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 .
DETAILED ACTION
Status of Claims
Claims 1-7 are pending and currently under examination and the subject matter of the present Office Action.
Information Disclosure Statement
The information disclosure statements (IDS) submitted on 12/03/2025, 11/17/2025, and 08/26/2024 are in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statements were considered by the Examiner.
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 6 and 7 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.
Claim 6 is rejected for indefiniteness for the recitation of “raw materials”. Under a broadest reasonable interpretation (BRI), words of the claim must be given their plain meaning, unless such meaning is inconsistent with the specification. See MPEP 2111.01. In this case, the instant Specification states that “The raw materials include eriocitrin or raw materials containing eriocitrin (fruit juice, flavorings, and the like) and other raw materials such as water. Other raw materials are obvious from the above-mentioned description for the beverage” [0042]. The specification gives other examples of liquid for dilution “such as water, soft drink, or tea” [0022]. The phrase "such as" does not limit or define the bounds of “raw materials”. Additionally, stating that “other raw materials are obvious” is open to interpretation and considered subjective. Lastly, although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. “Raw materials" should be given its plain and ordinary meaning, and “should not be construed in such a way as to improperly limit the claims to specific disclosed embodiments…and a person of ordinary skill in the art would broadly interpret the claim language consistent with the broad statements in the Specification.” See MPEP 2111.01 I and II. As such, it is unclear what is included and excluded in the claimed “raw materials”, making the metes and bounds of the claim unclear and the claim indefinite.
The term “finely” in reference to the grinding of the frozen product in Claim 7 is a relative term which renders the claim indefinite. The term “finely”” is not defined by the claim, the specification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. As above, the Specification only gives examples of preferred particle sizes, i.e. “preferably about 1 to about 1000 µm, more preferably about 1 to about 200 µm, and more preferably about 1 to about 100 µm”, but does not particularly limit the size [0034]. The term “preferably” does not define the bounds or the scope of what is being claimed by the “finely ground”. As such, the metes and bounds of the claim unclear and the claim indefinite.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 1-2, 4, and 6 are rejected under 35 U.S.C. 102(a)2 as being anticipated by Ichimura et al. (US 20180279653 A1, cited in the IDS), hereinafter Ichimura.
Ichimura discloses a flavorful acidic citrus fruit juice-containing beverage comprising naringin, hesperidin, eriocitrin, narirutin, neohesperidin, and rutin (Abstract; Claim 1).
Regarding Claims 1 and 6, Ichimura expressly teaches examples of beverages with total fruit juice content of between 4.6% to 5.2% which is within the claimed ranges (Table 1, Ex 1-5 and Ex 8-10). Different beverages were prepared by changing the amounts of lemon juice, orange juice, grapefruit juice, and water as appropriate, which implies that these juices are mixed together ([0074], Table 1). The eriocitrin content in Ex 1-5 and Ex 8-10 is between 15-23.7 mg/kg, which is equivalent to 15-23.7 ppm, and is within the claimed ranges. The Examiner gives the broadest reasonable interpretation to “alcohol content of 15.0 v/v% or less” to include zero alcohol. Ichimura does not teach alcohol in the beverage composition, and therefore reads on this feature. As such, Claims 1 and 6 are anticipated.
Regarding Claim 2, Ichimura teaches lemon, grapefruit, and orange, and expressly teaches citrus fruit (Table 1; Claim 5).
Regarding Claim 4, Ichimura teaches carbonated beverage, which indicates inclusion of carbon dioxide ([0020], [0069], [0072], [0074], [0077]; Comparative Examples 5-6 and 8).
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, 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 3, 5, and 7 are rejected under 35 U.S.C. 103(a) as being unpatentable over Ichimura, as applied to Claims 1-2, 4, and 6 above, and in view of Taniguchi et al. (US 8,163,319 B2), hereinafter Taniguchi.
Ichimura does not teach alcohol in the beverage composition.
Regarding Claim 3, Taniguchi is in the same field of interest and discloses the preparation of alcohol-dipped material for producing low alcohol drinks (Col. 1, lines 14-20). Taniguchi discloses the method of producing a food or drink comprising: (a) freezing one or more fruits and/or vegetables; (b) micro grinding the frozen fruit and/or vegetable; (c) dipping the ground fruit/vegetable in a 15% to 100% alcohol to obtain a dipping solution; (d) including the dipping solution as an ingredient of the food or drink (Claim 1). The amount of alcohol overlaps with the claimed alcohol range in Claim 1. In the case where the claimed ranges "overlap or lie inside ranges disclosed by the prior art", a prima facie case of obviousness exists. See MPEP 2144.05. Because Taniguchi teaches the processes (a)-(d), Taniguchi also renders obvious Claims 5.
Regarding Claim 7, Tanaguchi has taught the steps of (a) freezing one or more fruits and/or vegetables; (b) micro grinding the frozen fruit and/or vegetable; (c) dipping the ground fruit/vegetable in alcohol to obtain a dipping solution, which reads on the feature of immersing the ground product in the alcohol-containing liquid; (d) including the dipping solution as an ingredient of the food or drink.
Taniguchi teaches its methods employ citrus fruit, and the resulting alcohol dipping solution comprises eriocitrin, making it compatible with Ichimura (Claims 2 and 4; Table 2). It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Taniguchi with that of Ichimura and use the method of Taniguchi, utilizing alcohol starting at 15% to prepare an alcoholic solution with citrus fruit in preparing a low alcoholic beverage version of the beverage drink of Ichimura.
Claims 1-7 are rejected under 35 U.S.C. 103(a) as being unpatentable over Matsumoto et al. (US 2020/0371779 A1, cited in the IDS), hereinafter Matsumoto.
Regarding Claims 1-3 and 6, Matsumoto discloses the invention of an alcoholic beverage containing 5-25 ppm eriocitrin and alcohol content of 1-15 v/v%, the amounts of which overlaps with the claimed ranges for these claimed components (Abstract; Claims 1 and 3). Matsumoto teaches inclusion of a citrus fruit juice in the alcoholic beverage at amounts preferably 0.01 to 30%, or 20% or less, 10% or less, and further 5% or less. Matsumoto expressly teaches the production of citrus alcoholic beverage comprising eriocitrin (Experiment 2; Table 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. See MPEP 2144.05.
Regarding Claim 4, Matsumoto teaches carbonated beverage containing carbon dioxide [0075]-[0077].
Regarding Claims 5 and 7, Matsumoto acknowledges the known technique of production of alcoholic beverage by micro-griding raw whole fruit while frozen, and dipping the ground fruit in alcohol, as well as production of beverage by including juices of flavorful acidic citrus fruits and citrus flavonoids. [0003].
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to prepare a citrus alcoholic beverage according to the teaching of Matsumoto, and arrive at the claimed method and beverage with reasonable expectations of success. One with ordinary skill in the art would have applied the known technique of freezing citrus fruit, grinding the frozen fruit, and dipping in alcohol, and preparing an alcoholic fruit juice beverage comprising eriocitrin based on the technique taught by Matsumoto. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Conclusion
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached on M-F, 10-6 EST.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached on (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/JANICE Y SILVERMAN/Examiner, Art Unit 1792
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