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 27 July 2026 is acknowledged.
Applicant has overcome the following by virtue of amendment of the claims: (1) 35 U.S.C. § 102 rejections of claims 1 and 30 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 7, 9, 17, 19, 27, 30, and 38
Withdrawn claims: 7, 9, 17, 19, 27, and 38
Previously canceled claims: 2-6, 8, 10-16, 18, 20-26, 28-29, 31-37, and 39-40
Newly canceled claims: None
Amended claims: 1 and 30
New claims: None
Claims currently under consideration: 1 and 30
Currently rejected claims: 1 and 30
Allowed claims: None
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 and 30 are rejected under 35 U.S.C. 103 as being unpatentable over Tanigawa (JP 2019-154428 A, see translation provided) in view of Kurokawa et al. (WO 2014/097850 A1, cited on the IDS filed 13 September 2024, see translation submitted by Applicant on 27 July 2026).
Regarding claim 1, Tanigawa teaches a beer-taste beverage ([0001, [0015]) having an alcohol content greater than or equal to 16.0 (v/v)% and less than 25.0 (v/v)% – Tanigawa teaches that the alcohol content of the beer-taste beverage is preferably 8.0 %(v/v) or more and preferably 20% (v/v) or less ([0019]). Tanigawa also teaches that the upper limit is not particularly limited (Id.). The claimed range of 16.0-25.0 %(v/v) overlaps the disclosed range of 8.0-20 %(v/v), and lies inside the disclosed range of 8.0 %(v/v) or more. 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).
and a content of phosphoric acid in the beer-taste beverage is greater than or equal to 550 mass ppm, and less than or equal to 3000 mass ppm – Tanigawa teaches that the beer-taste beverage contains an acidulant, which may be phosphoric acid ([0022]). The acidulant content in terms of citric acid is preferably 1000 ppm (mg/L) or more and preferably 3000 ppm or less ([0023]). Tanigawa teaches that the acidity of phosphoric acid in terms of citric acid is 200 when the acidity of citric acid is defined as “100” ([0024]). Thus, half the amount of phosphoric acid is required to reach the disclosed range of 1000-3000 ppm in terms of citric acid. Where phosphoric acid is the acidulant, it is present in a range of 500-1500 ppm. The claimed range of 550-3000 mass ppm overlaps the disclosed range of 500-1500 ppm. 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). Although Tanigawa expresses ppm as mg/L, it is expected that the difference between mg/L and mg/kg (i.e. mass ppm) in a beer-taste beverage would not be sufficient to render the ranges non-overlapping.
Tanigawa does not discuss that the beer-taste beverage has an original extract concentration greater than or equal to 20.0 mass%, an apparent attenuation greater than or equal to 70.0%.
However, Kurokawa teaches a fermented beer-taste beverage ([0002]) having an original extract concentration of 25% to 35% by weight ([0020]), a fermentable extract residual concentration of 1% or less and an alcohol concentration of 12% or more ([0017]). In Example 2, Kurokawa teaches fermented beverage having a fermentable extract residual concentration of 0.60% and an alcohol concentration of 15.49 v/v%, obtained from a wort having an original wort extract concentration of 30% by weight ([0051]). As evidenced by the instant specification on pp. 9-10, the apparent attenuation is calculated as 100 x (P – Es)/P, where “P” is the original wort extract and “Es” is the apparent extract of the beer-taste beverage (p. 9, line 31 – p. 10, line 4). Here, the apparent extract of the beer-taste beverage corresponds to the “fermentable extract residual concentration” disclosed by Kurokawa. Accordingly, Kurokawa the example of Kurokawa has an apparent attenuation of 100 x (30 – 0.60) / 30 = 98%. The minimum apparent attenuation disclosed by Kurokawa is 100 x (25 – 1) / 25 = 96%, based on the disclosure of an original extract concentration of 25-35% by weight and a residual extract of at most 1%. Although the example of Kurokawa does not exceed 16.0 %(v/v) alcohol, Kurokawa teaches that high-concentration brewing is a brewing method in which a fermented liquid having a high alcohol concentration is obtained by fermenting using wort having an original wort extract concentration higher than usual ([0003]). Thus, a higher alcohol concentration is obtained by increasing the original extract concentration of the wort to be fermented. Therefore, maintaining the degree of attenuation, increasing the original extract concentration from 30% as used in the example to 35% as disclosed, would result in an increase in the alcohol concentration beyond 15.49 %(v/v). Decreasing the residual extract by more complete fermentation would further increase the alcohol concentration.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the beer-taste beverage of Tanigawa with the teachings of Kurokawa to use an original extract concentration of 25% to 35% by weight and an apparent attenuation of at least 96%. Where Tanigawa teaches a beer-taste beverage having an alcohol content of 8-20% or more, but does not provide the details of the original extract and apparent attenuation used to reach the disclosed alcohol content, one of ordinary skill in the art would have been motivated to consult Kurokawa to identify suitable original extract and apparent attenuation values for producing the beer-taste beverage. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention in doing so because Tanigawa teaches a beer-taste beverage with the requisite alcohol and phosphoric acid content, and Kurokawa provides original extract and apparent attenuation values that enable one of ordinary skill in the art to achieve the alcohol content as claimed.
