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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Claims 7-8 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on January 20, 2026.
Applicant’s election without traverse of claims 1-6 and 9-20 in the reply filed on January 20, 2026 is acknowledged.
Claim Rejections - 35 USC § 112
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.
Claims 1-6 and 9-20 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.
Claim 1 recited the following limitations:
A non-alcohol beer-taste beverage containing a wort fermented liquid, having a malt use ratio of 50 w/w% or more, a real extract concentration of 6 w/v% or more, and a ratio of bitterness value (BU) to real extract concentration (w/v%) (bitterness value/real extract) of 2.0 to 3.8.
It is not clear if the recitations of a “malt use ratio”, “real extract concentration” and “a ratio of bitterness value (BU) to real extract concentration” refer to the “beer-taste beverage” or to the “wort fermented liquid”.
It is further noted that if the recitations of a “malt use ratio”, “real extract concentration” and “a ratio of bitterness value (BU) to real extract concentration” refer to the “wort fermented liquid”, then these limitations do not further limit a non-alcohol beer-taste beverage, because the concentration of the wort fermented liquid in the non-alcohol beer-taste beverage is not specified. A non-alcohol beer-taste beverage may comprise negligible amounts of the wort fermented liquid.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claim(s) 1-6 and 9-20 is/are rejected under 35 U.S.C. 103 as being unpatentable over Kubota et al (WO 2021005816 A1).
Kubota et al (US 20220211080 A1) is relied upon as an English translation of WO 2021005816 A1.
Claim 1 recited the following limitations:
A non-alcohol beer-taste beverage containing a wort fermented liquid, having a malt use ratio of 50 w/w% or more, a real extract concentration of 6 w/v% or more, and a ratio of bitterness value (BU) to real extract concentration (w/v%) (bitterness value/real extract) of 2.0 to 3.8.
In regard to claim 1, Kubota et al discloses “a beer taste beverage with an alcohol concentration of less than 1% (v/v)” (Abstract).
In regard to the recitation of the “real extract concentration of 6 w/v% or more”, Kubota et al discloses “a real extract concentration of the beer taste beverage has a genuine extract component of 1.75% (w/w) or more and 8.00% (w/w) or less” ([0023]).
In regard to the recitation of the “malt use ratio of 50 w/w% or more”, Kubota et al discloses:
[0032] Cereals to be saccharified contain malt. The malt content in cereals to be saccharified is not particularly limited, but is 25% or more, preferably 50% or more, and more preferably 67% or more. The cereals to be saccharified may be 100% malt. The ratio (%) of malt to all raw materials excluding water is referred to as a malt use ratio.
Hence, Kubota et al meets the limitation of the “malt use ratio of 50 w/w% or more”.
In regard to the bitterness value of the beverage, Kubota et al discloses:
[0058] The bitterness value of beer taste beverages is adjusted to have a bitterness equivalent to beer. Specifically, the bitterness value of the beer taste beverage is adjusted to 5 to 100 BU, preferably 10 to 35 BU, and more preferably 15 to 27 BU. The bitterness value of beer taste beverages may be measured by the method described in BCOJ Beer Analysis Method, 8.15 (2004), edited by the Beer Brewery Association.
In regard to the recitation of the “ratio of bitterness value (BU) to real extract concentration (w/v%) (bitterness value/real extract) of 2.0 to 3.8”, Kubota et al discloses a Test Liquid C having an original wort extract of 10.0%, a real extract of 6.89% (w/w), a bitterness value of 17, a bitterness value/real extract ratio of 2.5 and an alcohol content of 0.02% (v/v) ([0066], Examples, Table I).
Further in regard to the concentration recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[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) (MPEP 2144.05, II A).
Further, regarding the concentration ranges as examined above, it is noted that 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). Similarly, 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).
In regard to claim 2, Kubota et al discloses the apparent final degree of fermentation of the wort fermented liquid is 80% ([0040]).
In regard to claims 3 and 16-18, it is noted that the recitation of the alcohol removal is directed to the process of making a wort fermented liquid. The instant claims are directed to a non-alcohol beer-taste beverage containing a wort fermented liquid. In any case, Kubota et al discloses removal of alcohol until the alcohol content of the wort fermented liquid is less than 1% (v/v):
[0052] From the wort fermented liquid, from which yeast, protein and the like have been removed, carbon dioxide gas contained therein is removed as necessary. In addition, the wort fermented liquid is subjected to an alcohol-removing step to remove alcohol contained therein. The alcohol-removing step is carried out until the alcohol content of the wort fermented liquid is, for example, less than 1% (v/v), preferably less than 0.5% (v/v), and more preferably less than 0.1% (v/v). The alcohol-removing step is carried out using a conventionally known method. For example, a vacuum distillation method may be used. In this case, it is preferred to employ a method in which flavor components produced in the alcoholic fermentation process are allowed to remain therein.
[0066] Next, the obtained fermented liquid was sprayed into a gas-removing tank under a reduced pressure of about 90 mbar to remove carbon dioxide, and then heated to about 50° C. using a plate cooler. Thereafter, it was brought into contact with water vapor heated to around 50° C. in a column at a reduced pressure of around 90 mbar to adsorb volatile components to the water vapor so that alcohol and volatile components were removed, thereby obtaining an alcohol-removed fermented liquid with an alcohol concentration of 0.02% (v/v).
In regard to the recitations of chromaticity (claim 4) and NIBEM value (claim 5), it is noted that although the reference does not specifically disclose every possible quantification or characteristic of its product, these characteristics would have been expected to be as claimed absent any clear and convincing evidence and/or arguments to the contrary. The reference discloses the same starting materials and methods as instantly (both broadly and more specifically) claimed, and thus one of ordinary skill in the art would recognize that the chromaticity (claim 4) and NIBEM value among many other characteristics of the product obtained by referenced method, would have been an inherent result of the process disclosed therein. The Patent Office does not possess the facilities to make and test the referenced method and product obtain by such method, and as reasonable reading of the teachings of the reference has been applied to establish the case of obviousness, the burden thus shifts to applicant to demonstrate otherwise.
In regard to claim 6, Kubota et al does not disclose the presence of soybean-derived dietary fiber or protein.
In regard to claims 9 and 19, Kubota et al discloses “a real extract concentration of the beer taste beverage has a genuine extract component of 1.75% (w/w) or more and 8.00% (w/w) or less” ([0023]).
In regard to claims 10-11 and 20, Kubota et al discloses:
[0058] The bitterness value of beer taste beverages is adjusted to have a bitterness equivalent to beer. Specifically, the bitterness value of the beer taste beverage is adjusted to 5 to 100 BU, preferably 10 to 35 BU, and more preferably 15 to 27 BU. The bitterness value of beer taste beverages may be measured by the method described in BCOJ Beer Analysis Method, 8.15 (2004), edited by the Beer Brewery Association.
In regard to claims 12-15, Kubota et al discloses the apparent final degree of fermentation of the wort fermented liquid is 80% ([0040]).
Conclusion
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/VERA STULII/Primary Examiner, Art Unit 1791
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