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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 8/12/2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-2, 4-9 12-13, 16-23 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.
Claims 1 and 16-17 are confusing for reciting “the amount being expressed in terms of 100% alcohol”. It remains unclear how much gin is required, as the claim still recites gin in an amount of “0.1 to 0.9 v/v%”. The claim is interpreted as gin being added so that the amount of alcohol added is with the claimed range (e.g., for example in claim 1 gin is added so that an amount of 0.1 to 0.8 v/v% of alcohol is present in the beverage).
Claims 2, 4-9, 12-13, 18-23 are rejected as they rely on claim 1 as an independent claim or base claim.
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.
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, 4-9, 12-13, 16-23 are rejected under 35 USC 103 as obvious over JP-6599224 (KONA) (see IDS of 8/24/2023).
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KONA teaches a beverage having an alcohol content of less than 3.0% [0002]. The claimed recitation of less than 1.0% falls within less than 3.0%. In [0053] a citrus flavored (i.e., lemon) beverage is produced. [0020] of KONA teaches that the acidity is typically 0.05-1.00% which corresponds to 0.05 to 1g /100ml (i.e., 1% = 1 part per 100 parts).
KONA teaches the beverage can contain carbon dioxide [0039].
KONA teaches that [0023] gin can be added. [0024]-[0025] teaches that the alcohol-containing liquid (e.g., gin) may be adjusted. Additionally, it would have been obvious to vary the amount of gin based on the desired overall flavor.
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KONA teaches that sugar is added as a sweetener with a degree of sweetness of 0 to 18 and (e.g., a sweetness degree of 2 equals a 2% aqueous solution, which also would be the same as 2 g/100ml = 2%) [0015]. In [0052], a lemon flavored beverage is produced with a sweetness of 2.
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As to claims 4-6, the alcoholic beverage contains isobutyl alcohol (i.e., 2-methyl-1-propanol) [0044]. As to the amount of aliphatic alcohol, it is discussed that the isobutyl alcohol can be within the range of 0 to 200 ppm [0078]. As the claimed range falls within this range, it would have been obvious to provide isobutyl alcohol within the claimed amounts. Applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. 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. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facia case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different.
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As to claim 7, the beverage can contain a fruit-infused liquor such as brandy [0023]. In [0035], it is taught that citrus flavors such as lemon, orange and grapefruit are desirable. Thus, it would have been obvious to provide a citrus infused brandy/distilled liquor.
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As to claim 8, [0034] teaches that the beverage “may” contain fruit juice. Thus, the presence of fruit juice is optional. Thus, it would have been obvious to provide a beverage without fruit juice.
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In [0008], KONA teaches a high-sweetness sweeteners are optional. Thus, it would have been obvious to provide a beverage without a high-sweetness sweetener.
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KONA teaches in [0039] that gas pressure is preferably 0 to 3.5 kgf/cm2. KONA also teaches that the amount of carbon dioxide can be adjusted. This, it would have been obvious to one skilled in the art to vary the amount of carbon dioxide based on the desired level of carbonation.
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In [0048] of KONA, the beverage is a packaged beverage.
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As to claims 16-17, KONA teaches a beverage having an alcohol content of less than 3.0% [0002]. In particular, KONA teaches that [0023] gin can be added. [0024]-[0025] teaches that the alcohol-containing liquid may be adjusted. Additionally, it would have been obvious to vary the amount of gin based on the desired overall flavor
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As to claim 18, the alcoholic beverage contains isobutyl alcohol (i.e., 2-methyl-1-propanol) [0044]. As to the amount of aliphatic alcohol, it is discussed that the isobutyl alcohol can be within the range of 0 to 200 ppm [0078].
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As to claims 19-21, the beverage can contain a fruit-infused liquor such as brandy [0023]. In [0035], it is taught that citrus flavors such as orange, lemon juice and grapefruit are desirable. Thus, it would have been obvious to provide a lemon infused brandy/distilled liquor. It would have been obvious to vary the amount of lemon infused distilled liquor based on the desired taste.
