DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The amendment filed July 20, 2026 has been entered. Claims 2, 3, 4 and 7 have been cancelled. Claims 1, 5, 6, 8 and 9 are pending.
The previous rejection of claim 7 under 35 U.S.C. 112 (b), claims 1, 4 and 8 under 35 U.S.C. 102(a)(1) as being anticipated by Takizawa (JP 2021114945) and claims 2 and 5-7 under 35 U.S.C. 103 as being unpatentable over Takizawa (JP 2021114945) has been withdrawn in light of Applicant’s amendment filed July 20, 2026 cancelling the claim.
Claim Rejections - 35 USC § 103
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, 5, 6, 8 and 9 are rejected under 35 U.S.C. 103 as being unpatentable over Ozaki (JP 2019180279 A JPO translation provided on IDS filed June 27, 2024) in view of Takizawa (JP 2021114945 A – JPO translation provided on IDS filed June 27, 2024).
Regarding claim 1, Ozaki discloses a packaged carbonated alcoholic beverage comprising a distilled beverage, a cool feeling imparting substance and limonene ([0001]-[0009], [0013]). Ozaki discloses wherein the cooling sensation imparting substance is menthol or a derivative thereof ([0009]/Item 4, [0020]-[0022]). Ozaki discloses the packaged carbonated alcoholic beverage comprises 0.1 to 1000 ppm (100 ppb to 1, 000,000 ppb of the cool feeling imparting substance ([0009]/item 2). While Ozaki et al. disclose adding the menthol or a derivative thereof in an amount slightly above the claimed range of 0.1 to 50 ppb, given the flavor properties of menthol and derivatives thereof are well known, it would have been obvious to one of ordinary skill in the art to have adjusted, in routine processing, the added amount of menthol, or derivative thereof, added to the distilled beverage to obtain a gin with a desired sensory profile.
Ozaki is silent with respect to gin.
Takizawa teaches a packaged carbonated alcoholic beverage comprising a distilled beverage, linalyl acetate and cineole (i.e., cooling sensation imparting substance)([0012]-[0016], [0021], [0025], [0034]). Takizawa teaches the carbonated alcoholic beverage is packaged in a can container (i.e., can -[0034]). Takizawa teaches the distilled beverage is gin, shochu, brandy, vodka and whisky ([0011]-[0012]).
Ozaki and Takizawa are combinable because they are concerned with the same field of endeavor, namely, packaged carbonated alcoholic beverages. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have used gin as the distilled beverage in the carbonated alcoholic beverage of Ozaki et al. because Takizawa teaches it was known to use gin as a distilled beverage in carbonated alcoholic beverages.
Regarding claims 5 and 6, modified Ozaki discloses all of the claim limitations as set for the above. Ozaki discloses the packaged carbonated alcoholic beverage has an alcohol content ranging from 4 to 15% (v/v) ([0009]/item 8). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05I).
Regarding claim 7, modified Ozaki discloses all of the claim limitations as set for the above. Ozaki discloses wherein the packaged carbonated alcoholic beverage has a sweetness of 2 or less ([0016]).
Regarding claim 8, modified Ozaki discloses all of the claim limitations as set forth above. While Ozaki discloses a packaged carbonated alcoholic beverage, the reference does not explicitly disclose the package is a can.
Takizawa teaches a packaged carbonated alcoholic beverage comprising a distilled beverage, linalyl acetate and cineole (i.e., cooling sensation imparting substance)([0012]-[0016], [0021], [0025], [0034]). Takizawa teaches the carbonated alcoholic beverage is packaged in a can container (i.e., can -[0034]).
Given Ozaki discloses a beverage that is packaged, since Takizawa teaches it was known to package similar carbonated alcoholic beverages in can containers (i.e., can), it would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present application to have packaged the carbonated alcoholic beverage of Ozaki in a can.
Regarding claim 9, Ozaki teaches a method of making a packaged carbonated alcoholic beverage wherein the method comprises the step of mixing a distilled spirit with a cooling sensation imparting substance ([0031]). Ozaki discloses wherein the cooling sensation imparting substance is menthol or a derivative thereof ([0009]/Item 4, [0020]-[0022]). Ozaki discloses the packaged carbonated alcoholic beverage comprises 0.1 to 1000 ppm (100 ppb to 1, 000,000 ppb of the cool feeling imparting substance ([0009]/item 2). In the case where the claimed ranges overlap or lie inside ranges disclosed by the prior art a prima facie case of obviousness exists (MPEP §2144.05I). While Ozaki et al. disclose adding the menthol or a derivative thereof in an amount slightly above the claimed range of 0.1 to 50 ppb, given the flavor properties of menthol and derivatives thereof are well known, it would have been obvious to one of ordinary skill in the art to have adjusted, in routine processing, the added amount of menthol, or derivative thereof, added to the distilled beverage to obtain a gin with a desired sensory profile.
Ozaki is silent with respect to gin.
Takizawa teaches a packaged carbonated alcoholic beverage comprising a distilled beverage, linalyl acetate and cineole (i.e., cooling sensation imparting substance)([0012]-[0016], [0021], [0025], [0034]). Takizawa teaches the carbonated alcoholic beverage is packaged in a can container (i.e., can -[0034]). Takizawa teaches the distilled beverage is gin, shochu, brandy, vodka and whisky ([0011]-[0012]).
Ozaki and Takizawa are combinable because they are concerned with the same field of endeavor, namely, packaged carbonated alcoholic beverages. It would have been obvious to one of ordinary skill in the art prior to the effective filing date of the present invention to have used gin as the distilled beverage in the carbonated alcoholic beverage of Ozaki et al. because Takizawa teaches it was known to use gin as a distilled beverage in carbonated alcoholic beverages.
Response to Arguments
Applicant's arguments filed July 20, 2026 have been fully considered but they are not persuasive.
Applicant submits Ozaki teaches “the content of cooling sensation imparting material is, for example 01-1000 ppm” and is “most preferable 20 to 60 ppm.” Applicant argue “Ozaki does not teach or suggest the now-recited “0.1 to 50 ppb” content of menthol or a derivative thereof” because “Ozaki’s disclosed lower limit of 0.1 ppm corresponds to 100 ppb.”
While Ozaki teaches adding slightly more menthol or a derivative thereof to their carbonated alcoholic beverage, since Ozaki disclose the menthol or derivative thereof is intended to impart a cooling sensation, one of ordinary skill in the art prior to the effective filing date of the present application would have adjusted, in routine processing the amount of menthol or derivative thereof, to add to the carbonated alcoholic drink to obtain a desired level of cooling and sensory profile.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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ELIZABETH A. GWARTNEY
Primary Examiner
Art Unit 1759
/ELIZABETH GWARTNEY/Primary Examiner, Art Unit 1759
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