DETAILED ACTION
Background
The preliminary amendment dated May 15, 2024 (amendment) amending claims 1-12, adding new claims 16-21 and canceling claims 13-15 has been entered. Claims 1-10 and 16-19 as filed with the amendment have been examined. Claims 11-12 and 20-21 have been withdrawn from consideration.
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
The Office acknowledges that claims 16-19 depend from claim 1 and recite a method of producing a fermented beverage, so that they should be grouped with claims of Group I as they recite the same method recited in claim 1.
Applicant’s election of the method of Group I, claims 1-10 and 16-19 in the reply filed on April 02, 2026 is acknowledged. Because applicant did not distinctly and specifically point out the supposed errors in the restriction requirement, or that the election was made with traverse, the election has been treated as an election without traverse (MPEP § 818.01(a)).
Claims 11-12 and 20-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 April 02, 2026.
Specification
The disclosure is objected to because of the following informalities:
In the instant specification at page 3, line 30 spell out the acronym “CBS” at least in the first instance of use.
Appropriate correction is required.
Claim Objections
Claims 1 and 6 are objected to because of the following informalities:
In claim 1, at line 4 after “-adding” replace [[hop]] with --hops--; and,
In claim 6, at line 3 before “thereof” replace [[hybrid]] with --hybrids--. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
Claims 9-10 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the enablement requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to enable one skilled in the art to which it pertains, or with which it is most nearly connected, to make and/or use the invention. Specifically, the rejected claims recite a fermentative yeast comprising Saccharomyces pastorianus strain CBS 1483 in claim 9 and Saccharomyces pastorianus strain CBS 1513 in claim 10; however, it is not clear if or how either of these strains is publicly available. The two referenced strains are referred to collectively below as “biological material”.
It is apparent that a biological material is required to practice the claimed invention. As such the biological material must be known and readily available or obtainable by a repeatable method set forth in the specification, or otherwise known and readily available to the public. If it is not so obtainable or available, the requirements of 35 USC 112(a) or pre-AIA 35 U.S.C. 112, first paragraph, may be satisfied by a deposit of the biological material.
The process disclosed in the specification does not appear to be repeatable because it is not clear that the invention will work with commonly available material and it is not apparent if the biological materials considered necessary to make and use the invention is both known and readily available to the public. To the extent that the recited Saccharomyces pastorianus strains CBS 1483 and 1513 have a genetic makeup that effectively causes it to differ from a strain of Saccharomyces pastorianus that is publicly available, one could not make or use the invention defined in and commensurate with the claims without access to the specific biological material.
Therefore to obviate this rejection, a deposit at a recognized depository may be made or evidence may be provided that the biological materials are readily available.
If the deposit is made under the terms of the Budapest Treaty, then a statement, affidavit or declaration by Applicants, or by an attorney of record over his or her signature and registration number, or by someone in a position to corroborate the facts of the deposit, that the instant invention will be irrevocably and without restriction released to the public upon the issuance of a patent, would satisfy the deposit requirement made herein.
If the deposit is a non-Budapest Treaty deposit, then in order to certify that the deposit meets the requirements set forth in 37 CFR 1.801-1.809 and MPEP 2402-2411.05, a statement, affidavit or declaration by Applicant or by an attorney of record over his or her signature and registration number, or by someone in a position to corroborate the facts of the deposit would satisfy the requirements herein by stating and providing that:
(a) During the pendency of the application, access to the invention will be afforded to the Commissioner upon request;
(b) All restrictions upon availability to the public will be irrevocably removed upon granting of the patent;
(c) The deposit will be maintained in a public depository for a period of 30 years, or 5 years after the last request or for the enforceable life of the patent, whichever is longer; and
(d) Provide evidence of the test of the viability of the biological material at the time of deposit (see 37 CFR 1.807).
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.
Claims 1, 3, 6-8, 16 and 19 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by CZ34212 UA to Branyik et a. (Branyik).
