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) 1-6 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yoshihiro et al (US 20140178558 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 15 to 55 v/v%;
storing the mixed liquid in an environment at or below 0°C after removal of insoluble solid matter from the mixed liquor.
In regard to claim 1, Yoshihiro et al discloses a “stored based liquor obtained by mixing an alcohol and a fruit juice to achieve a mixture whose alcohol by volume is 13 to 20 v/v %, then storing the mixture” (Abstract).
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).
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]).
Yoshihiro et al does not discloses 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.
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 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.
In regard to claims 2 and 3, Yoshihiro et al discloses mixing a fruit juice and an alcohol whose alcohol by volume is 59 v/v % or higher to achieve a mixture whose alcohol by volume is 13 to 20 v/v %, and storing the mixture for 1 to 36 months ([0014]). Hence, 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. 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 March 26, 2023 have been fully considered but they are not persuasive.
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
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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