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, 15-18, 20-22, 26-31, and 33 are rejected under 35 U.S.C. 103 as being unpatentable over Carlson et al. US 2016/0198750 in view of Huber et al. US 4,001,453, Jia et al. US 2010/0178389, and Prakash et al. US 2014/0271996.
Regarding Claim 1, Carlson et al. discloses a beverage (‘750, Paragraphs [0358] and [0360]) comprising one or more synthetic sweeteners such as neohesperidin dihydrochalcone (‘750, Paragraph [0090]) and one or more natural high potency sweeteners such as siamenoside I (‘750, Paragraph [0091]). The synthetic sweetener such as neohesperidin dihydrochalcone is present in a concentration of from about 0.3 ppm to about 3500 ppm (‘750, Paragraph [0090]), which encompasses the claimed dihydrochalcone synthetic sweetener concentration of from about 5 ppm to about 35 ppm. The natural high potency sweetener of siamenoside is present in a concentration from about 0.1 ppm to about 3000 ppm (‘750, Paragraph [0091]), which encompasses the claimed siamenoside I concentration of about 50 ppm to about 300 ppm. In the case where the claimed dihydrochalcone synthetic sweetener concentration and siamenoside concentration encompasses dihydrochalcone synthetic sweetener concentrations and siamenoside concentrations 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 concentration of the dihydrochalcone and concentration of the siamenoside sweetener in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the dihydrochalcone and siamenoside 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 would adjust the amount of the dihydrochalcone and sweetener of siamenoside present in the beverage depending upon the desired level of sweetness desired by a particular consumer. Carlson et al. also disclose the beverage comprising citric acid (‘750, Paragraphs [0034] and [0360]), propylene glycol (‘750, Paragraph [0410]), and water (‘750, Paragraphs [0034] and [0412]).
Carlson et al. discloses the synthetic sweetener using neohesperidin dihydrochalcone specifically (‘750, Paragraph [0090]). However, Carlson et al. is silent regarding the dihydrochalcone being hesperetin dihydrochalcone4-β-D-glucoside.
Huber et al. discloses a sweetening composition consisting of or containing a dihydrochalcone sweetening agent (‘453, Column 1, lines 55-60) used to sweeten food and beverages (‘453, Column 2, lines 25-41) wherein the dihydrochalcone sweetening agent is neospheridin dihydrochalcone (‘453, Column 1, lines 64-68) or hesperetin dihydrochalcone glucoside (‘453, Column 4, lines 4-14). Jia et al. discloses a sweetened beverage (‘3859, Paragraph [0021]) comprising neohesperidin dihydrochalcone (‘389, Paragraph [0071]) and HDG (herperetin dihydrochalcone-4”beta-D-glucoside) in a concentration of from about 1 to 50 ppm (‘389, Paragraphs [0004] and [0067]), which encompasses the claimed hesperetin dihydrochalcone-4’β-D-glucoside concentration of about 5 ppm to about 35 ppm.
Carlson et al., Huber et al., and Jia et al. are all directed towards the same field of endeavor of beverages comprising a type of dihydrochalcone sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Carlson et al. and instead of using the neohesperidin dihydrochalcone synthetic sweetener in the beverage of Carlson et al. to use hesperetin dihydrochalcone as taught by Huber et al. and Jia et al. since the selection of a known material based on its suitability for its intended use 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). Huber et al. and Jia et al. both teach that there was known utility in the beverage art to utilize hesperetin dihydrochalcone as a sweetener in a beverage. Furthermore, the simple substitution of one known element (neohesperidin dihydrochalcone) for another (hesperetin dihydrochalcone) to obtain predictable results (to sweeten a beverage) is prima facie obvious (MPEP § 2143.I.). Furthermore, in the event that it can be argued that the disclosure of Carlson et al. teaching the synthetic sweetener of neohesperidin dihydrochalcone is present in a concentration of from about 0.3 ppm to about 3500 ppm (‘750, Paragraph [0090]) does not teach the dihydrochalcone concentration of the beverage with sufficient specificity, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Carlson et al. and use a concentration of hesperetin dihydrochalcone-4’β-D-glucoside of about 1 ppm to about 50 ppm by weight of the beverage (‘389, Paragraph [0067]) as taught by Jia et al., which encompasses the claimed hesperetin dihydrochalcone-4’β-D-glucoside concentration of from about 5 ppm to about 35 ppm, since where the claimed ranges overlaps 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 concentration of the hesperetin dihydrochalcone-4’β-D-glucoside in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the hesperetin dihydrochalcone-4’β-D-glucoside 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 would adjust the amount of the hesperetin dihydrochalcone-4’β-D-glucoside present in the beverage depending upon the desired level of sweetness desired by a particular consumer. Furthermore, a prima facie obviousness of the claimed hesperetin dihydrochalcone is based on the structural similarity of Carlson et al. modified with Huber et al. and Jia et al. in view of In re Schechter, 205 F.2d 185, 191, 98 USPQ 144, 150 (CCPA 1953) (MPEP § 2144.08.II.A.4.(e)).
