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 Action is in response to applicant’s submission dated May 26, 2026. Any rejections and/or objections made in previous actions and not repeated below are considered withdrawn.
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 10-11 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.
With respect to Claim 10, the recitation of “A use of the beer-based concentrate” necessitates an active step for reciting the limitations of the method of using. The limitation “by providing the beer-based concentrate in at least one of the following methods” does not amount to a recitation of an active step as it is unclear how the concentrate being provided is incorporated into the methods recited. It is recommended that the recitation of “A use” be changed to “A method for using”. Due to the lack of active steps, claim 10 is considered indefinite. Additionally, claim 10 recites “for increasing the platefulness of a beverage, without increasing the sweetness and while avoiding any wort taste”. No definition is recited for the term “platefulness” in the instant claim or the specification, and no comparison is recited to give perspective to the increase in platefulness. For these reason, claim 10 is rejected.
Due to its dependency on claim 10, claim 11 is also rejected.
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.
Claims 1-20 are rejected under 35 U.S.C. 103 as being unpatentable over Brouwer et al. (WO 2021/228878 A1) in view of Kubota et al. (WO 2021070930 A), relying on Kubota et al. (US 12,312,570 B2) as the English language equivalent, and De Schutter et al. (US 2017/0260487 A1)
With respect to Claim 1, Brouwer et al. teaches a process for preparing a liquid beer concentrate with a water content of 35-80%, [Pg. 4, Ln. 14-15] comprising the steps of providing an alcohol-free beer comprising between 0-0.5% ABV and 0-20 ug hop acids per gram dry matter and reducing the water content by means of membrane separation, selected from the group consisting of nanofiltration, reverse osmosis, and forward osmosis. [Pg. 5, Ln. 14-21] Brouwer et al. teaches that the hop extract may be introduced into the beer before concentrating. [Pg. 6, Ln. 17-18] Additionally, Brouwer teaches that the concentrate may have a maltose concentration of 0-20 g/L and a maltotriose concentration of 1-30 g/L. [Pg. 10, Ln. 25-30] A beer concentrate comprising a sum of 1 g/L maltotriose and maltose, as described in the aforementioned embodiment, would be derived from a beer with a lower concentration. Brouwer et al. teaches an embodiment of the process utilizing nanofiltration, wherein the ethanol free beer is filtered at a temperature of 28°C. [Pg. 23, Ln 11]
The process according to Brouwer et al. teaches a method comprising providing a first beer, fermented from yeast, wherein the sum of the mass concentrations of glucose, fructose, sucrose, maltose, and maltotriose does not exceed 1 g/L, concentrating the beer by means of a physical membrane separation, such as nanofiltration, during which the temperature is less than 72°C or less, the water content is less than 40%, and the ethanol content is less than 0.5 g/100g.
Brouwer et al. is silent to the degree of fermentation and residual extract content, and the resulting extract content of the concentrate, as well as the yeast cell quantity of the first beer.
Kubota et al. teaches a beer-taste fermented malt beverage with an alcohol content of less than 1%, wherein the beverage is excellent in robust feeling of drinking, excellent in sweetness with harmony in sourness, and has a beer-like flavor. [Col. 2, Ln. 26-29] Kubota et al. teaches the final degree of fermentation of the beverage has a value of between 45-80%, [Col. 4, Ln. 60-62] or between about 36.9-65.6% real fermentation degree, an alcohol concentration of preferably less than 0.1%, [Col. 5, Ln. 64-65] and a residual extract concentration of between 3.5-10%. [Col. 6, Ln. 11-12] The beer beverage taught by Kubota reads on the limitations of a residual extract content of greater than 3% and teaches a low alcohol beer, but is silent to the first beer comprising a real fermentation degree of more than 60% and the yeast cells.
