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 .
DETAILED ACTION
Status of Claims
Claims 1-7 are pending and currently under examination and the subject matter of the present Office Action.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 06/06/2024, 04/23/2025, 09/24/2025, and 04/13/2026 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
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 3-5 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.
Claim 3 depends from “claim 1 or 2” and is indefinite; Claim 4 is also indefinite for reciting “any one of claims 1 to 3”; Claim 5 is indefinite because it recites the language “any one of claims 1 to 4”. According to MPEP, a claim in multiple dependent form shall contain a reference, in the alternative only, to more than one claim previously set forth and then specify a further limitation of the subject matter claimed. A multiple dependent claim shall not serve as a basis for any other multiple dependent claim. A multiple dependent claim shall be construed to incorporate by reference all the limitations of the particular claim in relation to which it is being considered. See MPEP § 608.01(n). Because these claims can be construed to depend from more than one claim, the claim is multiply dependent. In order to overcome the rejection, the Examiner recommends amending the language to indicate a specific claim from which Claims 3 and 5 should depend from respectively.
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 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 1-2 and 4-7 are rejected under 35 U.S.C. 103(a) as being unpatentable over Decolongon et al. (WO 2020/252334 A1).
Decolongon discloses sake replica (Title).
Regarding Claims 1 and 6, Decolongon teaches its sake replica comprising one or more higher alcohols that can provide various flavors and/or aroma inter alia 2-methyl-1-butanol, isoamyl alcohol, isobutyl alcohol etc. (p. 30, lines 20-25; Claims 6-7). Decolongon teaches a method of making a sake replica comprising: combining water, ethanol, five or more additional Volatile Organic Compounds (VOCs), and five or more non-volatile compounds (Claim 42). Decolongon specifically teaches 2-methyl-1-butanol as the VOC present from 0.1 mg/L to 20 mg/L (p. 89, last paragraph to p. 90, 1st paragraph). Decolongon also expressly teaches 2-methyl-1-butanol at 10-380 mg/L, which overlaps with the claimed amount in ppm (p. 182, top Table; pp. 217-218, Table 10A). In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. See MPEP 2144.05. . It is within the skills of one of ordinary skill in the art to modify the amount of 2-methyl-1-butanol depending on the desired strength of flavor or aroma, starting from the amount taught by Decolongon.
PNG
media_image1.png
236
694
media_image1.png
Greyscale
Decolongon relates that the sake replicas can have an ethanol content of about 10% to about 25% (v/v) , but that the ethanol component can be omitted to produce a non-alcoholic version, which also reads on the amount of alcohol in Claims 5 and 6 (p. 27, last paragraph to p. 28, 1st paragraph).
Regarding the [Symbol font/0x67]-aminobutyric acid (GABA), Decolongon teaches the sake replica comprises GABA (Claim 30).
Decolongon teaches embodiments wherein the GABA is in an amount of about 2 mg/L to about 9 mg/L, which touches the claimed range in Claims 2 and 7. A prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. See MPEP 2144.05. It is within the skills of one of ordinary skill in the art to modify the GABA amount as desired, starting from the amount taught by Decolongon.
Regarding Claim 4, Decolongon has taught 2-methyl-1-butanol (p. 182, top Table; pp. 217-218, Table 10A).
Claim 3 is rejected under 35 U.S.C. 103(a) as being unpatentable over Decolongon, as applied to Claims 1-2 and 4-7 above, and in view of Wakai et al. (JP 2004-350535 A, machine translated in IP.com), hereinafter Wakai.
Decolongon is silent on the amount of GABA in Claim 3.
Wakai is in the sake field, disclosing a process for producing sake-like liquor containing a large amount of GABA and having excellent flavor (Abstract). Wakai teaches that GABA has a function of enhancing brain metabolism and a function of lowering blood pressure [0002]. Wakai further teaches that germinated rice contains a lot of useful components for the human body including GABA and inositol, proteins and starch [0002]. Wakai relates known technique of mixing koji mold and sake yeast with such germinated brown rice containing high amount of GABA [0003].
Wakai discloses preparing sake with large amount of GABA and has excellent flavor, by polishing brown rice at 99-90% high polished rice rate so as to leave embryo buds and immersing the polished rice in water to germinate it, mixing the germinated rice with a liquefying enzyme and lipase, heated to 95°C, kept at the temperature for a fixed time, cooled to 55°C, mixed with an saccharifying amylase and kept at the temperature for a fixed time to give a liquefied saccharified substance (Abstract). The liquefied saccharified substance is used in the sake. The GABA content of the liquefied saccharified product was 45.1 ppm for 99% polished rice [0026]. Table 1 in the foreign copy shows Example 1 containing 49.7 ppm total GABA in the sake-like beverage of Wakai.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Wakai with that of Decolongon, and use the method of polishing brown rice and mixing the resulting liquefied saccharide product with high amount of GABA in the sake of Decolongon in order to avail of the advantageous function of GABA in enhancing brain metabolism and in lowering blood pressure.
Conclusion
No claims are allowed.
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Toyohara et al. (US 2015/0017106 A1) teaches flavor composition In the flavor composition where GABA is preferably 0.1 to 10000ppm.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached on M-F, 10-6 EST.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of an application may be obtained from the Patent Application Information Retrieval (PAIR) system. Status information for published applications may be obtained from either Private PAIR or Public PAIR. Status information for unpublished applications is available through Private PAIR only. For more information about the PAIR system, see https://ppair-my.uspto.gov/pair/PrivatePair. Should you have questions on access to the Private PAIR system, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative or access to the automated information system, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/JANICE Y SILVERMAN/Examiner, Art Unit 1792
Prosecution Insights