Further regarding Claim 1, in the event that it can be argued that the disclosure of Carlson et al. teaching the natural high potency sweetener of siamenoside is present in a concentration of about 0.1 ppm to about 3000 ppm (‘750, Paragraph [0091]) does not teach the siamenoside concentration of the beverage with sufficient specificity, Prakash et al. discloses a beverage (‘996, Paragraph [0002]) comprising a dihydrochalcone (‘996, Paragraph [0278]) and a sweetener of siamenoside in a concentration of about 100 ppm or less (‘996, Paragraph [0078]), which overlaps the claimed siamenoside concentration of about 50 ppm to about 300 ppm.
Both modified Carlson et al. and Prakash et al. are directed towards the same field of endeavor of beverages comprising a dihydrochalcone and a sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the siamenoside sweetener concentration of the beverage of modified Carlson et al. and incorporate a sweetener of siamenoside I as taught by Prakash et al. since where the claimed sweetener concentration encompasses sweetener concentrations 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 concentration of the siamenoside sweetener in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the siamenoside sweetener 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 would adjust the amount of the siamenoside sweetener present in the beverage depending upon the desired level of sweetness desired by a particular consumer.
Further regarding Claim 1, the limitations “wherein the beverage has more mouthfeel compared to the same beverage without hesperetin dihydrochalcone-4’-β-D-glucoside” are limitations with respect to the properties of the claimed beverage. Where the claimed and prior art products are identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Since Carlson et al. modified with Huber et al., Jia et al., and Prakash et al. teaches a beverage having hesperetin dihydrochalcone-4’-β-D-glucoside, one or ordinary skill in the art would expect the beverage of modified Carlson et al. that contains hesperetin dihydrochalcone-4’-β-D-glucoside to behave in the same manner as claimed, i.e. the beverage has more mouthfeel compared to the same beverage without hesperetin dihydrochalcone-4’-β-D-glucoside. Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, since the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present (MPEP § 2112.01.II.).
Regarding Claim 15, Carlson et al. discloses the beverage having up to about 40 calories per 8 ounce serving (less than 40 calories per 8 oz serving) (‘750, Paragraph [0099]).
Regarding Claim 16, Carlson et al. discloses the beverage having less than about 5 calories per 8 ounce serving (‘750, Paragraph [0099]).
Regarding Claim 17, Carlson et al. discloses the beverage being cola, fruit flavored sparkling beverage, ginger ale, soft drinks, root beer, and fruit juice (‘750, Paragraph [0358]).
Regarding Claim 18, Carlson et al. discloses the beverage being a zero calorie (‘750, Paragraphs [0099] and [0388]) fruit flavored sparkling beverage (lemon lime flavored sparkling beverage) (‘750, Paragraph [0358]).
Regarding Claim 20, Carlson et al. discloses the beverage comprising water (‘750, Paragraph [0358]) and/or caffeine (‘750, Paragraphs [0115] and [0367]).
Regarding Claim 21, Carlson et al. discloses the sweetener comprising siamenoside I (‘750, Paragraph [0091]).
