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 Response and Amendment after Non-Final Office Action filed 06/08/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the 35 U.S.C. 112(b) rejections of claims 1, 3, and 8-11 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-11
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1 and 11
New claims: None
Claims currently under consideration: 1-11
Currently rejected claims: 1-11
Allowed claims: None
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 05/15/2024 and 05/27/2026 were considered by the examiner.
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 1-11 are rejected under 35 U.S.C. 103 as being unpatentable over Yukhnytsya (U.S. 2011/0195150 A1) in view of Hasegawa (JP 2021/003127, published 01/14/2021).
Regarding claim 1, Yukhnytsya discloses a beer-taste beverage having an apparent fermentation degree of 77.43%, a total nitrogen amount of 25-130 mg/100 mL (specifically, 649 mg/kg, or 64.9 mg/100 ml), and a total polyphenol amount of 60-210 mass ppm (specifically, 193 mg/kg or 193 ppm) ([0026]-[0033], table).
Yukhnytsya does not disclose the beverage as having an apparent fermentation degree of 80 to 100.0% or less than or equal to 3.5 g/100 mL of a sugar concentration.
However, Hasegawa discloses a beer-taste beverage ([0006]) having a carbohydrate concentration of 1.5 g/100 mL or less ([0009]), where reduction of sugar concentration improved flavor of a beer-taste beverage having high bitterness ([0010]).
It would have been obvious to one having ordinary skill in the art to produce the beer-taste beverage of Yukhnytsya having a sugar concentration of less than or equal to 3.5 g/100 mL. First, Yukhnytsya discloses the beverage exhibits a “medium bitterness” ([0032]) and has a bitterness of “10-20” bitterness units ([0033], table). Given the relatively nondescript characterization of the bitterness of the beverage, a skilled practitioner would be motivated to consult Hasegawa for additional instruction regarding an acceptable degree of bitterness and suitable methods for manipulating the bitterness. Since Hasegawa discloses that high bitterness negatively affects the ease of drinking a beer taste beverage and reduction of sugar concentration improved the flavor of a beer-taste beverage having high bitterness ([0010]), a skilled practitioner would find the manipulation of the bitterness perception of the beverage of Yukhnytsya via reduction of the sugar content to be obvious, including reducing the sugar concentration to 1.5 g/100 mL or less as taught in Hasegawa. The claimed sugar concentration of less than or equal to 3.5 g/100 mL is thus considered obvious to a skilled practitioner.
As for the apparent fermentation degree, according to the ranges disclosed in Yukhnytsya of “Extract, external” ranging from 2.53-2.75 and “Basic wort extract” ranging from 11.21-12.21 ([0033], table), the highest effectively disclosed apparent fermentation would be 79.28% (i.e., 100 * (12.21-2.53)/12.21 = 79.28%). However, Hasegawa discloses a beverage wherein the original wort extract may most preferably range from 9.0 to 13.5% ([0024]). An original wort extract concentration of 13.5% and an apparent extract concentration of 2.53 would result in an apparent fermentation degree of 81.26, which falls within the claimed range of 80 to 100.0%. As noted above, Hasegawa discloses that high bitterness negatively affects the ease of drinking a beer taste beverage and reduction of sugar concentration improved the flavor of a beer-taste beverage having high bitterness ([0010]). The disclosure of Hasegawa provides motivation for decreasing the sugar concentration of the beverage, which would equate to a lower apparent extract concentration. Accordingly, in order to ensure fermentation occurs to a degree necessary to ensure acceptable taste balance between bitterness and sweetness, a skilled practitioner would find that performing fermentation to the point that an apparent fermentation degree in the range of 80 to 100.0% may be achieved would be obvious. Further, Hasegawa discloses that “the carbohydrate concentration…depends on the type of enzyme, the amount added, the timing of addition, the set temperature and holding time of each temperature range when preparing the saccharified liquid, and various aspects of the fermentation process” ([0013]), which generally equates to the disclosure in the present specification regarding manipulation of the apparent fermentation: “apparent fermentation…can be adjusted by appropriately setting…the type of raw enzyme, the amount of enzyme added (also including a saccharolytic enzyme or an isomerase), the temperature in enzymatic reaction, the timing of enzyme addition, the saccharification time, the pH during saccharification, the temperature during saccharification” and numerous other process conditions ([0012]). Manipulation of the apparent fermentation degree according to desired taste attributes is thus considered to be well within the ordinary skill in the art. Producing a beer-taste beverage according to Yukhnytsya having an apparent fermentation degree in the range of 80 to 100.0% is thus considered obvious to a skilled practitioner.
