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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 09/17/2026 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) 1-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yoshihiro et al (US 20140178558 A1) in view of Strunin et al (WO 0030468 A1).
Independent claim 1 recites the following limitations:
A method for producing a fruit juice-containing unrefined liquor, the method comprising the steps of:
mixing a fruit juice obtained from a citrus fruit using a juice extractor with an alcohol within 30 hours after squeezing, to obtain a mixed liquor with an alcohol content of from 25 to 55 v/v%;
storing the mixed liquid in an environment at or below -4°C after removal of insoluble solid matter from the mixed liquor.
In regard to claim 1, Yoshihiro et al discloses a process for making an alcoholic beverage by mixing alcohol with fruit juice (Abstract, [0014]).
In regard to the recitation of “a mixed liquor with an alcohol content of from 25 to 55 v/v%” in claim 1, Yoshihiro et al discloses:
[0030] The present invention relates to an alcohol beverage and a production method thereof. The alcohol beverage of the present invention refers to a beverage that contains alcohol, and the alcohol concentration is not particularly limited. The alcohol beverage of the present invention includes, for example, a so-called low alcohol beverage (RTD product) which has an alcohol by volume of about 1 to 9 v/v %, or a so-called liquor which as an alcohol by volume of 15 v/v % or higher. The alcohol by volume of the alcohol beverage of the present invention is preferably 0.1 to 60 v/v %, and more preferably 1 to 30 v/v %, and even more preferably 3 to 20 v/v %.
Hence, Yoshihiro et al discloses an alcoholic beverage with an alcohol concentration of up to 60 v/v % ([0030]). Therefore, Yoshihiro et al meets the limitation of “a mixed liquor with an alcohol content of from 25 to 55 v/v%”.
In regard to the fruit juice nature, Yoshihiro et al discloses that unprocessed and non-concentrated straight fruit juice may be used ([0036]). In regard to the citrus juice, Yoshihiro et al discloses citrus juice such as orange, satsuma mandarin, lemon, grapefruit, lime, mandarin orange, yuzu, tangerine, temple orange, tangelo, calamansi [(0035)].
In regard to the recitation of the unrefined fruit juice-containing liquor in the preamble of claim 1, it is noted that Yoshihiro et al teaches unprocessed and non-concentrated straight fruit juice ([0036]) and removal of insoluble solid matter from the “stored based liquor” only after the storage of the packaged unrefined fruit juice-containing liquor for 1 to 36 months ([0014], [0015]).
It is understood that fruit juice was obtained from citrus fruit by some kind of a fruit extractor (a general term for the apparatus employed for juice extraction).
Yoshihiro et al does not disclose the duration of the time interval between the step of juice extraction and the step of mixing with alcohol. However, it is noted that Yoshihiro et al discloses that unprocessed and non-concentrated straight fruit juice may be used. It is well known that unprocessed, non-concentrated fruit juice is highly susceptible to bacterial spoilage and contamination by pathogens. Therefore, one of ordinary skill in the art would have been motivated to mix the fruit juice with alcohol as soon as possible in order to avoid bacterial spoilage and contamination by pathogens.
In regard to the recitation of the removal of insoluble matter from the mixed liquor, it is noted that one of ordinary skill in the art would have been motivated to remove insoluble solid matter at any time of the mixed liquor production as long as it takes place before the consumption absent any clear and convincing evidence to the contrary.
Claim 1 has been amended to include the limitation of “storing the mixed liquid in an environment at or below -4°C”. In regard to the storage temperature, Yoshihiro et al discloses storing the mixture of citrus juice with alcohol (“stored based liquor”) at 0°C ([0049]). However, Yoshihiro et al discloses that “[t]he storage temperature is not particularly limited” ([0049]). Another prior art reference to Strunin et al is made as a teaching of storing alcoholic beverages under temperatures below -4°C. Strunin et al discloses frozen alcoholic beverages that include alcohol (page 1 lines 1-3, bottom paragraph; page 2 lines 1-5) and a fruit juice component such as orange juice, pineapple juice, lime juice, lemon juice or tomato juice (page 3 line 28). Strunin et al discloses frozen alcoholic product contained n a package (page 4 lines 20-22). Strunin et al discloses temperature of -15°C (as found in a typical refrigerator freezer box) is appropriate for freezing and storing frozen alcoholic beverages (page 6 lines 1-2). Both references are directed to mixed alcoholic beverages manufactured by mixing an alcoholic component with fruit juice. Yoshihiro et al discloses that “[t]he storage temperature is not particularly limited” and includes 0°C ([0049]). Strunin et al discloses that when frozen alcoholic beverage is desired, the mixture of the alcoholic component with fruit juice could be stored in a typical/conventional refrigerator freezer box at -15°C. One of ordinary skill in the art would have been motivated to modify Yoshihiro et al in view of Strunin et al and to reduce storage temperature to below -4°C in order to provide frozen alcoholic beverage according to consumer preference.
