DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Priority
Acknowledgment is made of applicant’s claim for foreign priority under 35 U.S.C. 119 (a)-(d). The certified copy has been filed in parent Application No. 16336604, filed on 03/26/2019.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 3 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Suzuki (US 2012/0070534 A1).
Claim 3 is directed to the method for “improving an alcohol flavor of an alcoholic beverage” by addition of allulose to the alcoholic beverage. It is noted that allulose is also known as D-Psicose.
In regard to claim 3, Suzuki discloses an alcoholic beverage “that is well balanced in terms of flavor such as mellowness and savor, body (robustness and richness), and sharpness, and the deterioration smell of which generated during storage is improved” that is produced by addition of D-psicose to an alcoholic beverage (Abstract).
Therefore, in regard to claims 3, Suzuki discloses adding allulose-containing saccharide (D-Psicose) to the alcoholic beverage (i.e. mixture including alcohol).
In regard to the improvement of flavor of the alcoholic beverage, Suzuki discloses:
[0008] The present inventors made intensive studies to find a method of improving the balance with respect to flavor such as mellowness and savor, body (robustness and richness), and sharpness of an alcoholic beverage or a beer-flavored beverage, particularly an alcoholic beverage or a beer-flavored beverage characterized by having low calories or low sugar content, and found that in a process of producing an alcoholic beverage or a beer-flavored beverage, by adding a rare sugar-containing isomerized sugar (HFCS containing rare sugar) or a rare sugar as an auxiliary material, not only body, but also mellowness, sharpness, preferred sweetness and flavor can be imparted. Also, the present inventors unexpectedly found that according to this method, the deterioration smell of an alcoholic beverage or a beer-flavored beverage generated during long-term storage is reduced or avoided, and therefore, the smell is improved, namely, the method according to the present invention has a double effect, and thus completed the present invention.
Hence, Suzuki anticipates claim 3.
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 1-2 and 4-5 are rejected under 35 U.S.C. 103 as being unpatentable over Suzuki (US 2012/0070534 A1).
Claim 4 is directed to the method for the preparation of the alcoholic beverage by addition of an allulose-containing saccharide to the alcoholic beverage. Claim 1 is directed to the alcoholic beverage comprising an allulose-containing saccharide. It is noted that allulose is also known as D-Psicose.
In regard to claims 1 and 4, Suzuki discloses an alcoholic beverage “that is well balanced in terms of flavor such as mellowness and savor, body (robustness and richness), and sharpness, and the deterioration smell of which generated during storage is improved” that is produced by addition of D-psicose to an alcoholic beverage (Abstract).
Therefore, in regard to claims 1 and 4, Suzuki discloses adding allulose-containing saccharide (D-Psicose) to the alcoholic beverage (i.e. mixture including alcohol”).
In regard to the alcohol content recitations in claims 1 and 4, Suzuki discloses:[0024] The "alcoholic beverage" includes alcoholic beverages obtained through a fermentation step such as sake (Japanese wine), wine, fruit liquor, beer, a sparkling alcoholic beverage, or a beer-flavored fermented beverage (so-called "third beer" produced without using malt); distilled alcoholic beverages obtained through a fermentation step followed by a distillation step such as Shochu (Japanese distilled spirit), spirit, brandy, and whiskey; liqueurs such as a Shochu-based beverage, highball, sour, and plum liqueur; cocktails; and brewed seasonings such as sake for cooking and mirin (sweet sake for cooking).
In regard to the allulose-containing saccharides amount (i.e. concentration) recitation in claims 1 and 4, Suzuki discloses:
[0042] In the method of producing an alcoholic beverage or a beer-flavored beverage having an improved quality of taste according to the present invention, the using amount of the auxiliary material containing a rare sugar necessary for improving the quality of taste is not particularly limited as long as a desired effect can be obtained, however, there is a preferred concentration of the auxiliary material according to the type of an alcoholic beverage or a beer-flavored beverage. For example, in the case of beer, a beer-flavored beverage, or the like, which does not originally have sweetness, by adding the auxiliary material such that the total amount of D-psicose and D-allose based on the amount of the final product is from 0.1 to 5.0% by mass, preferably from 0.5 to 2.0% by mass, the effect of improving the quality of taste and deterioration smell can be effectively obtained. If the amount of the rare sugars in the final product is less than 0.1% by mass, the effect of improving the quality of taste is not sufficient, and therefore, the amount thereof is preferably 0.5% by mass or more. Meanwhile, if the amount thereof exceeds 5.0% by mass, although there is no problem for alcoholic beverages and the like which originally have high sweetness such as mirin and liqueur, high sweetness is imparted to alcoholic beverages and the like other than these sweet alcoholic beverages to deteriorate the overall taste balance, and also from the economic point of view, the amount thereof is preferably determined to be up to 2.0% by mass.
