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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114) and the Response and Amendment filed 15 December 2025 is acknowledged. Receipt of the simultaneous Response After Final filed 15 December 2025 is also acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-11
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: None
New claims: None
Claims currently under consideration: 1-11
Currently rejected claims: 1-11
Allowed claims: None
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 15 December 2025 has been entered.
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.
References:
Donhowe (US 2003/0157218 A1)
Podpora et al. (Podpora B, Świderski F, Sadowska A, Piotrowska A, Rakowska R. “Spent Brewer's Yeast Autolysates as a New and Valuable Component of Functional Food and Dietary Supplements”. J Food Process Technol. 2015. 6: 526. doi:10.4172/2157-7110.1000526)
Priest et al. (Priest, F. G, and Graham G Stewart. Handbook of Brewing. 2nd ed. Boca Raton: CRC/Taylor & Francis, 2006. pp. 820-821.)
Chambers et al. (EP 0581741 A2)
Dunstan et al. (US 2018/0161296 A1)
Atlas Scientific (“Understanding the pH of Beer”. Atlas Scientific. 7 January 2023. Accessed on 15 November 2024 from https://web.archive.org/web/20230107163309/https://atlas-scientific.com/blog/ph-of-beer/)
Tomita et al. (US 2018/0010116 A1)
Munuhe (Munuhe, N. “Top 10 Foods Highest In Taurine: Eat These To Boost Your Nutrient Intake”. BetterMe. 2021. Accessed on 14 November 2024 from https://web.archive.org/web/20210723200700/https://betterme.world/articles/top-10-foods-highest-in-taurine/)
Brewer’s Friend (“Beer Styles – IBU Chart (Bitterness Ranges) – 2017 Update”. Brewer’s Friend. 2017. Accessed on 15 November 2024 from https://web.archive.org/web/20170607015137/https://www.brewersfriend.com/2017/05/07/beer-styles-ibu-chart-2017-update/
Hosseinian et al. (Hosseinian, Farah Oomah, B. Dave Campos-Vega, Rocio. “Dietary Fiber Functionality in Food and Nutraceuticals - From Plant to Gut – 6 In Vivo and In Vitro Studies on Dietary Fiber and Gut Health.” 2017. (pp. 123-177). John Wiley & Sons. Retrieved from https://app.knovel.com/hotlink/pdf/id:kt011B77S1/dietary-fiber-functionality/ in-vivo-in-introduction).
Claims 1-9 are rejected under 35 U.S.C. 103 as being unpatentable over Donhowe in view of Podpora, Priest, Chambers, and Dunstan, and as evidenced by Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend.
Regarding claim 1, claim 1 is viewed as a product-by-process claim because the claim is toward a product made by the implicit steps of providing and combining a yeast autolysate, a suspension of dietary fiber, and a non-alcoholic beer. As claim 1 is a product-by-process claim, the following from MPEP § 2113(I) applies: "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." As the composition of intermediate components is indistinguishable in the final product, only the composition of the final product is considered for patentability. It is noted that yeast autolysate comprises more than just the claimed amino acids. As such, yeast autolysate is considered to be a limitation of the claim. The same is true of the dietary fiber components of dietary fiber derived from fragmented brewer’s spent grain. The claimed percentage ranges of the constituent intermediate ingredients are not of consequence because the percent by volume can be influenced simply by the addition or removal of, for instance, water in the intermediate component. That is, a fixed amount of the claimed components (e.g., amino acids, dietary fibers) can be present in the final product whether or not they were first dissolved in an amount of solvent comprising any fraction of the final product. As no solvent is specified in the claims, the solvent may be water, non-alcoholic beer, or any other appropriate solvent known by one of ordinary skill in the art.
With regard to the prior art, Donhowe teaches a non-alcoholic functional beverage – “a sport beer or malt beverage that has enhanced nutrition in comparison to existing beer or malt beverages [i.e., a functional beverage]. The beverage comprises a beer or malt beverage that contains supplemental protein, peptide, amino acid, antioxidant, mineral and/or vitamin supplements.” (Abstract). “The beverage described in this invention is composed of …0.45% to 8% ethyl alcohol by volume” ([0016]). As disclosed by the instant specification, “’non-alcoholic beer’ refers to a beer (created in the fermentation process) with an alcohol content of no more than 0.5% alcohol by volume” (p. 14, ¶ 2). The sport beer has the flavor, color, and appearance of beer/malt beverages consumed during post recreational social settings, but contains substantially improved nutritional value ([0014]). Therefore, the beverage is considered to have a pleasant and refreshing taste since recreational activities leave a person desiring refreshment.