Regarding Claim 22, Carlson et al. discloses the sweetener comprising siamenoside (‘750, Paragraph [0091]). Carlson et al. discloses using a generic siamenoside but does not explicitly disclose the sweetener comprising the 1,6-α isomer of siamenoside I specifically. However, a prima facie obviousness of the claimed siamenoside I is based on the structural similarity of Carlson et al. modified with Delattre et al. and Prakash et al. in view of In re Schechter, 205 F.2d 185, 191, 98 USPQ 144, 150 (CCPA 1953) (MPEP § 2144.08.II.A.4.(e)).
Regarding Claim 26, Carlson et al. discloses a beverage (‘750, Paragraphs [0358] and [0360]) comprising a dihydrochalcone synthetic sweetener (‘750, Paragraph [0090]) and a sweetener of a steviol glycoside of rebaudioside M (‘750, Paragraph [0091]). The dihydrochalcone synthetic sweetener is present in a concentration of from about 0.3 ppm to about 3500 ppm (‘750, Paragraph [0090]), which encompasses the claimed dihydrochalcone synthetic sweetener concentration of from about 5 ppm to about 35 ppm. The sweetener comprises a blend of rebaudioside wherein the relative weight percent of each individual rebaudioside (Reb) each varies from about 1% to about 99% (‘750, Paragraph [0096]), which encompasses the embodiment of the steviol glycoside blend comprising at least 80% rebaudioside M by weight. The natural high potency sweetener of rebaudioside M is present in a concentration from about 0.1 ppm to about 3000 ppm (‘750, Paragraph [0091]), which encompasses the claimed concentration of steviol glycoside blend comprising rebaudioside M of about 100 ppm to about 400 ppm. In the case where the claimed high potency sweetener of a steviol glycoside blend comprising rebaudioside M concentration and dihydrochalcone synthetic sweetener concentration encompasses high potency sweetener of a steviol glycoside blend comprising rebaudioside M concentrations and dihydrochalcone synthetic sweetener concentrations 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 concentration of the dihydrochalcone and concentration of the steviol glycoside blend comprising the rebaudioside M sweetener in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the dihydrochalcone and steviol glycoside blend comprising rebaudioside M 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 would adjust the amount of the dihydrochalcone and sweetener of steviol glycoside blend comprising rebaudioside M present in the beverage depending upon the desired level of sweetness desired by a particular consumer. Carlson et al. also discloses the beverage comprising citric acid (‘750, Paragraphs [0034] and [0360]), propylene glycol (‘750, Paragraph [0410]), and water (‘750, Paragraphs [0034] and [0412]).
Carlson et al. discloses the synthetic sweetener using neohesperidin dihydrochalcone specifically (‘750, Paragraph [0090]). However, Carlson et al. is silent regarding the dihydrochalcone being hesperetin dihydrochalcone4-β-D-glucoside.
Huber et al. discloses a sweetening composition consisting of or containing a dihydrochalcone sweetening agent (‘453, Column 1, lines 55-60) used to sweeten food and beverages (‘453, Column 2, lines 25-41) wherein the dihydrochalcone sweetening agent is neospheridin dihydrochalcone (‘453, Column 1, lines 64-68) or hesperetin dihydrochalcone glucoside (‘453, Column 4, lines 4-14). Jia et al. discloses a sweetened beverage (‘3859, Paragraph [0021]) comprising neohesperidin dihydrochalcone (‘389, Paragraph [0071]) and HDG (herperetin dihydrochalcone-4”beta-D-glucoside) in a concentration of from about 1 to 50 ppm (‘389, Paragraphs [0004] and [0067]), which encompasses the claimed hesperetin dihydrochalcone-4’β-D-glucoside concentration of about 5 ppm to about 35 ppm.
