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 .
This office action is in response to the application filed on June 18, 2024. The earliest effective filing date of the application is December 27, 2021.
Election/Restrictions
Claims 20 – 22 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on May 29, 2026.
Applicant’s election without traverse of Group I, claims 1 – 19, in the reply filed on May 29, 2026 is acknowledged.
Status of Application
The Response to Restriction Requirement has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 22
Withdrawn claims: 20-22
Claims currently under examination: 1 – 19
Claim Objections
Claim 1 is objected to because of the following informalities:
Claim 1 recites “having” in line 1, which is interpreted to be an unconventional recitation of a transitional phrase. For the purpose of examination, the broadest reasonable interpretation of “having” is “comprising”. To avoid misinterpretation of the breadth of the claim, replace “having” with “comprising” or the intended conventional transitional phrase.
Appropriate correction is required.
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.
Claim 2 is 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 2 recites “wherein the real extract value is 0.55 mass% or more” which renders the claim indefinite. Given claim 1, which claim 2 depends upon, recites “ a real extract value of 2.30 mass% or less”, it is unclear whether claim 2 seeks to overwrite the range of claim 1, or further limit the claimed range to be between 0.55 mass% and 2.30 mass%. For the purpose of examination, claim 2 is interpreted to limit the amount of real extract to be between 0.55 mass% and 2.30 mass%.
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 – 4, 6, 7, 9, 12, 13, 15, and 18 are rejected under 35 U.S.C. 103 as being unpatentable over Kato et al. (JP 2020103268 A – IDS Filed on September 9, 2024 – Clarivate Machine Translation – Provided with Requirement for Restriction filed on May 13, 2026) in view of Gluek (U.S. Patent No. 3,373,040 – Provided with Requirement for Restriction filed on May 13, 2026).
Regarding claim 1, Kato teaches a beer taste beverage with a total polyphenol content of 10 – 60 mass ppm; a total nitrogen content of 8 – 45 mg/100 ml; and a linalool content of 1400 ppb or less (Abstract). Kato teaches the main raw materials of the beer-taste beverage are malt and water containing nitrogen, polyphenols and the like, linalool, and water-soluble sweetener (p. 6, paragraph 7).
The range of total polyphenol content in the beer-taste beverage, 10 – 60 mass ppm, as disclosed by Kato, overlaps with the claimed range of 25 – 250 ppm by mass. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
The range of total nitrogen content in the beer-taste beverage, 8 – 45 mg/100 ml, as disclosed by Kato, overlaps with the claimed range of 10 – 100 mg/100 ml. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
The range of linalool content in the beer-taste beverage, 1400 ppb or less, as disclosed by Kato, overlaps with the claimed range of 5 to 100 ppb by mass. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Kato does not explicitly disclose a real extract value in the beer taste beverage.
Gluek discloses a malt liquor with a real extract content of less than 3.3 (Abstract). Gluek teaches the malt liquor has a very pleasurable taste, particularly at cool temperatures, brought about through the unusual simultaneous fermentation of various sugars, invert and complex, including dextrose and sucrose, into a variety of different alcohols which have in combination vinous and malt flavors (col. 6, lines 17 – 23).
Kato and Gluek are of the same endeavor of malt liquor beverage. It would have been obvious to one of ordinary skill in the art to employ Gluek’s real extract value in the beer-taste beverage of Kato because the malt liquor of Gluek has a very pleasurable taste. Furthermore, the range of real extract content, less than 3.3, as disclosed by Gluek, overlaps with the claimed range of 2.3 mass% or less. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 2, the range of real extract content, less than 3.3, but more than 0.55 mass%, overlaps with the claimed range of 2.3 mass% or less. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 3, the range of real extract content, less than 1.5, as disclosed by Gluek, overlaps with the claimed range of 2.3 mass% or less. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 4, Kato teaches the beer-taste beverage may comprise dietary fiber (p. 6, paragraph 7). Kato does not require the beer-taste beverage comprise dietary fiber (Abstract, Claim 1). Therefore, Kato teaches embodiments wherein the beer-taste beverage comprises no (0g/100 mL) dietary fiber.
Regarding claims 6, 7, and 9, Kato teaches the malt ratio in the beer-taste beverage is 5 – 20% by mass (p. 7, paragraph 2).
