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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-11, in the reply filed on July 20, 2026 is acknowledged.
Claims 12-15 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected product, there being no allowable generic or linking claim.
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 and 5-11 are rejected under 35 U.S.C. 103 as being unpatentable over Chandrasekhar et al. (Production of low alcohol beer and alcohol-free beer using a combination of high temperature mashing and cold contact fermentation, Ferment, Institute of Brewing, GB, vol 7., no. 4, Jan. 1, 1994, pages 241-244; made of record by applicant) in view of Kubota (WO 2021/005816 A1; Jan. 14, 2021).
Regarding claim 1, Chandrasekhar discloses a method of producing an alcohol-free beer, the method comprising:
providing a 2 or 20 L vessel containing wort having a gravity of 5-20 P, thus falling within the claimed range of 5-25 P,
inoculating the wort with yeast at a concentration of 30 million viable cells per ml, thus falling within the claimed range of at least 105 cells/mL,
fermenting the wort at a temperature 2-12 C of for a period of 6 days, thus overlapping the claimed temperature of -3 to 5 C and falling within the claimed period of at least 8 hours, and
separating the fermented wort from the yeast to produce alcohol-free beer (page 242 under Fermentation).
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 2144.05 I)
With respect to the vessel containing at least 10 hL of wort, as stated above, Chandrasekhar teaches 2 or 20 L vessels, which are much smaller. However, it would have been obvious to use a larger vessel in order to produce a larger amount of beer. This is merely scaling up a known process that is capable of scaled up (SEE MPEP 2144.04 IV A). One of ordinary skill in the art would have selected a vessel containing at least 10 hL of wort in the method of Chandrasekhar if a larger amount of beer was desired to be produced.
Chandrasekhar discloses inoculating with yeast, but fails to specifically teach allowing the yeast to form a settled layer on the bottom of the vessel or a floating layer below the surface of the wort.
The examiner notes, however, that forming a settled layer or floating layer would be dependent on the type of yeast used. Kubota discloses a process for producing a low or non-alcohol beer, wherein the wort is fermented with yeast that can be top-fermenting yeast or bottom-fermenting yeast. Kubota further teaches that yeasts are appropriately selected according to the composition and flavor of the target wort fermented liquid (Derwent Abstract).
It would have been obvious to one of ordinary skill in the art to use a top-fermenting yeast (e.g. floating layer) or bottom-fermenting yeast (e.g. settled layer) in the process of Chandrasekhar depending on the composition and flavor of the target wort fermented liquid as taught by Kubota.
As Chandrasekhar teaches that the wort is inoculated with yeast at a concentration of 30 million viable cells per ml, Chandrasekhar meets step (iii) as the yeast is inoculated with at least 3x106 yeast cells per mL of wort at the beginning of fermentation (page 242 under Fermentation). Steps (i) and (ii) are recited in the alternative and are therefore not required.
Chandrasekhar further teaches that the method does not comprise addition of Strecker aldehydes.
Regarding claims 5-6, as stated above, Kubota discloses a process for producing a low or non-alcohol beer, wherein the wort is fermented with yeast that can be top-fermenting yeast or bottom-fermenting yeast. Kubota teaches that the yeast ca be Saccharomyces cerevisiae or Saccharomyces pastorianus (Derwent Abstract). It would have been obvious to one of ordinary skill in the art to use Saccharomyces cerevisiae or Saccharomyces pastorianus (Derwent Abstract) in the process of Chandrasekhar depending on the composition and flavor of the target wort fermented liquid as taught by Kubota.
Regarding claim 7, as stated above, Kubota discloses a process for producing a low or non-alcohol beer, wherein the wort is fermented with yeast that can be bottom-fermenting yeast. Kubota further teaches that yeasts are appropriately selected according to the composition and flavor of the target wort fermented liquid (Derwent Abstract).
It would have been obvious to one of ordinary skill in the art to use a bottom-fermenting yeast (e.g. settled layer on bottom of fermenter) in the process of Chandrasekhar depending on the composition and flavor of the target wort fermented liquid as taught by Kubota.
Regarding claim 8, Chandrasekhar discloses inoculating with yeast, but fails to teach the layer of yeast having a thickness of at least 0.1 mm. However, it would have been obvious to vary the amount of yeast and/or fermenter size to result in a layer of yeast having a thickness of at least 0.1 mm. Determining the optimum layer of thickness for the yeast is merely an obvious variant over the prior art and would have been obvious to do in order to result in a desired fermentation process.
Regarding claim 9, as stated above with respect to claim 1, Chandrasekhar teaches pitching yeast one time to ferment the wort, but fails to further teach 1 to 100 pitchings of additional yeast in a dosage of 105 to 5x106 yeast cells per mL or wort in interval times ranges from 0.5 to 50 hours.
However, it would have been obvious to perform additional pitchings of yeast at a desired concentration within a desired time interval depending on the targeted flavor of the beer as well as ensuring the fermentation process comprises enough yeast to be efficient and complete the fermentation so as to form the fermented non-alcoholic beer (MPEP 2144.04).
Regarding claim 10, Chandrasekhar further teaches that after inoculation, the wort is aerated by inversion twenty times (page 242), which is considered to be a disruption to the yeast layer and falls within the claimed 1 to 1,000 disruptions.
With respect to the time interval between the inoculation and the first disruption, Chandrasekhar fails to specifically teach the time of the 20 aerations, however, it would have been obvious to one of ordinary skill in the art to vary the time between the disruptions in order to effectively aerate the wort as needed.
As stated in MPEP 2144.05: "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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding claim 11, as stated above, Chandrasekhar teaches that the yeast layer is disrupted 20 times, but again fails to teach the disruption being continuous over a period of at least 0.5 hours. It would have been obvious to one of ordinary skill in the art to continuously disrupt the yeast layer over a period of at least 0.5 hours in order to effectively aerate the wort as needed.
As stated in MPEP 2144.05: "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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Claims 2-4 are rejected under 35 U.S.C. 103 as being unpatentable over Chandrasekhar et al. (Production of low alcohol beer and alcohol-free beer using a combination of high temperature mashing and cold contact fermentation, Ferment, Institute of Brewing, GB, vol 7., no. 4, Jan. 1, 1994, pages 241-244; made of record by applicant) and Kubota (WO 2021/005816 A1; Jan. 14, 2021) as applied to claim 1 above, and further in view of Gernat et al. (US 2021/0189306 A1; June 24, 2021).
Regarding claims 2-4, Chandrasekhar discloses the process as described above with respect to claim 1, but fails to teach the wort having at least 20 ug/L of 2-methylbutanal, at least 40 ug/L of 3-methylbutanal, and at least 16 ug/L of methional.
Gernat discloses a non-alcoholic fermented beer, wherein the heat wort comprises at least 2 ug/L of 2-methylbutanal, at least 4 ug/L of 3-methylbutanal, and at least 2 ug/L of methional ([0076]), which overlaps the claimed ranges. 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 2144.05 I)
As Gernat discloses that it is well known in the art for wort to comprise at least 2 ug/L of 2-methylbutanal, at least 4 ug/L of 3-methylbutanal, and at least 2 ug/L of methional ([0076]), it would have been obvious for the wort of Chandrasekhar to comprises similar amounts of 2-methylbutanal, 3-methylbutanal, and methional as taught by Gernat as Gernat teaches that such amounts are suitable for a wort in producing a non-alcoholic beer, which is the same purpose as Chandrasekhar.
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to STEPHANIE A KOHLER whose telephone number is (571)270-1075. The examiner can normally be reached Monday-Friday 8am-5pm.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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