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 Objections
Claims 14, 27, and 37 are objected to because of the following informalities:
Claim 14 starts phrases with uppercase instead of lowercase letters.
Claim 27 starts phrases with uppercase instead of lowercase letters.
Claim 37 starts phrases with uppercase instead of lowercase letters. Appropriate correction is required.
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 14-16, 19, 20, 23, 25-28, 32, 34, 36-38, 42, 44 and 46 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.
The phrase “with or without … flavor active materials” in claim 14, lines 2-3 is vague and indefinite as it is unclear anything in the phrase is required.
Regarding claim14, the phrase "such as" renders the claim indefinite because it is unclear whether the limitations following the phrase are part of the claimed invention. See MPEP § 2173.05(d).
Claim 14 recites the limitation "the mixture" in line 4. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “adding yeast …” in claim 14, lines 6-8 is vague and indefinite as it is unclear what the yeast is being added to.
The phrase “with or without … combinations thereof” in claim 14, lines 6-8 is vague and indefinite as it is unclear anything in the phrase is required.
Claim 14 recites the limitation "the mixture" in line 9. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “or other … the mixture” in claim 14, lines 11-12 is vague and indefinite as it is unclear anything in the phrase is required.
Claim 14 recites the limitation "the mixture" in line 12. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 14 recites the limitation "the mixture" in line 13. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 14 recites the limitation "said mixture" in line 14. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “ABV” in claim 15, line 2 is vague and indefinite. Applicant is advised to consider setting forth the unabbreviated text in the first instance.
Claim 15 recites the limitation "the boil time" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “boil time”.
The phrase “ABV” in claim 16, line 2 is vague and indefinite. Applicant is advised to consider setting forth the unabbreviated text in the first instance.
Claim 16 recites the limitation "the boil time" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “boil time”.
Claim 16 recites the limitation "the finished product" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “finished product”.
Claim 19 recites the limitation "the aldehyde product" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “aldehyde product”.
Claim 19 recites the limitation "said mixture" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 20 recites the limitation "the mouthfeel" in line 1. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mouthfeel”.
Claim 20 recites the limitation "said mixture" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 20 recites the limitation "the addition" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “addition”.
Claim 23 recites the limitation "the flavor" in line 1. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “flavor”.
Claim 23 recites the limitation “the psychoactive or/or physiological makeup” in lines 4-5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “the psychoactive or/or physiological makeup”.
Claim 23 recites the limitation "said mixture" in line 5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 23 recites the limitation "the addition" in line 5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “addition”.
Claim 23 recites the limitation "the additions" in line 9. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “additions”.
Claim 23 recites the limitation "said mixture" in line 10. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “traditional” in claim 26, line 3 is vague and indefinite as it is unclear what is the difference between materials that are traditional and materials that are not traditional.
The phrase “with or without … flavor active materials” in claim 27, lines 2-4 is vague and indefinite as it is unclear anything in the phrase is required.
Claim 27 recites the limitation "the mixture" in line 5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “or other … said mixture” in claim 27, lines 7-8 is vague and indefinite as it is unclear anything in the phrase is required.
Claim 27 recites the limitation "said mixture" in line 9. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 27 recites the limitation "said mixture" in line 10. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 27 recites the limitation "said mixture" in line 11. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “ABV” in claim 28, line 2 is vague and indefinite. Applicant is advised to consider setting forth the unabbreviated text in the first instance.
Claim 32 recites the limitation "the aldehyde product" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “aldehyde product”.
Claim 32 recites the limitation "the fermentation time" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “fermentation time”.
Claim 34 recites the limitation "the flavor" in line 1. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “flavor”.
Claim 34 recites the limitation "said mixture" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 34 recites the limitation "the addition" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “addition”.
Claim 34 recites the limitation “the psychoactive or/or physiological makeup” in lines 4-5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “the psychoactive or/or physiological makeup”.
Claim 34 recites the limitation "said mixture" in line 5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 34 recites the limitation "the addition" in line 5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “addition”.
Claim 34 recites the limitation "said mixture" in line 10. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “traditional” in claim 23, line 3 is vague and indefinite as it is unclear what is the difference between materials that are traditional and materials that are not traditional.
