DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The Amendment filed April 29, 2026 has been entered. Claim 21 is new. Claims 2-5, 7-11 and 13-20 have been cancelled. Claims 1, 6, 12 and 21 are pending examination.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claim 21 is rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention.
New claim 21 requires “wherein the low-alcohol beer-taste beverage does not comprises a wort fermented liquid and does not comprise an alcohol-removed wort fermented liquid.” Applicant indicates paragraphs {0041], [0047[, [0072] and [0073] provide support for this exclusionary proviso. Paragraphs [0072] and [0073] discuss examples where acidic acid or proline are added to a low-alcohol beer-taste beverage. Paragraph [0041] discloses a low-alcohol beer-taste beverage preferably containing a component derived from a wort fermented liquid. Paragraph [0047] discloses a low-alcohol beer-taste beverage may be one containing an alcohol-removed wort fermented liquid, or may be one in which the proline concentration and the acetic acid concentration are appropriately adjusted using an alcohol-removed wort fermented liquid as a base liquid. Here, there is no support to exclude both possible base liquids, i.e. a wort fermented liquid or an alcohol removed wort fermented liquid.
Claim Rejections - 35 USC § 103
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 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Takatsu (JP 2015122970 – English translation from WIPO translate).
Regarding claims 1, Takatsu discloses a beer-taste beverage having a low ethanol content (i.e., ethanol content of less than 1% by mass – [0007]), comprising 0.00025 to 0.15% by mass (i.e., about 2.5 to 1500 mg/L) proline and 0.0005% to 0.2% by mass (i.e., about 5 to 2000 mg/L) acetic acid (an acid selected from citric acid, gluconic acid, ascorbic acid, succinic acid, tartaric acid, lactic acid, fumaric acid, malic acid, adipic acid, phosphoric acid, phytic acid and acetic acid-[0017]). (Abstract, [0011], [0017], [0018]).
While Takatsu does not disclose the precisely claimed ranges for proline and acetic acid content, in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05).
Takatsu discloses the mass ratio of acetic acid to proline in the beer-taste beverage ranges from 0.02 to 2 (wherein the mass ratio of proline to acetic acid ranges from 0.5 to 50 – [0019]).
While Takatsu does not disclose the precisely claimed range for the ratio of acetic acid to proline, in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05).
While Takatsu discloses the beer-taste beverage comprises a fermented or non-fermented malt extract, the reference is silent with respect to apparent extract concentration. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have adjusted the apparent extract concentration of the beer-taste beverage to obtain the desired malt flavor and mouthfeel in the final product.
Regarding claim 12, Takatsu discloses making a beer-taste beverage having a low ethanol content (i.e., ethanol content of less than 1% by mass – [0007]) wherein the beer-taste beverage comprises 0.00025 to 0.15% by mass (i.e., about 2.5 to 1500 mg/L) proline and 0.0005% to 0.2% by mass (i.e., about 5 to 2000 mg/L) acetic acid (an acid selected from citric acid, gluconic acid, ascorbic acid, succinic acid, tartaric acid, lactic acid, fumaric acid, malic acid, adipic acid, phosphoric acid, phytic acid and acetic acid-[0017]). (Abstract, [0011], [0017], [0018]).
While Takatsu does not disclose the precisely claimed ranges for proline and acetic acid content, in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05).
Takatsu discloses the beer-taste beverage can be produced by, for example, blending a malt extract and acetic acid and adjusting concentrations of proline and acetic acid ([0010], [0029]).
While Takatsu discloses the beer-taste beverage comprises a fermented or non-fermented malt extract, the reference is silent with respect to apparent extract concentration. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have adjusted the apparent extract concentration of the beer-taste beverage to obtain the desired malt flavor and mouthfeel in the final product.
Claim 6 is rejected under 35 U.S.C. 103 as being unpatentable over Takatsu (JP 2015122970 – English translation from WIPO translate) as applied to claim 1, and further in view of Caluwaerts (US 5,384,135).
Regarding claim 6, Takatsu discloses all of the claim limitations as set forth above. While Takatsu discloses a beer-taste beverage comprising fragrance or seasonings (i.e., flavorant), the reference is silent with respect to a bitterness value (IBU).
