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 .
The status of the claims stands as follows:
Pending claims: 1-11
Currently rejected claims: 1-11
Allowed claims: None
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
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, and 8-11 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Yukhnytsya (U.S. 2011/0195150 A1).
Regarding claim 1, Yukhnytsya discloses a beer-taste beverage having an apparent fermentation degree of 65.0-100.0% (specifically, 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).
As for claim 3, Yukhnytsya discloses the beer-taste beverage is a fermented beer-taste beverage ([0024], [0032]).
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]): an apparent fermentation degree of 65.0-100.0% (specifically, 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).
Claim Rejections - 35 USC § 103
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.
Claims 2 and 4-7 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).
As for claim 2, Yukhnytsya discloses the beer-taste beverage of claim 1.
Yukhnytsya does not disclose the beverage as having an original extract concentration as being greater than or equal to 6.0 mass%.
However, 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 claims 4-6, Yukhnytsya discloses the beer-taste beverage of claim 1.
Yukhnytsya does not disclose the beverage as having 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).
However, 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, Yukhnytsya discloses the beer-taste beverage of claim 1.
Yukhnytsya does not disclose the beverage as having a content of iso-α-acid content in the range of 5.0-40.0 mass ppm.
However, 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.
Conclusion
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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