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
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 3-5, 10-14, and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Francia (US 2003/0097937 A1) in view of Brystrom-Williams et al. (herein referred to as BW, US 20200063079 A1), Francia (herein referred to as Francia 2, US 20040149137 A1), Donofrio (US 4426450 A) and Skrzypek et al (herein referred to as Skrzypek, “The mixing hydrodynamics and efficiency of the venturi jet mixer”)
With regard to Claim 1, Francia teaches automatically operating fermentation equipment for winemaking ([0001]). Francia teaches the fermented liquid is a sacchariferous liquid (abstract, “winemaking substrate”) and is fermented in a closed fermentation tank (Fig 1) and the fermenting liquid is circulated in the fermentation tank ([0007]). Francia teaches at least a portion of the fermentation liquid is mixed with oxygenation outside of the tank and reintroduced to the fermentation tank after the mixing (Fig 2, Fig 1 label 10, [0018] [0047]). It would be obvious to one with ordinary skill in the art that for the process to undergo fermentation, microorganism would need to be present.
Francia teaches and the fermenting liquid is circulated in the fermentation tank ([0007]) but is silent to the circulation by means of a mixer or a jet head.
Francia 2 teaches a sprinkling device, particularly for processes for making wine from red grapes, which can be associated with a fermentation and/or storage tank in order to recirculate the wine (abstract). Francia 2 teaches the circulation in the fermentation tank is by means of a jet head ([0047], Claim 7).
Francia 2 imparts reasoning for obviousness because the teaching shows that a jet head was known to recirculate fermentation liquid successfully at the time of filing, which means it was within the general skill of one with ordinary skill in the art to select a jet head to recirculate fermentation liquid because it would have been obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
However, Francia 2 is silent to the jet head including perforations that provide a Venturi effect in the fermentation tank.
Skrzypek teaches mixing is one of the most important industrial processes and one of the fundamental unit operations of Chemical and Process Engineering (1. Introduction). Skrzypek teaches using a jet venturi mixer which includes perforations (2. Venturi mixer, Fig 1. Per Fig 1, the label 3 shows orifices in the side of the jet mixer which one with ordinary skill in the art would recognize as perforations). Skrzypek teaches a Venturi mixer can potentially be very an efficient, yet simple way of relatively quick and proportional mixing (6. Summary),
Therefore, it would have been obvious to one with ordinary skill in the art to modify the combinations of Francia and Francia 2 to utilize the venturi jet mixer with perforations as taught by Skrzypek for an efficient, yet simple way of relatively quick and proportional mixing.
Francia teaches the fermenting liquid is circulated in the fermentation tank ([0007]) but is silent to the jet head being at the bottom of the tank.
Donofrio teaches a method for agitating and mixing a gas with a medium in a closed fermentation vessel comprising recirculating said medium through a venturi jet mixer (abstract). Donofrio teaches wherein the jet head is at the bottom of the fermentation tank (Fig 1, label 24).
Therefore Donofrio imparts reasoning for obviousness because the teaching shows that the claim jet nozzle position at the bottom of the fermentation vessel was known to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to place the jet nozzle with a venturi effect at the bottom of a fermentation vessel, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
Lastly, Francia’s method teaches winemaking as opposed to the claimed production of kombucha.
BW teaches a system for producing kombucha-based alcoholic beverage (abstract). BW teaches the system used to produce kombucha is suitable for use to produce beer and wine ([0048]).
Therefore, BW imparts reasoning for obviousness because the teaching shows utilizing the same system to brew wine and kombucha was known to have been successfully achieved and published at the time of filing, which means it was within the general skill of one with ordinary skill in the art to utilize the same system which can produce wine to produce kombucha, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 3, Francia teaches that the mixing of the liquid with the oxygen or oxygenated air is done outside the fermentation tank (Fig 2, Fig 1 label 10, [0018] [0047]), wherein a portion of the fermenting liquid is conveyed by means of conduits provided for that purpose that are in connection with the fermentation tank to an oxygenator (Fig 1 label 10, [0018] [0047]), where the fermenting liquid is mixed with the oxygen or oxygenated air, and subsequently conveyed back to the fermentation tank by means of a conduit ([0047]).
With regard to Claim 4, Francia teaches the conduit introducing aerated or oxygenated liquid back into the fermentation tank discharges into an inlet of the mixer or jet head and the oxygenated liquid is circulated by means of the mixer or jet head in the fermentation tank ([0047], Francia reads such that the liquid is discharged as a jet).
With regard to Claim 5, Francia teaches the equipment has two separate devices to control oxygenation in the fermentation liquid ([0005]) and the oxygen content is monitored via sensors ([0021]) and subsequently displayed on a graphics page ([0038]).
It would have been obvious to one with ordinary skill in the art to modify the oxygen content in the fermentation liquid to the desired content based on the information provided by the sensors. See MPEP 2144.05(II)(A) "[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).