Regarding instant claims 1, 3 and 6-8, Branyik at Example 3 in the top of page 6 discloses preparation of beer with a fruity and spicy aroma (a “method of producing a fermented beverage”” as a beer in claim 8) and fermented by a mixed culture of the yeast strains (“at least two fermentative yeast strains that differ in their substrate specificities toward sugars in the wort”) Saccharomyces cerevisiae RIBM 192 and Saccharomyces pastorianus RIBM 6 (as in claim 6). In Example 3, at page 6, 3rd paragraph Branyik discloses a method comprising providing a wort and (at page 6, 4th paragraph) adding to the wort hops and (at page 6, 6th paragraph) adding simultaneously (claim 3) the at least two fermentative yeast strains, followed by incubating the at least two fermentative yeast strains at 18 °C (claim 7) for a period of time, then followed by withdrawing (“removing the at least two fermentative yeast strains from the fermented wort”) and aging to produce the fermented beverage.
Regarding instant claim 16, Branyik discloses at page 1, 2nd paragraph a wort comprising light malt and unmalted wheat. The Office considers the wort of Example 3 of Branyik to include all of claimed sugars of glucose, fructose, maltose and maltotriose.
Regarding instant claim 19, the Office considers the fruity and spicy malted beer of Branyik (at Abstract and Examples 1, 2 and 3) to comprise a pilsner beer which is a lager beer.
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 1-8 and 16-19 are rejected under 35 U.S.C. 103 as being unpatentable over US2003/0153059 A1 to Pilkington et al. (Pilkington) in view of CZ34212 UA to Branyik et al. (Branyik).
Regarding instant claims 1-2, 5, 7-8 and 16-19, Pilkington at Abstract discloses a method of continuous fermentation (a “method of producing a fermented beverage”) to pitch a wort (“comprising providing a wort” and “incubating the wort with fermentative yeast strains for a period of time”) using optimized controls such as for circulation and oxygen level, followed by batch finishing to produce a fermented beverage, especially (at [0001]) beer as in claim 8. At [0572], Pilkington discloses achieving full attenuation of its wort in five to seven days, including fermentation of the high gravity wort into an end fermented broth (2.5 °P) in as little as 24 hours, such that fermentation of the wort results in the fermented beverage having a final gravity of less than 2.5 °Plato within 15 days of fermentation as in claim 5, and whereby fermentation of a high gravity wort of more than 16 °Plato results in a fermented beverage with a final gravity of less than 2.5 °Plato within 15 days of fermentation as in claim 17. At [0421], Pilkington discloses that its wort has a high gravity of 17.5 °P (claims 2 and 17) and includes (at Table 4.1) all of glucose, fructose, maltose and maltotriose (claim 16). Further, at [0591], [0597] and [0602], Pilkington discloses fermentation at 15 °C (claims 7 and 18). Still further, at [0416] Pilkington discloses using bottom fermenting polyploid yeasts in low temperature fermenting methods of making lager beer (claim 19); and, further discloses that the difference between top and bottom fermenting yeasts lies in the optimum fermenting temperature and ability to settle in a wort and that scientists using these parameters for yeast strain selection.
Further, while the Office considers optional claim limitations including “optionally, removing the at least two fermentative yeast strains from the fermented wort”, the claims themselves do not require them.
Still further, and regarding instant claims 3 and 6, Pilkington does not disclose specifically adding hops and at least two fermentative yeast strains that differ in their substrate specificities toward sugars in the wort to the wort; and, further does not disclose adding simultaneously or sequentially the at least two fermentative yeast strains that differ in their substrate specificities toward sugars in the wort as in claim 3. In addition, Pilkington does not disclose the at least two fermentative yeast strains as Saccharomyces cerevisiae, S. pastorianus, S. eubayanus yeast strains, or a mixture of hybrids thereof. However, at [0416], Pilkington discloses using hybridized yeasts from multiple yeast strains including Saccharomyces carlsbergensis and other members of the Saccharomyces cerevisiae family which work to attenuate all of the sugars in the wort to create an end broth having at 2.5 °P; further, at Table 4.2 Pilkington discloses bitterness provided by its hops. Further, Table 6.3 Pilkington discloses the bitterness level in its beer product. In addition, the instant specification at page 3, line 15 admits that Saccharomyces pastorianus is synonymous with Saccharomyces carlsbergensis.