Carlson et al., Huber et al., and Jia et al. are all directed towards the same field of endeavor of beverages comprising a type of dihydrochalcone sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Carlson et al. and instead of using the neohesperidin dihydrochalcone synthetic sweetener in the beverage of Carlson et al. to use hesperetin dihydrochalcone as taught by Huber et al. and Jia et al. since the selection of a known material based on its suitability for its intended use 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). Huber et al. and Jia et al. both teach that there was known utility in the beverage art to utilize hesperetin dihydrochalcone as a sweetener in a beverage. Furthermore, the simple substitution of one known element (neohesperidin dihydrochalcone) for another (hesperetin dihydrochalcone) to obtain predictable results (to sweeten a beverage) is prima facie obvious (MPEP § 2143.I.). Furthermore, in the event that it can be argued that the disclosure of Carlson et al. teaching the synthetic sweetener of neohesperidin dihydrochalcone is present in a concentration of from about 0.3 ppm to about 3500 ppm (‘750, Paragraph [0090]) does not teach the dihydrochalcone concentration of the beverage with sufficient specificity, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Carlson et al. and use a concentration of hesperetin dihydrochalcone-4’β-D-glucoside of about 1 ppm to about 50 ppm by weight of the beverage (‘389, Paragraph [0067]) as taught by Jia et al., which encompasses the claimed hesperetin dihydrochalcone-4’β-D-glucoside concentration of from about 5 ppm to about 35 ppm, since where the claimed ranges overlaps 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 concentration of the hesperetin dihydrochalcone-4’β-D-glucoside in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the hesperetin dihydrochalcone-4’β-D-glucoside 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 would adjust the amount of the hesperetin dihydrochalcone-4’β-D-glucoside present in the beverage depending upon the desired level of sweetness desired by a particular consumer. Furthermore, a prima facie obviousness of the claimed hesperetin dihydrochalcone is based on the structural similarity of Carlson et al. modified with Huber et al. and Jia et al. in view of In re Schechter, 205 F.2d 185, 191, 98 USPQ 144, 150 (CCPA 1953) (MPEP § 2144.08.II.A.4.(e)).
Further regarding Claim 26, in the event that it can be argued that the disclosure of Carlson et al. teaching the steviol glycoside blend is present in a concentration of about 0.1 ppm to about 3000 ppm (‘750, Paragraph [0091]) does not teach the steviol glycoside blend concentration of the beverage with sufficient specificity, Prakash et al. discloses a beverage (‘996, Paragraph [0002]) comprising a dihydrochalcone (‘996, Paragraph [0278]) and a sweetener of a steviol glycoside of a blend comprising a mixture of rebaudioside M wherein rebaudioside M is greater than about 80% pure (‘996, Paragraphs [0203]-[0204]), which encompasses the steviol glycoside blend comprising at least 80% rebaudioside M. Prakash et al. also discloses rebaudioside M in a concentration of from about 30 ppm to about 250 ppm (‘996, Paragraph [0232]), which overlaps the claimed sweetener concentration of about 100 ppm to about 400 ppm of a steviol glycoside blend comprising at least 80% rebaudioside M by weight.
Both Carlson et al. and Prakash et al. are directed towards the same field of endeavor of beverages comprising a dihydrochalcone and a sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sweetener concentration of the beverage of modified Carlson et al. and incorporate a sweetener of a steviol glycoside blend of at least 80% rebaudioside M by weight as taught by Prakash et al. since where the claimed steviol glycoside blend comprising at least 80% rebaudioside M by weight concentration encompasses steviol glycoside blend comprising at least 80% rebaudioside M by weight concentrations 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 concentration of the steviol glycoside blend comprising at least 80% rebaudioside M by weight in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the steviol glycoside blend comprising at least 80% rebaudioside M by weight 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 would adjust the amount of the steviol glycoside blend comprising at least 80% rebaudioside M by weight present in the beverage depending upon the desired level of sweetness desired by a particular consumer.
Further regarding Claim 26, the limitations “wherein the beverage has more mouthfeel compared to the same beverage without hesperetin dihydrochalcone-4’-β-D-glucoside” are limitations with respect to the properties of the claimed beverage. Where the claimed and prior art products are identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). Since Carlson et al. modified with Huber et al., Jia et al., and Prakash et al. teaches a beverage having hesperetin dihydrochalcone-4’-β-D-glucoside, one or ordinary skill in the art would expect the beverage of modified Carlson et al. that contains hesperetin dihydrochalcone-4’-β-D-glucoside to behave in the same manner as claimed, i.e. the beverage has more mouthfeel compared to the same beverage without hesperetin dihydrochalcone-4’-β-D-glucoside. Products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). A chemical composition and its properties are inseparable. Therefore, since the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present (MPEP § 2112.01.II.).
