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 .
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on September 18, 2026 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on September 18, 2026 was filed after the mailing date of the Office Action mailed on June 24, 2026. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1 and 7-8 are rejected under 35 U.S.C. 103 as being unpatentable over CN 104877885 (cited on and previously furnished with the Office Action mailed April 29, 2026) as further evidenced by Anderberg “A Primer on Brandy” <https://www.artofmanliness.com/culture/food-drink/a-primer-on-brandy/> (published December 5, 2019) (herein referred to as “Anderberg”) in view of WO 2017/073704 (cited on Information Disclosure Statement filed July 9, 2024), Alcohol Infusions “Brandy Highball” <https://alcoholinfusions.com/brandy-highball/> (published June 27, 2017) (herein referred to as “Alcohol Infusions”), and Zielinski “Alternative Acids: How and Why to Use Them in Cocktails” <https://www.liquor.com/alternative-acids-4843480> (published April 28, 2020) (herein referred to as “Zielinski”).
It is noted that Alcohol Infusions was previously cited to and furnished in the Office Action mailed June 24, 2026.
Regarding Claim 1, CN 104877885 discloses an alcoholic beverage (jujube brandy) comprising syringic acid at a content of 3-4 mg/L (‘885 Machine Translation, Paragraph [0025]), which overlaps the claimed syringic acid content of 0.01 to 3 ppm. It is noted that 1 mg/L converts to 1 ppm. Therefore, CN 104877885 discloses the alcoholic beverage (jujube brandy) comprising syringic acid at a content of 3-4 ppm. Anderberg provides evidence that it was known in the food and beverage art that brandy is the overarching term for any spirit that has been distilled from fermented fruit juice and then aged in oak barrels for a minimum of two years (Anderberg, Page 2). Applicant discloses brandy spirits is a type of distilled liquor/spirit (Specification, Paragraph [0026]). Therefore, the jujube brandy disclosed by CN 104877885 reads on the claimed distilled liquor as evidenced by Anderberg and applicant’s disclosure. CN 104877885 also discloses the alcoholic beverage (jujube brandy) having a pH of 4.0-4.5 (‘885 Machine Translation, Paragraph [0025]), which falls within the claimed beverage pH of 3.5 or more and less than 5.0. Where the claimed syringic acid content and beverage pH ranges overlaps syringic acid and beverage pH ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.).
CN 104877885 is silent regarding the alcoholic beverage being packaged, the acidity of the beverage in terms of citric acid being from 0.41 g/100 mL to 0.60 g/100 mL, and the alcoholic beverage having an alcohol content of 3 to 10% v/v.
Alcohol Infusions discloses a packaged (bottled) alcoholic beverage (brandy) diluted with ginger ale or carbonated water (Alcohol Infusions, Page 2) to produce an 8% alcohol content beverage (Alcohol Infusions, Page 3), which falls within the claimed alcohol content of 1 to 16% v/v.
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Both CN 1048778885 and Alcohol Infusions are directed towards the same field of endeavor of alcoholic beverages. Both CN 1048778885 and Alcohol Infusions disclose a specific embodiment of brandy. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the alcoholic beverage of CN 1048778885 and dilute the alcoholic beverage to the claimed alcohol content levels of the beverage as taught by Alcohol Infusions since where the claimed alcohol content ranges overlaps alcohol content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the alcohol content of the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such alcohol content of the beverage is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art at the time of the invention would adjust the alcohol content of the beverage based upon the desired alcohol levels by a particular consumer. Additionally, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the alcoholic beverage of CN 104877885 and package the alcoholic beverage in a bottle since Alcohol Infusions teaches that it was known and conventional to package alcoholic beverages. Additionally, packaged alcoholic beverages makes it easier to store and transport the alcoholic beverages for later consumption.
Further regarding Claim 1, CN 104877885 modified with Alcohol Infusions is silent regarding the acidity of the beverage in terms of citric acid being from 0.41 g/100 mL to 0.60 g/100 mL.