The term “rapid” in claim 27, line 1 is a relative term which renders the claim indefinite. The term “rapid” 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. A person having ordinary skill in the art prior to the earliest effective filing date may interpret a method as being rapid while another may interpret the same method as not being rapid.
The phrase “with or without … active materials” in claim 37, lines 2-4 is vague and indefinite as it is unclear anything in the phrase is required.
Claim 37 recites the limitation "said mixture" in line 5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “with or without … combinations thereof” in claim 37, lines 7-9 is vague and indefinite as it is unclear anything in the phrase is required.
Claim 37 recites the limitation "the mixture" in line 10. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “or other … said mixture” in claim 37, lines 12-13 is vague and indefinite as it is unclear anything in the phrase is required.
Claim 37 recites the limitation "the mixture" in line 14. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 37 recites the limitation "the mixture" in line 15. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 37 recites the limitation "said mixture" in line 16. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “ABV” in claim 38, line 2 is vague and indefinite. Applicant is advised to consider setting forth the unabbreviated text in the first instance.
Claim 42 recites the limitation "the aldehyde product" in lines 1-2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “aldehyde product”.
Claim 42 recites the limitation "the fermentation time" in line 3. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “fermentation time”.
Claim 44 recites the limitation "the flavor" in line 1. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “flavor”.
Claim 44 recites the limitation "said mixture" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
Claim 44 recites the limitation "the addition" in line 2. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “addition”.
Claim 44 recites the limitation “the psychoactive or/or physiological makeup” in lines 4-5. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “the psychoactive or/or physiological makeup”.
Claim 44 recites the limitation "said mixture" in line 10. There is insufficient antecedent basis for this limitation in the claim. Applicant is advised to consider earlier stating “mixture”.
The phrase “traditional” in claim 46, line 3 is vague and indefinite as it is unclear what is the difference between materials that are traditional and materials that are not traditional.
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)(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.
Claim(s) 14, 15, 19 and 20 is/are rejected under 35 U.S.C. 102(a)(2) as being anticipated by Hasenkrug (EP 2380967).
The phrases “with or without …” language in the claims is interpreted as optional.
The phrase “holding … 0.00 hours … 0-75°C” in claim14, lines 9-10 is interpreted as not limiting per the “0.00 hours” language.
The phrase “adding maltodextrin or other adjuncts, water, lactic acid and hop solution to
the mixture” in claim 1, lines 11-12 is interpreted providing for the addition of water or optionally including other ingredients.
Regarding claim 14, Hasenkrug (‘967) teaches a method for producing a beverage (See Abs., claims.) comprising the steps of: a. mixing malt and water (See claims.), b. heating the mixture to at least 70°C for at least 20 minutes (See p. 3, l. 4+, p. 6, l. 17+, claims at least 78°C, 70°C-76°C, boil for 45 minutes.), then cooling to a range of 0-35°C (See p. 3, l. 4+, p. 6, l. 17+, claims, cooling to 17°C and prior to consumption.) c. adding yeast (See p. 3, l. 4+, p. 6, l. 17+, claims.); d. holding the mixture (See p. 3, l. 4+, p. 6, l. 17+, claims.) e. adding water (See p. 3, l. 4+, p. 6, l. 17+, claims.) f. heating the mixture to boiling (See p. 3, l. 4+, p. 6, l. 17+, claims.); and then g. cooling said mixture (See p. 3, l. 4+, p. 6, l. 17+, claims.).
Regarding claim 15, Hasenkrug (‘967) teaches wherein the beverage contains 0.00% to 0.49% alcohol ABV by controlling the boil time (See p. 3, l. 4+, p. 6, l. 17+, claims, non-alcoholic beverage.).
Regarding claim 19, Hasenkrug (‘967) teaches wherein the aldehyde content and/or flavor-positive components of said mixture are controlled by allowing zero to partial fermentation by yeast during production (See p. 3, l. 4+, p. 6, l. 17+, claims wherein no positive process is set forth as fermentation is not required.).
Regarding claim 20, Hasenkrug (‘967) teaches wherein the mouthfeel of said mixture or beverage is controlled by the addition of proteinaceous peptides (See p. 3, l. 4+, p. 6, l. 17+, claims wherein no positive process is set forth as there is no positive step of addition of proteinaceous peptides but rather what can be controlled up the addition of proteinaceous peptides.).
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.