De Schutter et al. teaches a method of concentrating beer and cider [0009] to a degree of at least 5 and up to 20 or more times, [0008] resulting in a concentrate that comprises between 90-99% ABV. [0047] Additionally, De Schutter et al. teaches that a preferred metric of determining the palatability of beer can be the real fermentation degree, (RDF) [0026] and that preferable examples of beers used by De Schutter et al. in the invention disclosed include between 62-92%. [Table 1]
Brouwer et al., Kubota et al., and De Schutter et al. exist within the same field of endeavor in that they teach beer beverage compositions. Where Brouwer et al. teaches a beer beverage resulting from reconstituting a beer concentrate and a method for producing said beer concentrate, Kubota et al. teaches an alcohol-free beer beverage that has similar organoleptic properties to alcoholic beer, and De Schutter et al. teaches a method of concentrating beer for transportation and reconstitution. It would have been obvious to combine the inventions as Kubota teaches a beer and Brouwer et al. and De Schutter et al. teach methods of concentrating beer.
The method taught by Brouwer et al. results in a beer that has been concentrated 6.5 times [Pg. 23, Ln. 29] The beer taught by Kubota et al., concentrated by the range taught by Brouwer et al. would produce a beer concentrate comprising an extract content of 22.75-60%.
The real extract degree and final extract content taught by Kubota et al. overlaps with the ranges recited in claim 1 and the values of the mass concentrations of glucose, fructose, sucrose, maltose, and maltotriose, the temperature at which the concentration happens, the water content of the concentrate, and ethanol content of the concentrate taught in Brouwer et al. overlap with the ranges recited in claim 1. Additionally, a range of RDF comprising the ranges taught in Kubota et al. and De Schutter et al. reads on a range that overlaps with the amount recited in claim 1 of greater than 75%. According to MPEP 2144.05 I, “A range can be disclosed in multiple prior art references instead of in a single prior art reference”, and “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
All references are silent to the yeast cells in the first beer, but the combination of the teachings of Kubota et al., Brouwer et al., and De Schutter et al. teach a first beer that is substantially identical to the composition recited in claim 1, in that it comprises overlapping ranges of fermentation degree, residual extract content, and saccharide content. According to MPEP 2112.01 I, “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 would be obvious that a composition with identical fermentation degree, residual extract, and total saccharide content would have the same amount of yeast cells.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the beer taught in Kubota in the methods of concentrating a beer as taught by Brouwer et al. and De Schutter et al., wherein the first beer has a real fermentation of 75% or more, a residual extract content of 3% or more, a sum of the concentration of glucose, fructose, sucrose, maltose, and maltotriose no greater than 1 g/L, and yeast cells no greater than 10,000/100mL, and the first beer is concentrated by means of membrane filtration, such as nanofiltration, at a temperature of 72°C or less, wherein the concentrate has a water content of less than 40%, an ethanol content of less than 0.5g/100g, and an extract content of between 60-80%, thereby rendering claim 1 obvious.
With respect to Claim 2, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the invention recited in claim 1, as described above. Additionally, Brouwer et al. teaches that the hop extract may be introduced into the beer before concentrating. [Pg. 6, Ln. 17-18] This reads on adding at least one additive to the first beer, wherein the additive is a hop product. Therefore, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the invention recited in claim 2.
With respect to Claim 3, Brouwer et al. teaches a composition comprising 32mL beer-based concentrate, 11.4 mL alcoholic liquid and 205 mL carbonated water in order to produce a reconstituted beer, [Pg. 27, Ln. 17-18] wherein the beer concentrate contains 6.56mg iso-alpha acids. [Table 7] The beer-based concentrate is incorporated at about 15% of the taught composition. The method of producing the concentrate taught by Brouwer et al. comprises the steps of providing an alcohol-free beer comprising between 0-0.5% ABV. [Pg. 5, Ln. 14-21] Additionally, Brouwer teaches that the concentrate may have a maltose concentration of 0-20 g/L and a maltotriose concentration of 1-30 g/L. [Pg. 10, Ln. 25-30] A beer concentrate comprising a sum of 1 g/L maltotriose and maltose, as described in the aforementioned embodiment, would be derived from a beer with a lower concentration.