With regard to Claim 10, Francia is silent to the fermenting liquid being an infusion of green, Oolong or black tea to which sugar or a sugar solution has been added as well as a starter culture of microorganisms.
BW teaches a system for producing kombucha-based alcoholic beverage (abstract).wherein the fermenting liquid is an infusion of black or green tea, which is what is traditionally used in the Chinese beverage kombucha ([0038], [0003]). BW teaches sugar is added to the tea liquor, and this mixture will serve as a nutrient source during the tea fermentation process ([0039]). Continuing, BW teaches adding a starting culture of microorganisms ([0040] BW reads such that The tea liquor/sugar mixture is inoculated with a symbiotic culture of bacteria and yeast (“SCOBY”) to begin the tea fermentation process).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Francia in view of BW to utilize green or black tea because that is what is traditionally used in the Chinese beverage kombucha. The addition of sugar advantageously is the nutrient source to the microorganisms (i.e., Scoby) which are essential to begin the fermentation process.
With regard to Claim 11, Francia is silent to the fermenting liquid being a wort.
BW teaches the fermented tea solution is transferred to a primary fermentation vessel to serve as a nutrient solution for primary fermentation. BW teaches “nutrient solution” is largely synonymous with the conventional terms “wort” ([0048]).
The prior art shows that wort can function as a fermenting liquid when used in fermenting beverages such as kombucha. See MPEP 2144.06 discusses combining or substituting equivalents known for the same purpose. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.
Therefore, it would have been obvious to one of skill in the art, at the time of filing to modify the method of making taught by Francia as the modified teaching above, to substitute the equivalents known to be equivalents for use when making a fermented beverage, such as kombucha as claimed, for the reasons discussed in the Rationale above.
With regard to Claim 12, Francia teaches the fermentation processes utilizes oxygen. Therefore the process would inherently be aerobic ([0005]).
With regard to Claim 13, Francia is silent to the temperature and time of the fermentation process.
BW teaches the fermentation process proceeds aerobically ([0018]). BW teaches the tea fermentation process will generally continue for 6-14 days to form a fermented tea solution; however, the fermentation process may take less or more time ([0043]). BW teaches the inoculated tea liquor mixture within the container is maintained at an elevated temperature, preferably between 80-85° F (~26-29℃, [0044]) See MPEP 2144.05(I) 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).
It would have been obvious to one with ordinary skill in the art to modify Francia to ferment at the time and temperature described by BW to achieve the desired pH and/or flavor profile of the fermented tea solution (BW[0045])
With regard to Claim 14, Although Francia teaches fermentation which one with ordinary skill in the art would recognize would be performed by microorganisms, the reference is silent to the starter culture being a mixture of aerobic bacteria and yeasts.
BW teaches the starter culture is a “scoby” which is a symbiotic culture of bacteria and yeast ([0007]). BW teaches aerobic fermentation favors bacterial colonies found within the scoby and their oxygen needs ([0040]).
BW imparts reasoning for obviousness because the teaching shows that the claimed aerobic bacteria and yeast starter culture (i.e., a scoby) was known for fermenting kombucha at the time of filing, which means it was within the general skill of one with ordinary skill in the art to selected an aerobic bacteria and yeast starter culture (i.e., a scoby, because it would have been obvious to one with ordinary skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP 2144.07 that discussed that when the prior art recognizes something is suitable for a similar intended use/purpose, such a thing is obvious.
With regard to Claim 17, Francia teaches the fermented liquid is a winemaking substrate (abstract, Claim 1). One with ordinary skill in the art would recognize wine is traditionally made with fruit and/or fruit juices such as grapes.
Claims 6-9 are rejected under 35 U.S.C. 103 as being unpatentable over Francia (US 2003/0097937 A1) in view of Brystrom-Williams et al. (herein referred to as BW, US 20200063079 A1), Francia (herein referred to as Francia 2, US 20040149137 A1), Donofrio (US 4426450 A) Skrzypek et al (herein referred to as Skrzypek, “The mixing hydrodynamics and efficiency of the venturi jet mixer”) and Li et al. (herein referred to as Li, CN 110892928 A)
With regard to Claim 6, Francia is silent to the fermenting liquid being separated after fermentation.
Li teaches a method and apparatus for preparing semi-continuous kombucha fermentation broth ([0002]). Li teaches separating the fermenting liquid after fermentation to remove most of
the bacterial cellulose components, such as bacterial films or viscous substances produced by
the bacteria, as well as most of the cell deposits accumulated by the bacteria themselves ([0103], [0130]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Francia in view of Li to include separate the fermenting liquid after fermentation to remove most of the bacterial cellulose components, such as bacterial films or viscous substances produced by the bacteria, as well as most of the cell deposits accumulated by the bacteria themselves.
With regard to Claim 7, Francia is silent to the fermented liquid undergoing at least two separation steps, wherein a first separation is done by centrifugation and a second separation is done by a filter unit.
