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 May 5, 2026 has been entered. Claims 8, 11 and 17-19 have been cancelled. Claims 1-7, 9, 10, 12-16 and 20 are pending examination.
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, 9, 10, 12-16 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Takatsuki (JP 2015122970- English translation from JPO 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 0.5% by mass (i.e., about 5 to 5000 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 includes fermented beer-taste beverages wherein the fermented beer-taste beverage is produced by inoculating yeast into saccharified solution of malt (i.e., wort) as a main raw material, performing a fermentation step, and then reducing ethanol in the case of a non-alcohol beer-taste beverage (i.e., alcohol-removed wort fermented liquid -[0032]).
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).
While Takatsuki discloses the beer-taste beverage comprises a fermented malt extract (i.e., wort), the reference is silent with respect to apparent extract concentration. However, 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 flavor and mouthfeel in the final product.
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 9, Takatsuki discloses all of the claim limitations as set forth above. Takatsuki discloses the fermented beer-taste beverage is produced by inoculating yeast or the like into a saccharified solution of malt (i.e., wort), performing a fermentation step, and then reducing ethanol to obtain a non-alcohol beer-taste beverage ([0032]). The reference is silent with respect to a wort bottom fermented liquid.
However, given Takatsuki disclose producing a fermented beer-taste beverage by inoculating yeast into a saccharified solution of malt (i.e., wort), absent evidence to the contrary, it would have been obvious to one of ordinary skill in the art to have used any type of yeast, including top or bottom fermenting yeast, and arrive at the present invention. One of ordinary skill in the art would have been motivated to choose a particular yeast depending on style and flavor of beer desired.
Regarding claim 10, Takatsuki discloses all of the claim limitations as set forth above. Given Takatsuki discloses inoculating yeast into a saccharified solution of malt, it necessarily follows that the solution of malt is 100% malt or has a malt use ratio of 50% w/w% or more.
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 includes a fermented beer-taste beverage wherein the fermented beer-taste beverage is produced by inoculating yeast into saccharified solution of malt (i.e., wort) as a main raw material, performing a fermentation step, and then reducing ethanol in the case of a non-alcohol beer-taste beverage (i.e., alcohol-removed wort fermented liquid -[0032]).
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).
While Takatsuki discloses the beer-taste beverage comprises a fermented malt extract (i.e., wort), the reference is silent with respect to apparent extract concentration. However, 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 flavor and mouthfeel in the final product.
Takatsuki discloses the beer-taste beverage can be produced by, for example, blending a fermented malt extract (i.e. beer-taste beverage) 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 JPO 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.
Response to Arguments
Applicant's arguments filed May 5, 2026 have been fully considered but they are not persuasive.
Applicant presents a Table to show the differences between amended claim 1 and 12 and the Takatsuki reference. Applicant shows Takatsuki does not disclose a low-alcohol beer-taste beverage having “an apparent extract concentration of 5 to 10 w/v%.” Applicant notes the examples in Takatsuki’s examples and comparative examples provide the highest malt extract ingredient level of 4 wt% (Example 23). Applicant argues this does not corresponds to “an apparent extract concentration of 5 to 10 w/v%.”
Here, malt extract and apparent extract are two different constituents. The malt extract of Takatsuki et al. is used to make the beer taste beverage by inoculating with yeast and fermenting. The apparent extract concentration is a measurement of the remaining solids after fermentation. The apparent extract of a beer-type beverage can be modified by adjusting malt and/or fermentation parameters.
Applicant argues there would be no reason to specifically select acetic acid in the claimed amount of “more than 30 mg/L or less than 170 mg/L” based on the Takatsuki reference.
Takatsuki discloses a beer-taste beverage comprising 0.0005 to 0.5% by mass of 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]). It would have been obvious to one of ordinary skill in the art to have selected any of the disclosed acids in the range of 0.0005 to 0.5% by mass, and arrive at the present invention. There is no evidence on the record demonstrating the unique unexpected properties of adding acetic acid versus any of the other acids disclosed by Takatsuki in a low-alcohol beer-taste beverage.
Applicant submit claims 1 and 12 require “an alcohol-removed wort fermented liquid” in the low-alcohol beer-taste beverage. Applicant explains the claimed invention solves these problems by “adjusting the concentration of polyphenols,” :adjusting the concentration of acetic acid”, and having “an apparent extract concentration” to be within the specific ranges recited in claims 1 and 12. As a result, Applicant submits the low-alcohol beer-taste beverage of claims 1 and 12 achieves superior results in terms of having excellent sweetness and body, beer-like complex taste, robust drinking sensation, and reduced fermented soybean odor. Applicant argues these superior effect are distinguished from Takatsuki and would not have been obvious or expected from the reference. Applicant submits the reference is directed to suppressing malt odor while maintaining good beer taste and good sourness. Applicant argues “the reference teaches away from fermentation.”
While Takatsuki disclose a different objective than the present invention, the present invention is not obvious over the beer-taste beverage having a low ethanol content disclosed by Takatsuki (see rejection of claims 1 and 12 under 35 U.S.C. 103 set forth above). While Takatsuki discloses unfermented beer-taste beverages, the reference disclose fermented beer-taste beverages ([0032]). A reference may be relied upon for all that it would have reasonably suggest to one having ordinary skill in the art, including nonpreferred embodiments (MPEP §2123 I).
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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