Regarding claim 12, while Kato is silent with respect to the precisely claimed bitterness value of the beer-taste beverage, Kato teaches in the beer-taste beverage according to one embodiment of the present invention, the content of iso-α-acid is 0.1 mass ppm or less based on the total amount (100 mass %) of the beer-taste beverage (p. 2, paragraph 10; p. 3, paragraph 1).
The instant specification states “The bitterness value depends on the content of iso-a-acid in the beverage, and the iso-a- acid is a bittering component contained in a large amount in the hop. Therefore, a beverage having a predetermined bitterness value can be produced by controlling the amount of hops used.” ([0048]). The instant specification also states “An amount of the hops added is appropriately adjusted and is preferably from 0.0001 to 1 mass% (0.1 ppm to 10,000 ppm) based on the total amount of the beverage. In addition, a beer-taste beverage made using hops as a raw material is a beverage containing iso-a-acid, which is a component derived from hops” ([0047]). Therefore, because the beer-taste beverage of Kato comprises an amount of iso-α-acid, which is a bitter compound derived from hops, in an amount of 0.1 mass ppm or less, which overlaps with the hops content of the instant invention, one of ordinary skill in the art would have selected the overlapping portion of the range of iso-α-acid in the beer-taste beverage of Kato such that the beer-taste beverage has a bitterness value of 5.0 BUs or more. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness. Furthermore, MPEP § 2112.I states “[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer”. In this case, the fact that Kato is silent with respect to the precise bitterness value of the beer-taste beverage does not render novel the previously unappreciated bitterness value of the beer-taste beverage of Kato.
Regarding claim 13, Kato teaches a beer taste beverage with a total polyphenol content of 10 – 60 mass ppm; a total nitrogen content of 8 – 45 mg/100 ml (Abstract). Therefore, Kato teaches a range of ratios of [(A)/(B)] of the total polyphenol amount (A) (unit: ppm by mass) to the total nitrogen amount (B) (unit: mg/100 mL) is from 0.22 to 7.5.
The range of ratios [(A)/(B)] of the total polyphenol amount (A) (unit: ppm by mass) to the total nitrogen amount (B) (unit: mg/100 mL), 0.22 to 7.5, as disclosed by Kato, overlaps with the claimed range of 0.5 to 4.5. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 15, Kato teaches a beer taste beverage with a total polyphenol content of 10 – 60 mass ppm; a total nitrogen content of 8 – 45 mg/100 ml (Abstract). Therefore, Kato teaches a range of products of (A x B) of the total polyphenol amount (A) (unit: ppm by mass) to the total nitrogen amount (B) (unit: mg/100 mL) is from 80 to 2700.
The range of products of (A x B) of the total polyphenol amount (A) (unit: ppm by mass) to the total nitrogen amount (B) (unit: mg/100 mL), 80 to 2700, as disclosed by Kato, overlaps with the claimed range of 200 to 25000. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Regarding claim 18, the term “beer” is not defined by the instant specification. Therefore, the broadest reasonable interpretation of “beer” is relied upon for the examination of claim 18. The broadest reasonable interpretation of “beer” includes a grain-based alcoholic beverage.
Kato teaches the “beer-taste beverage” refers to an alcohol-containing or non-alcoholic carbonated beverage having a beer-like flavor (p. 2, paragraph 4). Kato teaches the beer-taste beverage is produced by adding yeast to a raw material comprising water and malt (i.e., a grain) and fermenting (p. 10, paragraph 6). Therefore, while Kato does not outright state the beer-taste beverage is a beer, the beer-taste beverage of Kato falls within the broadest reasonable interpretation of “beer”.
Claims 5, 8, 16, 17, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Kato et al. (JP 2020103268 A – IDS Filed on September 9, 2024 – Clarivate Machine Translation – Provided with Requirement for Restriction filed on May 13, 2026) in view of Gluek (U.S. Patent No. 3,373,040 – Provided with Requirement for Restriction filed on May 13, 2026), as applied to claim 1 above, and further in view of Hasegawa et al. (JP 2020195318 A – IDS Filed on September 9, 2024 – Clarivate Machine Translation).