WO 2017/073704 discloses a packaged alcoholic beverage (‘704 Machine Translation, Page 13) wherein the alcoholic beverage is brandy (‘704 Machine Translation, Page 6) comprising pH adjusters (‘704 Machine Translation, Page 12) and an acid imparting substance that is not particularly limited and includes citric acid (‘704 Machine Translation, Pages 12-13). WO 2017/073704 further discloses the acidity of the beverage in terms of citric acid is not limited but can be 0.02 to 0.4 g/100 mL (‘704 Machine Translation, Page 13), which is close to but does not overlap the claimed range of acidity of the beverage in terms of citric acid of from 0.41 g/100 mL to 0.60 g/100 mL. WO 2017/073704 also discloses the alcoholic beverage comprising pH adjusters (‘704 Machine Translation, Page 12).
Both CN 104877885 and WO 2017/073704 are directed towards the same field of endeavor of acidic alcoholic beverages. Both CN 104877885 and WO 2017/073704 teach a specific embodiment of the alcoholic beverage being brandy. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the alcoholic beverage of CN 104877885 and adjust the acidity of the beverage to the claimed acidity of the beverage in terms of citric acid that is nearly explicitly taught by WO 2017/073704 since a prima face case of obviousness exists where the claimed acidity of the beverage in terms of citric acid ranges or amounts do not overlap with the prior art but are merely close in view of Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (MPEP § 2144.05.I.). Furthermore, differences in the acidity of the beverage in terms of citric acid will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such acidity of the beverage in terms of citric acid is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). WO 2017/073704 discloses the acidity of the beverage in terms of citric acid is not limited (‘704 Machine Translation, Page 13). Applicant admits on Page 5 of the Remarks dated June 17, 2026 that the phrase “acidity of the beverage in terms of citric acid” identifies how the acidity value is calculated, i.e. refers to a measurement technique that identifies the acidity level of the beverage. WO 2017/073704 discloses the beverage having pH adjusters (‘704 Machine Translation, Page 12). One of ordinary skill in the art at the time of the invention would adjust the alcoholic beverage of CN 104877885 to have the desired acidity levels for a particular consumer. Additionally, Zielinski discloses acid is one of the most important elements in creating a balanced cocktail wherein acid in cocktails traditionally comes in the form of citrus or vermouth wherein acid adjusting is adjusting the acidity level of an ingredient, generally one that already contains some acid, to a level that provides balance in a cocktail wherein an acid powder is added for additional acidity to ensure the liquid is acidic enough to balance the sweet components of the cocktail (Zielinski, Page 2). One of ordinary skill in the art would also adjust the acidity of the alcoholic beverage of CN 104877885 based upon the desired balance of sweet components in the cocktail as suggested by Zielinski. Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the alcoholic beverage of CN 104877885 and package the alcoholic beverage since WO 2017/073704 teaches that it was known and conventional to package alcoholic beverages. Additionally, packaged alcoholic beverages makes it easier to store and transport the alcoholic beverages for later consumption.
Regarding Claim 7, WO 2017/073704 discloses the alcoholic beverage comprising carbon dioxide (‘704 Machine Translation, Pages 17-18).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the alcoholic beverage of CN 104877885 and incorporate carbon dioxide as taught by WO 2017/073704 to create a synergistic that improves the depth of flavor of the spirits (‘704 Machine Translation, Pages 17-18) and based upon the desired mouthfeel by a particular consumer.
Regarding Claim 8, WO 2017/073704 discloses the alcoholic beverage comprising an acid imparting substance of citric acid (‘704 Machine Translation, Pages 12-13).
It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the alcoholic beverage of CN 104877885 and incorporate an acid imparting substance of citric acid as taught by WO 2017/073704 since the selection of a known material (citric acid) based on its suitability for its intended use (to adjust the pH of alcoholic beverages) supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07).