Claim(s) 16, 23, 25 and 26 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hasenkrug (EP 2380967) in view of Dziondziak (US 4,882,177).
Regarding claim 16, Hasenkrug (‘967) teaches the method discussed above including controlling the boil time to achieve a desired final level of alcohol in the finished product, however, fails to expressly teach wherein the beverage contains 0.50% alcohol - 15% alcohol ABV.
Dziondziak (‘177) teaches a method of making a beverage like Hasenkrug (‘967) where one can blend normal beer with alcohol-free beer until a desired alcohol concentration of alcohol is reached (See col. 5, ll. 26-31.).
It would have been foreseeable and obvious prior to the earliest effective filing date with Hasenkrug (‘967) and Dziondziak (‘177) before them to blend normal beer with Hasenkrug’s (‘967) beer to provide a beer of desired alcohol concentration, including a concentration as claimed, that satisfies a customer’s requirement. Adjusting the amount to blend would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 23, Hasenkrug (‘967) teaches the method discussed above, however, fails to expressly disclose wherein the flavor of said mixture or beverage is altered by the addition of a material selected from the group consisting of hop oil, hop extract, specialty malt, natural flavor, artifical flavor and combinations thereof, and/or wherein the and/or psychoactive and/or physiological makeup of said mixture or beverage is altered by the addition of a material selected from the group consisting of caffeine, protein, vitamin supplements, mineral supplements, kombucha, herbs, teas, spices, beer, wine, spirits, terpenes, cannabinoids, synthetic cannabinoids, mushrooms, psilocybin containing mushrooms, peyote, ayahuasca, mescaline and combinations thereof, and wherein the additions provide flavor and/or physiological and/or mind altering reactions to said mixture or beverage.
Dziondziak (‘177) teaches a method of making a beverage like Hasenkrug (‘967) where one can blend normal beer with alcohol-free beer until a desired alcohol concentration of alcohol is reached (See col. 5, ll. 26-31.).
It would have been foreseeable and obvious prior to the earliest effective filing date with Hasenkrug (‘967) and Dziondziak (‘177) before them to blend normal beer with Hasenkrug’s (‘967) beer to provide a beer of desired alcohol concentration that satisfies a customer’s requirement. Adjusting the amount to blend would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 25, Hasenkrug (‘967) teaches the method discussed above, however, fails to expressly disclose wherein alcohol is added to said beverage to create alcoholic beer in a time frame that is more rapid than traditional methods of fermentation.
No basis is set forth of what is a traditional method, thus, any subjective method can serve as a comparison.
Dziondziak (‘177) teaches a method of making a beverage like Hasenkrug (‘967) where one can blend normal beer with alcohol-free beer until a desired alcohol concentration of alcohol is reached (See col. 5, ll. 26-31.).
It would have been foreseeable and obvious prior to the earliest effective filing date with Hasenkrug (‘967) and Dziondziak (‘177) before them to blend normal beer with Hasenkrug’s (‘967) beer to provide a beer of desired alcohol concentration that satisfies a customer’s requirement. Adjusting the amount to blend would have been within the skill set of a person having ordinary skill in the art.
Regarding claim 26, Hasenkrug (‘967) teaches the method discussed above, however, fails to expressly disclose wherein wine, kombucha, seltzer, alcohol-free, non-alcoholic or alcoholic mixtures or beverages are produced in a time frame that is more rapid than traditional methods.
No basis is set forth of what is a traditional method, thus, any subjective method can serve as a comparison.
Dziondziak (‘177) teaches a method of making a beverage like Hasenkrug (‘967) where one can blend normal beer with alcohol-free beer until a desired alcohol concentration of alcohol is reached (See col. 5, ll. 26-31.).
It would have been foreseeable and obvious prior to the earliest effective filing date with Hasenkrug (‘967) and Dziondziak (‘177) before them to blend normal beer with Hasenkrug’s (‘967) beer to provide a beer of desired alcohol concentration that satisfies a customer’s requirement. Adjusting the amount to blend would have been within the skill set of a person having ordinary skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to BRENT T O'HERN whose telephone number is (571)272-6385. The examiner can normally be reached M-Th 5:00 am - 3:30 pm.
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/BRENT T O'HERN/ Primary Examiner, Art Unit 1793 July 23, 2026
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