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 .
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 1-5,8-10,13-17 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilkes ( 9445623) in view of Penny ( 2023/0189835).
For claim 1, Wilkes discloses a non-alcoholic wine beverage comprising a dealcoholized wine base, at least one fruit juice and carbonation gas comprising carbon dioxide. ( see col 1 lines 40-60, col. 2 lines 20-21, col. 4 lines 2-20)
For claim 2, Wilkes discloses the wine base including Cabernet Sauvignon. ( see col. 3 lines 20-25)
For claim 4, Wilkes discloses the wine base including Sauvignon Blanc. ( see example 2)
For claims 8,15, Wilkes discloses a method of preparing a non-alcoholic wine beverage comprising the steps of mixing a dealcoholized wine base with at least one fruit juice to form a mixture and carbonating the mixture with carbon dioxide. For claim 15, Wilkes discloses placing the carbonated mixture into a bottle. ( see col 1 lines 40-60, col. 2 lines 20-21, col. 4 lines 2-20, the examples)
For claims 9, 16, Wilkes discloses the wine base including Sauvignon Blanc. ( see example 2)
For claim 13, Wilkes discloses the wine base including Cabernet Sauvignon. ( see col. 3 lines 20-25)
Wilkes does not disclose nitrogen as carbonation gas as in claim 1, the ratios of nitrogen and carbon dioxide as in claims 2-5, carbonating with nitrogen as in claim 8, the ratios of nitrogen and carbon dioxide as in claims 9-10,13, injecting with nitrogen as in claim 15 and the ratios as in claims 16-17.
Penny discloses methods of producing non-alcoholic nitrogen infused beverage. The method comprises the steps of dispensing the non-alcoholic beverage into a can, adding carbon dioxide to the non-alcoholic beverage and adding nitrogen to the non-alcoholic beverage after adding the carbon dioxide. Penny teaches carbon dioxide is traditionally used to add carbonation to beverage. Carbon dioxide creates a familiar fizzy texture and releases aromatics. Carbon dioxide is highly soluble in beverage which creates large bubbles resulting in a fizzy texture and mouth feel. Nitrogen is 50x less soluble in water than CO2. When nitrogen gas is infused into a beverage, it diffuses out of the solution quickly, forming smaller bubbles and a finer fizz that manifests as a smooth, slightly thick and velvety texture with a foam head. Nitrogen does not create any acidity. Non-alcoholic beverage includes any edible non-alcoholic liquid. The ratio of N2:CO2 can vary from about 1:4 to about 4:1, or 1:1 or 1:4 to 1:3 or 1:1 or 2:1 et. ( see paragraphs 0013, 0019,0028,0029,0030,0034,0056)
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to add nitrogen to the Wilkes beverage as taught in Penny to obtain the finer fizz and smooth, slightly thick and velvety texture with a foam head in addition to the fizzy, aromatic and large bubbles provided by the carbon dioxide. As taught in Penny, carbon dioxide provides a different texture than nitrogen. Penny discloses the ratio between the two gasses can vary. For instance, it can be a 1:1 ratio or nitrogen is more than carbon dioxide or carbon dioxide is more than nitrogen. The ratios disclosed in Penny encompass some of the claimed ratio. It would have been obvious to one of ordinary skill in the art to follow the guideline of Penny and to adjust depending on the textural feel and taste desired. Such parameter can readily be determined by one skilled in the art through routine experimentation following the guideline of Penny. Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) . Penny discloses that in some embodiment, the N2 is added after CO2 in order to achieve the necessary nitrogen retention in the beverage to create a nitrogen infused beverage with sufficient head and cascade characteristics (paragraphs 0013, 0056 ). It would have been obvious to one of ordinary skill in the to add the carbon dioxide and nitrogen in the sequence taught by Penny when desiring to obtain the property of sufficient head and cascade characteristics disclosed in Penny.
Claim(s) 6-7,11-12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Wilkes in view of Penny as applied to claims 1-5,8-10,13-17 above, and further in view of Boucher ( 4775538).
Wilkes does not disclose the wine base is Rose wine base.
Boucher discloses a method for preparation of alcohol free wine. Boucher discloses use Rose as base wine. ( see example 2)
It would have been obvious to one of ordinary skill in the art to select Rose as the wine base as an obvious matter of taste preference. Rose is known to be used to prepare non-alcoholic wine beverage as shown in Boucher.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-17 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-14 of copending Application No. 18/372562 in view of Penny.
This is a provisional nonstatutory double patenting rejection.
Both applications are directed to non-alcoholic wine beverage and method of making it. The difference resides in the use of blend of fruit juice versus at least one fruit juice. The copending application also does not recite method in which nitrogen is injected after carbon dioxide is added.
Penny discloses methods of producing non-alcoholic nitrogen infused beverage. The method comprises the steps of dispensing the non-alcoholic beverage into a can, adding carbon dioxide to the non-alcoholic beverage and adding nitrogen to the non-alcoholic beverage after adding the carbon dioxide. The N2 is added after CO2 in order to achieve the necessary nitrogen retention in the beverage to create a nitrogen infused beverage with sufficient head and cascade characteristics. (see paragraphs 0013, 0056 )
It would have been obvious to add the carbon dioxide and nitrogen in the sequence taught by Penny when desiring to obtain the property of sufficient head and cascade characteristics disclosed in Penny. It would have been obvious to use one fruit juice or blend as an obvious matter of taste preference.
Conclusion
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November 20, 2025
/LIEN T TRAN/Primary Examiner, Art Unit 1793