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As to the sweetness, acidity and carbonation recited in the claims 22-23, KONA teaches that sugar is added as a sweetener with a degree of sweetness of 0 to 18 and (e.g., a sweetness degree of 2 equals a 2% aqueous solution, which also would be the same as 2 g/100ml = 2%) [0015]. [0020] of KONA teaches that the acidity is typically 0.05-1.00%. The claimed range is 0.05 g / ml to 1 g/ml. KONA teaches the beverage can contain carbon dioxide preferably in an amount of 0-3. 5kgf/cm2 [0039]. However, it would have been obvious to one skilled in the art to vary the amount of carbonation based on the desired fizzy texture and even slight tangy taste from the resulting carbonic acid.
Relevant Art
-US2020/0190449 discloses alcoholic beverages enriched with a neurotransmitter precursor and flavors.
-Isoamyl Alcohol, PubChem accessed at https://pubchem.ncbi.nlm.nih.gov/compound/Isoamyl-alcohol on 8/19/2026
-Isobutyl alcohol; Millipore Sigma; accessed at https://www.sigmaaldrich.com/US/en/product/aldrich/w217905?srsltid=AfmBOor0cKefmfeZ6oFDCH_lhnXPfVg_URhtExQ8DzvRYhIvCv0_silA on 8/19/2026
Response to Arguments
Applicant's arguments filed 8/12/2026 have been fully considered but they are not persuasive.
The applicant argues that the amount of gin present is definite. In particular, the applicant argues that the amount of gin is normalized according to the ethanol content of the gin,
regardless of its alcohol concentration. For example, 12.5 mL of gin having an alcohol concentration of
40% ABV corresponds to 5.0 mL of gin when expressed in terms of 100% alcohol. The full amount of
gin-including its water and botanical constituents-nevertheless remains present in the beverage. This
interpretation is consistent with the examples, which report amounts of "Gin (converted to 100%
alcohol)," and with the specification's explanation that gin contains characteristic fragrance components, including α-pinene and terpineol, that contribute to the disclosed organoleptic effects.
However, the claims remain unclear. The claim recites gin in a particular amount and then further recites that the gin is “expressed in terms of 100% alcohol” resulting in another amount. While the applicant argues that 12.5 mL of gin having an alcohol concentration of 40% ABV corresponds to 5.0 mL of gin when expressed in terms of 100% alcohol, the claims do not reference milliliters or ABV.
The applicant argues that although KONA generically identifies gin among numerous possible alcohol-containing liquids, KONA does not select gin for use in its disclosed beverages, does not use gin in any of its examples, and does not disclose a citrus-flavored beverage containing gin in the claimed amount. Rather, KONA principally attributes liquor-like taste to a prescribed sweetness-to-acidity ratio, fusel components, and broad categories of single-distilled or non-distilled alcohol-containing liquids. KONA's operative disclosure and examples are also directed to beverages having an alcohol concentration of 1.0 v/v% or more and less than 3.0 v/v%, rather than the presently claimed alcohol concentration of less than 1.0 v/v%.
However, it is respectfully submitted that this overlooks the overall teachings KONA. KONA plainly teaches a beverage having an alcohol content of less than 3.0% [0002]. KONA teaches that [0023] gin can be added. [0024]-[0025] teaches that the alcohol-containing liquid (e.g., gin) may be adjusted.
The applicant further argues that the present specification provides controlled comparative data demonstrating that the claimed amount of gin improves alcohol-like complicated taste, alcohol-like aftertaste, and the comprehensive evaluation of alcohol feeling relative to neutral raw material alcohol. As described in paragraph [0145], trained panelists evaluated these properties on a five-point scale using designated control beverages.
However, Table 1 (see pg. 22) and Table 5 (pg. 28) show that the examples are based on narrowly tailored examples not commensurate in scope with the claims. For example, the compositions of Tables and % 1 require specific amounts of citric acid, trisodium citrate, and citrus flavor. Thus, the claims are not commensurate in scope.
Moreover, the claimed invention appears directed to a recipe for a beverage. The applicant is also respectfully reminded that while food items are patentable, the culinary creativity of chefs is not the type of creativity which meets the standards for patentability. See General Mills v. Pillsbury Co.,378 F.2d 666 (8th Cir.1967) (first commercially successful one step mix for angel food cakes is not patentable because of nonobviousness standard since alleged invention is only the exact proportion of an already known leavening agent). In this regard, courts have taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In re Levin, 178 F.2d 945, 948 (C.C.P.A.1949) (butter substitute not patentable). In this regard, it is unclear what is unexpected in regards to the results set forth in the present specification.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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