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 .
This office action is written in response to the Applicants Remarks filed 4/13/26. Claims 1, 4-6, 9, and 10. Claims 2, 3, 7, 8 have been cancelled.
Withdrawn Rejections
The 102(a)(1) rejections of claims 1-3, and 9 Delgado et al. “Development of a stir bar sorptive extraction method coupled to gas chromatography-mass spectrometry for the analysis of volatile compounds in Sherry brandy”, Analytica Chimica Acta, 2010, vol. 672, pp. 130-136 (Applicants IDS) have been withdrawn due to the amendments to the claims.
The 102(a)(1) rejections of claims 7 and 10 by Delgado et al. “Development of a stir bar sorptive extraction method coupled to gas chromatography-mass spectrometry for the analysis of volatile compounds in Sherry brandy”, Analytica Chimica Acta, 2010, vol. 672, pp. 130-136 (Applicants IDS) as applied to claim 1 above and as evidenced by Valcárcel-Muñoz “Comparative Evaluation of Brandy de Jerez Aged in American Oak Barrels with Different Times of Use” Jan 2021 Foods vol. 10 No. 288 have been withdrawn due to the amendments to the claims.
The 103(a) rejection of claim 8 over Delgado et al. “Development of a stir bar sorptive extraction method coupled to gas chromatography-mass spectrometry for the analysis of volatile compounds in Sherry brandy”, Analytica Chimica Acta, 2010, vol. 672, pp. 130-136 (Applicants IDS) as applied to claim 1 above and as evidenced by Valcárcel-Muñoz “Comparative Evaluation of Brandy de Jerez Aged in American Oak Barrels with Different Times of Use” Jan 2021 Foods vol. 10 No. 288 has been withdrawn due to the cancellation of the claim.
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, 4-6, and 9 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 1 recites the broad recitation of 90,000 ppb or less cis-3-hexen-1-ol, and the claim also recites the content of cis-3-hexen-1-ol is 10 ppb or more and 50,000 ppb or less which is the narrower statement of the range/limitation. The claims are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims. Claims 4-6, are rejected due to their dependency upon claim 1.
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, 4-6, 9, and 10 are rejected under 35 U.S.C. 103 as being unpatentable over Yonezawa et al. WO 2020203717 Machine Translation in view of Uchihashi JP 2020103218 Machine Translation 2020.
Regarding Claims 1, 4-6: Yonezawa discloses a green tea composition [abstract]. Yonezawa discloses that the tea composition is derived from tea leaves [pg. 3, last full paragraph]. Yonezawa discloses tea which is a plant from the Family Theaceae; specifically Camellia sinensis and discloses green tea [pg. 4, 1st full paragraph]. Yonezawa discloses that the extracts can be used to enhance the flavor of tea and other foods [pg. 4, 6th paragraph; pg. 9, 1st two paragraphs]. Yonezawa discloses the extracts to enhance the flavor of foods and beverages including alcoholic beverages [pg. 9, 1st two paragraphs]. Yonezawa discloses the tea fragrance containing a α-terpineol content of .1 ppm -1,000 ppm (10ppb-1,000,000 ppb) and cis-3-hexen-1-ol content of .1ppm to 100 ppm (10 ppb-100,000 ppb) [pg. 4; 4th paragraph; pg. 7, last paragraph-pg. 8, first partial paragraph].
Yonezawa does not disclose the alcohol content at 1 to 10%.
Yonezawa does not explicitly disclose wherein the alcoholic beverage is whiskey, rum, vodka, shochu, or rum.
Uchihashi discloses a tea flavored alcoholic beverage [abstract]. Uchihashi discloses the addition of green tea (Family Theaceae; Camellia sinensis)[pg. 3, “about tea extract”]. Uchihashi discloses that the tea can be used with distilled beverages including whiskey, shochu, and spirits (vodka, rum, gin are known in the art to be spirits) [pg. 2-3 “about alcohol component”; pg. 3. “About tea extract”]. Uchihashi discloses that the alcohol content of the tea alcoholic beverage can be 0.5 to 30% or appropriately changed based on the preference of the consumer [pg. 5, “Diluted alcoholic beverage”].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Yonezawa to include tea with an alcoholic beverage to achieve an alcohol content in a range of 0.5 to 30% as in Uchihashi to produce a low alcohol content tea beverage that enhances the flavor in alcoholic beverages and suppresses the effects of alcohol.
Further it would have been obvious to mix with the tea of Yonezawa with whiskey, shochu or other spirits which are known in the art to include rum, vodka gin, and brandy as in Uchihashi in order to provide a tea flavored alcoholic beverage based on a variety of alcoholic beverage bases.
