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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 Jan. 20, 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.
Claims 1-2, 4, 6 and 8 are rejected under 35 U.S.C. 103 as being unpatentable over Vanderhaegen (US 2015/0017280 A1; Jan. 15, 2015) in view of Shimizu et al. (JP 2020103209 A; July 9, 2020), Tanigawa (JP 2019154428 A; Sept. 19, 2019) and Kozaki (US 2017/0121657 A1; May 4, 2017).
Regarding claims 1-2, Vanderhaegen discloses a low alcohol or alcohol free fermented malt based beverage ([0013]) comprising an aroma composition containing:
7-30 ppm ethyl acetate ([0013]),
1.65-5.05 ppm isobutanol ([0026]),
0.08-0.85 ppm isoamyl acetate ([0016]), and
5-30 ppm isoamyl alcohol ([0020]).
Therefore, Vanderhaegen teaches amounts of isobutanol, isoamyl acetate and isoamyl alcohol all falling within the claimed ranges.
Vanderhaegen teaches a beer-taste beverage as described above having 7-30 ppm ethyl acetate, while the instant claim requires an amount of 0.49-1.95 ppm ethyl acetate.
Shimizu teaches a non-alcohol beer taste beverage having excellent foam stability and excellent flavor, wherein the beverage comprises ethyl acetate in an amount as low as 0.5 ppm, wherein the range can be 0.5-70 ppm (Derwent Abstract), which overlaps the claimed range of 0.49 to 1.95 ppm. Shimizu teaches that the presence of ethyl acetate aids in suppressing unwanted odors from other ingredients and offers a fruity odor (Derwent Abstract).
Therefore, as Shimizu teaches that it is well known in the art for a non-alcohol beer taste beverage to have an amount of ethyl acetate lower than what is taught by Vanderhaegen, wherein the amount overlaps the claimed range, and wherein such amounts still provides the non-alcohol beer taste beverage with desired odor, it would have been obvious to one of ordinary skill in the art to vary the amount of ethyl acetate in Vanderhaegen to result in a desired level of fruit ordor and/or odor suppression of additional ingredients as taught by Shimizu. This is merely routine experimentation that is well within the ordinary skill in the art.
Vanderhaegen teaches a beer-taste beverage as described above, but fails to specifically teach a sour component in an amount of 1,000 ppm or more as claimed.
Tanigawa discloses a beer-taste beverage and method for enhancing the flavor, wherein the beverage comprises an acidulant, or sour component, in an amount of 1000-3000 ppm ([0022]-[0023]), thus falling within the claimed range. Tanigawa further teaches that the acidulant enhances the volume of flavor of the beverage ([0022]).
Therefore, it would have been obvious to one of ordinary skill in the art to add an acidulant to the beverage of Vanderhaegen in a similar amount as taught by Tanigawa in order to predictably provide the beer-taste beverage of Vanderhaegen with enhanced flavor as taught by Tanigawa.
Vanderhaegen teaches that the aroma components of the aroma composition are derived from a wort fermented liquid, wherein the wort fermented liquid can be a wort bottom fermented liquid ([0055]-[0056).
Vanderhaegen discloses that the aroma composition is derived from a wort fermented liquid as described above, but fails to specifically teach that the wort fermented liquid has a malt use ratio of 50% or more as claimed.
Kozaki teaches a beer-taste beverage and method for improving the taste. Kozaki teaches that the beer-taste beverage has a malt use ratio of at least 50%, thus falling within the claimed range ([0024]). Kozaki goes on to state that malt has a great influence on flavor and taste of the beer-taste beverage and that by using a malt use ratio of at least 50%, it is possible to obtain a flavor and taste suitable for the beer-taste-beverage ([0025]-[0027]).
Therefore, it would have been obvious to one of ordinary skill in the art for the wort fermented liquid of Vanderhaegen to have a malt use ratio of 50% or more as taught by Kozaki as such malt use ratio would contribute to the flavor and taste of the beverage in Vanderhaegen to obtain a suitable beer-taste beverage.
Regarding claim 4, Vanderhaegen teaches a beer-taste beverage as described above, but fails to specifically teach a sour component in an amount of 1,000 ppm or more as claimed.