Regarding claims 5 and 8, Kato teaches the total amount of polyphenols in the beer-taste beverage of the present invention can be controlled, for example, by adjusting the amount of use of raw materials having a high polyphenol content, such as barley malt and malt husk (p. 4, paragraph 3). Kato teaches malt with husks has a high content of nitrogen and polyphenols, while malt has a high nitrogen content but a low polyphenol content (p. 4, paragraph 4). Kato teaches therefore, the total nitrogen amount and the total polyphenol amount in the beer-taste beverage can be increased or decreased by adjusting the mixing ratio of the raw materials (p. 4, paragraph 4).
Kato does not teach the beer-taste beverage has a malt ratio is 90 mass% or more.
Hasegawa teaches a beer-taste beverage with a malt ratio of 50% by mass or more and 100% by mass or less, an appearance fermentation degree of 100% or more, and a pyroglutamic acid content of 35ppm by mass or more (Abstract). Hasegawa teaches a beer-taste beverage having a high malt ratio of 50% by mass or more has a good taste, but the higher the malt ratio, the less refreshing the feeling tends to be (p. 2, paragraph 6). Hasegawa teaches the saccharification conditions and the fermentation conditions are adjusted so that the appearance fermentation degree is 100% or more in order to improve the refreshing feeling (p. 2, paragraph 7). Hasegawa teaches as a result, the refreshing feeling was improved, but on the other hand, it was found that the beer-taste beverage having a higher degree of appearance fermentation had a monotonous taste (p. 2, paragraph 7). Hasegawa teaches the content of pyroglutamic acid is adjusted to be 35 mass ppm or more in order to further add complexity to the taste (p. 2, paragraph 7). Hasegawa teaches therefore, by adjusting the malt ratio, the degree of appearance fermentation, and the content of pyroglutamic acid, it is possible to impart a high-quality taste complexity and make the beverage refreshing (p. 2, paragraph 8).
Kato and Hasegawa are combinable because they are concerned with the same field of endeavor, namely, beer-taste beverages. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have adjusted the malt ratio of the beer-taste beverage of Kato to be 90% by mass or more, as taught by Hasegawa because adjustment of raw material content such as malt and malt with husks can controllably alter the nitrogen and polyphenol content of the beer-taste beverage, and beer-taste beverage having a high malt ratio of 50% by mass or more has a good taste, and while a very high malt ratio may provide a less refreshing flavor, refreshing taste can be returned by supplementing the beer-taste beverage with pyroglutamic acid, as taught by Hasegawa.
Regarding claims 16 and 17, Kato teaches as a method for preparing the raw material, yeast is further added and fermented, the yeast is removed by a filter or the like, and additives such as water, flavors, acidulants, and pigments are added as necessary to prepare the raw material (p. 10, paragraph 7). Kato teaches the yeast used in this step can be appropriately selected in consideration of the type of fermented beverage to be produced, the desired flavor and fermentation conditions (p. 10, paragraph 9).
Kato is silent with respect to whether the beer-taste beverage is a top- or bottom-fermented beer-taste beverage.
Hasegawa teaches a beer-taste beverage with a malt ratio of 50% by mass or more and 100% by mass or less, an appearance fermentation degree of 100% or more, and a pyroglutamic acid content of 35ppm by mass or more (Abstract). Hasegawa teaches the yeast used in this step can be appropriately selected in consideration of the type of fermented beverage to be produced, the desired flavor, fermentation conditions, etc., and top-fermenting yeast may be used, or bottom-fermenting yeast may be used (p. 7, paragraph 9).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have top- or bottom-fermented the beer-taste beverage of Kato, as taught by Hasegawa because Hasegawa provides that it was known for top- and bottom-fermenting to have been used and published for producing beer-taste beverages at the time of filing, which means it was within the general skill of a worker in the art to select top- or bottom-fermentation for the production of beer-taste beverages, such as the beer-taste beverage of Kato, because it would be obvious to one of skill in the art to do such a thing on the basis of its suitability for a similar intended use. See MPEP § 2144.07.
Regarding claim 19, Kato does not teach the beer-taste beverage has a content of pyroglutamic acid is 15 mg/L or more.
