppm or more and 5 ppm or less with respect to the total volume of the beer-taste beverage, and more preferably the total volume of the beer-taste beverage 0.7ppm or more and 4ppm or less The added amount of Dandelion is preferably 0.5 ppm to 5 ppm with respect to the total capacity of the beer-taste beverage, more preferably 0.7 ppm to 4 ppm with respect to the total capacity of the beer-taste beverage. Is preferably 0.5 ppm or more and 5 ppm or less with respect to the total capacity of the beer-taste beverage, more preferably 0.7 ppm or more and 4 ppm or less with respect to the total capacity of the beer-taste beverage. Preferably, it is 1 ppm or more and 10 ppm or less with respect to the total volume of the beer-taste beverage, more preferably 1.2 ppm or more and 8 ppm or less with respect to the total volume of the beer-taste beverage, and the addition amount of yuzupolyphenol is preferably beer-taste beverage 1 ppm to 10 ppm with respect to the total capacity of Preferably, it is 1.2 ppm or more and 8 ppm or less with respect to the total volume of the beer-taste beverage, and the addition amount of chlorogenic acid is preferably 1 ppm or more and 10 ppm or less with respect to the total volume of the beer-taste beverage, more preferably beer-taste beverages. 1.2 ppm or more and 8 ppm or less with respect to the total volume of the beer, and the added amount of grape seed extract is preferably 1 ppm or more and 10 ppm or less with respect to the total volume of the beer-taste beverage, more preferably the total volume of the beer-taste beverage. On the other hand, it is 1.2 ppm or more and 8 ppm or less ([0021]).
Hence, Ohashi et al meets the limitation of “a total phenol content of 7 ppm or more” in claim 1 and “a total phenol content of 900 ppm or less” in claim 11. In regard to claim 6, one of ordinary skill in the art would have been motivated to vary the total amount of phenols based on the persona; preference of a consumer.
In regard to the recitation of the alcohol content in claims 1, 7 and 8, Ohashi et al discloses:
The beer-taste beverage of the present invention may or may not contain alcohol. The alcohol concentration of the beer-taste beverage when it contains alcohol is not particularly limited, but is preferably 0.01 v/v% or more and 10 v/ v% or less, more preferably 1 v/v% or more and 8 v/v%. Or less, more preferably 2 v/v% or more and 7 v/v% or less. On the other hand, when alcohol is not included, the beer-taste beverage may be a non-alcohol beer-taste beverage having an alcohol concentration of 0.00 v/v%. According to a preferred embodiment of the present invention, the beer-taste beverage of the present invention is an alcoholic beverage, more preferably a non-fermented alcoholic beverage ([0011]).
Hence, Ohashi et al meets the limitation of “an alcohol content of 3% (v/v)” in claim 1 and ““an alcohol content of 0.05% (v/v)” in claim 7.
In regard to the recitation of the non-alcoholic beverage in claim 8, Ohashi et al discloses a non-alcoholic beverage ([0011]).
In regard to the recitation of the “degree of sourness” in claim 1, Ohashi et al discloses adjusting the pH of the beverage to the pH values of 3.0 to 4.5 by addition of acidulants such as “lactic acid, citric acid, phosphoric acid, malic acid, succinic acid, gluconic acid, phytic acid, or combinations thereof” ([0023], [0024]).
The particular level of “sourness” would depend on the pH of the beverage and the amount of acidulants added to the beverage. The particular level of sourness is seen to have been a result effective variable. It is further noted that the invention is directed to the beverage having “beer-like bitterness and sharpness”. It appears that Ohashi et al inherently meets the limitation of the degree of sourness.
In regard to the recitation of the “degree of sweetness” in claims 1 and 4, Ohashi et al discloses that a sweetener may be added to the beverage composition ([0029]). The particular level of “sweetness” would depend on the amount of sweetener added to the beverage and the sugar content of the raw materials employed in the preparation of the beverage. The particular level of sweetness is seen to have been a result effective variable. It is further noted that the invention is directed to the beverage having “beer-like bitterness and sharpness”. It appears that Ohashi et al inherently meets the limitation of the degree of sweetness.
In regard to the recitation of the “packaged beverage” in the preamble of claim 1, Ohashi et al discloses that the beverage is filled into containers such as cans and bottles ([0031]).
Further in regard to the concentration recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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) (MPEP 2144.05, II A).
Further, regarding the concentration ranges as examined above, it is noted that 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). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
In regard to the newly added recitation of the beverages selected from the brewed liquor, it is noted that beer is a beverage obtained by brewing.
Response to Arguments
Applicant's arguments filed March 30, 2026 have been fully considered but they are not persuasive.
In response to Applicant's arguments regarding the newly added recitation of the beverages selected from the brewed liquor, it is noted that beer is a beverage obtained by brewing. Further in response to Applicant's arguments regarding beer-taste beverage, it is noted that he instant claims do not exclude beer-taste beverage. The instant claims recited a beverage selected from brewed liquor. It is noted that beer is a beverage obtained by brewing and therefore meets the limitation of “brewed liquor”.
Applicant’s attention is further directed to the instant specification defining beer as a brewed liquor:
[0036] The upper limit of the alcohol content of the alcoholic beverage is preferably 9.5% (v/v) or less, more preferably 9.0% (v/v) or less, still more preferably 7.0% (v/v) or less, even more preferably 5.0% (v/v) or less, and most preferably 3.0% (v/v) or less. Examples of the alcoholic beverages include at least one selected from the group consisting of distilled liquor (e.g., whiskey, brandy, vodka, gin, rum, tequila, shochu (Japanese distilled spirit), awamori (Okinawa's distilled spirit)), brewed liquor (e.g., beer, whiskey, cider, white wine, red wine, Japanese sake, seishu (sake)), mixed liquor (e.g., plum liquor, liqueur, sherry, vermouth), low-malt beer, and new genres ...
In response to Applicant's arguments regarding the concentration recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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) (MPEP 2144.05, II A).
Further, regarding the concentration ranges as examined above, it is noted that 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). Similarly, a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985).
Conclusion
THIS ACTION IS MADE FINAL. 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.
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/VERA STULII/Primary Examiner, Art Unit 1791
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