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 (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 14-15, 32-34 and 36 are rejected under 35 U.S.C. 103 as being unpatentable over United States Patent No. 2014/0342043 (BELL) (cited in IDS of 3/23/2018).
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Regarding claims 14-15, BELL teaches a zero-calorie beverages [0007]. The beverage is un-carbonated [0006].
Citric acid is used as an acidulant that lends tartness to the taste of the beverage, enhances palatability, increases thirst quenching effect, modifies sweetness and acts as a mild preservative [0065].
The sweetener compositions and the beverage products may include one or more other steviol glycosides along with the rebaudioside M, e.g., rebaudioside A, rebaudioside B, rebaudioside C, rebaudioside D, rebaudioside E, stevioside, steviolbioside, dulcoside A, or mixtures of any two or more of them [0031]. Thus, it would have been obvious to provide a quaternary blend.
BELL does not teach a beverage with the specific amounts for all of the claimed rebaudiosides However, BELL does teach the sweetening ingredients may consist of from 50% by weight to 99.9% by weight rebaudioside M and from 0.1% by weight to 50% by weight of the other high intensity sweeteners [0036]. Claim 14 recites that the rebaudioside M is in an amount of 55 to 65% by weight. Thus, BELL teaches a range for rebaudioside M that encompasses that claimed. The claimed rebaudiosides A, B, and D are in a cumulative amount of 23% to 55% by weight (i.e., 9% to about 20% rebaudioside A; 5% about 15% rebaudioside B; and 9% to about 20%rebaudioside D). Thus, BELL teaches general ranges for other sweeteners such as rebaudiosides A, B, and D that overlap that cumulative amounts claimed.
Moreover, the ingredients are sweeteners. It would have been obvious to have to vary the rebaudiosides in a beverage composition based on the desired level of sweetness.
The claimed invention is directed to a recipe for a beverage. The applicant is also respectfully reminded that while food items are patentable, the culinary creativity of chefs is not the type of creativity which meets the standards for patentability. See General Mills v. Pillsbury Co.,378 F.2d 666 (8th Cir.1967) (first commercially successful one step mix for angel food cakes is not patentable because of nonobviousness standard since alleged invention is only the exact proportion of an already known leavening agent). In this regard, courts have taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In re Levin, 178 F.2d 945, 948 (C.C.P.A.1949) (butter substitute not patentable).
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BELL teaches ready-to-drink beverage products include coffee beverages, tea beverages, enhanced waters, and fruit juice [0047].
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Regarding claims 33 and 34, BELL teaches that caffeine is optional [0077]. The beverage product further comprises one or more ingredients selected from the group consisting of vitamins and minerals [0040].
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BELL does not teach the temperature of the beverage. However, it would have been obvious to serve/consume the beverage chilled and/or store the beverage at room temperature (4oC = 29.2oF to 25oC=77oF ).
Response to Arguments
Applicant's arguments filed 9/3/2025 have been fully considered but they are not persuasive.
The applicant argues that the claimed beverages possesses superior taste and sensory properties to comparative beverages wherein the recited quaternary blends of rebaudioside are replaced with ternary blends of the rebaudiosides at the same total concentration.
In support of these results, the applicant cites the Declaration of Dr. Juvenal Higiro filed 4/7/2022.
The Declaration and arguments cite to Example 1 of the present specification and the following table:
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This is found at the bottom of page 6 of applicant’s arguments.
However, as noted above, BELL does teach the desirability of adding multiple sweeteners [0031]. Moreover, it is noted that applicant’s results only show the benefit of adding an additional sweetener. There is no evidence to suggest that the claimed ranges are unexpected (i.e., comparative evidence showing the specific ranges/amounts are critical). Thus, the declaration and arguments are not commensurate in scope with the arguments of the Declaration or applicant’s arguments.
Moreover, while the applicant argues that the claims recite a quaternary blend whereas BELL is limited to ternary blends. However, the overall teachings of the reference show that sweetener compositions and the beverage products may include one or more other steviol glycosides along with the rebaudioside M, e.g., rebaudioside A, rebaudioside B, rebaudioside C, rebaudioside D, rebaudioside E, stevioside, steviolbioside, dulcoside A, or mixtures of any two or more of them [0031].
It would have been obvious to add more than three sweeteners.
“It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980) (citations omitted) (Claims to a process of preparing a spray-dried detergent by mixing together two conventional spray-dried detergents were held to be prima facie obvious.). See also In re Crockett, 279 F.2d 274, 126 USPQ 186 (CCPA 1960) (Claims directed to a method and material for treating cast iron using a mixture comprising calcium carbide and magnesium oxide were held unpatentable over prior art disclosures that the aforementioned components individually promote the formation of a nodular structure in cast iron.); and Ex parte Quadranti, 25 USPQ2d 1071 (Bd. Pat. App. & Inter. 1992) (mixture of two known herbicides held prima facie obvious). **
Conclusion
THIS ACTION IS MADE FINAL. 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 PHILIP A DUBOIS whose telephone number is (571)272-6107. The examiner can normally be reached M-F, 9:30-6:00p.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached on 571-270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/PHILIP A DUBOIS/Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791