Donhowe also teaches that the non-alcoholic beer is a product resulting from bottom fermentation of malt wort – “Pitch the wort with lager yeast” ([0041]). As evidenced by the specification, “All pilsners and lagers are made using bottom-fermenting yeast.” (p. 13, ¶ 2), wherein the beer contains no more than 0.5% ethanol by volume – “The beverage described in this invention is composed of …0.45% to 8% ethyl alcohol by volume” [0016]). Hence, Donhowe teaches an embodiment of the invention that comprises an ethanol by volume content as low as 0.45%. Furthermore, the claimed range of “no more than 0.5%” (i.e., 0-0.5%) overlaps the disclosed range. In a 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(I). Donhowe also implicitly teaches that the beer has a pH in the range of 4.2 to 4.7, since Donhowe teaches that the beer is a lager – “Pitch the wort with lager yeast” ([0041]), and as evidenced by Atlas Scientific, lagers have a pH in the range of 4.3-4.6 (p. 4, ¶ 2, “Lager”).
Donhowe does not specifically teach that the non-alcoholic functional beverage contains:
5.6 % - 10 % v/v of yeast autolysate obtained from waste yeast slurry containing all free protein amino acids, both exogenous and endogenous, as well as three non-protein amino acids, i.e. taurine, ornithine and gamma aminobutyric acid, wherein the total content of free amino acids ranges from 30 to 49 g/L of autolysate and wherein the pH of the autolysate ranges from 4.7 to 5.9. Instead, Donhowe teaches the addition of 9.8% v/v (26 L of protein and vitamin supplement ([0041]) containing 236 g of hydrolyzed proteins and branched chain amino acids ([0038]) in 266 L total volume (180 L water + 60 L sparge water + 26 L protein and vitamin supplement) ([0041])) of hydrolyzed proteins and branched chain amino acids ([0038]).
10% - 20% v/v of a suspension of dietary fiber derived from fragmented brewers spent grain, wherein this suspension is a mixture of soluble and insoluble dietary fiber fractions containing particles of the size up to 0.5 mm,
70% to 84.4% of non-alcoholic beer, wherein the beer has a bitterness in the range of 25-35 International Bitterness Units (IBU),
wherein the content of free amino acids in the non-alcoholic functional beverage ranges from 1.68 to 4.9 g/L of the finished product.
However, regarding the yeast autolysate, Podpora teaches obtaining autolysates derived from spent brewer’s yeast and demonstrates the potential for the autolysates as natural ingredients for functional food and dietary supplement production (Abstract). Podpora discloses that autolysates are favored over hydrolysates – “autolysates are the purest product group, as hydrolysates contain large amounts of salt or sodium used during [the] plasmolysis process or to neutralize the acids used in the hydrolysis process, respectively” (p. 1, col. 1, ¶ 1, bottom half). Podpora also teaches that the pH of the autolysate ranges from 5.2-6.2 (p. 1, col. 2, “Material”, ¶ 1). Furthermore, Podpora teaches that the amount of free amino acids in the autolysate can be tuned to a desired amount by increasing the incubation time of the autolysis process as shown in Table 1 (p. 2, col. 2, bottom, see also p. 2, col. 2, “Results and Discussion”, ¶ 1). Podpora further teaches that the autolysate comprises the essential, or exogenous, amino acids, but is silent regarding the endogenous amino acids and taurine, ornithine, and gamma aminobutyric acid. However, as evidenced by Tomita, yeast autolysate from Saccharomyces yeast comprises the 20 exogenous and endogenous protein free amino acids, as well as ornithine, and gamma aminobutyric acid, while taurine was below the detection limit of the assay ([0068], Table 2 “CON 6 h”, see also [0055] and [0061-0067]). However, as evidenced by Munuhe, “Brewer’s yeast is a terrific source of taurine.” (p.8, ¶ 1). Since Saccharomyces yeast are used in the autolysates of Podpora and Tomita, and are referred to in Munuhe (i.e., “Brewer’s Yeast”), the general amino acid compositions of the yeasts would be the same. MPEP § 2112.01(I) states, “Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established”. It is therefore seen as an inherent property of the autolysate of Podpora to comprise all of the aforementioned and claimed free amino acids.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to substitute the hydrolyzed protein in the sport beer of Donhowe with the yeast autolysate of Podpora. First, Donhowe discloses that their invention is meant to be a “sport beer” for consumption during post-recreational social settings ([0014]), and protein and amino acid supplementation is needed for muscle recovery following recreational activities ([0005]). Donhowe also teaches that hydrolyzed protein is used in the beverage (claim 4). Since Podpora teaches that autolysate is preferred over hydrolyzed protein in functional foods – “more and more companies are involved in the processing of post-fermentation yeast products with bioactive properties to be used in the production of functional food…The methods of the manufacturing preparation of extracts are divided into hydrolysis and autolysis…Despite a high production yield, acid hydrolysis is less attractive to manufacturers because of the relatively high salt content and high probability of carcinogenic compounds…Autolysates are the purest product group, as hydrolysates contain large amounts of salt or sodium used during [the] plasmolysis process or to neutralize the acids used in the hydrolysis process, respectively” (p. 1, col. 1, ¶ 1), and that autolysate derived from spent brewer’s yeast comprises increased amounts of beneficial amino acids not only from the yeast, but also from components used for the beer production (i.e., malt and hops) (p. 3, col. 1, ¶ 1, bottom half), one of ordinary skill in the art would have been motivated to replace the hydrolysate of Donhowe with a yeast autolysate derived from spent brewer’s yeast as disclosed by Podpora. One of ordinary skill in the art would have had a reasonable expectation of success for doing so since Podpora teaches that the “autolysates can be a valuable component of several products from the group of functional food and dietary supplements” (p. 3, col. 1, ¶ 1, bottom half).
