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 § 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) in view of WO 2017/073704 (cited on Information Disclosure Statement filed July 9, 2024).
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. 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 and 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. 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).
Claim 6 is 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) in view of WO 2017/073704 (cited on Information Disclosure Statement filed July 9, 2024) as applied to claim 1 above in further view of Alcohol Infusions “Brandy Highball” <https://alcoholinfusions.com/brandy-highball/> (published June 27, 2017) (herein referred to as “Alcohol Infusions”).
Regarding Claim 6, WO 2017/073704 discloses the alcohol flavored beverage containing alcohol having an alcohol content that can be freely adjusted (‘704 Machine Translation, Pages 10 and 16). CN 1048778885 modified with WO 2017/073704 is silent regarding the alcoholic beverage having an alcohol content of 1 to 16% 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.
Both CN 1048778885 and Alcohol Infusions are directed towards the same field of endeavor of alcoholic beverages, specifically 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.
Response to Arguments
Examiner notes that the previous Claim Objections have been withdrawn in view of the amendments.
Applicant’s arguments with respect to the previous indefiniteness rejections under 35 USC 112(b) have been fully considered and are persuasive.
Applicant argues on Pages 5-6 of the Remarks that the phrase “acidity of the beverage in terms of citric acid” does not necessarily require that the beverage contain citric acid and that “in terms of citric acid” identifies how the acidity value is calculated. Applicant continues that Claim 8 separately recites that the beverage comprises citric acid and that Claim 8 is narrower than Claim1 in that Claim 8 positively requires the citric acid while Claim 1 requires the recited acidity value in terms of citric acid. Applicant asserts that “in terms of citric acid” in Claim 1 defines the basis for expressing the measured acidity value. These explanations render the claims clear. Therefore, the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn.
Applicant’s arguments with respect to the previous obviousness rejections of Claim 1 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Applicant makes comments on Page 10 regarding allegedly unexpected results and applicant points to Table 1, Sample 5, Table 2, Samples 10-12, and Table 4B, Samples 30-31.
With respect to Table 1, Sample 5, this sample contains gallic acid, which is not claimed. This sample does not contain the claimed syringic acid. Applicant points to sample data that is not commensurate in scope with the claimed invention.
With respect to Table 2, Samples 10-12, these samples also contains gallic acid, which is not claimed. These samples do not contain the claimed syringic acid. Applicant points to sample data that is not commensurate in scope with the claimed invention.
With respect to Table 4B, Samples 30-31, Sample 30 has a pH of 3.3, which falls outside of the claimed beverage pH of 3.5 or more and less than 5.0. Sample 30 is not commensurate in scope with the claimed invention. Sample 31 contains gallic acid, syringaldehyde, and vanillin as well as the claimed syringic acid. Sample 31 is also not commensurate in scope with the claimed invention. Also, the claims do not specify any particular astringency properties. Applicant attempts to provide data that is not commensurate in scope with the claimed invention. Furthermore, to establish unexpected results over a claimed range, applicants should compare a sufficient 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.). Applicant has not pointed to any data outside of the claimed range of syringic acid content of 0.01 to 3 ppm. Furthermore, 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, applicant’s allegations of unexpected results in not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Saad et al. US 2024/0392220 discloses a brandy replica comprising one or more non-volatile compounds that are present in a corresponding traditional brandy wherein syringic acid is a non-volatile compound that can be excluded from the brandy replica (‘220, Paragraph [0118]) wherein additional non-volatile compounds present in the brandy like alcoholic beverage includes pH modifying salts (‘220, Paragraph [0119]).
Decolongon et al. US 2023/0110221 discloses a sake replica comprising phenolic compounds of syringic acid (‘221, Paragraph [0206]) and one or more non-volatile compounds of a pH modifying salt (‘221, Paragraph [0022]).
Shulman et al. US 2022/0112451 discloses a bourbon replica comprising syringic acid (‘451, Paragraph [0335]) in an amount of about 0.4 to about 31 mg/L (‘451, Paragraph [0374]) and a particular example wherein the bourbon like alcoholic beverage comprising syringic acid in an amount of less than about 1.2 mg/L (‘451, Paragraph [0740]) wherein the bourbon like alcoholic beverage comprising a non-volatile compound of a pH modifying salt (‘451, Paragraph [0068]).
Shulman et al. US 2022/0010248 discloses a scotch like alcoholic beverage comprising syringic acid (‘248, Paragraph [0071]) and citric acid (‘248, Paragraph [0072]) wherein the syringic acid is present in an amount of about 0.02 to about 31 mg/L (‘248, Paragraph [0409]) wherein the scotch like alcoholic beverage comprising a non-volatile compound of a pH modifying salt (‘248, Paragraph [0076]).
Chua et al. US 2021/0253985 discloses a Moscato replica comprising syringic acid and citric acid (‘985, Paragraph [0279]) and a pH modifying salt of potassium hydroxide (‘985, Paragraph [0411]) wherein the potassium hydroxide is present in an amount such that the pH of the Moscato like alcoholic beverage is about 3.0 to 4.0 (‘985, Paragraph [0393]).
Chua et al. US 2021/0198603 discloses an alcoholic beverage replica comprising syringic acid and citric acid (‘603, Paragraph [0289]) wherein the one or more non-volatile compounds includes syringic acid in an amount of about 0.01 mg/L to about 32 mg/L (‘603, Paragraph [0339]).
Nutrients Review “pH Values of Common Beverages and Foods” <https://web.archive.org/web/20160718151850/https://www.nutrientsreview.com/articles/ph-beverages-foods.html> (archived July 18, 2016) discloses the common pH values of various alcoholic beverages (Nutrients Review, Page 3).
Tsakiris et al. “Grape brandy production, composition and sensory evaluation” (published August 28, 2013) discloses new brandies having a pH between 4 and 5 while during maturation the pH falls to 3.5 wherein the total acidity of brandies is initially due to the presence of volatile acids such as acetic acid wherein acetic acid content increases during ageing by oxidation of ethyl alcohol wherein total acidity progressively increases due to the extraction of phenols from oak casks wherein phenols are weak acids that gradually create a fixed acidity (Tsakiris et al., Page 409).
Fredrich “Plain Spoke Cocktail Co. releases first canned Brandy Old Fashioned cocktail” <https://onmilwaukee.com/articles/plain-spoke-canned-brandy-old-fashioned> (published November 5, 2019) discloses a canned brandy old fashioned cocktail (Fredrich, Pages 1-2).
The prior art made of record, cited on a previous 892 Notice of References Cited list, and not relied upon is considered pertinent to applicant's disclosure.
Shulman et al. US 2021/0340474 discloses a whiskey like alcoholic beverage comprising one or more non-volatile compounds of syringic acid and citric acid (‘474, Paragraph [0137]) and a pH modifying salt (‘474, Paragraph [0172]).
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 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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