DETAILED ACTION
Background
The amendment dated June 18, 2026 (amendment) amending claims 1-2 and 6 and canceling claim 4 has been entered. Claims 1-3 and 5-6 as filed with the amendment have been examined.
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 .
Information Disclosure Statement
The attachment accompanying the amendment dated June 18, 2026 and remarks therein (Reply), including a copy of a reference to Sam has been placed in the file. The reference itself should be cited in an Information Disclosure Statement in accordance with Applicants duty to disclose (37 CFR 1.56) and as set forth in 37 CFR 1.97-1.98. The reference, Sam F.E.; Ma, T.-Z.; Salifu, R.; Wang, J.; Jiang, Y.-M.; Zhang, B.; Han, S.-Y., "Techniques for Dealcoholization of Wines: Their Impact on Wine Phenolic Composition, Volatile Composition, and Sensory Characteristics," Foods, 2021, Vol. 10, Article No. 2498, published October 18, 2021,https://doi.org/10.3390/foods11002498 (Sam) was not properly made of record.
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 1-2 and 4-6 are rejected under 35 U.S.C. 103 as being unpatentable over DATA BASE GNPD[Online] MINTEL; "Alcohol Free Rose Wine", XP093332754, 2020, (Rose Wine), of record.
Unless otherwise disclosed, all percents (%) are interpreted as weight %s (wt%); and, a wt% is interpreted as interchangeable with a vol% or v/v% and a mass%.
Unless otherwise disclosed, all measurements of beverages are interpreted as taking place at room temperature or about 20 °C.
Regarding instant claims 1-2 and 5-6, Rose Wine at page 1 discloses an alcohol free rose (“wine flavor beverage having an alcohol content of 0.00 v/v%”). At page 2, Rose Wine discloses that the wine flavor beverage comprises gum arabic (claim 2), and, further discloses that its wine flavor beverage has a carbohydrate content of 5 g/100 ml, including a sugar content of 3.8 g/100 ml and a protein content of 0.26 g/100 ml, to give a “Brix value” of 5.26 as in claim 5. Further, Rose Wine discloses a sodium content of 37 mg in 100 ml or 370 mg/kg (claims 1 and 6). In addition, Rose Wine discloses that its wine flavor beverage comprises dealcoholized wine, grape juice concentrate, preservatives, antioxidant and thickener. Accordingly, Rose Wine discloses a product wine flavor beverage made by mixing ingredients to provide a wine flavor beverage having the claimed sodium content and a polysaccharide (“method for imparting richness and wine-like full body to a wine flavor beverage” -claim 6).
Further and regarding instant claim 2, Rose Wine does not disclose a viscosity for its beverage and does not disclose a viscosity of 1.05 to 1.65 mPa۰s or more at 20°C as in claims 1 and 6. However, the wine flavor beverage of Rose Wine comprising a mixture of wine flavor beverage with gum arabic and appears to be substantially the same thing as the claimed wine flavor beverage. Accordingly, absent a clear showing as to how the viscosity of the wine flavor beverage in Rose Wine differs from that as claimed, the Office considers the wine flavor beverage of Rose Wine to have the claimed viscosity of 1.05 to 1.65 mPa۰s or more at 20°C as in claims 1 and 6. See MPEP 2112.01.I.
Claims 1-2 and 5-6 are rejected under 35 U.S.C. 103 as being unpatentable over US2009/0297681 A1 to Wilkes et al. (Wilkes) Wilkes in view of FR2671355 A1 to Migros Federation Cooperatives (Migros), of record, and US2009/0022851 to Roy et al. (Roy).
Unless otherwise disclosed, all percents (%) are interpreted as weight %s (wt%); and, a wt% is interpreted as interchangeable with a vol% or v/v% and a mass%.
Unless otherwise disclosed, all measurements of beverages are interpreted as taking place at room temperature or about 20 °C.
All references to Huang refer to its Clarivate machine translation, a copy of which is included with this Office action.