This composition reads on the beer beverage produced from concentrate and water wherein the water has a drinking water quality and the portion of the beer-based concentrate is between 0.1-25%. Brouwer et al. is silent to the dissolved oxygen content of the water, carbonizing the beer-based beverage, and an ethanol content of less than 3.5%.
Kubota et al. teaches a beer-taste fermented malt beverage with an alcohol content of less than 1%, wherein the beverage is excellent in robust feeling of drinking, excellent in sweetness with harmony in sourness, and has a beer-like flavor. [Col. 2, Ln. 26-29] Additionally, Kubota et al. teaches adding iso-alpha acids as a hop extract component to the non-alcoholic beer, [Col. 6, Ln. 67-67] such as a concentrate. [Col. 7, Ln. 2] Kubota et al. continues, teaching that carbon dioxide gas is added to the beverage in an amount between 1.2-5 gas volumes. [Col. 7, Ln. 21-22] Kubota et al. reads on a beer beverage comprising a beer concentrate and a second beer that has been carbonized in a range of 1 to 8g/L dissolved carbon dioxide, that results in a beer with an ethanol content of less than 3.5%.
Brouwer et al., Kubota et al., and De Schutter et al. exist within the same field of endeavor in that they teach beer beverage compositions. Where Brouwer et al. teaches a beer beverage resulting from reconstituting a beer concentrate and a method for producing said beer concentrate, Kubota et al. teaches an alcohol-free beer beverage that has similar organoleptic properties to alcoholic beer, and De Schutter et al. teaches a method of concentrating beer for transportation and reconstitution. It would have been obvious to combine the inventions as Kubota teaches a beer and Brouwer et al. and De Schutter et al. teach methods of concentrating beer.
With regard to the limitation of the second beer comprising a sum of mass concentrations of glucose, fructose, sucrose, maltose, and maltotriose being 1 g/L or less, Brouwer et al. teaches that an alcohol-free beer produced through dealcoholizing the ferment typically contains limited amounts of maltose or maltotriose [Pg. 9, Ln. 21-23]. Kubota et al. teaches that the ferment produced according to the method taught comprises a step of removing alcohol from the beverage until the desired concentration of alcohol is achieved, such as less than 0.1%. [Col. 5, Ln. 61-65]
According to MPEP 2112 I, “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”. One of ordinary skill in the art would reasonably expect a non-alcoholic beer produced through substantially identical methods of dealcoholizing would have substantially identical concentrations of maltose and maltotriose. Therefore, the beer produced by the method of Kubota et al. reads on the second beer comprising a sum of mass concentrations of glucose, fructose, sucrose, maltose, and maltotriose being 1 g/L or less, as taught by the non-alcoholic beer taught in Brouwer et al.
A composition comprising the alcohol-free beer concentrate taught by Brouwer et al. and the alcohol-free composition taught by Kubota et al. would read on the limitation of the resulting beer beverage having an ethanol content of less than 3.5%.
Additionally, the recitation of “wherein the beer-based concentrate is manufactured by the method according to claim 1” amounts to a product-by-process limitation. According to MPEP 2113 I, “[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 method according to claim 1 is taught by the combination of Brouwer et al. in view of Kubota et al. and De Schutter et al. and as described above, therefore, the beer concentrate taught by Brouwer et al. in view of Kubota et al. and De Schutter et al. reads on the beer concentrate recited in claim 3.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Brouwer et al. in view of Kubota et al. and De Schutter et al.to produce a beer beverage composition comprising a beer concentrate and a second beer, wherein the proportion of beer concentrate to beer is between 0.1-25% and the second beer comprises a sum mass of concentrations of glucose, fructose, sucrose, maltose, and maltotriose not exceeding 1 g/L, carbonizing the beer-based beverage with a carbon dioxide gas such that the amount of gas dissolved in the resulting beer beverage is 1-8 g/L, and the resulting beer based beverage has an ethanol content of less than 3.5% by volume, thereby rendering claim 3 obvious.