Hasegawa teaches a beer-taste beverage with a malt ratio of 50% by mass or more and 100% by mass or less, an appearance fermentation degree of 100% or more, and a pyroglutamic acid content of 35ppm by mass or more (Abstract). Hasegawa teaches the content of pyroglutamic acid is adjusted to be 35 mass ppm or more in order to further add complexity to the taste (p. 2, paragraph 7). Hasegawa teaches therefore, by adjusting the malt ratio, the degree of appearance fermentation, and the content of pyroglutamic acid, it is possible to impart a high-quality taste complexity and make the beverage refreshing (p. 2, paragraph 8).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have included at least 35 ppm by mass of pyroglutamic acid in the beer-taste beverage of Kato, as taught by Hasegawa because the addition of such an amount of pyroglutamic acid in a beer-taste beverage adds complexity to the taste of the beverage.
Claims 10, 11, and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Kato et al. (JP 2020103268 A – IDS Filed on September 9, 2024 – Clarivate Machine Translation – Provided with Requirement for Restriction filed on May 13, 2026) in view of Gluek (U.S. Patent No. 3,373,040 – Provided with Requirement for Restriction filed on May 13, 2026), as applied to claim 1 above, and further in view of Kusunoki et al. (WO 2017026226 A1 – Clarivate Machine Translation).
Regarding claims 10, 11, and 14, the modified beer-taste beverage of Kato comprises 5 to 100 ppb by mass (i.e., 5 to 100 µg/L).
Kato is silent with respect to the precise amount of carbohydrates in the beer-taste beverage.
Kusunoki teaches a beer-like effervescent beverage having a sugar content of 2.0 g/100 mL or less and a ratio of the linalool content (μg/L) to the sugar content (g/100 mL) of 0.1-25 (Abstract). Kusunoki teaches the beer-like effervescent beverage having enhanced body despite being low in sugar (Abstract). Kusunoki teaches the demand for low-calorie and low-sugar beer-like sparkling beverages has increased in recent years due to consumer health (p. 2, paragraph 3). Kusunoki teaches in the case of a fermented beer-like sparkling beverage produced through a fermentation process, the amount of malt containing a relatively large amount of non-assimilable saccharides for yeast is suppressed as a fermentation raw material (p. 2, paragraph 3). Kusunoki teaches, however, when the sugar mass is reduced in a beer-like sparkling beverage, there is a problem that the beverage becomes watery and the richness and flavor are reduced (p. 2, paragraph 3). Kusunoki teaches a sufficient amount of linalool added to the low-sugar beer-taste beverage so that the linalool / saccharide ratio of 0.1 to 25, strengthens the body and improves the sharpness of the beverage (p. 3, paragraph 2). By selecting a sugar (i.e., carbohydrate) content within a ratio of the linalool content (μg/L) to the sugar content (g/100 mL) of 0.1 – 25 in the modified beer-taste beverage of Kato, the modified beer-taste beverage would have a sugar (i.e., carbohydrate) content of 0.2 – 1000 g/100mL.
Kato and Kusunoki are combinable because they are concerned with the same field of endeavor, namely, beer-taste beverages. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have selected a carbohydrate content of less than 1.0 g/100 mL in the beer-taste beverage of Kato, as taught by Kusunoki, because selecting an amount of sugar (i.e., carbohydrates) within a ratio of 0.1 to 25 with linalool, including 1.0 g/100 mL or less, allows the production of a low-carbohydrate beer-taste beverage, which is aligned with consumer needs, while maintaining the body and sharpness of the beverage.
With respect to the limitation “wherein a ratio [(B)/(Z)] of the total nitrogen amount (B) (unit: mg/100mL) to a carbohydrate content (Z) (unit: g/100 mL) is from 10 to 200”, Kato teaches a beer taste beverage with a total nitrogen content of 8 – 45 mg/100 ml (Abstract). Therefore, the modified beer-taste beverage of Kato teaches a range of ratios [(B)/(Z)] of the total nitrogen amount (B) (unit: mg/100mL) to a carbohydrate content (Z) (unit: g/100 mL) is at least 8.
The range of range of ratios [(B)/(Z)] of the total nitrogen amount (B) (unit: mg/100mL) to a carbohydrate content (Z) (unit: g/100 mL), at least 8, as taught by the modified beer-taste beverage of Kato, overlaps with the claimed range of 10 to 200. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
Conclusion
No claims are allowed.
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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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