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 .
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 and 4 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.
Amended Claims 3 and 4 are now rendered indefinite in light of the narrower range amendment to Claim 1, where the ranges recited in Claims 3 and 4 fall outside of the amended range in Claim 1, as Claim 1 provides for only one of the alcohols being present in the recited range. Therefore, the metes and bounds of the two claims are rendered indefinite for search and consideration purposes.
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 1-18 are rejected under 35 U.S.C. 103 as being unpatentable over Matsuda et al. (JP 2016-136882) in view of Talebi (USPA 2017/0086482), both previously made of record.
A machine translation of the JP document is cited below and was previously made of record by the Examiner.
Regarding amended Claims 1, 3, 4, 7, Matsuda teaches a beverage comprising: a steviol glycoside and isoamyl alcohol, where a content of isoamyl alcohol is 5.5-55ppm (Paragraphs 6, 7, 23 of machine translation), which overlaps with the claimed amended ranges of isoamyl alcohol, and where Matsuda teaches the sweetener can include stevia and rebaudioside A, both of which are steviol glycosides as recited in amended Claim 1. Claim 4 is also met by the prior art as Claims 1 and 4 do not require isobutanol in the beverage. Matsuda also teaches the beverage has an alcohol content of 0.5v/v% or more and less than 3.0 v/v% (Paragraph 9), which is within the amended range.
Regarding amended Claims 1, 2 and 6, specifically, Matsuda does not specifically teach an amount of rebaudioside A in the beverage of 5mg/L or more relative to the beverage or in the range of 5mg/L to 600 mg/L relative to the beverage.
Talebi teaches natural beverage products which can be an alcoholic beverage and can be carbonated (Paragraph 12), comprising at least one steviol glycoside as Talebi teaches rebaudioside A, along with acidulants comprising lactic, tartaric and citric acids (Paragraph 7). Talebi teaches the sweetener used is preferably non-nutritive, natural beverage ingredient which provides sweetness to the beverage, i.e. which is perceived as sweet by the sense of taste (Paragraph 15) and teaches that non-nutritive high potency sweeteners like rebaudioside A are typically used at a level of mg per fluid oz of beverage, according to their sweetening power and the desired level of sweetness of the beverage (Paragraph 21). Talebi teaches the beverages have a pH in the range of 2 to about 5 (Paragraph 24). Talebi teaches the beverages have 250ppm rebaudioside A (Claim 28), which is equivalent to 250mg/L or 0.025% w/v, which meets the limitation in amended Claim 1 of steviol glycosides in an amount of 5mg/L or more and within the range in amended Claim 2, relative to the beverage. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention for the alcoholic beverage of Matsuda to have had an amount of rebaudioside A meeting the claimed amount in light of the teaching of Talebi of similar beverages having similar components and pH profiles that include an amount of rebaudioside A for sweetening of the beverage. In addition, it would have been well within the skill of one of ordinary skill in the art to have optimized the amount of sweetener used in the beverages, depending on the sweetness profile desired.
Regarding amended Claim 5, as set forth above Matsuda as motivated by Talebi teach and render obvious using 250 ppm/250mg/L of rebaudioside A and Matsuda teaches 5.5-55 mg/L of isoamyl alcohol in the beverage, where the amount of steviol glycosides is about 4.5 times the content of isoamyl alcohol in weight ratio, which is within the claimed range.
Regarding amended Claims 8 and 9, Matsuda in view of Talebi teaches a carbonated or sparkling beverage and where the beverage has a pH of less than 4.5, and more specifically in the range of 3.0 to 4.0 (Matsuda, Paragraphs 7, 25, 26, 29), which is within the claimed range.
Regarding amended Claim 10, as set forth above Matsuda in view of Talebi teach rebaudioside A as the steviol glycoside used, and Talebi teaches that rebaudioside A is about 300 times as sweet as sucrose (Paragraph 16). Applicant discloses that sweetness intensity is calculated by multiplying the relative sweetness by the concentration of rebaudioside A in the beverage (Paragraph 59 of the instant specification PG Publication). Therefore, 300*0.025% w/v concentration of rebaudisoide A in beverage according to Talebi = 7.5 for sweetness intensity, which is within the claimed range.
Regarding amended Claim 11, Matsuda in view of Talebi teaches the beverage includes organic acids including citric, tartaric, lactic acids, etc. at an amount of 1000 ppm (Matsuda, Paragraph 7), which is equivalent to 1000 mg/L and 0.1% w/v, which is within the claimed range.
Regarding amended Claim 12, as set forth above Matsuda in view of Talebi teach or render obvious a sweetness intensity of 7.5 and Matsuda teaches the beverage includes organic acids including citric, tartaric, lactic acids, etc. at an amount of 1000 ppm (Paragraph 7), which is equivalent to 1000 mg/L and 0.1% w/v, which is within the claimed range. Therefore, the ratio of sweetness intensity to acidity can be calculated to be 7.5/0.1 = 75, which is within the claimed range.