Tanigawa discloses a beer-taste beverage and method for enhancing the flavor, wherein the beverage comprises an acidulant, or sour component, in an amount of 1000-3000 ppm ([0022]-[0023]), thus falling within the claimed range. Tanigawa further teaches that the acidulant enhances the volume of flavor of the beverage ([0022]).
Therefore, it would have been obvious to one of ordinary skill in the art to add an acidulant to the beverage of Vanderhaegen in a similar amount as taught by Tanigawa in order to predictably provide the beer-taste beverage of Vanderhaegen with enhanced flavor as taught by Tanigawa.
Regarding claim 6, Vanderhaegen teaches that the aroma components of the aroma composition are derived from a wort fermented liquid, wherein the wort fermented liquid can be a wort bottom fermented liquid ([0055]-[0056).
Regarding claim 8, Vanderhaegen discloses that the low alcohol beverage can be an alcohol-free fermented malt-based beverage ([0013]), wherein the alcohol-free beer-taste beverage contains an alcohol-removed wort fermented liquid ([0007], [0055], [0056], [0076]).
Claims 9-16 and 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Vanderhaegen (US 2015/0017280 A1; Jan. 15, 2015), Shimizu et al. (JP 2020103209 A; July 9, 2020), Tanigawa (JP 2019154428 A; Sept. 19, 2019) and Kozaki (US 2017/0121657 A1; May 4, 2017) as applied to claim 1 above, and further in view of Caluwaerts (US Patent No. 5,384,135; Jan. 24, 1995).
Regarding claims 9-10, the prior art discloses a method for producing a low-alcohol or alcohol-free fermented malt-based beverage ([0013]) according the claim 1.
Vanderhaegen further teaches that the method comprises vacuum evaporation to vaporize the aroma components from a wort fermented liquid, condensing the vaporized aroma components to obtain an aroma composition, and adding the obtained aroma composition to a low-alcohol beer-taste beverage ([0076]).
While Vanderhaegen discloses the process as described above, Vanderhaegen fails to teach a step of adjusting the carbon dioxide gas pressure of a wort fermented liquid from 0.05 to 0.25 MPa and vaporizing the carbon dioxide gas with the aroma components.
However, the examiner notes that such steps are known in the art for producing a low-alcohol beer-taste beverage as disclosed by Caluwaerts.
Caluwaerts teaches a method for producing a low-alcohol beer-taste beverage comprising evaporation which is done by adjusting the carbon dioxide gas pressure and vaporizing the carbon dioxide gas and aroma compounds from a wort fermented liquid (col 3 lines 5-20).
Both Vanderhaegen and Caluwaerts teach using evaporation as part of the process to produce a low- alcohol beer-taste beverage. Caluwaerts further teaches that the evaporation involves adjusting the carbon dioxide gas pressure and vaporizing the carbon dioxide gas and aroma compounds. Therefore, it would have been obvious to one of ordinary skill in the art to perform such steps in the process of Vanderhaegen as Caluwaerts teaches that such steps are known in the art to be useful in the evaporation step to aid in producing a low-alcohol beverage.
With respect to adjusting the gas pressure from 0.05 to 0.25 MPa, the cited prior art fails to teach an exact pressure, however, it would have been obvious to one of ordinary skill in the art to vary the exact pressure to result in a desired vaporization. The prior art clearly teaches the step of adjusting the carbon dioxide pressure and therefore it is well within the ordinary skill in the art to determine the optimum pressure. This is merely routine experimentation that is well understood, routine and conventional in the art.
With respect to the step of vaporizing by spraying the wort fermented liquid under reduced pressure, it would have been obvious to one of ordinary skill in the art to vaporize the components using any known means, including spraying.
