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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114) and the Response and Amendment filed 24 December 2025 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 28, 36, 38-40, and 46-48
Withdrawn claims: 28, 40, and 46-47
Previously canceled claims: 1-27, 29-35, 37, and 41-45
Newly canceled claims: None
Amended claims: 28, 36, and 40
New claims: 48
Claims currently under consideration: 36, 38-39, and 48
Currently rejected claims: 36, 38-39, and 48
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 24 December 2025 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 36 and 48 are rejected under 35 U.S.C. 103 as being unpatentable over Aerts et al. (US 2007/0254063 A1, cited on the IDS filed on 9 December 2024) in view of Keto (“Carl's Zero-Carb IPA Beer,” 2 Keto Dudes, Oct. 16, 2018, retrieved from https://blog.2keto.com/recipe/carls-zero-carb-ipa-beer/, 2 pages, cited on the IDS filed on 14 September 2023) and as evidenced by WebMD (WebMD Editorial Contributor. “Whiskey: Is It Good For You?”. WebMD. 20 October 2024. Accessed on 6 February 2025 from https://www.webmd.com/diet/whiskey-good-for-you) and ABV Technology (The importance of ethanol in making good non alcoholic beer. (2024, March). ABV Technology. Accessed on 10 July 2025 from https://www.abvtechnology.com/news/the-importance-of-ethanol-in-making-good-nonalcoholic-beer-and-wine).
Regarding claim 36, Aerts discloses a method of manufacturing a beer ([0050]-[0059]), comprising:
mashing a selected malted barley variety in a mash conversion vessel forming a mash – cereal grains, preferably barley ([0049]) are malted ([0051]), milled ([0052]), and mashed ([0053]). One of ordinary skill in the art would have understood that mashing takes place in a mash conversion vessel.
separating the mash forming a wort; transferring the wort to a kettle – “‘Lautering’ involves the separation…of the mash into a liquid extract, called ‘wort’, and the insoluble materials, called ‘spent grains’” ([0054]) One of ordinary skill in the art would have understood that boiling of wort takes place in a kettle.
adding, during boiling of the wort, an amount of pretreated liquid hop extract to the kettle such that the amount of pretreated liquid hop extract mixes with the wort to yield a fermentable mixture – Aerts teaches a method of producing beer using a liquid hop extract (i.e., total hop polyphenol extract prepared from spent hops by method F ([0080])) ([0125]) at the onset of wort boiling ([0131]). Addition at the onset of boiling would ensure mixture of the pretreated liquid hop extract with the wort, yielding a fermentable mixture. The extraction process comprises mixing hops with ethanol and water in a ratio of between 4:1 and 1:4 (v/v) ([0038]). This total hop polyphenol extract is seen to be a pretreated liquid hop extract as it uses spent (i.e., pre-extracted/pretreated) hops as the hop source for the polyphenols and is in liquid form – “The aqueous phase was concentrated…to a final volume of approx. 5 ml, and the extract was made up to 50 ml with ethanol/H2O” ([0072]). In context of the invention, it is noted that whiskey is a solution of ethanol and water. It is noted that Aerts also teaches preparing a hop extract from (un-spent) hop pellets by method C ([0072]).
and fermenting at least a portion of the fermentable mixture – “‘Fermentation’ involves the incubation of the wort inoculated with the fermentation microorgansims” ([0058]). The method of Aerts involves fermenting the wort (i.e., fermentable mixture) for 9 days ([0125]).
Aerts does not teach forming an amount of pretreated liquid hop extract by aging hops with whiskey in a container for a predetermined amount of time, wherein a portion of the whiskey is absorbed by the hops over the predetermined amount of time; subjecting the hops comprising the portion of the whiskey absorbed to at least one of carbon dioxide and a solvent to extract acids, oils, flavor, aroma, and bittering compounds from the hops comprising the portion of the whiskey absorbed; and that the final beer product has flavors and aromas of a beer product aged in a wooden spirit barrel without the final beer product undergoing an aging process in the wooden spirit barrel.
