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 .
Priority
Receipt is acknowledged of certified copies of papers required by 37 CFR 1.55.
Election/Restrictions
Claims 1-4 withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim.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 07/10/2026.
Applicant’s election without traverse of Group II (Claims 6-12) in the reply filed on 07/10/2026 is acknowledged.
Claim Objections
Claim6 is objected to because of the following informalities:
Claim 6 recites the limitation of “A method of preparing a beverage composition comprising;”.
This phrase should end with colon (:) instead of the semicolon (;).
Appropriate correction is required.
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.
Claim(s) 6 is/are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Pedersen (Kombucha: a Tasty Symbiotic Culture of Bacteria and Yeast).
Claim 6 recites the following limitations:
A method of preparing a beverage composition comprising;
a. steeping verbena in water to form an aqueous verbena extract and steeped verbena;
b. fermenting the aqueous verbena extract in the presence or absence of the steeped verbena; and
wherein the fermentation is performed by yeast comprising Pichia yeast.
In regard to claim 6, Pedersen discloses preparation of a fermented beverage such as lemon verbena kombucha (page 1). Pedersen discloses adding verbena among other herbs and woods and boiling water to separate containers, “closed with a lid and left to infuse at room temperature with different infusing times for optimal flavour intensity” (Experiments section on page 2). Pedersen discloses that “[t]hese included dried yarrow flowers (1% w/v, 10 min.), juniper wood (5% w/v, 1 hour), dried chamomile (1% w/v, 10 min.), dried lemon verbena (1% w/v, 10 min.), dried woodruff (1% w/v, 10 min.) and dried cèpes (5% w/v, 12 hour). Dried kelp (2.3% w/v, 1 hour) was sealed in a vacuum bag and treated sous vide at 60 °C. To all solutions were added 50 g of sucrose” (Experiments section on page 2).
Hence, Pedersen discloses step “a” of “steeping verbena in water to form an aqueous verbena extract and steeped verbena”.
In regard to the recitation of “fermenting the aqueous verbena extract in the presence or absence of the steeped verbena”, Pedersen discloses:
The Kombucha mothers were carefully cut into approximately equal sizes and added to the teas. Additionally, 100 mL (10% v/v) of the liquid medium (tea kvass) were also added. Containers were covered with a cloth and set into a closed cabinet at an ambient temperature of approximately 21 ± 2 °C (Experiments section on page 2).
The Kombucha mothers were carefully cut into approximately equal sizes and added to the teas. Additionally, 100 mL (10% v/v) of the liquid medium (tea kvass) were also added. Containers were covered with a cloth and set into a closed cabinet at an ambient temperature of approximately 21 ± 2 °C (page 3).
Hence, Pedersen discloses step “b” of “fermenting the aqueous verbena extract in the presence or absence of the steeped verbena”.
In regard to the recitation of “wherein the fermentation is performed by yeast comprising Pichia yeast”, Pedersen discloses:
Kombucha is the expression of a symbiotic growth of bacteria such as Acetobacter xylinum, A. xylinoides, A. aceti, A. pasteurianus, Bacterium gluconicum (Sreeramulu et al., 2000; Dufresne and Farnworth, 2000) and yeasts like Schizosaccharomyces pombe, Kloeckera apiculata, Saccharomycodes ludwigii, Saccharomyces cerevisiae, Zygosaccharomyces bailii, Brettanomyces bruxellensis, B. lambicus, B. custersii and Pichia species (Dufresne and Farnworth, 2000).
Therefore, Pedersen meets the limitation of “wherein the fermentation is performed by yeast comprising Pichia yeast”.
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.
Claim(s) 7-11 is/are rejected under 35 U.S.C. 103 as being unpatentable over Pedersen (Kombucha: a Tasty Symbiotic Culture of Bacteria and Yeast) in view of Fan et al (US 10,405,565 B2).
In regard to claim 6, Pedersen discloses a method of preparing a beverage composition comprising;
a. steeping verbena in water to form an aqueous verbena extract and steeped verbena;
b. fermenting the aqueous verbena extract in the presence or absence of the steeped verbena; and
wherein the fermentation is performed by yeast comprising Pichia yeast.