As for the amount of yeast autolysate, Donhowe teaches the addition of 9.8% v/v (26 L of protein and vitamin supplement ([0041]) containing 236 g of hydrolyzed proteins and branched chain amino acids ([0038]) in 266 L total volume (180 L water + 60 L sparge water + 26 L protein and vitamin supplement) ([0041])) of hydrolyzed proteins and branched chain amino acids ([0038]). The disclosed amount lies inside the claimed range. Therefore, the claimed 5.6-10 % v/v of yeast autolysate would have been obvious.
As for the total content of free amino acids, Podpora teaches that the amount of free amino acids in the autolysate can be tuned to a desired amount ranging from 11.2% to 77.5% of the autolysate by increasing the incubation time of the autolysis process as shown in Table 1 (p. 2, col. 2, bottom, see also p. 2, col. 2, “Results and Discussion”, ¶ 1). MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” Therefore, it would have been obvious for one of ordinary skill in the art to determine the amount of free amino acids to add by routine experimentation to achieve the desired result of supplementing the diet of the consumer.
As for the pH of the autolysate, Podpora teaches that the pH of the autolysate ranges from 5.2-6.2 (p. 1, col. 2, “Material”, ¶ 1). The claimed range of pH 4.7-5.9 overlaps the disclosed range. In a 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(I).
Regarding the dietary fiber, Priest discloses beer containing dietary fiber – “In Japan, in response to consumer demand, Japanese beer companies have been developing a new genre of beers with physiological functions…beer containing dietary fiber…[is] also becoming popular.” (p. 820, ¶ 6). Chambers teaches a dietary fiber obtained from barley spent grain and its use (p. 2, line 1). The dietary fiber comprises a mixture of soluble and insoluble dietary fiber fractions – “The resulting product contains 51.9% by weight of dietary fibre, 1.7% by weight being soluble and 50.2% being insoluble” (p. 4, lines 29-30) – containing particles of the size up to 0.5 mm – “The thus obtained dried product is milled…to give an even product having a particle size all less than 400 microns [i.e., 0.4 mm]” (p. 4, lines 27-28). The dietary fiber isolated from spent grain has “valuable nutritional and pharmacological properties” (p. 3, lines 56-57), and may “be employed as an adjuvant for the production of…food-drinks” (p. 4, lines 8-10).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to add the spent grain fiber of Chambers to the sport beer of Donhowe modified with the yeast autolysate of Podpora. First Donhowe and Podpora teach a non-alcoholic beer with added nutrients for recovery after participating in sporting activities as described above. Since Priest discloses beer containing dietary fiber – “In Japan, in response to consumer demand, Japanese beer companies have been developing a new genre of beers with physiological functions…beer containing dietary fiber…[is] also becoming popular.” (p. 820, ¶ 6), and Chambers teaches that the dietary fiber isolated from spent grain has “valuable nutritional and pharmacological properties” (p. 3, lines 56-57), and may “be employed as an adjuvant for the production of…food-drinks” (p. 4, lines 8-10), one of ordinary skill in the art would have been motivated to add to the nutritional benefit of the sport drink by further incorporating the dietary fiber derived from spent brewer’s grain. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Priest discloses dietary fiber added to beer (p. 820, ¶ 6) and Chambers discloses that the dietary fiber product has valuable nutritional and pharmacological properties (p. 3, lines 56-57). As for the amount of fiber suspension, including any amount would be obvious because the volume concentration of the fiber suspension can be changed by adding water, and no total amount of fiber is claimed. Therefore, the claimed 10-20 % v/v would be obvious.