Regarding Claim 27, Carlson et al. discloses the concentration of the sweetener being from about 0.1 ppm to about 3000 ppm (‘750, Paragraph [0091]), which encompasses the claimed sweetener concentration of from about 250 ppm to about 350 ppm. Alternatively, Prakash et al. discloses an embodiment wherein the sweetener is a steviol glycoside blend comprising rebaudioside M (‘996, Paragraphs [0203]-[0204]) wherein the Rebaudioside M is present in a concentration of from about 30 ppm to about 250 ppm (‘996, Paragraph [0232]), which overlaps the claimed sweetener concentration of from about 250 ppm to about 350 ppm. Jia et al. discloses HDG (herperetin dihydrochalcone-4”beta-D-glucoside) in a concentration of from about 1 to 50 ppm (‘389, Paragraphs [0004] and [0067]), which encompasses the claimed hesperetin dihydrochalcone-4’β-D-glucoside concentration of about 10 ppm to about 35 ppm. In the case where the claimed sweetener concentration and hesperetin dihydrochalcone-4’β-D-glucoside synthetic sweetener concentration encompasses sweetener concentrations and hesperetin dihydrochalcone-4’β-D-glucoside synthetic sweetener concentrations 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 concentration of the hesperetin dihydrochalcone-4’-β-D-glucoside and concentration of the steviol glycoside blend in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the hesperetin dihydrochalcone-4’-β-D- glucoside and steviol glycoside blend 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 would adjust the amount of the hesperetin dihydrochalcone-4’-β-D-glucoside and steviol glycoside blend present in the beverage depending upon the desired level of sweetness desired by a particular consumer.
Regarding Claim 28, Carlson et al. discloses the beverage having up to about 40 calories per 8 ounce serving (less than 40 calories per 8 oz serving) (‘750, Paragraph [0099]).
Regarding Claim 29, Carlson et al. discloses the beverage less than about 5 calories per 8 ounce serving (‘750, Paragraph [0099]).
Regarding Claim 30, Carlson et al. discloses the beverage being fruit flavored sparkling beverage, ginger ale, soft drinks, root beer, and fruit juice (‘750, Paragraph [0358]).
Regarding Claim 31, Carlson et al. discloses the beverage being a zero calorie (‘750, Paragraphs [0099] and [0388]) fruit flavored sparkling beverage (lemon lime flavored sparkling beverage) (‘750, Paragraph [0358]).
Regarding Claim 33, Carlson et al. discloses the beverage comprising water (‘750, Paragraph [0358]) and/or caffeine (‘750, Paragraphs [0115] and [0367]).
Claim 22 is rejected under 35 U.S.C. 103 as being unpatentable over Carlson et al. US 2016/0198750 in view of Huber et al. US 4,001,453, Jia et al. US 2010/0178389, and Prakash et al. US 2014/0271996 as applied to claim 1 above in further view of Patron et al. US 2017/0119032.
Regarding Claim 22, Carlson et al. modified with Huber et al., Jia et al., and Prakash et al. renders Claim 22 obvious as discussed in the rejections of Claim 22 above. However, in the event that it can be shown that the 1,6-α isomer of siamenoside I is structurally different than the generic siamenoside disclosed by Carlson et al., Patron et al. discloses a beverage (‘032, Paragraph [0068]) comprising siamenoside I (‘032, Paragraph [0199]) wherein the siamenoside I is enzymatically modified (‘032, Paragraph [0457]). Applicant indicates that Examples 7 and 10 of Patron et al. US 2017/0119032 uses the 1,6-α isomer of siamenoside I (Specification, Page 14, lines 15-24).
Both modified Carlson et al. and Patron et al. are directed towards the same field of endeavor of beverages comprising sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Delattre et al. and use the 1,6-α isomer of siamenoside I the selection of a known material based on its suitability for its intended use 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). Patron et al. teaches that there was known utility in using the 1,6-α isomer of siamenoside I as a beverage ingredient.
Response to Arguments
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Applicant's arguments filed February 18, 2026 with respect to the obviousness rejections under 35 USC 103(a) have been fully considered but they are not persuasive.