Branyik at the Abstract and Example 3 at the top of page 6 discloses a method of producing a fermented beverage comprising providing a wort, (at page 6, 4th paragraph) adding to the wort hops and (at page 6, 6th paragraph) simultaneously (claim 3) adding a mixed culture of yeast and incubating the fermentative yeast strains for a period of time and then removing the at least two fermentative yeast strains from the fermented wort, to make a beer with a fruity and spicy aroma fermented by a mixed culture of the yeast strains Saccharomyces cerevisiae RIBM 192 and Saccharomyces pastorianus RIBM 6 as in claim 6. The Office considers the Example 3, at page 6 yeasts disclosed in Branyik as comprising at least two fermentative yeast strains that differ in their substrate specificities toward sugars in the wort to produce the fermented beverage.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Branyik for Pilkington to add to its wort hops and to add at least two fermentative yeast strains simultaneously that differ in their substrate specificities toward sugars in the wort provide a desirable fermented beverage, including strains of Saccharomyces pastorianus, Saccharomyces cerevisiae and Saccharomyces eubayanus that are bottom fermenting for this purpose. Both references disclose brewing beer from a wort containing hops and a combination at least two fermentative yeast strains that differ in their substrate specificities toward sugars in the wort. The ordinary skilled artisan in Pilkington would have desired to add hops to its wort before fermenting as is conventionally done as in Branyik; and, further the ordinary skilled artisan in Pilkington would have found it obvious to mix yeast strains instead of or in addition to adding hybrids of polyploid yeasts or yeast conjugates to achieve the same effect in Pilkington but by using mixtures of yeast, including Saccharomyces pastorianus. Such an approach allows sequential yeast addition and enables control of the ratios of the yeasts used.
Regarding instant claim 4, the Office considers the beer of Pilkington which results in an end broth (2.5 °P) to have an apparent attenuation of at least 0.8.
Claims 2, 4-5 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over CZ34212 UA to Branyik et a. (Branyik) as applied to claim 1, above.
As applied to claim 1, Branyik at the Abstract and Example 3 at the top of page 6 discloses a method of producing a fermented beverage comprising providing a wort and (at page 6, 4th paragraph) adding to the wort hops and (at page 6, 6th paragraph) simultaneously (claim 3) adding the at least two fermentative yeast strains that differ in their substrate specificities toward sugars in the wort, followed by incubating the at least two fermentative yeast strains for a period of time and removing the at least two fermentative yeast strains from the fermented wort to produce the fermented beverage.
Branyik does not disclose an example wherein the wort is a high gravity wort having a gravity of more than 16 °Plato as in claim 2; does not disclose an example wherein an apparent attenuation of the fermented beverage is at least 0.8 as in claim 4; does not disclose an example wherein the wort is a high gravity wort, and fermentation of the wort results in the fermented beverage having a final gravity of less than 2.5 °Plato within 15 days of fermentation as in claim 5; and does not disclose an example whereby fermentation of a high gravity wort of more than 16 °Plato results in a fermented beverage with a final gravity of less than 2.5 °Plato within 15 days of fermentation as in claim 17. However, at page 3, 5th full paragraph Branyik discloses that its methods include providing a wort having an extract % by weight of 10.1 to 17.0, within which range lies the claimed gravity of more than 16 °Plato as in claims 2 and 17; and, further Branyik discloses apparent fermentation at 68.5 to 84 %, within which range lies the claimed apparent attenuation of the fermented beverage of at least 0.8 as in clam 4.
Further, in the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", the Office considers that a prima facie case of obviousness exists. See MPEP 2144.05.I. The ordinary skilled artisan would have found it obvious in Branyik to provide a wort having a gravity of more than 16 °Plato as in claims 2 and 17 because Branyik discloses that such high gravity worts provide a desirable fermented beverage; further, the ordinary skilled artisan would have found it obvious in Branyik to ferment its hopped wort with its mixture of least two fermentative yeast strains at an apparent attenuation of at least 0.8 as in claim 4 because Branyik discloses that its fermenting desirably produces the claimed apparent attenuation.
In addition, the Office considers the method of producing a top fermented beverage from a high gravity wort of more than 16 °Plato using at least two fermentative yeast strains having different substrate specificities as disclosed in Branyik to be substantially the same method as the claimed method. Accordingly, absent a clear showing as to how the effect of the Branyik method differs from that as claimed, the Office considers the method disclosed in Branyik at Abstract, page 3, 1st and 5th full paragraph to include fermenting a high gravity wort, wherein fermentation of the wort results in the fermented beverage having a final gravity of less than 2.5 °Plato within 15 days of fermentation as in claim 5; and to include methods whereby fermentation of a high gravity wort having a gravity of more than 16 °Plato results in a final gravity of less than 2.5 °Plato within 15 days of fermentation as in claim 17. See MPEP 2112.01.I.