Further in regard to the concentrations recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP 2144.05, II A).
Further, regarding concentrations ranges as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
In regard to the recitations of saccharide being free from glucose and sucrose in claims 1 and 4, it is noted that Suzuki does not require the presence of glucose or sucrose in the allulose-containing saccharide composition. Suzuki teaches that “The auxiliary material containing a rare sugar is that contains at least D-psicose, D-allose, or both D-psicose and D-allose”. Hence, Suzuki that at least D-psicose (allulose) is required to be present in the allulose-containing saccharide (see also [0011], [0013], etc.). It is further noted that Suzuki teaches a beverage having low calories or low sugar content ([0007]). Therefore, not only Suzuki does not teach addition of glucose or sucrose to the allulose-containing saccharide, but also discourages from addition of sugary additives that increase calories and sugar content.
Claims 1 and 4 includes the recitation of ethanol content of the alcoholic beverage of 8 to 18 vol%. In regard to the alcohol content recitation in claims 1 and 4, Suzuki discloses:
[0024] The "alcoholic beverage" includes alcoholic beverages obtained through a fermentation step such as sake (Japanese wine), wine, fruit liquor, beer, a sparkling alcoholic beverage, or a beer-flavored fermented beverage (so-called "third beer" produced without using malt); distilled alcoholic beverages obtained through a fermentation step followed by a distillation step such as Shochu (Japanese distilled spirit), spirit, brandy, and whiskey; liqueurs such as a Shochu-based beverage, highball, sour, and plum liqueur; cocktails; and brewed seasonings such as sake for cooking and mirin (sweet sake for cooking).
Hence, Suzuki discloses various fermented or distilled alcoholic beverages having different alcohol content due to the differences in their nature, initial raw materials, methods of alcohol production, and various standards and perceptions associated with a particular alcoholic beverage. Since Suzuki discloses beverage prepared on the basis of distilled beverage such as Shochu-based beverage and cocktails, Suzuki discloses beverages having alcoholic strength lower than the base spirit due to dilution with other non-alcoholic cocktail ingredients. The alcoholic strength of the Shochu-based or any other distilled spirit-based cocktails would depend on the ratio of diluting ingredients and personal preference of a consumer. The alcoholic strength of conventional cocktails appears to be within the claimed range absent any clear evidence and/or arguments to the contrary.
Further in regard to the alcohol concentrations recitations, it is noted that:
Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. "[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation." In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235(CCPA 1955) (MPEP 2144.05, II A).
Further, regarding concentrations ranges of alcohol as examined above, it is noted that in the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
In regard to the recitations of reduction/masking of smell and bitterness, Suzuki discloses:
[0008] The present inventors made intensive studies to find a method of improving the balance with respect to flavor such as mellowness and savor, body (robustness and richness), and sharpness of an alcoholic beverage or a beer-flavored beverage, particularly an alcoholic beverage or a beer-flavored beverage characterized by having low calories or low sugar content, and found that in a process of producing an alcoholic beverage or a beer-flavored beverage, by adding a rare sugar-containing isomerized sugar (HFCS containing rare sugar) or a rare sugar as an auxiliary material, not only body, but also mellowness, sharpness, preferred sweetness and flavor can be imparted. Also, the present inventors unexpectedly found that according to this method, the deterioration smell of an alcoholic beverage or a beer-flavored beverage generated during long-term storage is reduced or avoided, and therefore, the smell is improved, namely, the method according to the present invention has a double effect, and thus completed the present invention.
In regard to claims 2 and 5, Suzuki discloses distilled beverages:
[0024] The "alcoholic beverage" includes alcoholic beverages obtained through a fermentation step such as sake (Japanese wine), wine, fruit liquor, beer, a sparkling alcoholic beverage, or a beer-flavored fermented beverage (so-called "third beer" produced without using malt); distilled alcoholic beverages obtained through a fermentation step followed by a distillation step such as Shochu (Japanese distilled spirit), spirit, brandy, and whiskey; liqueurs such as a Shochu-based beverage, highball, sour, and plum liqueur; cocktails; and brewed seasonings such as sake for cooking and mirin (sweet sake for cooking).
Conclusion
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/VERA STULII/Primary Examiner, Art Unit 1791