CTNF 18/275,198 CTNF 76251 DETAILED ACTION Notice of Pre-AIA or AIA Status 07-03-aia AIA 15-10-aia The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA. Claim Objections 07-29-01 AIA Claim 7 is objected to because of the following informalities: the term “th” should be deleted . Appropriate correction is required. 07-29-01 AIA Claim 12 is objected to because of the following informalities: the term “tradition” should - - traditional - - . Appropriate correction is required. Claim Rejections - 35 USC § 112 07-30-02 AIA The following is a quotation of 35 U.S.C. 112(b): (b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention. The following is a quotation of 35 U.S.C. 112 (pre-AIA), second paragraph: The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention. 07-34-01 Claims 1, 4, 8 , 12-13, 17 and 24 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention. In claim 1, step d), it is unclear what is meant by heating to temperatures to boiling. Claims 4 and 8 both recite “following the addition of maltodextrin”. However, claims 1 says “adding the mixture to maltodextrin”. It is unclear whether maltodextrin is added to the mixture, or is the mixture added to the maltodextrin? Claim 12 is rejected as it is unclear what is considered “more rapid than tradition methods or fermentation”. It is unclear what methods are considered “tradition”. Claims 12 and 24 recite the limitation "the malt beverage" in line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 13 is confusing as the claim recites “heating to at least 75 o C for at least 20 minutes”. It is not clear what is heated. Additionally, it is not clear what yeast is added to, what is aerated and what exactly is heated. There is no nexus that ties the steps together. Claim Rejections - 35 USC § 103 07-20-aia AIA 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. 07-23-aia AIA 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. 07-20-02-aia AIA 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. 07-21-aia AIA Claim s 1-24 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent Application No. 2016/0108448 (GE) . As to claim 1, GE teaches a method for producing a beverage [0353] comprising: Mixing malt extract, water and yeast [0006] [0193], [0358], [0359]; Aerating the mixture between 30 C to 45 o C [0253], which overlaps that claimed; Adding the mixture [0360] to water, and hop solution [0354]; heating to temperatures to boiling [0358]; and cooling [0358] the mixture. GE does not expressly teach aerating for 2-5 hours and adding lactic acid along with maltodextrin to the mixture. However, GE teaches that starch, including dextrose syrups, can be used to ferment yeast to produce lactic acid [0005], [0301]. Glucoamylases are often used to further saccharify starch after the starch has been liquified [0006] [0374]. Therefore, it would have been obvious to one skilled in the art to use aeration 2- 5 hours and add maltodextrin as a soluble starch that reacts to produce lactic acid during fermentation to produce the beverage. As to claim 2, GE teaches the method according to claim 1, wherein the beverage contains 0% alcohol [0020]. As to claim 3, [0358] teaches a that the process for making beer involves: (a) preparing a mash, (b) filtering the mash to prepare a wort, and (c) fermenting the wort to obtain a fermented beverage, such as beer. Typically, milled or crushed malt, malt and adjunct, or adjunct is mixed with water and held for a period of time under controlled temperatures to permit the enzymes present in the malt and/or adjunct to convert the starch present in the malt into fermentable sugars. The mash is then transferred to a mash filter where the liquid is separated from the grain residue. This sweet liquid is called “wort,” and the left over grain residue is called “spent grain.” The mash is typically subjected to an extraction, which involves adding water to the mash in order to recover the residual soluble extract from the spent grain. The wort is then boiled vigorously to sterilize the wort and help develop the color, flavor and odor. Hops are added at some point during the boiling. The wort is cooled and transferred to a fermenter. It would have been obvious to vary the malt and starch (i.e., when liquified can provide maltodextrin), as GE teaches that the malt and corresponding sugars obtained in the wort ultimately help develop the color, flavor (i.e., which includes sweetness) and odor, of the beer. As to claim 4, maltodextrin can be obtained as discussed above. [0354] of GE teaches that the principal raw materials used in making these beverages are water, hops and malt. In addition, but also exclusively, adjuncts such as common corn grits, refined corn grits, brewer's milled yeast, rice, sorghum, refined corn starch, barley, barley starch, dehusked barley, wheat, wheat starch, torrified cereal, cereal flakes, rye, oats, potato, tapioca, and syrups, such as corn syrup, sugar cane syrup, inverted sugar syrup, barley and/or wheat syrups, and the like may be used as a source of starch. As to claim 5, GE teaches in [0359] that alcohol content is determined after heating [0359]. As to claims 6 and 8, the fermentation time and ingredients would naturally add aldehydes and volatile organic compounds, such as allyl isothiocyanate (i.e., naturally found in hops [0354]). As to claim 7, [0355] of GE teaches that proteins contribute to the body, foam and overall character of the beverage. It would have been obvious to vary the amount of protein based on the desired body, foam and overall character of the beverage, including mouthfeel. As to claim 9, GE teaches at [0358] that hop components can be added. It would have been obvious to add hop extracts. As to claims 10 and 11, GE teaches that the beverage can be a beer or flavored malt liquor [0361]. This includes non-alcoholic beer, non-alcoholic malt liquor and the like, but also alternative cereal and malt beverages such as fruit flavored malt beverages, e.g., citrus flavored, such as lemon-, orange-, lime-, or berry-flavored malt beverages, liquor flavored malt beverages, e.g., vodka-, rum-, or tequila-flavored malt liquor, or coffee flavored malt beverages, such as caffeine-flavored malt liquor , and the like. Thus, the additives would add caffeine. As to claim 12, GE of [0359] teaches that the beer usually contains from about 2% to about 10% v/v alcohol, although beer with a higher alcohol content, e.g., 18% v/v, may be obtained. It would have been obvious to one skilled in the art to add alcohol to adjust the alcohol content, as desired. This would naturally result in the creation of an alcoholic beverage more rapidly than traditional fermentation. Regarding claim 13, GE teaches a method for producing a beverage [0353] comprising: Mixing malt extract, water and yeast [0006] [0193], [0358], [0359]; Aerating the mixture between 30 C to 45 o C [0253], which overlaps that claimed; Adding the mixture [0360] to water, and hop solution [0354]; heating to temperatures to boiling [0358] (i.e., at least 75 o C). In particular, the wort is then boiled vigorously to sterilize the wort and help develop the color, flavor and odor. It would have been obvious to vary the time based on desired color, flavor, etc.; and cooling [0358] the mixture. GE does not expressly teach aerating for 2-5 hours and adding lactic acid along with maltodextrin to the mixture. However, GE teaches that starch, including dextrose syrups, can be used to ferment yeast to produce lactic acid [0005], [0301]. Glucoamylases are often used to further saccharify starch after the starch has been liquified [0006] [0374]. Therefore, it would have been obvious to one skilled in the art to use aeration 2- 5 hours and add maltodextrin as a soluble starch that reacts to produce lactic acid during fermentation to produce the beverage. As to claim 14, Danisco teaches the method according to claim 13, wherein the beverage contains 0% alcohol [0020]. As to claim 15, [0358] teaches a that the process for making beer involves: (a) preparing a mash, (b) filtering the mash to prepare a wort, and (c) fermenting the wort to obtain a fermented beverage, such as beer. Typically, milled or crushed malt, malt and adjunct, or adjunct is mixed with water and held for a period of time under controlled temperatures to permit the enzymes present in the malt and/or adjunct to convert the starch present in the malt into fermentable sugars. The mash is then transferred to a mash filter where the liquid is separated from the grain residue. This sweet liquid is called “wort,” and the left over grain residue is called “spent grain.” The mash is typically subjected to an extraction, which involves adding water to the mash in order to recover the residual soluble extract from the spent grain. The wort is then boiled vigorously to sterilize the wort and help develop the color, flavor and odor. Hops are added at some point during the boiling. The wort is cooled and transferred to a fermenter. It would have been obvious to vary the time and temperature of the steps based on the desired color, flavor, odor, etc…. As to claim 16, maltodextrin can be obtained as discussed above. [0354] of GE teaches that the principal raw materials used in making these beverages are water, hops and malt. In addition, but also exclusively, adjuncts such as common corn grits, refined corn grits, brewer's milled yeast, rice, sorghum, refined corn starch, barley, barley starch, dehusked barley, wheat, wheat starch, cereal, cereal flakes, rye, oats, potato, tapioca, and syrups, such as corn syrup, sugar cane syrup, inverted sugar syrup, barley and/or wheat syrups, and the like may be used as a source of starch. As to claim 17, GE teaches in [0359] that alcohol content is determine after heating [0359]. As to claims 18 and 20, the fermentation time and ingredients would naturally add aldehydes and volatile organic compounds, such as allyl isothiocyanate (i.e., naturally found in hops [0354]). As to claim 19, [0355] of GE teaches that proteins contribute to the body, foam and overall character of the beverage. It would have been obvious to vary the amount of protein based on the desired body, foam and overall character of the beverage, including mouthfeel. As to claim 21, GE teaches at [0358] that hop components can be added. It would have been obvious to add hop extracts. As to claims 22-23, GE adds flavor to the beverage GE teaches that the beverage can be a beer or flavored malt liquor [0361]. This includes non-alcoholic beer, non-alcoholic malt liquor and the like, but also alternative cereal and malt beverages such as fruit flavored malt beverages, e.g., citrus flavored, such as lemon-, orange-, lime-, or berry-flavored malt beverages, liquor flavored malt beverages, e.g., vodka-, rum-, or tequila-flavored malt liquor, or coffee flavored malt beverages, such as caffeine-flavored malt liquor , and the like. Thus, the additives add caffeine. Additionally, adjuncts such as common corn grits, refined corn grits, brewer's milled yeast, rice, sorghum, refined corn starch, barley, barley starch, dehusked barley, wheat, wheat starch, torrified cereal, cereal flakes, rye, oats, potato, tapioca, and syrups. Such as corn syrup, sugar cane syrup, inverted sugar syrup, barley and/or wheat syrup [0354]. This would naturally add flavor. As to claim 24, GE of [0359] teaches that the beer usually contains from about 2% to about 10% v/v alcohol, although beer with a higher alcohol content, e.g., 18% v/v, may be obtained. It would have been obvious to one skilled in the art to add alcohol to adjust the alcohol content, as desired. This would naturally result in a beverage more rapidly than traditional fermentation . Double Patenting 08-33 AIA The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg , 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman , 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi , 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum , 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel , 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington , 418 F.2d 528, 163 USPQ 644 (CCPA 1969). A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA. A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b). The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13. The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA/25, or PTO/AIA/26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer. 08-35 AIA Claim s 1-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 1-2, 11-12, 21-26 of copending Application No. 18/075,398 ( ‘398 reference application) . Although the claims at issue are not identical, they are not patentably distinct from each other because while claims 1-2, 11-12, 21-26 of the 398 reference application recite malt, hops, psycho, and/or physiological active compounds it would have been obvious to add known compounds such as flavor and hops to beverages . This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. 08-35 AIA Claim 1-24 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 14-16, 19-20, 23, 25-28, 32, 34, 36-38, 42, 44 and 46 of copending Application No. 18/857,289 (‘289 reference application) . Although the claims at issue are not identical, they are not patentably distinct from each other because while claims 14-16, 19-20, 23, 25-28, 32, 34, 36-38, 42, 44 and 46 recite malt, hops, psycho, and/or physiological active compounds it would have been obvious to add known compounds such as flavor and hops to beverages . This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented. 08-34 AIA Claim s 1-12 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 1-10 of U.S. Patent No. 11,517,031 . Although the claims at issue are not identical, they are not patentably distinct from each other because the difference in the claims is that the ‘031 application recite flavor, psycho, and physiological active compounds, it would been obvious to add compounds such as flavor compounds to a beverage . 08-34 AIA Claim s 13-24 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim s 11-20 of U.S. Patent No. 11,517,031 . Although the claims at issue are not identical, they are not patentably distinct from each other because they are not patentably distinct from each other because the difference in the claims is that the ‘031 application recite flavor, psycho, and physiological active compounds, it would been obvious to add compounds such as flavor compounds to a beverage . Conclusion Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p. Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice. If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300. Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000. /PHILIP A DUBOIS/ Examiner, Art Unit 1791 /Nikki H. Dees/ Supervisory Patent Examiner, Art Unit 1791 Application/Control Number: 18/275,198 Page 2 Art Unit: 1791 Application/Control Number: 18/275,198 Page 3 Art Unit: 1791 Application/Control Number: 18/275,198 Page 4 Art Unit: 1791 Application/Control Number: 18/275,198 Page 5 Art Unit: 1791 Application/Control Number: 18/275,198 Page 6 Art Unit: 1791 Application/Control Number: 18/275,198 Page 7 Art Unit: 1791 Application/Control Number: 18/275,198 Page 8 Art Unit: 1791 Application/Control Number: 18/275,198 Page 9 Art Unit: 1791 Application/Control Number: 18/275,198 Page 10 Art Unit: 1791 Application/Control Number: 18/275,198 Page 11 Art Unit: 1791