However, Keto teaches a beer-like beverage made from a diluted hops-soaked whiskey extract (p. 2, ¶¶ 1-3). Keto teaches a pretreated liquid hop extract formed by aging hops with whiskey in a container for a predetermined amount of time – “Start with some dried hops and Irish Whiskey. Soak 4 cups of hops in 750 ml of Irish Whiskey…Make sure the hops are completely soaked, and store in the fridge for at least 5 days.” (p. 1, ¶ 2).
wherein a portion of the whiskey is absorbed by the hops over the predetermined amount of time – “Then you need to squeeze out the whiskey using a cheesecloth or even a pair of nylons. You might end up with about 350 ml of hops-soaked whiskey.” (p. 1, ¶ 2). The 4 cups of hops would have absorbed the remaining about 400 ml of whiskey.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to use the whiskey-soaked hops as taught by Keto as the hops in the extraction method of Aerts to contribute more polyphenols to the beer thereby improving organoleptic characteristics including mouthfeel and increasing stability. First, Aerts teaches the production of beer using a polyphenol-rich hops extract to enhance the mouthfeel, reducing power, and stability of the beer ([0002]). Aerts also teaches that “it has been demonstrated that addition to wine of proanthocyanidins extracted from oak increases the mouthfeel and body of wine, while addition of such proanthocyanidins to brandy enhanced the smoothness of the brandy taste.” ([0019]). Therefore, where whiskey is aged in oak barrels like some wines and brandy, it is also expected that whiskey comprises proanthocyanidins, which are beneficial to increasing sensory attributes such as mouthfeel, body, and smoothness. As evidenced by WebMD, “whiskey has high levels of polyphenols” (p. 1, ¶ 12, “Heart Health”, line 1). Since Keto teaches soaking hops in whiskey, a known source of polyphenols, including anthocyanidins, one of ordinary skill in the art would have been motivated to extract the polyphenols from whiskey-soaked hops for use in brewing a beer as taught by Aerts ([0038]). One of ordinary skill in the art would have had a reasonable expectation of success for doing so because Aerts demonstrates that beers made with added hop polyphenols (A2, B1, B2 [0127]-[0129] and C2, D1, D2 [0131]-[0133]) have more favorable sensory characteristics ([0156]) and increased flavor stability after forced aging ([0157]) than beers without added hop polyphenols (A1 [0126] and C1 [0130]). Therefore, one of ordinary skill in the art would have expected that the additional polyphenols from the whiskey would be extracted in the ethanol extraction of Aerts and contribute to favorable sensory characteristics and flavor stability of the beer.
Regarding the limitation, subjecting the hops comprising the portion of the whiskey absorbed to at least one of carbon dioxide and a solvent, and extracting acids, oils, flavor, aroma, and bittering compounds from the hops comprising the portion of the whiskey absorbed – The modification of Aerts with the teachings of Keto as described above involves subjecting the hops comprising the portion of whiskey absorbed to a solvent extraction method to extract polyphenols (method C ([0072]) and method F ([0080]). As evidenced by ABV Technology, ethanol is necessary both to extract flavor compounds from hops and to extract compounds affording the complexity of barrel-aged beverages (p. 1, ¶ 2). Therefore, this method of ethanol extraction of polyphenols from hops would also extract acids, oils, flavor, aroma, and bittering compounds from the whiskey-infused hops.
Regarding the limitation that the final beer product has flavors and aromas of a beer product aged in a wooden spirit barrel without the final beer product undergoing an aging process in the wooden spirit barrel, the modification of Aerts with the teachings of Keto as described above involves producing a pretreated hop extract from whiskey-infused hops and using said extract in brewing a beer with increased polyphenols as taught by Aerts. Therefore, Aerts as modified by Keto teaches the positively recited method steps of the claimed invention. When the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. The burden of proof shifts to the applicant to provide objective evidence (i.e., test data) to the contrary. See In re Best, 562, F.2d 1252, 1254, 195 USPQ 403, 433 (CCPA 1977). MPEP § 2112.02(I).
Since the process of Aerts as modified by Keto teaches the claimed method steps, the claimed properties of the final beer product having flavors and aromas of a beer product aged in a wooden spirit barrel without the final beer product undergoing an aging process in the wooden spirit barrel are presumed to be present.
For these reasons, claim 36 is rendered obvious.
Regarding claim 48, Aerts and Keto teach the method of claim 36.
Aerts does not discuss that the predetermined amount of time is within a range of one to two weeks.
However, Keto teaches that the hops are soaked in the whiskey for at least 5 days – “Make sure the hops are completely soaked, and store in the fridge for at least 5 days.” (p. 1, ¶ 2). The claimed range of one to two weeks overlaps with the disclosed range of at least 5 days. In a case where the claimed ranges overlap or lie inside ranges disclosed by the prior art, a prima facie case of obviousness exists, MPEP § 2144.05(I).
Therefore, where modification of Aerts with the teachings of Keto is obvious as described regarding claim 46 is obvious, claim 48 is also rendered obvious.
Claims 38-39 are rejected under 35 U.S.C. 103 as being unpatentable over Aerts et al. in view of Keto as applied to claim 36 above, and further in view of Weber (US 3,787,587 A, cited on the IDS filed on 14 September 2023).