Applicant argues on Pages 6-8 of the Remarks that the Examiner’s reasons to modify the beverages of Carlson with the hesperetin dihydrochalcone-4’beta-D-glucoside of Huber and Jia appears to be proposed out of hindsight. Applicant contends that the Examples in applicant’s specification allegedly shows evidence that the claimed beverages provide more mouthfeel than the comparative beverages lacking hesperetin dihydrochalcone-4-β-D-glucoside. Applicant contends that the dihydrochalcone compounds and sweetener compounds were combined in varying combinations and concentrations in the Examples. Applicant points to Example 9 describing the sensory evaluation of beverage comprising hesperetin dihydrochalcone-4-β-D-glucoside and siamenoside I wherein the panelists observed that beverages comprising hesperetin dihydrochalcone-4-β-D-glucoside and siamenoside I had more mouthfeel than those without hesperetin dihydrochalcone-4-β-D-glucoside, which corresponds to the beverage recited in Claim 1. Applicant also points to Example 10 describing the sensory evaluation of beverages comprising hesperetin dihydrochalcone-4-β-D-glucoside and the 1,6-α isomer of siamenoside I wherein the panelists determined that beverages comprising just 20 ppm hesperetin dihydrochalcone-4-β-D-glucoside and 250 ppm 1,6-α isomer of siamenoside I had more mouthfeel than comparable beverages without hesperetin dihydrochalcone-4-β-D-glucoside, which corresponds to the beverage recited in Claim 1. Applicant also points to Example 8 describing the sensory evaluation of beverage formulations comprising hesperetin dihydrochalcone-4-β-D-glucoside and rebaudioside M wherein the panelists determined that rebaudioside M containing beverages with hesperetin dihydrochalcone-4-β-D-glucoside were observed to have more mouthfeel than the rebaudioside M containing beverages without hesperetin dihydrochalcone-4-β-D-glucoside. Applicant concluded that the sensory profiles of the claimed beverages are distinguished over comparative beverages which lack the hesperetin dihydrochalcone-4-β-D-glucoside and the impact of this compound on the sensory profile, e.g. more mouthfeel, of the beverages containing rebaudioside M, siamenoside I, or the 1,6-α isomer of siamenoside I are experiments that allegedly demonstrate that the claimed beverages provide desirable and unexpected sensory properties of more mouthfeel. Applicant contends that Examiner has provided no basis to support that the increased mouthfeel was predictable from the cited references.
Examiner argues that 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.). Examples 8-10 do not compare data of the claimed concentration range of hesperetin dihydrochalcone-4-β-D-glucoside of about 5 ppm to about 35 ppm of Claim 1 to data outside the claimed concentration range of hesperetin dihydrochalcone-4-β-D-glucoside of below about 5 ppm and/or above about 35 ppm. Additionally, Examples 8-10 do not compare data of the claimed concentration range of siamenoside and/or the 1,6-α isomer of siamenoside I of about 50 ppm to about 300 ppm of Claim 1 to data outside the claimed concentration range of below about 50 ppm and/or above 300 ppm. Furthermore, Examples 8-10 do not compare data of the claimed concentration range of hesperetin dihydrochalcone-4-β-D-glucoside of about 5 ppm to about 35 ppm of Claim 26 to data outside the claimed concentration range of hesperetin dihydrochalcone-4-β-D-glucoside of below about 5 ppm and/or above about 35 ppm. Furthermore, Examples 8-10 do not compare data of the claimed concentration range of about 100 ppm to about 400 ppm of a steviol glycoside blend comprising at least 80% rebaudioside M by weight to data outside the claimed concentration range of a steviol glycoside blend comprising at least 80% rebaudioside M by weight of below about 100 ppm and/or above 400 ppm. Furthermore, evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims in view of In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980) (MPEP § 716.02(b).III.). The comparative examples studied by applicant are not the closest prior art. The closest prior art is the combination of Carlson et al. modified with Huber et al., Jia et al., and Prakash et al. The secondary reference of Jia et al. discloses a sweetened beverage (‘3859, Paragraph [0021]) comprising neohesperidin dihydrochalcone (‘389, Paragraph [0071]) and HDG (herperetin dihydrochalcone-4”beta-D-glucoside) in a concentration of from about 1 to 50 ppm (‘389, Paragraphs [0004] and [0067]), which encompasses the claimed hesperetin dihydrochalcone-4’β-D-glucoside concentration of about 5 ppm to about 35 ppm. The comparative examples studied by applicant are not the closest prior art since Jia et al. teaches a beverage comprising neohesperidin dihydrochalcone (‘389, Paragraph [0071]) and HDG (herperetin dihydrochalcone-4”beta-D-glucoside) in a concentration of from about 1 to 50 ppm (‘389, Paragraphs [0004] and [0067]). Therefore, the obviousness rejection have been maintained herein.