Regarding instant claims 1 and 5-6, Wilkes at Abstract and [0007]-[0008] discloses a lightly carbonated alcohol free wine (“wine flavor beverage”) having the taste of red wine without the alcohol and a method of making it and comprises a wine grape extract including (at [0009] a high amount of polyphenols, and (at [0015]) discloses dealcoholized wine and the extract comprises a spray dried red wine powder or wine concentrate. Wilkes discloses at [0027] that its wine flavor beverage can be unsweetened and comprise high intensity sweeteners to provide a low Brix wine flavor beverage. At Example 4 and the accompanying table, Wilkes discloses a wine flavor beverage having a Brix value of 3.5 (claim 5) and comprising about 50 wt% of dealcoholized wine, about 45 wt% of water, and includes grape juice concentrates, acidifiers, resveratrol powder and wine flavors or extracts. Further, Wilkes discloses at [0017] a wine flavor beverage comprising its dealcoholized wine base in the amount of 25 to 75 wt% of its wine flavor beverage. Accordingly, Wilkes discloses a product wine flavor beverage made by mixing ingredients to provide a wine flavor beverage having the claimed sodium content (“method for imparting richness and wine-like full body to a wine flavor beverage” - claim 6).
Further and regarding instant claims 2 and 3, Wilkes discloses wine flavor beverages without alcohol, including in its Example 4, but does not give an example of a wine flavor beverage that has the claimed alcohol content of 0.00 v/v%; Wilkes does not disclose a wine flavor beverage comprising a polysaccharide; and, Wilkes does not disclose the sodium content in its wine flavor beverages of from 70 to 950 mg/kg of the wine flavor beverage as in claim 1. In addition, Wilkes does not disclose a viscosity for its wine flavor beverage or disclose a viscosity of 1.05 to 1.65 mPa۰s or more at 20°C as in claims 1 and 6. Further, Wilkes does not disclose a wine flavor beverage comprising a polysaccharide selected from the group consisting of xanthan gum, gellan gum, Agrobacterium succinoglycan, tamarind seed gum, guar gum, locust bean gum, gum arabic, karaya gum, pectin, cellulose, konjac mannan, soy polysaccharides, carrageenan, agar, alginic acid, carboxymethyl cellulose, and cationized guar gum as in claim 2; and, Wilkes does not disclose a wine flavor beverage comprising 3.80 to 51.80 mg/kg of xanthan gum as in claim 3. However, Wilkes at [0024] discloses a preservative comprising 500 ppm (500 mg/kg) of sodium benzoate, or about 160 mg/kg of sodium to provide a stable wine flavor beverage and would have found it obvious to make or provide a wine flavor beverage having the claimed sodium content to stabilize the beverage.
Migros at Abstract on page 1 discloses a dealcoholized wine beverage and a method of making it at page 7, 2nd full paragraph (starting with “p/ Modification”) and 3rd full paragraph discloses the dealcoholized wine having an alcohol content 0.02% by weight or v/v%. Migros at the Abstract discloses a method wherein a wine is preconcentrated and subjected to reconstitution to yield a wine flavor beverage. At the paragraph bridging pages 8 and 9, Migros discloses adding grape juice concentrate and water to its dealcoholized wine.
Roy at Abstract discloses non-alcoholic beverages comprising xanthan gum which provides an effect improving carbonation effervescence in polyphenolic beverages. At [0013], Roy discloses that xanthan gum in the amount of about 5 to 1000 ppm (mg/kg), which range the claimed 3.80 to 51.80 mg/kg overlaps provides an improved mouthfeel in a beverage as well as stability over a range of temperatures and pH levels. 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 in Roy would have found it obvious to use the claimed amount of xanthan gum in its beverage because Roy discloses that the claimed amount of xanthan gum provides a beverage having a desirable effervescence, stability and mouthfeel.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Migros for Wilkes to use 25 to 75 wt% of the dealcoholized wine base of Migros having 0.02 v/v% alcohol content in its wine flavor beverage disclosed at [0017] or in its Example 4 to make a wine flavor beverage having an alcohol content of 0.00 v/v%. Both references disclose dealcoholizing wine and diluting it with water and flavorings to make a wine flavor beverage having no alcohol. The ordinary skilled artisan in Wilkes would have desired to use the dealcoholized wine of Migros to make its wine flavor beverage having no alcohol or an alcohol content of 0.00 v/v% because a wine flavor beverage having 25 wt% or less than 50 wt% of the dealcoholize wine of Migros (0.02 v/v% alcohol) would have an alcohol content 0.00 v/v%, or within the measurement error (+ 0.01 v/v%) of 0.00 v/v% alcohol content.