With respect to Claim 4, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the method according to claim 3, as described above. Additionally, Brouwer et al. teaches adding 6.56mg iso-alpha acids [Table 7] to the beer concentrate. This reads on adding at least one additive to the beer concentrate, wherein the additive is a hop product. Therefore, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the invention recited in claim 4.
With respect to Claim 5, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the method according to claim 3, as described above. Additionally, Brouwer et al. teaches that, in the process of producing a beer, a step of filtration is commonly utilized. [Pg. 7, Ln. 2-3] The field of endeavor of claim 5 is producing a beverage that closely resembles beer, therefore, one would have been motivated to incorporate steps of a process commonly used for producing beer. Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Brouwer et al. in view of Kubota et al. and De Schutter et al. to have filtered the beer-based beverage produced in claim 3, thereby rendering claim 5 obvious.
With respect to Claim 6, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the method according to claim 3, as described above. Additionally, Kubota et al. teaches the addition of a pH adjusting agent to the beer beverage in order to impart bacteriostatic properties in order to prevent spoilage while maintaining the flavor. [Col. 6, Ln. 34-41] The field of endeavor of claim 6 is producing a beverage that closely resembles beer, therefore, one would have been motivated to incorporate steps of a process commonly used for producing beer.
According to the instant specification, “stabilizing of the inventive beer-based beverage may be applied additionally or alternatively to filtration. If required, stabilization may be carried out by conventional stabilization or enzymatic means”. [0055] This disclosure is being interpreted to mean the stabilization step recited in claim 6 is in the interest of microbial stabilization and shelf life of the product. Therefore, the pH adjustor taught in Kubota et al. reads on the limitation of a stabilizer in the beer-based beverage.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Brouwer et al. in view of Kubota et al. and De Schutter et al. to have stabilized the beer-based beverage produced in claim 3, thereby rendering claim 6 obvious.
With respect to Claim 7, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the method according to claim 3, as described above. Additionally, Brouwer et al. teaches nanofiltration. [Pg. 5, Ln. 14-21] Sterile filtration is well known in the field of endeavor to be a filtration method for passing a solution through a membrane with pores no greater than 0.22um and nanofiltration is a method of filtering through a membrane with pores no greater than 10nm, or 0.010um. Therefore, nanofiltration reads on sterile filtration.
MPEP 2144.04 IV. C, states “selection of any order of performing process steps is prima facie obvious in the absence of new or unexpected results”. Nanofiltration as a process of sterile filtration is implemented in the process as taught by Brouwer et al. The process of producing a beer-based beverage as recited in claim 3 is taught by Brouwer et al. in view of Kubota et al. and De Schutter et al. It would have been obvious to use the nanofiltration taught by Brouwer et al. as applied to the beer-based beverage taught by Brouwer et al. in view of Kubota et al. and De Schutter et al. in order to perform a step of sterile filtration.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teachings of Brouwer et al. in view of Kubota et al. and De Schutter et al.to have used sterile filtration in producing the beer-based beverage produced in claim 3, thereby rendering claim 7 obvious.
With respect to Claim 8, the recitation of “a beer-based concentrate, manufactured by the method according to claim 1” amounts to a product-by-process limitation. According to MPEP 2113 I, “[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 method according to claim 1 is taught by the combination of Brouwer et al. in view of Kubota et al. and De Schutter et al. as described above. Additionally, Brouwer teaches that the concentrate may have a maltose concentration of 0-20 g/L and a maltotriose concentration of 1-30 g/L. [Pg. 10, Ln. 25-30] and Kubota et al. teaches a beverage that has a BU of between 15-27. [Col. 7, Ln. 9]
Brouwer et al., Kubota et al., and De Schutter et al. exist within the same field of endeavor in that they teach beer beverage compositions. Where Brouwer et al. teaches a beer beverage resulting from reconstituting a beer concentrate and a method for producing said beer concentrate, Kubota et al. teaches an alcohol-free beer beverage that has similar organoleptic properties to alcoholic beer, and De Schutter et al. teaches a method of concentrating beer for transportation and reconstitution. It would have been obvious to combine the inventions as Kubota teaches a beer and Brouwer et al. and De Schutter et al. teach methods of concentrating beer.