Claims 9-10 are rejected under 35 U.S.C. 103 as being unpatentable over either of (i) CZ34212 UA to Branyik et a. (Branyik) or (ii) US2003/0153059 A1 to Pilkington et al. (Pilkington) in view of CZ34212 UA to Branyik et al. (Branyik) as applied to claim 1 above, and further in view of Gorter de Vries et al, "Lager-brewing yeasts in the era of modern genetics", FEMS Yeast Research, 2019, Vol. 19, No. 7, 1-17, downloaded on May 15, 2026 from https://doi.org/10.1093/femsyr/foz063 (Gorter).
As applied to claim 1, each of Branyik at the Abstract and Example 3 on page 6 and Pilkington at Abstract at [0416] and [0572] as modified by Branyik at Abstract, and at Example 3 discloses a method of producing a fermented beverage comprising providing a wort, adding to the wort hops and at least two fermentative yeast strains that differ in their substrate specificities toward sugars in the wort, followed by incubating the at least two fermentative yeast strains for a period of time, and optionally, removing the at least two fermentative yeast strains from the fermented wort to produce the fermented beverage.
Regarding instant claims 9-10, Branyik and Pilkington as modified by Branyik do not disclose the at least two fermentative yeast strains each comprising a Saccharomyces pastorianus strain CBS 1483 having maltotriose substrate preference as in claim 9, and do not disclose the at least two fermentative yeast strains each comprising a S. pastorianus strain CBS 1513 having maltotriose substrate preference as in claim 10.
The Office considers the acronym “CBS” which is not spelled out to stand for carlsbergensis strain.
Gorter at page 2, left hand col. discloses that Saccharomyces pastorianus is generally used to make lager beers. Gorter at page 2, right hand col., 1st full paragraph discloses that while Group 1 strains of S. pastorianus display superior growth kinetics at low temperatures, they generally show limited maltotriose utilization. Further, in “Improvement strategies for lager-brewing strains” at pages 5-6, Gorter outlines five approaches to make new S. pastorianus strains. At Table 1 on page 7, Gorter discloses artificially selected S. pastorianus that has substrate specificity for maltotriose. The Office considers each of the claimed yeast strains comprising a Saccharomyces pastorianus strain CBS 1483 having maltotriose substrate preference as in claim 9 and the S. pastorianus strain CBS 1513 having maltotriose substrate preference as in claim 10 as including the selected S. pastorianus disclosed in Table 1 of Gorter.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Gorter for each of Branyik and Pilkington as modified by Branyik to select and use the claimed Saccharomyces pastorianus strain CBS 1483 having maltotriose substrate preference or the claimed S. pastorianus strain CBS 1513 having maltotriose substrate preference as part of its yeast mixture. All references disclose yeasts for brewing beer selected to fully attenuate the sugars in a wort. The ordinary skilled artisan in Branyik or Pilkington as modified by Branyik would have desired to propagate any of its yeast strains, including Saccharomyces pastorianus in a maltotriose mock wort and select a strain that grew well in that wort and that had desired settling and temperature characteristics to isolate and then use a Saccharomyces pastorianus strain suitable for fully using the sugars in the wort.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Chris, “What to Expect When Mixing Beer Yeasts”, pp. 1-3, updated April, 2021, downloaded on May 11, 2026 from https://beermaverick.com/what-to-expect-when- mixing-beer-yeasts/, (Chris) discloses at page 1 that yeast mixes work well together when they have the same optimal temperature ranges and complement each other in some way. In “How to mix beer yeasts” on page 2, Chris discloses staggering yeast mixes or using them together in fermenting. And in “Benefits to Blending beer yeasts” on page 2 Chris discloses higher alcoholic beverage contents as one result.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ANDREW E MERRIAM whose telephone number is (571)272-0082. The examiner can normally be reached M-H 8:00A-5:30P and alternate Fridays 8:30A-5P.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki H 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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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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