Regarding claim 38, Aerts and Keto teach the method of claim 36.
Aerts also teaches that the hops comprise one or more hop varietals formed from a bittering hop – “…non-isomerized hop CO2 extract cv Saaz…was added to brews C and D at onset of wort boiling (i.e., for bittering)…Total hop phenol extract, prepared from spent hops of cv Saaz by method F…was added at different stages in the brewing process…” ([0125]). Since Saaz was used as a bittering hop and the polyphenol extract was made from Saaz, it follows that the extract was made from a bittering hop. Aerts further discloses total hop polyphenol extracts from bitter hops such as Magnum ([0077], [0203], Table 4).
The cited prior art does not teach that the whiskey comprises a rye whiskey. Instead, Keto teaches a barley whiskey – “Irish whiskey is made from barley…” (p. 2, ¶ 1).
However, Weber discusses ageing and maturation of alcoholic beverages (col. 1, lines 14-16), and discloses a rye whiskey (col. 6, lines 54-63).
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to further modify the method of Aerts as modified by Keto in obtaining the whiskey-soaked hops to substitute the barley whiskey of Keto with a rye whiskey as taught by Weber by simple substitution of one known element for another to obtain predictable results. First, Aerts teaches the production of beer using a polyphenol-rich hops extract to enhance the mouthfeel, reducing power, and stability of the beer ([0002]). Aerts also teaches that “it has been demonstrated that addition to wine of proanthocyanidins extracted from oak increases the mouthfeel and body of wine, while addition of such proanthocyanidins to brandy enhanced the smoothness of the brandy taste.” ([0019]). Therefore, where whiskey is aged in oak barrels like some wines and brandy, it is also expected that whiskey comprises proanthocyanidins, which are beneficial to increasing sensory attributes such as mouthfeel, body, and smoothness. Since barley whiskey and rye whiskey are both whiskeys, one of ordinary skill in the art would expect either whiskey to comprise polyphenols extracted from the oak barrels, and therefore the results of obtaining a hop extract comprising those polyphenols from the whiskey-soaked hops would have been predictable.
Claim 38 is therefore rendered obvious.
Regarding claim 39, Aerts, Keto, and Weber teach the method of claim 38.
The cited prior art does not teach that the amount of pretreated liquid hop extract is formed by rotating, periodically during the predetermined amount of time, the container comprising the hops and whiskey.
However, it is well known in the art that chemical processes, including ethanol extractions, are made more efficient by mixing or agitating the components (e.g., by stirring, swirling, or rotating), as such it is a normal practice to so mix or agitate the reaction vessel.
Therefore, it would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention to further modify the method of Aerts as modified by Keto, in obtaining the whiskey-soaked hops, to rotate the container with the hops and whiskey, being motivated to facilitate the extraction by mixing to ensure sufficient coverage of the hops with the whiskey and/or equilibrate local concentrations of solvent and solutes. One of ordinary skill in the art would have had a reasonable expectation of success for doing so because it is well known in the art that reactions are made more efficient by mixing or agitation.
Claim 39 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 103: Applicant’s arguments filed on 24 December 2025 have been fully considered, but they are not persuasive.
Applicant first asserted that the combination of Aerts and Keto as proposed in the rejection does not disclose or suggest “aging hops with whiskey in a container for a predetermined amount of time, wherein a portion of the whiskey is absorbed by the hops over the predetermined amount of time” in combination with “subjecting the hops comprising the portion of the whiskey absorbed to at least one of carbon dioxide and a solvent to extract acids, oils, flavor, aroma, and bittering compounds from the hops comprising the portion of whiskey absorbed” and the other features of claim 36 “to form a final beer product having flavors and aromas of a beer product aged in a wooden spirit barrel without the final beer product undergoing an aging process in the wooden spirit barrel” as recited in claim 36 (p. 7, ¶ 2).
To support this assertion, Applicant argued that neither Aerts nor Keto subject hops comprising a portion of whiskey absorbed therein to carbon dioxide and/or a solvent to form a pretreated hop extract as claimed, then adds the resultant pretreated liquid hop extract during boiling of the wort, and finally ferments a mixture to form a final beer product with flavors and aromas of a beer product aged in wooden spirit barrels (pp. 7-8, bridging ¶). Applicant argued that at no point does Aerts disclose subjecting hops infused with whiskey, or an equivalent substance, to carbon dioxide and/or a solvent as claimed, and Keto does not disclose or have any reason to subject the whiskey-soaked hops to carbon dioxide and/or a solvent (Id.).