Regarding the total amount of free amino acids in the non-alcoholic functional beverage, Dunstan teaches a composition of amino acids to supplement those lost in sweat, aiding in recovery from exercise ([0001]), and administering between 50 mg and 10 g per day of the composition to a human subject ([0026]). The composition comprises histidine, serine, lysine, ornithine, and glycine ([0072]) and any one or more other amino acids ([0073]). The composition may be incorporated into a variety of beverage products, including water, carbonated beverages, sports drinks, and nutritional beverages at a dose of about 800 mg, about 1500 mg, about 2000 mg, and may be more or less depending on the exact nature and volume of the drink ([0078]). Pertaining to the claimed 1.68-4.9 g/L of free amino acids, assume a standard serving is a pint (16 fl. oz.) of the non-alcoholic sport beer. 1 pint is 0.473 L. 1.68 g/L x 0.473 L/pint = 0.795 g/pint = 795 mg/pint, or about 800 mg per serving. Likewise, 4.9 g/L corresponds to about 2300 mg per serving. These amounts are within the disclosed 50 mg to 10 g per day.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the sport beer of Donhowe substituted with the yeast autolysate of Podpora, as described above, to incorporate an amount of yeast autolysate such that the amount of free amino acids in the sport beer ranges from 1.68 to 4.9 g/L as disclosed by Dunstan. First, Donhowe discloses that their invention is meant to be a “sport beer” for consumption during post-recreational social settings ([0014]), and protein and amino acid supplementation is needed for muscle recovery following recreational activities ([0005]). Since Dunstan teaches a composition of amino acids to supplement those lost in sweat, aiding in recovery from exercise ([0001]), and the composition may be incorporated into a variety of beverage products, including water, carbonated beverages, sports drinks, and nutritional beverages ([0078]), one of ordinary skill in the art would have been motivated to look to Dunstan to identify an effective amount of free amino acids for a serving of the sport beer. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Dunstan teaches that the composition may be incorporated at doses including about 800 mg, about 1500 mg, about 2000 mg, and may be more or less depending on the exact nature and volume of the drink ([0078]), and such that a human subject receives in the range of 50 mg to 10 g of the composition per day ([0026]). Assuming a standard serving is a pint (16 fl. oz.) of the non-alcoholic sport beer. 1 pint is 0.473 L. 1.68 g/L x 0.473 L/pint = 0.795 g/pint = 795 mg/pint, or about 800 mg per serving. Likewise, 4.9 g/L corresponds to about 2300 mg per serving. These amounts are within the disclosed 50 mg to 10 g per day, and the range overlaps with the claimed range of 1.68-4.9 g/L. This limitation is therefore obvious.
Regarding the 70% to 84.4% of non-alcoholic beer, the claimed range corresponds to the fraction of the non-alcoholic functional beverage that is not the yeast autolysate or the suspension of dietary fiber. As established above, the percent by volume of each of those components can be modulated by changing the amount of solvent (e.g., water) in each of the components. Therefore, it would have been obvious for one of ordinary skill in the art to follow the teachings of Donhowe, which uses the non-alcoholic beer as a base ingredient to which the functional components are added. Any amount of non-alcoholic beer that makes up the difference between in volume between the added components and the final product is therefore obvious, including the claimed 70-84.4%.
Regarding that the beer has a bitterness in the range of 25-35 IBU, Donhowe provides three examples of different sport beers (Example I, [0020]; Example II, [0031]; Example III, [0043]) each with different organoleptic properties, and including a lager (Example II, [0031]). As evidenced by Brewer’s Friend, lagers have a bitterness in the range of 8-50 IBU, with many examples falling in the range of 25-35 IBU (p. 2, “Ranges of Bitterness (IBU) by Style”, 1A-9C). The claimed range overlaps the disclosed ranges. In a 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(I).
Therefore, claim 1 is rendered obvious.
Regarding claim 2, Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend teach the non-alcoholic functional beverage according to claim 1.
The cited prior art does not specifically teach that the pH of the non-alcoholic beverage ranges from 4.2 to 4.7.
However, since the pH of the non-alcoholic lager beer is in the range of 4.2-4.7 as described above, and the beer comprises the vast majority of the composition, the pH of the modified non-alcoholic sport beer would also be within the range of pH 4.2-4.7.
Claim 2 is therefore rendered obvious.
Regarding claim 3, Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend teach the non-alcoholic functional beverage according to claim 1.
Podpora also teaches that the yeast autolysate is from post-fermentation yeast of the genus Saccharomyces (Podpora, p. 1, col. 2, “Material”, ¶ 1).
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use yeast autolysate from post-fermentation yeast of the genus Saccharomyces in the non-alcoholic functional beverage with the same motivation and with the same expectation of success as described regarding claim 1 above.
Claim 3 is therefore rendered obvious.
Regarding claim 4, Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend teach the non-alcoholic functional beverage according to claim 1.