In regard to claims 7, Pedersen does not disclose that Pichia yeast is Pichia kluyveri. Fan et al discloses production of nonalcoholic red bayberry juice by fermentation with Pichia kluyveri strain (Title). Fan et al discloses that “[t]he fermented bayberry juice of the present invention has bright color, low alcohol content (<0.5%) and high nutritional values”, and also “maintains the characteristic fruity flavor of red bayberries with added mellow taste and aroma from the fermentation” (Abstract). Fan et al discloses the following advantage of employing Pichia kluyveri instead of wine yeast (Saccharomyces cerevisiae):
The Pichia kluyveri CCTCC NO: M 2015626 is very suitable for nonalcoholic red bayberry fermentation, which is capable of being fermented under the pH (2.5-3.0) of red bayberry juice without adjusting the pH or adding extra sugar, thus greatly simplifying the fermentation process. Commercial Angel wine yeast RV818 is hardly fermented under the same condition. Before optimization of the fermentation process, anthocyanin content in fermented juice produced by Pichia kluyveri CCTCC NO: M 2015626 is 106 mg/L, which is 103.2% higher than that produced by commercial Angel wine yeast. The bayberry juice of the present invention is rich in fruity and mellow aroma and has a characteristic flavor of red bayberries, while juice fermented by commercial Angel wine yeast lacks fruity aroma and has an obvious alcoholic smell. The juice produced by the present invention has pure and fruity taste of red bayberries with a pleasant aftertaste, whereas the juice made by Angel wine yeast has a relatively plain taste. Results of sensory evaluation show that the present juice has a score that is 25.9 higher than that of the juice made by commercial Angel wine yeast RV818. Pichia kluyveri is a yeast strain very suitable for red bayberry juice fermentation (Col. 3 lines 30-51).
One of ordinary skill in the art would have been motivated to modify Pedersen in view of Fan et al and to employ Pichia kluyveri in order to obtain fermented verbena beverage, which is capable of being fermented under the pH (2.5-3.0) without adjusting the pH or adding extra sugar, thus greatly simplifying the fermentation process as suggested by Fan et al. One of ordinary skill in the art would have been motivated to modify Pedersen in view of Fan et al and to employ Pichia kluyveri in order to obtain verbena fermented beverage which is rich in fruity and mellow aroma with a pleasant aftertaste.
In regard to claims 8-9, it would have been obvious to employ any available Pichia kluyveri strain that exhibits desired properties of fermenting verbena extract to obtain verbena fermented beverage which is rich in fruity and mellow aroma and has a pure and fruity taste with a pleasant aftertaste.
In regard to claims 10, one of ordinary skill in the art would have been motivated to modify Pedersen in view of Fan et al and to employ Pichia kluyveri instead of Saccharomyces cerevisiae yeast in order to obtain nonalcoholic verbena extract, which is capable of being fermented under the pH (2.5-3.0) without adjusting the pH or adding extra sugar, thus greatly simplifying the fermentation process as suggested by Fan et al. One of ordinary skill in the art would have been motivated to modify Pedersen in view of Fan et al and to employ Pichia kluyveri instead of Saccharomyces cerevisiae yeast in order to obtain verbena fermented beverage which is rich in fruity and mellow aroma with a pleasant aftertaste.
In regard to claims 11, Pedersen discloses straining (separating) herbs from the steeped liquid (Picture 2 bottom left (straining tea)).
Claim(s) 12 is rejected under 35 U.S.C. 103 as being unpatentable over Pedersen (Kombucha: a Tasty Symbiotic Culture of Bacteria and Yeast) in view of Fan et al (US 10,405,565 B2) as applied to claims 7-11 above and further in view of Chen et al (CN 103859089 A).
In regard to claim 12 neither Pedersen nor Fan et al disclose drying the verbena extract after fermentation.