Response to Arguments
Applicant's arguments filed September 18, 2026 have been fully considered but they are not persuasive.
Applicant argues on Page 4 of the Remarks that CN 104877885 does not disclose the recited acidity of the beverage in terms of citric acid of from 0.41 g/100 mL to 0.60 g/100 mL and does not disclose a packaged beverage or an alcohol content of the jujube brandy and therefore does not teach the recited alcohol content of 3 to 10% v/v of amended Claim 1.
Examiner argues the secondary reference is being relied upon to teach the limitations regarding the alcohol content of 3 to 10% v/v. The secondary references of WO 2017/073704 and Zielinski are being relied upon to render obvious the limitations regarding the claimed acidity levels. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 5-6 of the Remarks that WO 2017/073704 discloses acidity values of 0.02 to 0.4 g/100 mL with 0.05 to 0.3 g/100 mL identified as preferred and Test Examples 4-5 report results only for acidity adjusted within 0.05 to 0.3 g/100 mL and that every disclosed value including the highest value of 0.4 g/100 mL is below the lower limit of 0.41 g/100 mL recited in amended Claim 1 and that the preferred range disclosed by WO 2017/073704 ends at 0.3 g/100 mL, which is below the lower limit. Applicant continues that WO 2017/073704 provides no reason for one skilled in the art to raise the acidity above the ranges that WO 2017/073704 itself discloses and identifies as preferred. Applicant also asserts that the statement in WO 2017/073704 that the acidity is not limited is immediately qualified by the disclosed range of 0.02 to 0.4 g/100 mL and the preferred range is 0.05 to 0.03 g/100 mL. Applicant continues that a rejection premised on routine optimization requires findings of fact and an articulated explanation of why one of ordinary skill in the art would have arrived at the recited ranges with a reasonable expectation of success and that WO 2017/073704 allegedly identifies no relationship between acidity above 0.4 g/100 mL and any recognized result and the applied references provide no direction toward the recited acidity of from 0.41 g/100 mL to 0.60 g/100 mL.
Examiner argues disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art including nonpreferred embodiments in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). WO 2017/073704 broadly discloses the acidity in terms of citric acid derived from the acid imparting substance in the alcohol flavored beverage is not limited (‘704 Machine Translation, Page 13, lines 8-11). The secondary reference of Zielinski teaches acid is one of the most important elements in creating a balanced cocktail (Zielinski, Page 2) and that there is a balance between sugar, spirit, and acid (Zielinski, Page 6). Alcohol Infusions already discloses the diluted alcoholic beverage being a cocktail having a balanced flavor between sugar, brandy, bitters, and acid in the form of lemon (Alcohol Infusions, Page 4). One of ordinary skill in the art would adjust the alcoholic beverage of modified CN 104877885 and adjust the acidity of the beverage in terms of citric acid since the acidity of the beverage is not limited as taught by WO 2017/073704 and to create balance between the sugar, spirit, and acid as taught by Zielinski. It is noted that the claims do not specify any particular sugar/sweetness levels of the alcoholic beverage. Therefore, these arguments are not found persuasive.
Applicant argues on Page 7 of the Remarks that CN 104877885 describes no alcohol content for its jujube brandy and that obtaining a beverage having an alcohol content of 3 to 10% v/v from such a distilled spirit requires substantial dilution. Applicant continues that diluting an alcoholic beverage of brandy with ginger ale or carbonated water taught by Alcohol Infusions to produce an 8% alcohol content beverage would correspondingly reduce the acidity of the diluted beverage and the substantial dilution required to obtain the recited alcohol content of 3 to 10% v/v would allegedly yield an acidity far below the recited range of from 0.41 g/100 mL to 0.60 g/100 mL.