Applicant argues on Page 8 of the Remarks that the compositions of Carlson describes sweetener compositions including at least 3% Rebaudioside N by weight based on the total weight of the sweetener compounds in the sweetener composition. Applicant continues that broadly Carlson states that sweetener compositions are compositions containing Reb N and optionally one other sweetening compound and further optionally at least one other substance such as another sweetener or an additive or a liquid carrier or the like in Paragraph [0075] of Carlson. Applicant continues that Carlson discloses a list of possible additional sweetener compounds that could be used with Reb N is long and does not detail any particular effects achieved by any specific combinations in Paragraphs [0090]-[0098] of Carlson et al. Applicant continues that Carlson provides scant guidance for preparing a certain beverage with rebaudiosides A and N with B and/or D. Applicant points to Examples 1-5 as showing that none of Carlson’s examples involve hesperetin dihydrochalcone-4’β-D-glucoside, siamenoside I, the 1,6-α isomer of siamenoside I or rebaudioside M and the examples do not use any dihydrochalcone compounds. Applicant asserts that one of ordinary skill in the art considering the data presented in Carlson pertaining to certain combinations of four different rebaudiosides, which combinations allegedly do not involve a synthetic sweetener, would not consider the sensory profile of other combinations involving a completely different group of compounds to be predictable from the results presented in Carlson and that there is no acknowledgement in Carlson of a need to increase mouthfeel.
Examiner argues a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art including nonpreferred embodiments in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). Additionally, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). The specific examples disclosed in Examples 1-5 of Carlson are not cited to or being relied upon in the rejection. Claims 1 and 26 are rejected over Carlson et al. modified with Huber et al., Jia et al., and Prakash et al. Carlson et al. discloses a beverage (‘750, Paragraphs [0358] and [0360]) comprising one or more synthetic sweeteners such as neohesperidin dihydrochalcone (‘750, Paragraph [0090]) and one or more natural high potency sweeteners such as siamenoside I (‘750, Paragraph [0091]). The synthetic sweetener such as neohesperidin dihydrochalcone is present in a concentration of from about 0.3 ppm to about 3500 ppm (‘750, Paragraph [0090]), which encompasses the claimed dihydrochalcone synthetic sweetener concentration of from about 5 ppm to about 35 ppm. The natural high potency sweetener of siamenoside is present in a concentration from about 0.1 ppm to about 3000 ppm (‘750, Paragraph [0091]), which encompasses the claimed siamenoside I concentration of about 50 ppm to about 300 ppm. In the case where the claimed dihydrochalcone synthetic sweetener concentration and siamenoside concentration encompasses dihydrochalcone synthetic sweetener concentrations and siamenoside concentrations 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 concentration of the dihydrochalcone and concentration of the siamenoside sweetener in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the dihydrochalcone and siamenoside 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 would adjust the amount of the dihydrochalcone and sweetener of siamenoside present in the beverage depending upon the desired level of sweetness desired by a particular consumer. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). It is noted that Claims 1 and 26 do not recite any particular effects. Applicant argues limitations that are not commensurate in scope with Claims 1 and 26. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 9-10 of the Remarks with respect to Huber and Jia that the results Examiner alleges are predictable, i.e. sweetness, are not relevant given that the claimed beverages provide the alleged unexpected effect of more mouthfeel and that the Examiner’s focus on sweetness to link the cited references underscores that the effect of increased mouthfeel in the claimed beverages is unpredictable. Applicant contends that there is no predictability regarding the sensory effects of the modification in the cited references and that none of the cited references provide any indication of how these compounds interact when used in a beverage with siamenoside I, the 