As for claim 2, Hasegawa discloses a beer-taste beverage ([0006]) having an original wort extract concentration of 6.0% by mass or more ([0024]). It would have been obvious to one having ordinary skill in the art to produce the beer-taste beverage of Yukhnytsya having an original extract concentration of greater than or equal to 6.0 mass%. First, Yukhnytsya discloses the beverage is produced by adding the noted ingredients to a beer composition that already contains some ingredients ([0009]-[0014]). Since Yukhnytsya does not clarify the composition of the original components in the beer composition, a skilled practitioner would be motivated to consult Hasegawa for clarification regarding such ingredients. Since Hasegawa discloses a similar beer-taste beverage that has an original wort extract concentration of 6.0% by mass or more ([0024]), a skilled practitioner would find the production of the beverage of Yukhnytsya having a comparable original extract concentration to be obvious, which renders the claimed limitation of an original extract concentration of the beer-taste beverage of greater than or equal to 6.0 mass% obvious.
As for claim 3, Yukhnytsya discloses the beer-taste beverage is a fermented beer-taste beverage ([0024], [0032]).
As for claims 4-6, Hasegawa discloses a beer-taste beverage ([0006]) having a malt proportion of 50% by mass or more and 75% by mass or less ([0029]). It would have been obvious to one having ordinary skill in the art to produce the beer-taste beverage of Yukhnytsya having a malt proportion within the range of 50-67 mass%. First, Yukhnytsya discloses the beverage is produced by adding the noted ingredients to a beer composition that already contains some ingredients ([0009]-[0014]). Since Yukhnytsya does not clarify the composition of the original components in the beer composition, a skilled practitioner would be motivated to consult Hasegawa for clarification regarding such ingredients. Since Hasegawa discloses a similar beer-taste beverage that has a malt proportion in the range of 50-67 mass% ([0029]), a skilled practitioner would find the production of the beverage of Yukhnytsya having a comparable malt proportion to be obvious, which renders the claimed limitations of a malt proportion of greater than or equal to 40 mass% (claim 4), less than or equal to 80 mass% (claim 5), or within the range of 50-67 mass% (claim 6) obvious.
As for claim 7, Hasegawa discloses a beer-taste beverage ([0006]) having an iso-α-acid content of 10-150 ppm ([0020]). It would have been obvious to one having ordinary skill in the art to produce the beer-taste beverage of Yukhnytsya having an iso-α-acid content in the range of 5.0-40.0 ppm. First, Yukhnytsya discloses the beverage is produced by adding the noted ingredients to a beer composition that already contains some ingredients ([0009]-[0014]). Since Yukhnytsya does not clarify the composition of the original components in the beer composition, a skilled practitioner would be motivated to consult Hasegawa for clarification regarding such ingredients. Since Hasegawa discloses a similar beer-taste beverage that has an iso-α-acid content of 10-150 ppm ([0020]), as well as that the type and amount of hops in particular alter the iso-α-acid content ([0022]), where hops were an ingredient in the original composition of Yukhnytsya lacking specific instruction ([0009]), a skilled practitioner would find the production of the beverage of Yukhnytsya having a comparable iso-α-acid content to be obvious, which renders the claimed limitation of an iso-α-acid content of 5.0-40.0 mass ppm obvious.
As for claim 8, Yukhnytsya discloses a bitterness value of the beer-taste beverage as being from 10.0-30.0 BUs (specifically, 10-20) ([0033], table)
As for claim 9, Yukhnytsya discloses a chromaticity of the beer-taste beverage as being from 5.0-30.0 EBC (specifically, 4.4-8.4 EBK) ([0033], table).
As for claim 10, Yukhnytsya discloses a pH of the beer-taste beverage as being 3.0-5.0 (specifically, 4.01-4.64) ([0033], table).
As for claim 11, Yukhnytsya discloses a method for improving a flavor of a beer-taste beverage ([0022]-[0024], [0032], where a modified taste is interpreted as being desirable/an improvement on beer with no hint of milk thistle), the method including adjusting the following parameters to be within the recited ranges ([0009]): a total nitrogen amount of 25-130 mg/100 mL (specifically, 649 mg/kg, or 64.9 mg/100 ml) and a total polyphenol amount of 60-210 mass ppm (specifically, 193 mg/kg or 193 ppm) ([0026]-[0033], table).
Yukhnytsya does not disclose the beverage as having an apparent fermentation degree of 80 to 100.0% or less than or equal to 3.5 g/100 mL of a sugar concentration.
However, Hasegawa discloses a beer-taste beverage ([0006]) having a carbohydrate concentration of 1.5 g/100 mL or less ([0009]), where reduction of sugar concentration improved flavor of a beer-taste beverage having high bitterness ([0010]).