Further in regard to the concentration and temperature 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 and temperature 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 claim 2, Yoshihiro et al discloses mixing the fruit juice with an alcohol having alcohol content by volume of not less than 59 v/v % as claimed:
[0039] The alcohol by volume of an alcohol is determined as 59 v/v % or higher, since such level is advantageous in removing insoluble components and generating flavor components, but it should preferably be 70 v/v % or higher, and more preferably 80 v/v % or higher. An alcohol by volume below 59 v/v % may result in insufficient removal of insoluble components and insufficient generation of flavor components. There is no upper limit to the alcohol by volume, but when considering that the alcohol by volume of an alcohol obtained by distillation is generally 96 v/v % or lower, and that the use of pure ethyl alcohol may result in the flavor being insufficient, the alcohol by volume should preferably be 96 v/v % or lower. It is preferable to include at least one alcoholic beverage having a high alcohol by volume, since the alcohol by volume after mixing in the present invention, achieved by mixing a fruit juice and an alcohol, is 13 to 20 v/v % as mentioned below.
In regard to claim 3, Yoshihiro et al discloses storing the mixed liquor for the time period of no less than 24 hours.
In regard to claim 4, Yoshihiro et al discloses citrus juice such as orange, satsuma mandarin, lemon, grapefruit, lime, mandarin orange, yuzu, tangerine, temple orange, tangelo, calamansi [(0035)].
In regard to claim 5, Yoshihiro et al discloses that unprocessed and non-concentrated straight fruit juice may be used ([0036]). Yoshihiro et al does not require heating of juice.
In regard to claim 6, Yoshihiro et al discloses 84L of fruit juice is mixed with 16L of alcohol (Table 1). Hence, Yoshihiro et al discloses 84% “straight fruit juice” (Table 1).
Response to Arguments
Applicant's arguments filed September 17, 2026 have been fully considered but they are not persuasive.
In regard to the recitation of “a mixed liquor with an alcohol content of from 25 to 55 v/v%” in claim 1, Yoshihiro et al discloses:
[0030] The present invention relates to an alcohol beverage and a production method thereof. The alcohol beverage of the present invention refers to a beverage that contains alcohol, and the alcohol concentration is not particularly limited. The alcohol beverage of the present invention includes, for example, a so-called low alcohol beverage (RTD product) which has an alcohol by volume of about 1 to 9 v/v %, or a so-called liquor which as an alcohol by volume of 15 v/v % or higher. The alcohol by volume of the alcohol beverage of the present invention is preferably 0.1 to 60 v/v %, and more preferably 1 to 30 v/v %, and even more preferably 3 to 20 v/v %.
Hence, Yoshihiro et al discloses an alcoholic beverage with an alcohol concentration of up to 60 v/v % ([0030]). Therefore, Yoshihiro et al meets the limitation of “a mixed liquor with an alcohol content of from 25 to 55 v/v%”.
In response to Applicant's arguments regarding the recitation of “storing the mixed liquid in an environment at or below -4°C”, it is noted that Yoshihiro et al discloses storing the mixture of citrus juice with alcohol (“stored based liquor”) at 0°C ([0049]). However, Yoshihiro et al discloses that “[t]he storage temperature is not particularly limited” ([0049]). Another prior art reference to Strunin et al is made as a teaching of storing alcoholic beverages under temperatures below -4°C. Strunin et al discloses frozen alcoholic beverages that include alcohol (page 1 lines 1-3, bottom paragraph; page 2 lines 1-5) and a fruit juice component such as orange juice, pineapple juice, lime juice, lemon juice or tomato juice (page 3 line 28). Strunin et al discloses frozen alcoholic product contained in a package (page 4 lines 20-22). Strunin et al discloses temperature of -15°C (as found in a typical refrigerator freezer box) is appropriate for freezing and storing frozen alcoholic beverages (page 6 lines 1-2). Both references are directed to mixed alcoholic beverages manufactured by mixing an alcoholic component with fruit juice. Yoshihiro et al discloses that “[t]he storage temperature is not particularly limited” and includes 0°C ([0049]). Strunin et al discloses that when frozen alcoholic beverage is desired, the mixture of the alcoholic component with fruit juice could be stored in a typical/conventional refrigerator freezer box at -15°C. One of ordinary skill in the art would have been motivated to modify Yoshihiro et al in view of Strunin et al and to reduce storage temperature to below -4°C in order to provide frozen alcoholic beverage according to consumer preference.
Further in regard to the concentration and temperature 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 and temperature 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 response to Applicant's arguments regarding the recitation of the removal of insoluble matter from the mixed liquor, it is noted that one of ordinary skill in the art would have been motivated to remove insoluble solid matter at any time of the mixed liquor production as long as it takes place before the consumption absent any clear and convincing evidence to the contrary.
Conclusion
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/VERA STULII/Primary Examiner, Art Unit 1791