In response, the proposed modification is the modification of the beer production method of Aerts to incorporate the teachings of Keto regarding the provision of whiskey-infused hops as the source of the hops for extraction of polyphenols as described in Aerts. Aerts teaches the production of beer using a polyphenol-rich hops extract to enhance the mouthfeel, reducing power, and stability of the beer ([0002]). Aerts also teaches that “it has been demonstrated that addition to wine of proanthocyanidins extracted from oak increases the mouthfeel and body of wine, while addition of such proanthocyanidins to brandy enhanced the smoothness of the brandy taste.” ([0019]). Therefore, where whiskey is aged in oak barrels like some wines and brandy, it is also expected that whiskey comprises proanthocyanidins, which are beneficial to increasing sensory attributes such as mouthfeel, body, and smoothness. As evidenced by WebMD, “whiskey has high levels of polyphenols” (p. 1, ¶ 12, “Heart Health”, line 1). Since Keto teaches soaking hops in whiskey, a known source of polyphenols, including proanthocyanidins, one of ordinary skill in the art would have been motivated to extract the polyphenols from whiskey-soaked hops for use in brewing a beer as taught in the ethanol (solvent) extraction of Aerts ([0038]). Thus, there is motivation for one of ordinary skill in the art to modify Aerts with Keto, and such modification results in “aging hops with whiskey in a container for a predetermined amount of time, wherein a portion of the whiskey is absorbed by the hops over the predetermined amount of time” in combination with “subjecting the hops comprising the portion of the whiskey absorbed to at least one of carbon dioxide and a solvent to extract acids, oils, flavor, aroma, and bittering compounds from the hops comprising the portion of whiskey absorbed” and the other features of claim 36. Therefore, Applicant’s argument is not persuasive.
Applicant further argued that there is no reason why one of ordinary skill in the art would think to subject Keto’s whiskey-soaked hops to carbon dioxide and/or a solvent, let alone do so in Aerts’ process for making non-barrel aged beer, to thus arrive at the claimed final beer product having “flavors and aromas of a beer product aged in a wooden spirit barrel without the final beer product undergoing an aging process in the wooden spirit barrel” as recited by claim 36 (p. 8, ¶ 2). Applicant does not see how one of ordinary skill in the art could read both references, which have nothing to do with brewing beer having barrel-aged properties, and then think to combine those references in the manner suggested by the rejection to arrive at the claimed invention of a final beer product having flavors and aromas of a beer product aged in a wooden spirit barrel but without undergoing an aging process (Id.).
In response, MPEP § 2144(IV) provides, “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant. See, e.g., In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006) (motivation question arises in the context of the general problem confronting the inventor rather than the specific problem solved by the invention); Cross Med. Prods., Inc. v. Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323, 76 USPQ2d 1662, 1685 (Fed. Cir. 2005) ("One of ordinary skill in the art need not see the identical problem addressed in a prior art reference to be motivated to apply its teachings.")”.
The modification of Aerts with the teachings of Keto as described in the rejection hereinabove involves producing a pretreated hop extract from whiskey-infused hops and using said extract in brewing a beer with increased polyphenols as taught by Aerts. Therefore, Aerts as modified by Keto teaches the positively recited method steps of the claimed invention. When the method steps recited in the prior art reference are substantially identical to those of the claims, claimed properties of the resulting composition are presumed to be present in the composition of the prior art. The burden of proof shifts to the applicant to provide objective evidence (i.e., test data) to the contrary. See In re Best, 562, F.2d 1252, 1254, 195 USPQ 403, 433 (CCPA 1977). MPEP § 2112.02(I).
Since the process of Aerts as modified by Keto teaches the claimed method steps, the claimed properties of the final beer product having flavors and aromas of a beer product aged in a wooden spirit barrel without the final beer product undergoing an aging process in the wooden spirit barrel are presumed to be present.
For at least these reasons, Applicant’s arguments are not found to be persuasive, and claims 36, 38-39, and 48 are rejected under 35 U.S.C. § 103.
Conclusion
All claims are identical to or patentably indistinct from, or have unity of invention with claims in the application prior to the entry of the submission under 37 CFR 1.114 (that is, restriction (including a lack of unity of invention) would not be proper) and all claims could have been finally rejected on the grounds and art of record in the next Office action if they had been entered in the application prior to entry under 37 CFR 1.114. Accordingly, THIS ACTION IS MADE FINAL even though it is a first action after the filing of a request for continued examination and the submission under 37 CFR 1.114. See MPEP § 706.07(b). 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.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793