It would have been obvious to one having ordinary skill in the art to produce the beer-taste beverage of Yukhnytsya having a sugar concentration of less than or equal to 3.5 g/100 mL. First, Yukhnytsya discloses the beverage exhibits a “medium bitterness” ([0032]) and has a bitterness of “10-20” bitterness units ([0033], table). Given the relatively nondescript characterization of the bitterness of the beverage, a skilled practitioner would be motivated to consult Hasegawa for additional instruction regarding an acceptable degree of bitterness and suitable methods for manipulating the bitterness. Since Hasegawa discloses that high bitterness negatively affects the ease of drinking a beer taste beverage and reduction of sugar concentration improved the flavor of a beer-taste beverage having high bitterness ([0010]), a skilled practitioner would find the manipulation of the bitterness perception of the beverage of Yukhnytsya via reduction of the sugar content to be obvious, including reducing the sugar concentration to 1.5 g/100 mL or less as taught in Hasegawa. The claimed sugar concentration of less than or equal to 3.5 g/100 mL is thus considered obvious to a skilled practitioner.
As for the apparent fermentation degree, according to the ranges disclosed in Yukhnytsya of “Extract, external” ranging from 2.53-2.75 and “Basic wort extract” ranging from 11.21-12.21 ([0033], table), the highest effectively disclosed apparent fermentation would be 79.28% (i.e., 100 * (12.21-2.53)/12.21 = 79.28%). However, Hasegawa discloses a beverage wherein the original wort extract may most preferably range from 9.0 to 13.5% ([0024]). An original wort extract concentration of 13.5% and an apparent extract concentration of 2.53 would result in an apparent fermentation degree of 81.26, which falls within the claimed range of 80 to 100.0%. As noted above, Hasegawa discloses that high bitterness negatively affects the ease of drinking a beer taste beverage and reduction of sugar concentration improved the flavor of a beer-taste beverage having high bitterness ([0010]). The disclosure of Hasegawa provides motivation for decreasing the sugar concentration of the beverage, which would equate to a lower apparent extract concentration. Accordingly, in order to ensure fermentation occurs to a degree necessary to ensure acceptable taste balance between bitterness and sweetness, a skilled practitioner would find that performing fermentation to the point that an apparent fermentation degree in the range of 80 to 100.0% may be achieved would be obvious. Further, Hasegawa discloses that “the carbohydrate concentration…depends on the type of enzyme, the amount added, the timing of addition, the set temperature and holding time of each temperature range when preparing the saccharified liquid, and various aspects of the fermentation process” ([0013]), which generally equates to the disclosure in the present specification regarding manipulation of the apparent fermentation: “apparent fermentation…can be adjusted by appropriately setting…the type of raw enzyme, the amount of enzyme added (also including a saccharolytic enzyme or an isomerase), the temperature in enzymatic reaction, the timing of enzyme addition, the saccharification time, the pH during saccharification, the temperature during saccharification” and numerous other process conditions ([0012]). Manipulation of the apparent fermentation degree according to desired taste attributes is thus considered to be well within the ordinary skill in the art. Producing a beer-taste beverage according to Yukhnytsya having an apparent fermentation degree in the range of 80 to 100.0% is thus considered obvious to a skilled practitioner.
Response to Arguments
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 1, 3, and 8-11 over Yukhnytsya: Applicant’s arguments (Applicant’s Remarks, p. 5, ¶4 – p. 8, ¶5) have been fully considered and are persuasive to the extent that claims 1 and 11 as presently amended are not anticipated by Yukhnytsya. Therefore, the 35 U.S.C. § 102(a)(1) rejections of claims 1, 3, and 8-11 have been withdrawn. However, upon further consideration, new grounds of rejection are made under 35 U.S.C. § 103 as described above.
Regarding potential 35 U.S.C. § 103 rejections, Applicant argued that Yukhnytsya would not have suggested modifying the apparent fermentation degree and sugar concentration to be within the claimed ranges, since the beverage of Yukhnytsya comprises milk thistle and a practitioner would not reduce sugar concentration or increase apparent fermentation “in a manner that would reduce residual sugar and impair the flavor balance” (Applicant’s Remarks, p. 9, ¶2-¶5).
However, the 35 U.S.C. § 103 rejections additionally rely on Hasegawa, which teaches that even highly-bitter beer taste beverages may have bitterness modulated via reduction in sugars in order to improve drinking quality ([0010]). Applicant’s argument is thus unpersuasive.
Claim Rejections - 35 U.S.C. § 103 of claims 2 and 4-7 over Yukhnytsya and Hasegawa: Applicant asserted arguments pertaining to Yukhnytsya as related to parent claim 1 and argued that Hasegawa does not remedy the deficiencies of the primary reference (Applicant’s Remarks, p. 10, ¶4).
As noted previously, the rejection of claim 1 has been updated to additionally rely on Hasegawa. Examiner maintains that the combined disclosures of the Yukhnytsya and Hasegawa are adequate to deem the present claims obvious.
The rejections of claims 2 and 4-7 have been maintained herein.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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.
Claims 1-11 are rejected.
No claims are allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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