The limitation, “wherein the yeast autolysate contains from 30 to 31 g/L of free amino acids” is of no consequence because this limitation is directed toward an intermediate component of the final product. As claim 1 is a product-by-process claim, the following from MPEP § 2113(I) applies: "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process." As the composition of intermediate components is indistinguishable in the final product, only the composition of the final product is considered for patentability.
As for the total content of free amino acids, Podpora teaches that the amount of free amino acids in the autolysate can be tuned to a desired amount ranging from 11.2% to 77.5% of the autolysate by increasing the incubation time of the autolysis process as shown in Table 1 (p. 2, col. 2, bottom, see also p. 2, col. 2, “Results and Discussion”, ¶ 1). MPEP § 2144.05(II)(A) states, “The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set of percentage ranges is the optimum combination of percentages.” Therefore, it would have been obvious for one of ordinary skill in the art to add an appropriate amount of free amino acids, determined by routine experimentation, to achieve the desired result of supplementing the diet of the consumer with a reasonable expectation of success given the teachings of Podpora.
Claim 4 is therefore rendered obvious.
Regarding claim 5, Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend teach the non-alcoholic functional beverage according to claim 1.
Dunstan also teaches that the non-alcoholic functional beverage comprises 3 g/L of free amino acids. Dunstan teaches that the amino acid composition may be incorporated at a dose of about 1500 mg depending on the exact nature and volume of the drink ([0078]). Assume a standard serving is a pint of the non-alcoholic sport beer. 1 pint is 0.473 L. 3 g/L x 0.473 L/pint = 1.419 g/pint = 1419 mg/pint, or about 1500 mg per serving.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate an amount of yeast autolysate such that the amount of free amino acids in the sport beer comprises 3 g/L of free amino acids with the same motivation and with the same expectation of success as described regarding the range of 1.68 to 4.9 g/L of free amino acids in claim 1 above.
Claim 5 is therefore rendered obvious.
Regarding claims 6-9, Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend teach the non-alcoholic functional beverage according to claim 1.
The limitations wherein the content of dietary fiber in the suspension of dietary fiber ranges from 20% to 30% of dry mass (re: claim 6); wherein the content of dietary fiber in the suspension of dietary fiber ranges from 24.5% to 25% of dry mass (re: claim 7); wherein the content of insoluble fraction of dietary fiber in the suspension of dietary fiber ranges from 20% to 27.5% dry mass (DM), and the soluble fraction of dietary fiber in the suspension of dietary fiber ranges from 2.5% to 5% DM (re: claim 8); wherein the content of insoluble fraction of dietary fiber in the suspension of dietary fiber is 21 % DM, and the soluble fraction of dietary fiber in the suspension of dietary fiber is 3.5% DM (re: claim 9) are directed to the intermediate dietary fiber suspension.
As established above, claim 1 is a product-by-process claim, and the invention is the final product (i.e., the non-alcoholic functional beverage). Relative amounts of components in an intermediate are essentially of no consequence to the final product.
Therefore, where claim 1 is obvious in view of the cited prior art, so too are claims 6-9.
Claims 10-11 are rejected under 35 U.S.C. 103 as being unpatentable over Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend as applied to claim 1 above, and further in view of Hosseinian.
Regarding claim 10, Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend teach the non-alcoholic functional beverage according to claim 1.
The cited prior art does not teach that the dietary fiber content per liter of beverage is 15 g/L.
However, Hosseinian discloses that fiber has a prebiotic effect, playing an important role on maintaining intestinal bacteria and that fecal excretion is directly proportional to fiber intake in animals and humans (p. 129, ¶ 3). Hosseinian teaches that providing healthy adults with an enteral formula fortified with 15 g/L of a fiber blend increased fecal weight and moderated decreases in (i.e., helped maintain) total bacteria and bifidobacteria as compared with a fiber-free formula (p. 131, ¶ 2).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to add dietary fiber in the amount of 15 g/L as disclosed by Hosseinian to the sport beer of Donhowe modified with the yeast autolysate of Podpora and the spent grain fiber of Chambers. First, Donhowe, Chambers, and Podpora teach a non-alcoholic beer with added nutrients from yeast autolysate and spent grain fiber as described regarding claim 1 above. Since Chambers is silent to the amount of fiber to add, one of ordinary skill in the art would have been motivated to consult Hosseinian to determine an amount of fiber to add to the sport beer to confer a functional effect. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Hosseinian teaches that adding 15 g/L of dietary fiber to an enteral formula increases fecal weight and helps maintain total bacteria and bifidobacteria in healthy adults (p. 131, ¶ 2), thereby providing a prebiotic effect to the sport beer.
Claim 10 is therefore rendered obvious.