Regarding amended Claim 13, Matsuda in view of Talebi teaches the beverage can include a combination of sweeteners, including other high intensity sweeteners such as those disclosed, along with rebaudioside A (Matsuda, Paragraph 23-24).
Regarding amended Claim 14, Matsuda in view of Talebi teaches the low alcohol beverage can include distilled alcohol as a raw material or alcohol obtained through a brewing process or a fruit-soaked wine or combinations thereof (Matsuda, Paragraph 9), therefore teaching at least one of the claimed types of liquor.
Regarding amended Claim 15, since Matsuda in view of Talebi teaches the sweetener can include a high intensity sweetener as all of the sweetener (Matsuda, Paragraph 23), Matsuda is understood to teach a beverage having an energy content as claimed. In addition, where Matsuda specifically fails to teach the beverage has an energy of 100kcal/100ml or less, Talebi teaches the use of non-nutritive sweeteners, as set forth above, and teaches that they do not provide significant caloric content in typical usage amounts, i.e. where they impart less than 5 calories per 8 oz (236 ml) serving (Paragraph 17). Therefore, according to the calories per 8 oz serving or 236 ml serving, this would be equivalent to less than 2 calories per 100ml serving, and is understood to meet the limitation of a beverage having less than 100kcal/100ml or less, as claimed. Therefore, the claimed caloric content of a beverage including rebaudioside A as the non-nutritive natural sweetener would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in light of the teachings of Talebi
Regarding amended Claim 16, Matsuda in view of Talebi teaches the beverage can include fruit juices including fruit, fruit juice, vegetable pieces or vegetable juice, or herbs (Matsuda, Paragraph 27), therefore teaching at least the beverage has a fruit vegetable flavored taste, as claimed.
Regarding amended Claim 17, Matsuda in view of Talebi teaches the beverage is a packaged beverage (Matsuda, Paragraph 7).
Regarding amended Claim 18, Matsuda in view of Talebi fails to teach a 1.2 to 10 fold concentrate for providing the beverage as claimed.
Talebi teaches the beverages can be in ready to drink formulations as well as concentrates and typically full strength beverages can be prepared from the concentrates by combining approximately 1 part concentrate to between 3 and 7 parts water (Paragraph 12), which meets the limitation of approximately a 1 fold concentrate for providing a beverage. The disclosed value of “approximately 1 part concentrate” renders obvious the claimed “1.2 fold” concentrate as the term “approximately” provides for values above and below the disclosed amount. Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have provided the beverage as a ready to drink or concentrate, depending on the final application desired.
Response to Arguments
The Examiner has withdrawn the 102 rejection in light of Applicant’s claim amendments and has rejected all of the claims over the combination of Matsuda in view of Talebi for the reasons set forth above. Therefore, Applicant’s arguments relating to the 102 rejections in moot in light of the rejection being withdrawn. However, Applicant's arguments regarding the rejection of the claims over the combination of references have been fully considered but they are not persuasive for the following reasons. Applicant argues that Matsuda teaches the beverage may optionally contain a steviol glycoside and includes no examples with the combination. However, since Matsuda clearly provides for the combination of a steviol glycoside in a beverage containing isoamyl alcohol, the rejection is maintained. The MPEP states, "Applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others." In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967).
Regarding Applicant’s assertions of unexpected benefits with the claimed combination of isoamyl alcohol/isobutanol and a steviol glycoside, several points are noted by the Examiner. Firstly, the amounts of the alcohol component and the specific steviol glycoside would appear to both be critical and must be commensurate in scope with the unexpected results shown. While Applicant’s amended range for the claimed alcohol in Claim 1 of 10 mg/L to 300 mg/L appears to be a critical range with the scope of the unexpected benefits, Claim 1 also recites a list of steviol glycosides, where only Rebaudioside A, D, and M were shown to have the disclosed benefits, and the amended amount of 5 mg/L or more of the one or more steviol glycosides does not appear to show the unexpected results asserted. Rather, Applicant’s Tables in the specification would appear to show that it is a range of 33 to 500mg/L that is critical to showing the unexpected results in the disclosed and claimed beverages. Additionally, the lower limit of 2mg/L for the isoamyl and isobutanol alcohols as recited in amended Claims 3 and 4 is not commensurate in scope with Applicant’s assertions of unexpected results. Therefore, for the above mentioned reasons, the Examiner is not persuaded by patentability of the claims at this time and the office action is made final and deemed proper.
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 JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/ Primary Examiner, Art Unit 1791 10/6/2026
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