Chen et al discloses “[p]reparation of kombucha solid beverage comprises crushing black tea, adding pure water, boiling, extracting, adding white sugar into filtrate, stirring until dissolved, pasteurizing, sealing, cooling, fermenting, adjusting pH value to 3-4, centrifuging, filtering, collecting supernatant, carrying out ultra-high temperature sterilization, adding maltodextrin, spray drying to obtain kombucha powder, mixing instant tea powder, citric acid, sodium citrate and white granulated sugar powder to obtain mixed powder 1, mixing mixed powder 1 and kombucha powder at ratio of 15-50:85-50 and packaging” (Abstract). One of ordinary skill in the art would have been motivated to modify the combination of Pedersen and Fan et al and to dry verbena extract after fermentation in order to obtain solid kombucha beverage as suggested by Chen et al. One of ordinary skill in the art would have been motivated to modify the combination of Pedersen and Fan et al and to dry steeped verbena in order to obtain dried instant tea powder that is combined with dried solid kombuchas as suggested by Chen et al.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 6-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 8-13 of copending Application No. 18/721,401 in view of Pedersen (Kombucha: a Tasty Symbiotic Culture of Bacteria and Yeast) as discussed above.
This is a provisional nonstatutory double patenting rejection.
The instant claim 6 is directed to a method of preparing a beverage composition comprising:
a. steeping verbena in water to form an aqueous verbena extract and steeped verbena;
b. fermenting the aqueous verbena extract in the presence or absence of the steeped verbena; and
wherein the fermentation is performed by yeast comprising Pichia yeast.
Claim 8 of the copending Application No. 18/721,401 is directed to a method of preparing a beverage composition comprising;
a. steeping camomile in water to form an aqueous camomile extract and steeped camomile;
b. fermenting the aqueous camomile extract in the presence or absence of the steeped camomile; and
wherein the fermentation is performed by yeast comprising Pichia yeast.
The difference between claim 6 of the instant application and claim 8 of the copending Application No. 18/721,401 is the nature of herb used for steeping and further fermentation. However, as discussed above, Pedersen discloses preparation of a fermented beverage such as kombucha (page 1). Pedersen discloses adding verbena among other herbs including camomile and boiling water to separate containers, “closed with a lid and left to infuse at room temperature with different infusing times for optimal flavour intensity” (Experiments section on page 2). Pedersen discloses that “[t]hese included dried yarrow flowers (1% w/v, 10 min.), juniper wood (5% w/v, 1 hour), dried chamomile (1% w/v, 10 min.), dried lemon verbena (1% w/v, 10 min.), dried woodruff (1% w/v, 10 min.) and dried cèpes (5% w/v, 12 hour). Dried kelp (2.3% w/v, 1 hour) was sealed in a vacuum bag and treated sous vide at 60 °C. To all solutions were added 50 g of sucrose” (Experiments section on page 2). Hence, Pedersen discloses that kombucha could be prepared either from verbena or from chamomile. Hence, it would have been obvious to prepare kombucha either from verbena or from chamomile as suggested by Pedersen .
The instant claims 7-12 recite the same process limitations as claims 9-13 of the copending Application No. 18/721,401.
The instant claims 7-12 recite the following limitations:
Claim 7. The method of claim 6 wherein the Pichia yeast is Pichia kluyveri.
Claim 8 The method of claim 7 wherein the Pichia yeast is Pichia kluyveri NYSC 5485 (CNCM I-5525).
Claim 9. The method of claim 6 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO:1-12.
Claim 10. The method of claim 6 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 11. The method of claim 6 comprising separating the aqueous verbena extract from the steeped verbena after fermentation.
Claim 12. The method of claim 6 wherein the steeped verbena, present during the fermentation of the aqueous verbena extract, is dried together with the aqueous verbena extract after fermentation.
Claim 9-13 of the copending Application No. 18/721,401 recite the following limitations:
Claim 9. The method of claim 8 wherein the Pichia yeast is Pichia kluyveri.
Claim 10. The method of claim 8 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO:1-12.
Claim 11. The method of claim 8 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 12. The method of claim 8 comprising separating the aqueous camomile extract from the steeped camomile after fermentation.
Claim 13. The method of claim 8 wherein the steeped camomile, present during the fermentation of the aqueous camomile extract, is dried together with the aqueous camomile extract after fermentation.
Claims 6-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 5-8 and 10 of copending Application No. 18/721,413 in view of Pedersen (Kombucha: a Tasty Symbiotic Culture of Bacteria and Yeast) as discussed above.
This is a provisional nonstatutory double patenting rejection.
The instant claim 6 is directed to a method of preparing a beverage composition comprising;
a. steeping verbena in water to form an aqueous verbena extract and steeped verbena;
b. fermenting the aqueous verbena extract in the presence or absence of the steeped verbena; and
wherein the fermentation is performed by yeast comprising Pichia yeast.