Regarding claim 11, Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend teach the non-alcoholic functional beverage according to claim 1.
Regarding the limitations: 6.4 % v/v of yeast autolysate wherein the content of free amino acids is 47 g per 1 liter of yeast autolysate; 10% v/v of dietary fiber suspension containing 250 g of dietary fiber per 1 liter of dietary fiber suspension; and 83.6% v/v of non-alcoholic beer, as established above, claim 1 is a product-by-process claim, and the invention is the final product (i.e., the non-alcoholic functional beverage). Relative amounts of components in an intermediate are essentially of no consequence to the final product.
Regarding the limitation wherein the non-alcoholic functional beverage contains 3g/L of free amino acids and 25 g/L of dietary fiber, Donhowe, Podpora, Priest, Chambers, Dunstan, Atlas Scientific, Tomita, Munuhe, and Brewer’s Friend do not teach this limitation.
However, Dunstan teaches that the non-alcoholic functional beverage comprises 3 g/L of free amino acids. Dunstan teaches that the amino acid composition may be incorporated at a dose of about 1500 mg depending on the exact nature and volume of the drink ([0078]). Assume a standard serving is a pint of the non-alcoholic sport beer. 1 pint is 0.473 L. 3 g/L x 0.473 L/pint = 1.419 g/pint = 1419 mg/pint, or about 1500 mg per serving. Hosseinian teaches a dosage of 25 g/L of dietary fiber in a functional liquid composition – “A method has been described for restoring a well-balanced flora by administering a liquid or reconstituted powder comprising…a source of dietary fiber (2.5g/100 mL [i.e., 25 g/L])…” (p 154, ¶ 1).
Regarding the 3 g/L of free amino acids, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to incorporate an amount of yeast autolysate such that the amount of free amino acids in the sport beer comprises 3 g/L of free amino acids with the same motivation and with the same expectation of success as described regarding the range of 1.68 to 4.9 g/L of free amino acids in claim 1 above.
Regarding the 25 g/L of dietary fiber, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to add dietary fiber in the amount of 25 g/L as disclosed by Hosseinian to the sport beer of Donhowe modified with the yeast autolysate of Podpora and the spent grain fiber of Chambers. First, Donhowe, Chambers, and Podpora teach a non-alcoholic beer with added nutrients from yeast autolysate and spent grain fiber as described regarding claim 1 above. Since Chambers is silent to the amount of fiber to add, one of ordinary skill in the art would have been motivated to consult Hosseinian to determine an amount of fiber to add to the sport beer to confer a functional effect. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Hosseinian teaches that administering a liquid or reconstituted powder comprising 25 g/L of dietary fiber restores a well-balanced flora (p. 154, ¶ 1), thereby providing a prebiotic effect to the sport beer.
Claim 11 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 15 December 2025 have been fully considered, but they are not persuasive.
Applicant’s arguments (p. 5, ¶ 4 – p. 18, ¶ 3) argue against the cited prior art references individually.
In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, Applicant’s arguments cannot be persuasive.
Applicant argued that Donhowe discloses a solution where alcoholic beer can be fortified, “0.45% to 8% ethyl alcohol by volume”, which contradicts currently applicable food regulations, according to which only a non-alcoholic product can be supplemented (p. 6, ¶ 3).
In response, the range disclosed by Donhowe includes concentrations that fall within the category of non-alcoholic beer (i.e, no more than 0.5% ethanol).
Applicant argued that Donhowe does not specify the source of the amino acids, vitamins, and minerals, and Applicant’s invention is made from substances obtained from brewery waste within the same company thanks to the technology developed by Applicant allowing the waste to be transformed into a valuable substance (pp. 6-7, bridging ¶). Applicant argued that the method of obtaining amino acids from yeast and fiber from spent grain, and then using those raw materials to produce the non-alcoholic beer, is the essence of Applicant’s invention (Id.).
In response, arguments toward methods of manufacture are not toward a composition claim, and therefore are not commensurate in scope with the claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). In addition, the source of the yeast autolysate and dietary fiber are product-by-source limitations, a derivative of product-by-process limitations. Such limitations are unpatentable if the claimed product is identical to or obvious from a product produced by a different process, including if the claimed source or origin of the elements is different. This is because the claims are limited only to the structure implied by the steps. Further, “although produced by a different process, the burden shifts to applicant to come forward with evidence establishing an unobvious difference between the claimed product and the prior art product”, In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP § 2113(I).
Applicant argued that the goal of Applicant’s solution was not to create a beer for athletes, as in Donhowe, but to present a method for utilizing brewing by-products by obtaining valuable raw materials from them, which can be used in other non-alcoholic products, including within the same company (p. 7, ¶ 2).
In response, MPEP § 2144(IV) states, “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.”