The method taught by Brouwer et al. results in a beer that has been concentrated 6.5 times. [Pg. 23, Ln. 29] The beer taught by Kubota et al., concentrated by the method taught by Brouwer et al., would produce a beer concentrate comprising a BU of 97.5-175.5. The BU lies inside the ranges recited in claim 8. Additionally, the sum of the concentrations of glucose, fructose, sucrose, maltose, and maltotriose taught by Brouwer et al. overlaps with the amount recited in claim 8, in that Brouwer teaches a total of 1g/L, or 0.1g/100g, total. According to MPEP 2144.05 I, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
The references are silent to the total carbohydrate content of the concentrate, but the combination of the teachings of Kubota et al., Brouwer et al., and De Schutter et al. teach a beer concentrate that is substantially identical to the composition recited in claim 8, in that it comprises overlapping ranges of water content, residual extract content, ethanol content, and isomerized alpha-acids content. According to MPEP 2112.01 I, “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 would have been obvious that a composition with identical water content, residual extract content, ethanol content, and isomerized alpha-acids content would have the same amount of total carbohydrate content.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Brouwer et al. in view of Kubota et al. and De Schutter et al. to produce a beer concentrate wherein the concentrate has between 0-500 BU, <1.5 g/100g glucose, fructose, sucrose, maltose, and maltotriose, summed, and a total carbohydrate content of 40-60 g/100mL, thereby rendering claim 8 obvious.
With respect to Claim 9, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the invention recited in claim 8, as described above. Additionally, Kubota et al. teaches a beer-taste fermented malt beverage with an alcohol content of less than 1% [Col. 2, Ln. 26-29] and Brouwer et al. teaches a total sugar content of about 1g/L, or 0.1g/100g. [Pg. 10, Ln. 25-30]
Brouwer et al., Kubota et al., and De Schutter et al. exist within the same field of endeavor in that they teach beer beverage compositions. Where Brouwer et al. teaches a beer beverage resulting from reconstituting a beer concentrate and a method for producing said beer concentrate, Kubota et al. teaches an alcohol-free beer beverage that has similar organoleptic properties to alcoholic beer, and De Schutter et al. teaches a method of concentrating beer for transportation and reconstitution. It would have been obvious to combine the inventions as Kubota teaches a beer and Brouwer et al. and De Schutter et al. teach methods of concentrating beer.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Brouwer et al. in view of Kubota et al. and De Schutter et al. to produce a beer-based beverage comprising a concentrate according to the limitations recited in claim 8, wherein the beer-based beverage has an ethanol content less than 3.5%, and a total thereby rendering claim 9 obvious.
With respect to Claim 10, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the invention recited in claim 8, as described above. Additionally, Kubota et al. teaches a beer-taste fermented malt beverage with an alcohol content of less than 1% [Col. 2, Ln. 26-29] and adding iso-alpha acids as a hop extract component to the non-alcoholic beer, [Col. 6, Ln. 67-67] such as a concentrate. [Col. 7, Ln. 2]
Brouwer et al., Kubota et al., and De Schutter et al. exist within the same field of endeavor in that they teach beer beverage compositions. Where Brouwer et al. teaches a beer beverage resulting from reconstituting a beer concentrate and a method for producing said beer concentrate, Kubota et al. teaches an alcohol-free beer beverage that has similar organoleptic properties to alcoholic beer, and De Schutter et al. teaches a method of concentrating beer for transportation and reconstitution. It would have been obvious to combine the inventions as Kubota teaches a beer and Brouwer et al. and De Schutter et al. teach methods of concentrating beer.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Brouwer et al. in view of Kubota et al. and De Schutter et al. to use a concentrate produced according to the limitations recited in claim 8, in order to create a beverage, wherein the beverage has an ethanol content less than 3.5%, thereby rendering claim 10 obvious.