Claim 1 is therefore rendered obvious.
Regarding claim 30, Tanigawa teaches a beer-taste beverage ([0001, [0015]) having an alcohol content greater than or equal to 16.0 (v/v)% – Tanigawa teaches that the alcohol content of the beer-taste beverage is preferably 8.0 %(v/v) or more and preferably 20% (v/v) or less ([0019]). Tanigawa also teaches that the upper limit is not particularly limited (Id.). The claimed range of greater than or equal to 16.0(v/v) overlaps the disclosed range of 8.0-20 %(v/v), and lies inside the disclosed range of 8.0 %(v/v) or more. 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).
and a content of phosphoric acid in the beer-taste beverage is greater than or equal to 550 mass ppm, and less than or equal to 3000 mass ppm – Tanigawa teaches that the beer-taste beverage contains an acidulant, which may be phosphoric acid ([0022]). The acidulant content in terms of citric acid is preferably 1000 ppm (mg/L) or more and preferably 3000 ppm or less ([0023]). Tanigawa teaches that the acidity of phosphoric acid in terms of citric acid is 200 when the acidity of citric acid is defined as “100” ([0024]). Thus, half the amount of phosphoric acid is required to reach the disclosed range of 1000-3000 ppm in terms of citric acid. Where phosphoric acid is the acidulant, it is present in a range of 500-1500 ppm. The claimed range of 550-3000 mass ppm overlaps the disclosed range of 500-1500 ppm. 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). Although Tanigawa expresses ppm as mg/L, it is expected that the difference between mg/L and mg/kg (i.e. mass ppm) in a beer-taste beverage would not be sufficient to render the ranges non-overlapping.
Tanigawa does not discuss that the beer-taste beverage has an original extract concentration greater than or equal to 19.2 mass%.
However, Kurokawa teaches a fermented beer-taste beverage ([0002]) having an original extract concentration of 25% to 35% by weight ([0020]), a fermentable extract residual concentration of 1% or less and an alcohol concentration of 12% or more ([0017]). In Example 2, Kurokawa teaches fermented beverage having a fermentable extract residual concentration of 0.60% and an alcohol concentration of 15.49 v/v%, obtained from a wort having an original wort extract concentration of 30% by weight ([0051]). Although the example of Kurokawa does not exceed 16.0 %(v/v) alcohol, Kurokawa teaches that high-concentration brewing is a brewing method in which a fermented liquid having a high alcohol concentration is obtained by fermenting using wort having an original wort extract concentration higher than usual ([0003]). Thus, a higher alcohol concentration is obtained by increasing the original extract concentration of the wort to be fermented. Therefore, maintaining the degree of attenuation, increasing the original extract concentration from 30% as used in the example to 35% as disclosed, would result in an increase in the alcohol concentration beyond 15.49 %(v/v). Decreasing the residual extract by more complete fermentation would further increase the alcohol concentration.
It would have been obvious for one of ordinary skill in the art, before the effective filing date of the claimed invention, to modify the beer-taste beverage of Tanigawa with the teachings of Kurokawa to use an original extract concentration of 25% to 35% by weight. Where Tanigawa teaches a beer-taste beverage having an alcohol content of 8-20% or more, but does not provide the details of the original extract used to reach the disclosed alcohol content, one of ordinary skill in the art would have been motivated to consult Kurokawa to identify suitable original extract values for producing the beer-taste beverage. One of ordinary skill in the art would have had a reasonable expectation of success in arriving at the claimed invention in doing so because Tanigawa teaches a beer-taste beverage with the requisite alcohol and phosphoric acid content, and Kurokawa provides original extract values that enable one of ordinary skill in the art to achieve the alcohol content as claimed.
Claim 30 is therefore rendered obvious.
Response to Arguments
Claim Rejections – 35 U.S.C. § 102: Applicant’s amendments to claims 1 and 30 filed on 27 July 2026 are sufficient to overcome the rejections under 35 U.S.C. § 102. Accordingly, the 35 U.S.C. § 102 rejections have been withdrawn. However, upon consideration of the amendments, the new grounds of rejection under 35 U.S.C. § 103 presented in this Office action are made.
No claims are allowed.
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.
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/JAMES P. SHELLHAMMER/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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