Caluwaerts teaches an alcohol-free beer flavored with essential oil of hops and hop extracts (Abstract, C3/L30-35, 59-65, C4/L43-55, claim 8). Caluwaerts teaches the hops essential oil or hop extract is added in an amount of 10-20 IBU (C8/L44-56). Caluwaerts also teaches the quantity of hops essential oil or hop extract is variable depending the bitterness desired in the final product (C4/L43-55).
Takatsu and Caluwaerts are combinable because they are concerned with the same field of endeavor, namely low alcohol beer products. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have added hop essential oil or hop extract to provide a beer product with a desired IBU and bitter taste.
Response to Arguments
Applicant's arguments filed April 20, 2026 have been fully considered but they are not persuasive.
First, Applicant submits Takatsu does not disclose or suggest “a ratio of acetic acid concentration B [mg/L] to proline concentration A [mg/L] in the low-alcohol beer-taste beverage B/A is 0.17 to 0.50” or provide “teaching or suggestion to the targeted sensory profile.”
Note, the claimed low-alcohol beer-taste beverage and method for producing the low-alcohol beer-taste beverage are silent with respect to a “targeted sensory profile.”
In this case, Takatsu discloses the mass ratio of acetic acid to proline in the beer-taste beverage ranges from 0.02 to 2 (wherein the mass ratio of proline to acetic acid ranges from 0.5 to 50 – [0019]).
While Takatsu does not disclose the precisely claimed range for the ratio of acetic acid to proline, in the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists (MPEP §2144.05).
Second, Applicant submits Takatsu fails to disclose or suggest “an apparent extract concentration of 5 to 10 w/v%” in its beverage.
While Takatsu is silent with respect to apparent extract concentration, the references discloses the beer-taste beverage can comprise a fermented or non-fermented malt extract. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have adjusted the apparent extract concentration of the beer-taste beverage to obtain the desired malt flavor and mouthfeel in the final product.
The fact Takatsu seeks to reduce the malt odor from a malt extract-containing beverage does not mean Takatsu seeks to lower the apparent extract concentration. While the objective of Takatsu may be to reduce malt odor, Takatsu may also want to achieve a low alcohol full bodied beer taste beverage (i.e., higher apparent extract).
Third, Applicant submits Takatsu “does not disclose or suggest the combination of both the proline and acetic acid concentrations recited in claim 1 and 12.”
A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art, including nonpreferred embodiments (MPEP §2123 II). Here, Takatsu discloses a beer-taste beverage having a low ethanol content (i.e., ethanol content of less than 1% by mass – [0007]), comprising 0.00025 to 0.15% by mass (i.e., about 2.5 to 1500 mg/L) proline and 0.0005% to 0.2% by mass (i.e., about 5 to 2000 mg/L) acetic acid (an acid selected from citric acid, gluconic acid, ascorbic acid, succinic acid, tartaric acid, lactic acid, fumaric acid, malic acid, adipic acid, phosphoric acid, phytic acid and acetic acid-[0017]). (Abstract, [0011], [0017], [0018]).
Applicant explains the claimed invention is a low-alcohol beer-taste beverage having a beer-like complex taste, barley-like sweetness, a good balance between sourness and sweetness, and a refreshing aftertaste. Applicant argues “[t]hese properties are substantially different from Takatsu’s beverage, which is directed to suppressing malt odor while maintaining good beer taste and good sourness.” Applicant submits “[t]he experimental result in the present application show that the amount of proline, amount of acetic acid, ratio of proline to acetic acid, and apparent extract concentration are not merely arbitrary ranges, but are ranges that achieve the desired sensory balance.”
Here, both the claimed invention and that of Takatsu are directed to low-alcohol beer-taste beverages with good flavor. The data is Table 1 are not persuasive of unexpected results. First, it is not clear if the “sensory” differences between the samples are significant. Were the samples evaluated in duplicate? Is a difference between 3 and 4 on a 5 point scale statistically significant? Furthermore, it is not clear the differences are unexpected. For example, if the amount of acetic acid in a beer-taste beverage is increased, the skilled artisan would expect the perceived sourness to increase.
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 ELIZABETH A GWARTNEY whose telephone number is (571)270-3874. The examiner can normally be reached M-F: 9 a.m. - 5 p.m. EST.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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