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 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 1-6 and 8-20 are rejected under 35 U.S.C. 103 as being unpatentable over Takatsuki (JP 2015122970- English translation from WIPO translate).
Regarding claims 1-3 and 13, Takatsuki discloses a beer-taste beverage having a low ethanol content (i.e., ethanol content of less than 1% by mass –[0007]), comprising 0.0001 to 0.5 % by mass (i.e., about 1 to about 5000 mg/L) polyphenol 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 aid, lactic acid, fumaric acid, malic acid, adipic acid, phosphoric acid, phytic acid and acetic acid –[0017]) (Abstract, [0011], [0017]-[0018], [0022]-[0023]). Takatsuki discloses the beer-taste beverage comprises components of a wort fermented liquid (e.g., an alcohol having 3 to 7 carbons, carbon dioxide, polyphenols and ethanol- [0012]-[0013], [0020]-[0027]).
While Takatsuki 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).
Regarding claims 4, 5 and 14-16, Takatsuki discloses all of the claim limitations as set forth above. Takatsuki discloses the mass ratio of acetic acid to polyphenol in the beer-taste beverage ranges from 0.001 -2000 (wherein the amount of polyphenol ranges from about 1 to about 5000 mg/L and the amount of acetic acid ranges from about 5 to about 2000 mg/L).
While Takatsuki 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).
Regarding claim 6, Takatsuki discloses all of the claim limitations as set forth above. Given Takatsuki discloses the beer-taste taste beverage comprises a malt extract ([0030]), inherently the beverage would comprise malt-derived polyphenols.
Regarding claim 8, Takatsuki discloses all of the claim limitations as set forth above. While Takatsuki 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 claims 9-11 and 17-19, Takatsuki discloses all of the claim limitations as set forth above. Takatsuki disclose the beer-taste beverage comprises an alcohol having 3 to 7 carbons, carbon dioxide, polyphenols and ethanol (e.g., non-polymer catechins- [0012]-[0013], [0020]-[0027]). Each of these components would be considered a component of fermented wort. While Takatsuki does not disclose the properties of wort fermented liquid required by claims 9-11 and 17-19, even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. If the product in the product-by-process claims is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior art product was made by a different process (MPEP §2113 I). Claim 8 only requires the beer-taste beverage comprise a component which is derived from a wort fermented liquid. No specific component is claimed. The wort fermented liquid is not a required component of the beer-taste beverage.
Regarding claims 12 and 20, Takatsuki 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 0.0001 to 0.5 % by mass (i.e., about 1 to about 5000 mg/L) polyphenol 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 aid, lactic acid, fumaric acid, malic acid, adipic acid, phosphoric acid, phytic acid and acetic acid –[0017]) (Abstract, [0011], [0017]-[0018], [0022]-[0023]). Takatsuki discloses the beer-taste beverage comprises components of a wort fermented liquid (e.g., an alcohol having 3 to 7 carbons, carbon dioxide, polyphenols and ethanol- [0012]-[0013], [0020]-[0027]).
While Takatsuki does not disclose the precisely claimed ranges for polyphenol 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).
Takatsuki discloses the beer-taste beverage can be produced by, for example, blending a malt extract and acetic acid and adjusting concentrations of polyphenol and acetic acid ([0010], [0029]).
Claim 7 is rejected under 35 U.S.C. 103 as being unpatentable over Takatsuki (JP 2015122970 – English translation from WIPO translate) as applied to claim 1, and further in view of Caluwaerts (US 5,384,135).
Regarding claim 7, Takatsuki discloses all of the claim limitations as set forth above. While Takatsuki 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).
Takatsuki 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.
Conclusion
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