Claim 5 of the copending Application No. 18/721,413 is directed to a method of preparing a beverage composition comprising:
a. steeping hemp in water to form an aqueous hemp extract and steeped hemp;
b. fermenting the aqueous hemp extract in the presence or absence of the steeped hemp; and
wherein the fermentation is performed by yeast comprising Pichia yeast and the beverage composition is a ready to drink beverage.
The difference between claim 6 of the instant application and claim 5 of the copending Application No. 18/721,413 is the nature of herb/plant used for steeping and further fermentation. However, as discussed above, Pedersen discloses preparation of a fermented beverage such as kombucha (page 1). Pedersen discloses adding verbena among other herbs and woods and boiling water to separate containers, “closed with a lid and left to infuse at room temperature with different infusing times for optimal flavour intensity” (Experiments section on page 2). Pedersen discloses that “[t]hese included dried yarrow flowers (1% w/v, 10 min.), juniper wood (5% w/v, 1 hour), dried chamomile (1% w/v, 10 min.), dried lemon verbena (1% w/v, 10 min.), dried woodruff (1% w/v, 10 min.) and dried cèpes (5% w/v, 12 hour). Dried kelp (2.3% w/v, 1 hour) was sealed in a vacuum bag and treated sous vide at 60 °C. To all solutions were added 50 g of sucrose” (Experiments section on page 2). Hence, Pedersen discloses that kombucha could be prepared from various plant material. Hence, it would have been obvious to prepare kombucha from any plant material as suggested by Pedersen including hemp.
The instant claims 7-12 recite the same process limitations as claims 6-8 and 10 of the copending Application No. 18/721,413.
The instant claims 7-12 recite the following limitations:
Claim 7. The method of claim 6 wherein the Pichia yeast is Pichia kluyveri.
Claim 8 The method of claim 7 wherein the Pichia yeast is Pichia kluyveri NYSC 5485 (CNCM I-5525).
Claim 9. The method of claim 6 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO:1-12.
Claim 10. The method of claim 6 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 11. The method of claim 6 comprising separating the aqueous verbena extract from the steeped verbena after fermentation.
Claim 12. The method of claim 6 wherein the steeped verbena, present during the fermentation of the aqueous verbena extract, is dried together with the aqueous verbena extract after fermentation.
Claim claims 6-8 and 10 of the copending Application No. 18/721,413 recite the following limitations:
Claim 6. The method of claim 5 wherein the Pichia yeast is Pichia kluyveri.
Claim 7. The method of claim 5 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO: 1-12.
Claim 8. The method of claim 5 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 10. The method of claim 5 comprising separating the aqueous hemp extract from the steeped hemp after fermentation.
Claims 6-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6-10 and 12-13 of copending Application No. 18/721,391 in view of Pedersen (Kombucha: a Tasty Symbiotic Culture of Bacteria and Yeast) as discussed above.
This is a provisional nonstatutory double patenting rejection.
The instant claim 6 is directed to a method of preparing a beverage composition comprising;
a. steeping verbena in water to form an aqueous verbena extract and steeped verbena;
b. fermenting the aqueous verbena extract in the presence or absence of the steeped verbena; and
wherein the fermentation is performed by yeast comprising Pichia yeast.
Claim 6 of the copending Application No. 18/721,391 is directed to a method of preparing a beverage composition comprising:
Claim 6 A method of preparing a beverage composition comprising:
a. steeping tea in water to form an aqueous tea extract and steeped tea;
b. fermenting the aqueous tea extract in the presence or absence of the steeped tea; and wherein
the fermentation is performed by yeast comprising Pichia yeast.
The difference between claim 6 of the instant application and claim 6 of the copending Application No. 18/721,391 is the nature of herb/plant used for steeping and further fermentation. However, as discussed above, Pedersen discloses preparation of a fermented beverage such as kombucha (page 1). Pedersen discloses adding verbena among other herbs and woods and boiling water to separate containers, “closed with a lid and left to infuse at room temperature with different infusing times for optimal flavour intensity” (Experiments section on page 2). Pedersen discloses that traditionally kombucha is prepared from black tea (figure 1). Hence, Pedersen discloses that kombucha could be prepared from various plant material including black tea. Hence, it would have been obvious to prepare kombucha from any plant material including tea as suggested by Pedersen .