Although Yonezawa does not explicitly disclose cis-3-hexen-1-ol is 90,000 ppb or less one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yonezawa overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Yonezawa does not disclose a α-terpineol content of 0.1 ppb to 100 ppb one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yonezawa overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 9: Yonezawa discloses as discussed above in claim 1. Yonezawa does not disclose the presence of carbon dioxide in brandy and therefore renders obvious the claim limitation of the alcoholic beverage not comprising carbon dioxide.
Regarding Claim 10: Yonezawa discloses a method of making a green tea composition [abstract]. Yonezawa discloses that the tea composition is derived from tea leaves [pg. 3, last full paragraph]. Yonezawa discloses tea which is a plant from the Family Theaceae; specifically Camellia sinensis and discloses green tea [pg. 4, 1st full paragraph]. Yonezawa discloses that the extracts can be used to enhance the flavor of tea and other foods [pg. 4, 6th paragraph; pg. 9, 1st two paragraphs]. Yonezawa discloses the extracts to enhance the flavor of foods and beverages including alcoholic beverages [pg. 9, 1st two paragraphs]. Yonezawa discloses the tea fragrance containing a α-terpineol content of .1 ppm -1,000 ppm (10ppb-1,000,000 ppb) and cis-3-hexen-1-ol content of .1ppm to 100 ppm (10 ppb-100,000 ppb) [pg. 4; 4th paragraph; pg. 7, last paragraph-pg. 8, first partial paragraph].
Yonezawa does not disclose the alcohol content at 1 to 10%.
Yonezawa does not explicitly disclose wherein the alcoholic beverage is whiskey, rum, vodka, shochu, or rum.
Uchihashi discloses a method of making a tea flavored alcoholic beverage [abstract]. Uchihashi discloses the addition of green tea (Family Theaceae; Camellia sinensis)[pg. 3, “about tea extract”]. Uchihashi discloses that the tea can be used with distilled beverages including whiskey, shochu, and spirits (vodka, rum, gin are known in the art to be spirits) [pg. 2-3 “about alcohol component”; pg. 3. “About tea extract”]. Uchihashi discloses that the alcohol content of the tea alcoholic beverage can be 0.5 to 30% or appropriately changed based on the preference of the consumer [pg. 5, “Diluted alcoholic beverage”].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Yonezawa to include tea with an alcoholic beverage to achieve an alcohol content in a range of 0.5 to 30% as in Uchihashi to produce a low alcohol content tea beverage that enhances the flavor in alcoholic beverages and suppresses the effects of alcohol.
Further it would have been obvious to mix with the tea of Yonezawa with whiskey, shochu or other spirits which are known in the art to include rum, vodka gin, and brandy as in Uchihashi in order to provide a tea flavored alcoholic beverage based on a variety of alcoholic beverage bases.
Although Yonezawa does not explicitly disclose cis-3-hexen-1-ol is 10 ppb or more to 50,000 ppb or less one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yonezawa overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Although Yonezawa does not disclose a α-terpineol content of 0.1 ppb to 100 ppb one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Yonezawa overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Response to Arguments
The 102(a)(1) rejections of claims 1-3, and 9 have been withdrawn due to the amendments to the claims.
The 102(a)(1) rejections of claims 7 and 10 by Delgado et al. “Development of a stir bar sorptive extraction method coupled to gas chromatography-mass spectrometry for the analysis of volatile compounds in Sherry brandy”, Analytica Chimica Acta, 2010, vol. 672, pp. 130-136 (Applicants IDS) as applied to claim 1 above and as evidenced by Valcárcel-Muñoz “Comparative Evaluation of Brandy de Jerez Aged in American Oak Barrels with Different Times of Use” Jan 2021 Foods vol. 10 No. 288 have been withdrawn due to the amendments to the claims.
The 103(a) rejection of claim 8 over Delgado et al. “Development of a stir bar sorptive extraction method coupled to gas chromatography-mass spectrometry for the analysis of volatile compounds in Sherry brandy”, Analytica Chimica Acta, 2010, vol. 672, pp. 130-136 (Applicants IDS) as applied to claim 1 above and as evidenced by Valcárcel-Muñoz “Comparative Evaluation of Brandy de Jerez Aged in American Oak Barrels with Different Times of Use” Jan 2021 Foods vol. 10 No. 288 has been withdrawn due to the cancellation of the claim.
Pertinent Prior Art
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Chua et al. (US 2021/0198603). Chua discloses alcoholic beverage replicas containing α-terpineol and cis-3-hexen-1-ol [0039; 0045; claim 43]. Chua discloses terpines at .0002mg/L (.00000002%) to .95mg/L (.0095%) [0045].
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 FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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/Felicia C Turner/Primary Examiner, Art Unit 1793
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