Applicant argued that for the aforementioned reasons, Donhowe teaches away from Applicant’s beverage (p. 7, ¶ 3).
In response, the reasons provided do not constitute teaching away from the invention. MPEP § 2145(X)(D)(1) states, “Furthermore, “the prior art’s mere disclosure of more than one alternative does not constitute a teaching away from any of these alternatives because such disclosure does not criticize, discredit, or otherwise discourage the solution claimed….” In re Fulton, 391 F.3d 1195, 1201, 73 USPQ2d 1141, 1146 (Fed. Cir. 2004). See also UCB, Inc. v. Actavis Labs, UT, Inc., 65 F.4th 679, 692, 2023 USPQ2d 448 (Fed. Cir. 2023) (“a reference does not teach away if it merely expresses a general preference for an alternative invention but does not criticize, discredit or otherwise discourage investigation into the invention claimed.”) (internal quotations omitted) (quoting DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009))”.
Regarding Podpora, Applicant argued that the procedures described in Podpora would prevent the normal process of handling excess post-fermentation yeast slurry in the brewery (p. 8, final ¶), and that Podpora uses a different method to assess free amino acids in the yeast autolysis process than Applicant (p. 9), and a different process of yeast autolysis (p. 10). Applicant argued that Podpora does not teach or suggest the limitations of Applicant’s claims (p.e 10, ¶ 2).
In response, arguments toward methods of manufacture are not toward a composition claim, and therefore are not commensurate in scope with the claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Regarding Priest, Applicant argued that Priest teaches away from the Applicant’s beverage because it discusses various beer modifications, e.g., with caffeine, oat beer with a high content of beta-glucan, and low-carb beers, none of which relate to Applicant’s invention (p. 11, ¶¶ 1-2).
In response, the teachings described in Applicant’s arguments were not relied on for the rejection of the claims. Priest was cited for its disclosure of beer containing dietary fiber – “In Japan, in response to consumer demand, Japanese beer companies have been developing a new genre of beers with physiological functions…beer containing dietary fiber…[is] also becoming popular.” (p. 820, ¶ 6). As such, Priest does not teach away from the invention. See MPEP § 2145(X)(D)(1).
Regarding Chambers, Applicant argued that the method of obtaining fiber described in Chambers could not be applied in a brewery (p. 12, bottom).
In response, arguments toward methods of manufacture are not toward a composition claim, and therefore are not commensurate in scope with the claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant further argued that the fiber obtained in the manner of Chambers is not suitable for use in light beverages due to its lack of water solubility, as such fiber is mainly insoluble fiber (p. 12, bottom).
In response, Chambers states, as quoted by Applicant, “the product of the invention may for example be employed as an adjuvant for the production of…food-drinks…”. Clearly the fiber is suitable for beverages. Additionally, instant claim 9 recites that the fiber is mainly insoluble fiber, and the fiber of claim 1 is a fiber suspension, indicating the presence of insoluble fiber. Therefore, such fiber compositions must be suitable for the beverage as claimed.
Applicant argued that for the aforementioned reasons, Chambers teaches away from Applicant’s beverage (p. 12, ¶ 2).
In response, the reasons provided do not constitute teaching away from the invention. See MPEP § 2145(X)(D)(1).
Regarding Dunstan, Applicant argued that Dunstan discloses compositions to replace amino acids lost by sweat during various physical activities, and that the amino acid composition is different than the claimed invention, thus relating to a different product (p. 13, ¶ 3 – p. 14, ¶ 1).
In response, the teachings of Dunstan are relevant to modifying the beverage of Donhowe as provided in the rejection. MPEP § 2144(IV) states, “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.”
Regarding Tomita, Applicant argued that the process of Tomita for producing yeast extract is different from Applicant’s process, and thus Tomita teaches away from the claimed invention (p.14, ¶ 2 – p.16, ¶ 2),
In response, arguments toward methods of manufacture are not toward a composition claim, and therefore are not commensurate in scope with the claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The reasons provided do not constitute teaching away from the invention. See MPEP § 2145(X)(D)(1).
Regarding Munuhe, Applicant argued that it was not the intention of Applicant to prove that yeast is a source of Taurine, but to transform a production waste product into a valuable raw material for enriching other non-alcoholic products manufactured within the same company, and therefore Munuhe teaches away from Applicant’s claims (p. 16, ¶ 4 – p.17, ¶ 3).
In response, Munuhe was cited to demonstrate that yeast comprise taurine, and thus yeast autolysate of Podpora would also comprise taurine. Arguments toward methods of manufacture are not toward a composition claim, and therefore are not commensurate in scope with the claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The reasons provided do not constitute teaching away from the invention. See MPEP § 2145(X)(D)(1).