The instant claims 7-12 recite the same process limitations as claims 6-10 and 12-13 of the copending Application No. 18/721,391.
The instant claims 7-12 recite the following limitations:
Claim 7. The method of claim 6 wherein the Pichia yeast is Pichia kluyveri.
Claim 8 The method of claim 7 wherein the Pichia yeast is Pichia kluyveri NYSC 5485 (CNCM I-5525).
Claim 9. The method of claim 6 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO:1-12.
Claim 10. The method of claim 6 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 11. The method of claim 6 comprising separating the aqueous verbena extract from the steeped verbena after fermentation.
Claim 12. The method of claim 6 wherein the steeped verbena, present during the fermentation of the aqueous verbena extract, is dried together with the aqueous verbena extract after fermentation.
Claim 6-10 and 12-13 of the copending Application No. 18/721,391 recite the following limitations:
Claim 7. The method of claim 6 wherein the Pichia yeast is Pichia kluyveri.
Claim 8. The method of claim 7 wherein the Pichia yeast is Pichia kluyveri NYSC 5485.
Claim 9. The method of claim 6 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO:1-12.
Claim 10. The method of claim 6 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 12. The method of any one of claims 6 to 11 claim 6 comprising separating the aqueous tea extract from the steeped tea after fermentation.
Claim 13. The method of claim 6 wherein the steeped tea, present during the fermentation of the aqueous tea extract, is dried together with the aqueous tea extract after fermentation.
Claims 6-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 7-10 and 12-13 of copending Application No. 18/721,362 in view of Pedersen (Kombucha: a Tasty Symbiotic Culture of Bacteria and Yeast) as discussed above.
This is a provisional nonstatutory double patenting rejection.
The instant claim 6 is directed to a method of preparing a beverage composition comprising;
a. steeping verbena in water to form an aqueous verbena extract and steeped verbena;
b. fermenting the aqueous verbena extract in the presence or absence of the steeped verbena; and
wherein the fermentation is performed by yeast comprising Pichia yeast.
Claim 7 of the copending Application No. 18/721,362 is directed to a method of preparing a beverage composition comprising:
a. steeping hemp in water to form an aqueous hemp extract and steeped hemp;
b. fermenting the aqueous hemp extract in the presence or absence of the steeped hemp; and
wherein the fermentation is performed by yeast comprising Pichia yeast and the beverage composition is a ready to drink beverage.
The difference between claim 6 of the instant application and claim 7 of the copending Application No. 18/721,362 is the nature of herb/plant used for steeping and further fermentation. However, as discussed above, Pedersen discloses preparation of a fermented beverage such as kombucha (page 1). Pedersen discloses adding verbena among other herbs and woods and boiling water to separate containers, “closed with a lid and left to infuse at room temperature with different infusing times for optimal flavour intensity” (Experiments section on page 2). Pedersen discloses that “[t]hese included dried yarrow flowers (1% w/v, 10 min.), juniper wood (5% w/v, 1 hour), dried chamomile (1% w/v, 10 min.), dried lemon verbena (1% w/v, 10 min.), dried woodruff (1% w/v, 10 min.) and dried cèpes (5% w/v, 12 hour). Dried kelp (2.3% w/v, 1 hour) was sealed in a vacuum bag and treated sous vide at 60 °C. To all solutions were added 50 g of sucrose” (Experiments section on page 2). Hence, Pedersen discloses that kombucha could be prepared from various plant material. Hence, it would have been obvious to prepare kombucha from any plant material as suggested by Pedersen including hemp.
The instant claims 7-12 recite the same process limitations as claims 8-10 and 12-13 of the copending Application No. 18/721,362.
The instant claims 7-12 recite the following limitations:
Claim 7. The method of claim 6 wherein the Pichia yeast is Pichia kluyveri.
Claim 8 The method of claim 7 wherein the Pichia yeast is Pichia kluyveri NYSC 5485 (CNCM I-5525).
Claim 9. The method of claim 6 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO:1-12.
Claim 10. The method of claim 6 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 11. The method of claim 6 comprising separating the aqueous verbena extract from the steeped verbena after fermentation.