With respect to Claim 11, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the invention recited in claim 10, as described above. Additionally, the beverage produced comprises beer, and is therefore a beer-based beverage. Therefore, Brouwer et al. in view of Kubota et al. and De Schutter et al. renders claim 11 obvious
With respect to Claim 12, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the invention recited in claim 1, as described above. The references are silent to the total carbohydrate content of the concentrate, but the combination of the teachings of Kubota et al., Brouwer et al., and De Schutter et al. teach a beer concentrate that is substantially identical to the composition recited in claim 8, in that it comprises overlapping ranges of water content, residual extract content, ethanol content, and isomerized alpha-acids content. According to MPEP 2112.01 I, “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 would have been obvious that a composition with identical water content, residual extract content, and ethanol content.
With respect to Claims 13-14, 16-17, and 19-20, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the invention recited in claims 1, 3, and 8, as described above. Additionally, Brouwer teaches that the concentrate may have a maltose concentration of 0-20 g/L and a maltotriose concentration of 1-30 g/L [Pg. 10, Ln. 25-30] and the method of concentration in De Schutter et al. can be to a degree of at least 5 and up to 20 or more times, [0008] resulting in a concentrate that comprises between 90-99% ABV. [0047]
Brouwer et al. and De Schutter et al. have a range of concentration factors between 6.5 and >20. MPEP 2144.05 I states, “A range can be disclosed in multiple prior art references instead of in a single prior art reference”. A concentrate with 1g/L, or 0.1g/100g, total maltotriose and concentrated within the ranges taught would require a beer with a total sugar content of between 0.15g/L and 0.05 g/L. Additionally, a beer concentrate comprising 90-99% ABV would have a water content less than 20%. According to MPEP 2144.05 I, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Brouwer et al., Kubota et al., and De Schutter et al. exist within the same field of endeavor in that they teach beer beverage compositions. Where Brouwer et al. teaches a beer beverage resulting from reconstituting a beer concentrate and a method for producing said beer concentrate, Kubota et al. teaches an alcohol-free beer beverage that has similar organoleptic properties to alcoholic beer, and De Schutter et al. teaches a method of concentrating beer for transportation and reconstitution. It would have been obvious to combine the inventions as Kubota teaches a beer and Brouwer et al. and De Schutter et al. teach methods of concentrating beer.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Brouwer et al. in view of Kubota et al. and De Schutter et al. to devise an invention according to the limitations of claims 1, 3, and 8, wherein the concentrate has a water content less than 20% and a sum of mass concentrations of glucose, fructose, sucrose, maltose, and maltotriose of <0.1 g/100g, and the sum of mass concentrations of glucose, fructose, sucrose, maltose, and maltotriose in the first beer or wort fermented beverage does not exceed 0.1g/L, thereby rendering claims 13-14, 16-17, and 19-20 obvious.
With respect to Claim 15, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the method according to claim 3, as described above. Additionally, De Schutter et al. teaches that the concentrate can be diluted greater than 10 times. [0063] A range of dilution greater than 10 times overlaps with the concentrate being incorporated between 0.2-7% by mass into the total composition, as recited in Claim 15. According to MPEP 2144.05 I, “In the case where the claimed ranges ‘overlap or lie inside ranges disclosed by the prior art’ a prima facie case of obviousness exists”.
Therefore, it would have been obvious to one of ordinary skill in the art, before the effective filing date of the instant invention, to have used the teaching of Brouwer et al. in view of Kubota et al. and De Schutter et al. to devise an invention according to the limitations of claims 3, wherein the beer-based concentrate in the mixture resulting from steps (bb1) to (bb5) is 0.2-7% by mass, thereby rendering claim 15 obvious.