Regarding Hosseinian, Applicant argued that Hosseinian discloses fiber and its role in the human diet and its impact on health, and in particular on the gut microbiota, and the purpose of Applicant’s invention is to present a method for obtaining fiber from brewery waste and using this obtained fiber to enrich a non-alcoholic product; therefore, Hosseinian teaches away from the claimed invention (p. 17, ¶ 4 – p. 18, ¶ 3).
In response, Hosseinian teaches how much fiber should be supplemented in an “enteral formula” to support gut health. Such teaching is relevant for the reasons described in the rejection. Arguments toward methods of manufacture are not toward a composition claim, and therefore are not commensurate in scope with the claims. Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993). The reasons provided do not constitute teaching away from the invention. See MPEP § 2145(X)(D)(1).
Applicant next asserted that Applicant’s beverages possess unexpected, superior characteristics as compared to beverages currently available on the market, pointing to a study conducted on the effects of regular consumption of a non-alcoholic beverage enriched with amino acids from post fermentation yeast and fiber on consumers that allegedly demonstrates a positive impact on maintaining good well-being and a great mood after consuming the beverage for 14 days (p. 18, last ¶ – pp. 19-20 bridging ¶).
Applicant’s assertion of unexpected results is acknowledged. Applicant’s argument has been considered, but it is not found to be persuasive. MPEP § 2145 states, “If a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. See, e.g., In re Dillon, 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc)”, and “[r]ebuttal evidence may include evidence of ‘secondary considerations,’ such as ‘commercial success, long felt but unsolved needs, [and] failure of others.’ Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 4459, 467. See also, e.g., In re Piasecki, 745 F.2d 1468, 1473, 223 USPQ 785, 788 (Fed. Cir. 1984) (commercial success). Rebuttal evidence may also include evidence that the claimed invention yields unexpectedly improved properties or properties not present in the prior art. Rebuttal evidence may consist of a showing that the claimed compound possesses unexpected properties. Dillon, 919 F.2d at 692-93, 16 USPQ2d at 1901. A showing of unexpected results must be based on evidence, not argument or speculation. In re Mayne, 104 F.3d 1339, 1343-44, 41 USPQ2d 1451, 1455-56 (Fed. Cir. 1997)”.
“To be of probative value, any objective evidence should be supported by actual proof. Objective evidence which must be factually supported by an appropriate affidavit or declaration to be of probative value includes evidence of unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the inventor or at least one joint inventor. See, for example, In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984) (“It is well settled that unexpected results must be established by factual evidence.” “[A]ppellants have not presented any experimental data showing that prior heat-shrinkable articles split. Due to the absence of tests comparing appellant’s heat shrinkable articles with those of the closest prior art, we conclude that appellant’s assertions of unexpected results constitute mere argument.”). See also In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); Ex parte George, 21 USPQ2d 1058 (Bd. Pat. App. & Inter. 1991).” See MPEP § 716.01(c)(I).
“Arguments presented by the applicant cannot take the place of evidence in the record. In re Schulze, 346 F.2d 600, 602, 145 USPQ 716, 718 (CCPA 1965) and In re De Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1984). Examples of statements which are not evidence and which must be supported by an appropriate affidavit or declaration include statements regarding unexpected results, commercial success, solution of a long-felt need, inoperability of the prior art, invention before the date of the reference, and allegations that the author(s) of the prior art derived the disclosed subject matter from the inventor or at least one joint inventor.” See MPEP § 716.01(c)(II).
“Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range. In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980)”. See MPEP § 716.02(d).
In the present case, Applicant’s assertion of unexpected, superior characteristics is based on argument, and not on objective evidence. “Argument does not replace evidence where evidence is necessary”. See MPEP § 2145(I). Objective evidence of unexpected results must be submitted in an appropriate affidavit or declaration. See MPEP § 716.01(c) §§ (I)&(II).
Therefore, Applicant’s assertion cannot be found persuasive. Furthermore, the study described in Applicant’s arguments does not provide any support for the assertion of unexpected or superior characteristics because no comparison was made between the non-alcoholic beverage of the claimed invention and other comparable non-alcoholic beverages also supplemented with amino acids and fiber. The study is merely a sensory evaluation of “a non-alcoholic beverage enriched with amino acids from post-fermentation yeast and fiber on consumers”. It is not even clear that the tested beverage is the beverage of the invention. In that regard, the findings of the study are also not commensurate with the claims.
For at least these reasons, the rejections of claims 1-11 under 35 U.S.C. § 103 are maintained as presented in the Final Office Action mailed on 14 July 2025.
It is noted that based on Applicant’s arguments, it appears that Applicant’s actual invention is toward a method. Applicant is invited to file an application with claims for said method.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793