Li teaches centrifuging the fermentation broth to remove most of the bacterial cellulose components, such as bacterial films or viscous substances produced by the bacteria, as well as most of the cell deposits accumulated by the bacteria themselves ([0130]). Then Li teaches teach a second separation through a ceramic membrane to remove the remaining bacteria and other solids, resulting in a clear, bright fermentation broth ([0131]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Francia in view of Li to include a first separation step by centrifugation to remove most of the bacterial cellulose components, such as bacterial films or viscous substances produced by the bacteria, as well as most of the cell deposits accumulated by the bacteria themselves. Then a second separation step by a ceramic membrane (i.e., a filter unit) to remove the remaining bacteria and other solids, resulting in a clear, bright fermentation broth.
With regard to Claim 8, Francia is silent to the second separation takes place by means of at least three filters with a pore size between 0.2 to 20 microns, wherein a first filter comprises a pore size greater than a second filter, wherein the second filter comprises a pore size greater than a third filter.
Li teaches after centrifugation, the fermentation broth is filtered through a ceramic membrane with the pore size of the ceramic membrane being 10-0.05 micron and then concentrated through a membrane, and materials with different filtration precision specifications, such as ultrafiltration, nanofiltration, and reverse osmosis, in the range of 100-0.1nm (0.1-0.0001 microns) can be selected ([0131]-[0133]). See MPEP 2144.05(I) 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)
Thus, it would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Francia in view of Li to include filter the fermentation liquid through at least three filters (such as the ceramic membrane, ultrafiltration, nanofiltration, and reverse osmosis) to remove the remaining bacteria and other solids, resulting in a clear, bright fermentation broth and concentrate the fermentation broth.
With regard to Claim 9, Francia is silent to the fermented liquid undergoing a centrifugation step and a pasteurization step.
Li teaches centrifuging the fermentation broth to remove most of the bacterial cellulose components, such as bacterial films or viscous substances produced by the bacteria, as well as most of the cell deposits accumulated by the bacteria themselves ([0130]).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Francia in view of Li to include a centrifugation step to remove most of the bacterial cellulose components, such as bacterial films or viscous substances produced by the bacteria, as well as most of the cell deposits accumulated by the bacteria themselves.
However, the combination of Francia and Li are silent to the fermented liquid being pasteurized.
BW teaches BW teaches a system for producing kombucha-based alcoholic beverage (abstract). BW teaches pasteurizing the fermented liquid to effectively reduce the number viable microbes ([0046]).
Thus, it would have been obvious to one with ordinary skill in the art before he effective filing date of the claimed invention to modify the combination of Francia and Li in view of BW to include a pasteurizations step to effectively reduce the number of viable microbes.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Francia (US 2003/0097937 A1) in view of Brystrom-Williams et al. (herein referred to as BW, US 20200063079 A1) Francia (herein referred to as Francia 2, US 20040149137 A1), Donofrio (US 4426450 A), Skrzypek et al (herein referred to as Skrzypek, “The mixing hydrodynamics and efficiency of the venturi jet mixer”) and happy herbalist (“carbonation”).
With regard to Claim 15, Francia is silent to an external CO2 gas being added to the fermentation liquid.
The happy herbalist teaches forced carbonation which is the process in which external CO2 gas is added to a fermentation liquid to carbonate the liquid while keeping the original kombucha draught taste and the alcohol as low as possible without adversely affecting the taste (whole document).
It would have been obvious to one with ordinary skill in the art before the effective filing date of the claimed invention to modify Francia in view of the happy herbalist to add external CO2 gas to the fermentation liquid to carbonate the liquid while keeping the original kombucha draught taste and the alcohol as low as possible without adversely affecting the taste.
Response to Arguments
Applicant's arguments filed 02 February 2026 have been fully considered but they are not persuasive.
Applicants arguments have bene noted that the Francia references do not teach the jets at the bottom of the tank as now claimed, nor do they teach the perforations that provide the venturi effect. The examiner notes that the Donofrio and Skrzypek references have bene brought in to teach these newly added limitations.
First applicant argues that Francia teaches the jet at the top of the fermentation tank whereas the applicant’s amended claim 1 has a jet head at a bottom of the fermentation tank. The examiner does not rely on Francia to teach the newly claimed jet positions and points to Donofrio to rely on the position of the jet within the fermentation tank. Thus applicants argument is not found to be persuasive.
The applicant also argues the jet taught by Francia lacks perforations and cannot provide the Venturi effect in the fermentation tank. The examiner does not rely on Francia to teach the newly amendment jet heat limitations and the examiner points to Skrzypek which teaches the newly claimed jet head limitations. Thus applicants argument is not found to be persuasive.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KARLA I DIVIESTI whose telephone number is (571)270-0787. The examiner can normally be reached Monday-Friday 7am-3pm (MST).
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/K.I.D./Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792
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