With respect to claim 10 and the method being for “suppressing sourness and astringency, and enhancing an alcohol feeling and a complex taste derived from brewing of a low-alcohol beer-taste beverage”, the examiner notes that when reading the preamble in the context of the entire claim, the recitation “for suppressing sourness and astringency, and enhancing an alcohol feeling and a complex taste derived from brewing of a low-alcohol beer-taste beverage” is not limiting because the body of the claim describes a complete invention and the language recited solely in the preamble does not provide any distinct definition of any of the claimed invention’s limitations. Thus, the preamble of the claim is not considered a limitation and is of no significance to claim construction. See Pitney Bowes, Inc. v. Hewlett-Packard Co., 182 F.3d 1298, 1305, 51 USPQ2d 1161, 1165 (Fed. Cir. 1999). See MPEP § 2111.02.
Regarding claims 11 and 14, Vanderhaegen teaches that the low-alcohol beer-taste beverage to which the aroma composition is added is obtained by subjecting the wort fermented liquid to an alcohol-removing treatment ([0076]).
Regarding claims 12-13 and 15-16, as stated above, Vanderhaegen discloses a low-alcohol or alcohol-free fermented malt-based beverage ([0013]) comprising an aroma composition containing:
7-30 ppm ethyl acetate ([0013]),
1.65-5.05 ppm isobutanol ([0026]),
0.08-0.85 ppm isoamyl acetate ([0016]), and
5-30 ppm isoamyl alcohol ([0020]).
Therefore, Vanderhaegen teaches amounts of isobutanol, isoamyl acetate and isoamyl alcohol all falling within the claimed ranges.
Vanderhaegen teaches a beer-taste beverage as described above having 7-30 ppm ethyl acetate, while the instant claim requires an amount of 0.49-1.95 ppm ethyl acetate.
Shimizu teaches a non-alcohol beer taste beverage having excellent foam stability and excellent flavor, wherein the beverage comprises ethyl acetate in an amount as low as 0.5 ppm, wherein the range can be 0.5-70 ppm (Derwent Abstract), which overlaps the claimed range of 0.49 to 1.95 ppm. Shimizu teaches that the presence of ethyl acetate aids in suppressing unwanted odors from other ingredients and offers a fruity odor (Derwent Abstract).
Therefore, as Shimizu teaches that it is well known in the art for a non-alcohol beer taste beverage to have an amount of ethyl acetate lower than what is taught by Vanderhaegen, wherein the amount overlaps the claimed range, and wherein such amounts still provides the non-alcohol beer taste beverage with desired odor, it would have been obvious to one of ordinary skill in the art to vary the amount of ethyl acetate in Vanderhaegen to result in a desired level of fruit ordor and/or odor suppression of additional ingredients as taught by Shimizu. This is merely routine experimentation that is well within the ordinary skill in the art.
Regarding claims 18-19, Vanderhaegen further teaches that the low-alcohol beer-taste beverage with which the aroma composition is blended contains an alcohol-removed wort fermented liquid ([0076]).
Response to Arguments
Applicant’s arguments with respect to the 103 rejection over Vanderhaegen have been fully considered and are persuasive as Vanderhaegan fails to teach the claimed amount of ethyl acetate. However, upon further consideration, a new grounds of rejection is made in view of Shimizu.
As stated above, Vanderhaegen teaches a beer-taste beverage as described above having 7-30 ppm ethyl acetate, while the instant claim requires an amount of 0.49-1.95 ppm ethyl acetate.
Shimizu teaches a non-alcohol beer taste beverage having excellent foam stability and excellent flavor, wherein the beverage comprises ethyl acetate in an amount as low as 0.5 ppm, wherein the range can be 0.5-70 ppm (Derwent Abstract), which overlaps the claimed range of 0.49 to 1.95 ppm. Shimizu teaches that the presence of ethyl acetate aids in suppressing unwanted odors from other ingredients and offers a fruity odor (Derwent Abstract).
Therefore, as Shimizu teaches that it is well known in the art for a non-alcohol beer taste beverage to have an amount of ethyl acetate lower than what is taught by Vanderhaegen, wherein the amount overlaps the claimed range, and wherein such amounts still provides the non-alcohol beer taste beverage with desired odor, it would have been obvious to one of ordinary skill in the art to vary the amount of ethyl acetate in Vanderhaegen to result in a desired level of fruit ordor and/or odor suppression of additional ingredients as taught by Shimizu. This is merely routine experimentation that is well within the ordinary skill in the art.
For the reasons stated above, the 103 rejections are maintained.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791