With respect to Claim 18, Brouwer et al. in view of Kubota et al. and De Schutter et al. teaches the method according to claim 3, as described above. Additionally, the method of producing the concentrate taught by Brouwer et al. comprises the steps of providing an alcohol-free beer comprising between 0-0.5% ABV. [Pg. 5, Ln. 14-21] Therefore, Brouwer et al. in view of Kubota et al. and De Schutter et al. renders claim 18 obvious.
Response to Arguments
Applicant's arguments filed May 26, 2026 have been fully considered but they are not persuasive.
Applicant asserts on Page 12, Lines 15-17, that, “The rejection has not provided any explanation or rationale for why a person of ordinary skill in the art would have selected Kubota for its teaching of a beer, and has not provided any explanation for selecting only Kubota”. As per examiner’s rejection above, Kubota et al. teaches that the beverage taught comprises excellent flavor and less than 1% alcohol, which would be motivation for a person of ordinary skill in the art. MPEP 2145 X C. states, “A teaching, suggestion, or motivation to combine references that is found in the prior art is an appropriate rationale for determining obviousness”.
For this reason, applicant’s assertion with respect to Section 1 is found to be unpersuasive.
Applicant asserts on Page 13, Lines 19-21, that “Kubota fails to disclose… and does not make it obvious to a person of ordinary skill in the art, that the real fermentation degree is more than 75% as claimed. This assertion is moot, due to the current rejection’s reliance on De Schutter et al. Additionally, the amendment made by applicant further limiting the claim necessitated the addition of new reference as evidenced by the real fermentation degree of the invention taught in Kubota et al. teaching a range between 36.9-65.6%, which overlapped with the range recited in the previous claim 1 of greater than 60%.
Applicant asserts on Page 13, Lines 23-24, that, “the rejection fails entirely to identify this teaching within Kubota and improperly relies upon the teaching of Brouwer”. Similarly, applicant asserts on Page 14, Lines 14-15, that, “the composition of the beer allegedly taught by the combination of Kubota is not substantially identical to the composition of the first beer”. Both assertions attack the invention in the teaching of Kubota et al. individually and do not address Brouwer as the primary. MPEP 2145 IV states, “One cannot show nonobviousness by attacking references individually where the rejections are based on combination of references”.
For this reason, applicant’s assertions are found to be unpersuasive.
Applicant asserts on Page 15, Lines 10-11, that, “The two methods of measurement are clearly different”, with respect to the calculations of real extract content using MEBAK WBBM vs EBC. MPEP I. states, “Arguments presented by applicant cannot take the place of evidence in the record”. Applicant provides no evidence of record that the statement that the two methods of calculating extract content of malted beverages results in substantially different results, and furthermore, that the amount of 3.5-10% as calculated with the EBC method would not result in greater than 3% as calculated by MEBAK WMMB.
For this reason, applicant’s assertion is found to be unpersuasive.
Applicant asserts on Pages 15, 16, and 17, with regard to claims 2-4, 8, and 12 that, “The rejection expressly requires that the first beer that is being processed according to Brouwer in the combination is the beer beverage of Kubota, and consequently, the concentrate resulting from the processing of Brouwer would be a concentrate of the beer beverage of Kubota. The only teaching of Brouwer relevant to a rejection is limited to the concentration processing of Brouwer”.
Applicant is directed again to MPEP 2145 IV states, “One cannot show nonobviousness by attacking references individually where the rejections are based on combination of references”. Though applicant recognizes both references in the rejections of the claims, they fail to account for the combination of the teachings of the claims, and instead reduces the rejection to a simple insertion. For this reason, applicant’s assertions are found to be unpersuasive.
Applicant’s assertion with respect to Claim 14 is considered moot as the current rejection relies on De Schutter et al.
For this reason, and those enumerated above, applicant’s assertions are found to be unpersuasive and claims 1-20 continue to be rejected over prior art as set forth above.
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 JOSEPH CULLEN MERCHLINSKY whose telephone number is (571)272-2260. The examiner can normally be reached Monday - Friday 9:00am - 5:00pm.
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/J.C.M./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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