Before the effective filing date of the present invention, the ordinary skilled artisan would have found it obvious in view of Roy for Wilkes to include or add xanthan gum as a polysaccharide the claimed 3.80 to 51.80 mg/kg of xanthan gum in its wine flavor beverage. Both Roy and Wilkes references disclose polyphenol containing beverages. The ordinary skilled artisan in Huang would have desired to include the claimed amount of xanthan gum as in Roy to improve the mouthfeel and effervescence of its wine flavor beverage.
The Office considers the wine flavor beverage of Wilkes in view of Migros and Roy containing a polysaccharide and having an alcohol content of 0.00 v/v% as being substantially the same thing as the claimed wine flavor beverage. Accordingly, absent a clear showing as to how the viscosity of the wine flavor beverage of Wilkes in view of Migros and Roy differs from that as claimed, the Office considers the wine flavor beverage of Example 1 at page 6, “3) preparation” of Huang Wilkes at Example 4 in view of Migros at page 7, 2nd and 3d full paragraph and Roy at [0013] to have the claimed viscosity of 1.05 to 1.65 mPa۰s at 20°C as in claims 1 and 6. See MPEP 2112.01.I.
Response to Arguments
In view of the amendment dated June 18, 2026, the following rejections are withdrawn as moot:
The provisional rejections of claims 5-6 on the ground of nonstatutory double patenting as being unpatentable over claims 1 and 4 of copending Application No. 18/723,971 in view of US2003/0064143 A1 to Gerrish et al.; and,
The rejections of claim 3 under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite in regard to the antecedent basis for the limitation "the polysaccharide;
The rejections of claims 1-2 and 4-6 under 35 U.S.C. 103 as being unpatentable over CN107502509 A to Zhao as evidenced by Durig et al., Handbook of Pharmaceutical Wet Granulation, 2019 Elsevier Inc. Ch.9, p. 317-349 https://doi.org/10.1016/B978-0-12-810460-6.00010-5;
The rejections of claims 1-2, 4 and 6 are rejected under 35 U.S.C. 103 as being unpatentable over CN110093236 A to Huang et al., as evidenced by Durig et al., Handbook of Pharmaceutical Wet Granulation, 2019 Elsevier Inc. Ch.9, p. 317-349 https://doi.org/10.1016/B978-0-12-810460-6.00010-5;
The rejection of claim 3 under 35 U.S.C. 103 as being unpatentable over CN107502509 A to Zhao in view of US2009/0022851 to Roy et al., as evidenced by Durig et al., Handbook of Pharmaceutical Wet Granulation, 2019 Elsevier Inc. Ch.9, p. 317-349 https://doi.org/10.1016/B978-0-12-810460-6.00010-5;
The rejection of claim 3 under 35 U.S.C. 103 as being unpatentable over CN110093236 A to Huang et al. in view of US2009/0022851 to Roy et al., as evidenced by Durig et al., Handbook of Pharmaceutical Wet Granulation, 2019 Elsevier Inc. Ch.9, p. 317-349 https://doi.org/10.1016/B978-0-12-810460-6.00010-5; and,
The rejection of claim 5 under 35 U.S.C. 103 as being unpatentable over CN110093236 A to Huang et al. in view of Wiggins, C., Honey Moisture Content, pp 1-7, downloaded from https://www.homesweetbees.com/beekeeping/2021/7/31/honey-moisture-content on March 27, 2026, as evidenced by Durig et al., Handbook of Pharmaceutical Wet Granulation, 2019 Elsevier Inc. Ch.9, p. 317-349 https://doi.org/10.1016/B978-0-12-810460-6.00010-5.
The positions taken with respect to claims 1-6 and the Zhao, Huang and Durig references have been considered but are found moot because the new ground of rejection does not rely on any argument as applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding the positions taken in the remarks accompanying the amendment dated June 18, 2026 (Reply), the remarks have been fully considered but are not found persuasive for the following reasons:
The Sam reference (Sam, F.E.; Ma, T.-Z.; Salifu, R.; Wang, J.; Jiang, Y.-M.; Zhang, B.; Han, S.-Y., "Techniques for Dealcoholization of Wines: Their Impact on Wine Phenolic Composition, Volatile Composition, and Sensory Characteristics," Foods, 2021, Vol. 10, Article No. 2498, published October 18, 2021,https://doi.org/10.3390/foods11002498 (Sam), offered in the Miscellaneous Letter dated July 01, 2026 is not relevant to any outstanding rejection. Further, the Office has not considered the relevance of Sam as prior art.
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.
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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/ANDREW E MERRIAM/Examiner, Art Unit 1791
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