Examiner notes that the secondary reference of Alcohol Infusions is being relied upon to render obvious the claimed alcohol content concentration. The claims do not specify any particular water content of the alcoholic beverage. The secondary references of WO 2017/073704 and Zielinski are being relied upon to render obvious the limitations regarding the claimed acidity levels. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 7-8 of the Remarks that WO 2017/073704 describes the alcohol content can be freely adjusted, for example 1% v/v or alternatively the alcoholic beverage may be non-alcohol and is therefore outside the recited alcohol content of 3 to 10% v/v.
Examiner argues that WO 2017/073704 is being relied upon to render obvious the limitations regarding the claimed acidity levels and is not being relied upon to render obvious the claimed alcohol content. The secondary reference of Alcohol Infusions is being relied upon to render obvious the claimed alcohol content via dilution of a distilled liquor, e.g. brandy. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, this argument is not found persuasive.
Examiner notes that applicant may rebut a prima facie case of obviousness based on optimization of a variable disclosed in a range in the prior art by showing that the claimed variable was not recognized in the prior art to be a result effective variable in view of E.I. Dupont de Nemours & Company v. Synvina C.V., 904 F.3d 996, 1008, 128 USPQ2d 1193, 1202 (Fed. Cir. 2018) (MPEP § 2144.05.III.A.). However, in the present instance, the current rejection already states that Zielinski discloses acid is one of the most important elements in creating a balanced cocktail wherein acid in cocktails traditionally comes in the form of citrus or vermouth wherein acid adjusting is adjusting the acidity level of an ingredient, generally one that already contains some acid, to a level that provides balance in a cocktail wherein an acid powder is added for additional acidity to ensure the liquid is acidic enough to balance the sweet components of the cocktail (Zielinski, Page 2). One of ordinary skill in the art would also adjust the acidity of the alcoholic beverage of CN 104877885 based upon the desired balance of sweet components in the cocktail as suggested by Zielinski. The burden is on applicant to establish results are unexpected and significant (MPEP § 716.02(b).I.). To establish unexpected results over a claimed range, applicants should compare a number of tests both inside and outside the claimed range to show the criticality of the claimed range in view of In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960) (MPEP § 716.02(d).II.). Although applicant does not argue that the specification provides any unexpected properties of the claimed invention, Examiner notes that whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support in view of In re Clemens, 622 F.2d 1029, 1036, 206 USPQ 289, 296 (CCPA 1980) (MPEP § 716.02(d)). Claim 1 recites a syringic acid content of 0.01 to 3 ppm and acidity of the beverage in terms of citric acid is from 0.41 g/100 mL to 0.60 g/100 mL. The only examples in the disclosure containing syringic acid in the claimed concentrations are shown in Table 4B, Samples 28 and 30-31 relative to Comparative Examples 27 and 29. However, Samples 28 and 30 (as well as Comparative Examples 27 and 29) have an acidity of between 0.25-0.3 that falls below the claimed acidity of 0.41 to 0.60 g/100 mL. Only Example 31 having an acidity of 0.5 falls within the claimed acidity of 0.41 to 0.60 g/100 mL. There is no data showing an alcoholic beverage containing syringic acid in the claimed concentration comparing the properties of acidity of the beverage in terms of citric acid above the claimed concentration of 0.41 g/100 mL to 0.60 g/100 mL. It is unknown how the alcoholic beverages containing the claimed syringic acid having acidity levels above the claimed acidity concentrations would behave. Applicant has not provided any data showing the alleged unexpected results and/or improved properties of varying the concentration of citric acid to the claimed citric acid concentration of a syringic acid containing alcoholic beverage.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Taylor “Managing pH and TA in wine” <https://vinmetrica.com/managing-ph-and-ta-in-wine/> (published August 27, 2021) discloses the ability of a buffer to resist changes in pH has to do with the log term of a ratio of the salt and acid forms wherein diluting wine or any buffer solution with pure water does not change the pH unless diluted by several thousand fold before you expect to see any increase in its pH (Taylor, Page 6).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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