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 .
Election/Restrictions
Applicant’s election without traverse of claims 1-13 in the reply filed on 12/15/2025 is acknowledged.
Claims 14-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 12/25/2025.
Claim Objections
Claim 1 is objected to because of the following informalities: the term “citrus-savored” should be - - citrus-flavored - -. Appropriate correction is required.
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 1-13 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.
Sole independent claim 1 recites the phrase “gin converted to 100% of alcohol”. It is unclear what is considered a gin converted to 100% of alcohol.
Claim Rejections - 35 USC § 102/103
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 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.
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, 11, 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by, or in the alternative, under 35 USC 103 as obvious over JP-659922 (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]. In [0053] a citrus flavored (i.e., lemon) beverage is produced.
The phrase “gin converted to 100% of alcohol” is a product by process recitation. The conversion process results in “100% of alcohol” with no other ingredients from the gin being carried over. Thus, the claim is interpreted as an alcohol in the claimed amount satisfies the recitations of the claim. "[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." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (citations omitted) (Claim was directed to a novolac color developer. The process of making the developer was allowed. The difference between the inventive process and the prior art was the addition of metal oxide and carboxylic acid as separate ingredients instead of adding the more expensive pre-reacted metal carboxylate. The product-by-process claim was rejected because the end product, in both the prior art and the allowed process, ends up containing metal carboxylate. The fact that the metal carboxylate is not directly added, but is instead produced in-situ does not change the end product.).
In the alternative, any slight differences in the composition as a result of the conversion process steps would have been obvious to one of ordinary skill in the art and well within the ordinary level of skill to have produced.
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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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KONA teaches the beverage can contain carbon dioxide [0039].
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In [0048] of KONA, the beverage is a packaged beverage.
Claim Rejections - 35 USC § 103
Claims 3-6, 7-10, and 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over JP-659922 (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]. KONA does not specifically teach a beverage with an alcohol concentration of less than 1.0 v/v%. However, having an alcohol content of less than 3.0% is taught [0002]. It would have been obvious to provide an alcohol concentration of less than 1.0 v/v%.
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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 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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[0020] of KONA teaches that the acidity is typically 0.05-1.00%. The claimed range is 0.20 g / l = 0.2%. Thus, the ranges overlap.
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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.
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