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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 09/11/2026 has been entered.
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.
Claim 1 has been amended to include the limitation of “wherein 50% (w/w) or more of total phenol in the beverage is derived from the source alcoholic drink”. In regard to this limitation, it is noted that the instant claims are directed to a composition comprising phenol. The instant claims are not directed to the process for the production of the beverage. The source of phenols would not impart any patentable distinction to the product. It is further noted that Ohashi et al discloses that “[t]he beer-taste beverage according to (6), comprising at least one kind of distilled liquor selected from the group consisting of raw alcohol, spirits, vodka, rum, tequila, gin and shochu as an alcohol component” ([0008]).
Further in regard to the source drink, Ohashi et al discloses:
When the beer-taste beverage of the present invention is a non-fermented alcoholic beverage, the beer-taste beverage of the present invention can contain distilled liquor prepared in advance as an alcohol component. Such a distilled liquor is not particularly limited, and examples thereof include raw alcohol, spirits, vodka, rum, tequila, gin, and shochu ([0026]).
Claim 1 also recites the following limitations:
wherein the beverage is alcoholic beverage selected from the group consisting of: distilled liquor, brewed liquor, and mixed liquor, or wherein the beverage is alcohol-taste beverage having at least one alcohol-like flavor selected from the group consisting of: distilled liquor, brewed liquor selected from cider, white wine, red wine, Japanese sake, seishu (sake)), and mixed liquor.
In regard to the taste and the nature of the beverage, Ohashi et al discloses:
According to the present invention, a beer-like bitterness can be imparted by adding quassin and / or quinine in the process of producing a beer-taste beverage ([0012]).
According to a preferred embodiment of the present invention, by adjusting the pH of the beer-taste beverage of the present invention within a predetermined pH range, it is possible to further enhance the bitterness and post-crisis like beer ([0023]).
When the beer-taste beverage of the present invention is a non-fermented alcoholic beverage, the beer-taste beverage of the present invention can contain distilled liquor prepared in advance as an alcohol component. Such as distilled liquor is not particularly limited, and examples thereof include raw alcohol, spirits, vodka, rum, tequila, gin, and shochu ([0026]).
Hence, Ohashi et al discloses that the beverage includes distilled liquor including raw alcohol, spirits, vodka, rum, tequila, gin, and shochu ([0026]). Ohashi et al meets the limitation of distilled spirit and beverage having alcohol taste as claimed. The particular taste of the beverage is an inherent result of the compounds included in the composition. One of ordinary skill in the art would have been motivated to vary the composition of the beverage depending on the desired flavor profile. One of ordinary skill in the art would have been motivated to vary the composition of the beverage depending on the personal preference of a consumer.
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).
Response to Arguments
Applicant's arguments filed 09/11/2026 have been fully considered but they are not persuasive.
In response to Applicant's argument regarding the limitation of “wherein 50% (w/w) or more of total phenol in the beverage is derived from the source alcoholic drink”, it is noted that the instant claims are directed to a composition comprising phenol. The instant claims are not directed to the process for the production of the beverage. The source of phenols would not impart any patentable distinction. It is further noted that Ohashi et al discloses that “[t]he beer-taste beverage according to (6), comprising at least one kind of distilled liquor selected from the group consisting of raw alcohol, spirits, vodka, rum, tequila, gin and shochu as an alcohol component” ([0008]).
Further in regard to the source drink, Ohashi et al discloses:
When the beer-taste beverage of the present invention is a non-fermented alcoholic beverage, the beer-taste beverage of the present invention can contain distilled liquor prepared in advance as an alcohol component. Such a distilled liquor is not particularly limited, and examples thereof include raw alcohol, spirits, vodka, rum, tequila, gin, and shochu ([0026]).
In response to Applicant's argument regarding the limitation of “wherein the beverage is alcoholic beverage selected from the group consisting of: distilled liquor, brewed liquor, and mixed liquor, or wherein the beverage is alcohol-taste beverage having at least one alcohol-like flavor selected from the group consisting of: distilled liquor, brewed liquor selected from cider, white wine, red wine, Japanese sake, seishu (sake)), and mixed liquor”, Ohashi et al discloses:
According to the present invention, a beer-like bitterness can be imparted by adding quassin and / or quinine in the process of producing a beer-taste beverage ([0012]).
According to a preferred embodiment of the present invention, by adjusting the pH of the beer-taste beverage of the present invention within a predetermined pH range, it is possible to further enhance the bitterness and post-crisis like beer ([0023]).
When the beer-taste beverage of the present invention is a non-fermented alcoholic beverage, the beer-taste beverage of the present invention can contain distilled liquor prepared in advance as an alcohol component. Such as distilled liquor is not particularly limited, and examples thereof include raw alcohol, spirits, vodka, rum, tequila, gin, and shochu ([0026]).
Hence, Ohashi et al discloses that the beverage includes distilled liquor including raw alcohol, spirits, vodka, rum, tequila, gin, and shochu ([0026]). Ohashi et al meets the limitation of distilled spirit and beverage having alcohol taste as claimed. The particular taste of the beverage is an inherent result of the compounds included in the composition. One of ordinary skill in the art would have been motivated to vary the composition of the beverage depending on the desired flavor profile. One of ordinary skill in the art would have been motivated to vary the composition of the beverage depending on the personal preference of a consumer.
In regard to the recitation of the “degree of sourness”, 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”, 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 response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., the adjustment step of sweetness and sourness directed to the process for making of the beverage) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The instant claims are not directed to the process for making of the beverage. The instant claims are directed to the product (i.e. beverage composition).
Conclusion
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/VERA STULII/Primary Examiner, Art Unit 1791
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