Claim 12. The method of claim 6 wherein the steeped verbena, present during the fermentation of the aqueous verbena extract, is dried together with the aqueous verbena extract after fermentation.
Claim claims 8-10 and 12-13 of the copending Application No. 18/721,362 recite the following limitations:
Claim 8. The method of claim 7 wherein the Pichia yeast is Pichia kluyveri.
Claim 9. The method of claim 7 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO: 1-12.
Claim 10. The method of claim 7 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 12. The method of claim 7 comprising separating the aqueous hemp extract from the steeped hemp after fermentation.
Claim 13. The method of claim 7 wherein the steeped hemp, present during the fermentation of the aqueous hemp extract, is dried together with the aqueous hemp extract after fermentation.
Claims 6-12 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claims 6 and 9-12 of copending Application No. 18/722,711 in view of Pedersen (Kombucha: a Tasty Symbiotic Culture of Bacteria and Yeast) as discussed above.
This is a provisional nonstatutory double patenting rejection.
The instant claim 6, 7 and 8 are directed to a method of preparing a beverage composition comprising;
a. steeping verbena in water to form an aqueous verbena extract and steeped verbena;
b. fermenting the aqueous verbena extract in the presence or absence of the steeped verbena; and
wherein the fermentation is performed by yeast comprising Pichia yeast.
Claim 7. The method of claim 6 wherein the Pichia yeast is Pichia kluyveri.
Claim 8 The method of claim 7 wherein the Pichia yeast is Pichia kluyveri NYSC 5485 (CNCM I-5525).
Claim 6 of the copending Application No. 18/722,711 is directed to a method of preparing a beverage composition comprising fermenting an aqueous acerola extract wherein the fermentation is performed by yeast comprising Pichia yeast, the Pichia yeast being Pichia kluyveri NYSC 5485 (CNCM 1-5525).
The difference between claims 6-8 of the instant application and claim 6 of the copending Application No. 18/722,711 is the nature of herb/plant used for steeping and further fermentation. However, as discussed above, Pedersen discloses preparation of a fermented beverage such as kombucha (page 1). Pedersen discloses adding verbena among other herbs and woods and boiling water to separate containers, “closed with a lid and left to infuse at room temperature with different infusing times for optimal flavour intensity” (Experiments section on page 2). Pedersen discloses that “[t]hese included dried yarrow flowers (1% w/v, 10 min.), juniper wood (5% w/v, 1 hour), dried chamomile (1% w/v, 10 min.), dried lemon verbena (1% w/v, 10 min.), dried woodruff (1% w/v, 10 min.) and dried cèpes (5% w/v, 12 hour). Dried kelp (2.3% w/v, 1 hour) was sealed in a vacuum bag and treated sous vide at 60 °C. To all solutions were added 50 g of sucrose” (Experiments section on page 2). Hence, Pedersen discloses that kombucha could be prepared from various plant material. Hence, it would have been obvious to prepare kombucha from any plant material as suggested by Pedersen including acerola.
The instant claims 7-12 recite the same process limitations as claims 9-12 of the copending Application No. 18/722,711.
The instant claims 9-12 recite the following limitations:
Claim 9. The method of claim 6 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO:1-12.
Claim 10. The method of claim 6 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 11. The method of claim 6 comprising separating the aqueous verbena extract from the steeped verbena after fermentation.
Claim 12. The method of claim 6 wherein the steeped verbena, present during the fermentation of the aqueous verbena extract, is dried together with the aqueous verbena extract after fermentation.
Claim claims 9-12 of the copending Application No. 18/722,711 recite the following limitations:
Claim 9. (previously presented) The method of claim 6 wherein the Pichia yeast comprises a genetic sequence having a global nucleotide identity of at least 98% to the combination of SEQ IDs NO:1-12.
Claim 10. (previously presented) The method of claim 6 wherein the fermentation is performed in the absence of Saccharomyces cerevisiae.
Claim 11. (previously presented) The method of claim 6 comprising separating the aqueous acerola extract from the steeped acerola after fermentation.
Claim 12. The method of claim 6 wherein the steeped acerola, present during the fermentation of the aqueous acerola extract, is dried together with the aqueous acerola extract after fermentation.
Conclusion
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/VERA STULII/Primary Examiner, Art Unit 1791
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