1,6-α isomer of siamenoside I or rebaudioside M and that this contention is allegedly not fairly based on how one of skill in this particular art with an understanding of the inherent unpredictability of combinations on the sensory profile of beverages would view these references. Applicant asserts that Huber allows for certain other sweeteners to be included in the compositions and that the list of such sweetening agents only includes glucose, saccharose, fructose, xylitol, maltitol, sorbitol, saccharin, or cyclamate and that Huber does not disclose or suggest siamenoside I, the 1,6-α isomer of siamenoside I or rebaudioside M and also does not disclose or suggest that hesperetin dihydrochalcone-4’-β-D-glucoside could be used to impact on mouthfeel. Applicant contends that the Examples of Huber only describes compositions with neohesperidin dihydrochalcone or naringin dihydrochalcone and does not disclose examples using hesperetin dihydrochalcone glucoside and that Examples 2-3 of Huber includes saccharose as an additional sweetener and no other additional sweeteners are used in the examples of Huber. Applicant continues that Jia does not disclose or suggest siamenoside I, the 1,6-α isomer of siamenoside I or rebaudioside M and that the Examples of Jia discloses sucrose as the only sweetener used in combination with HDF in Examples 2b, 12 and 14 of Jia.
Examiner argues Kappes et al. “Relationship between Physical Properties and Sensory Attributes of Carbonated Beverages” (published December 5, 2006) discloses the mouthfeel of beverages is influenced by the sweetener type (Kappes et al., Left Column on Page 10) and the removal of sugar from regular beverages decreases viscosity and thus reduces mouthfeel and body, which relate to the consumer’s perception of drinkability (Kappes et al., Right Column on Page 1). Kappes et al. provides evidence that sweetener type and sweetness levels influence the viscosity and therefore mouthfeel of a beverage. Examiner also argues that Huber et al. discloses a sweetening composition which consists of or contains a dihydrochalcone sweetening agent (‘453, Column 1, lines 55-60). Huber et al. never describes the dihydrochalcone containing sweetening agent to be a “sweetness enhancer” as alleged by applicant. Additionally, any sweetness enhancer (which is not expressly disclosed by Huber et al.) would be a type of sweetener. Furthermore, Claims 1 and 26 both recite the transitional phrase “comprising,” which is inclusive or open ended and does not exclude additional, unrecited elements or method steps in view of Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (MPEP § 2111.03.I.). The transitional phrase “comprising” does not preclude the presence of additional sweeteners that are not recited in the claims. Furthermore, a reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art including nonpreferred embodiments in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). Additionally, disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). Examples 2-3 of Huber et al. are cited to or being relied upon in the rejection. Huber et al. discloses a sweetening composition consisting of or containing a dihydrochalcone sweetening agent (‘453, Column 1, lines 55-60) used to sweeten food and beverages (‘453, Column 2, lines 25-41) wherein the dihydrochalcone sweetening agent is neospheridin dihydrochalcone (‘453, Column 1, lines 64-68) or hesperetin dihydrochalcone glucoside (‘453, Column 4, lines 4-14). Jia et al. discloses a sweetened beverage (‘3859, Paragraph [0021]) comprising neohesperidin dihydrochalcone (‘389, Paragraph [0071]) and HDG (herperetin dihydrochalcone-4”beta-D-glucoside) in a concentration of from about 1 to 50 ppm (‘389, Paragraphs [0004] and [0067]), which encompasses the claimed hesperetin dihydrochalcone-4’β-D-glucoside concentration of about 5 ppm to about 35 ppm. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Additionally, Examples 2b, 12, and 14 of Jia et al. are not cited to or being relied upon in the rejection. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 10-11 of the Remarks that Prakash does not describe any experiments involving hesperetin dihydrochalcone, hesperetin dihydrochalcone-4’β-D-glucoside, siamenoside I, or the 1,6-α isomer of siamenoside I. Applicant continues that only Example 9 involves one beverage comprising rebaudioside M which does not include any dihydrochalcone compounds and no one of ordinary skill in the art would have been motivated to prepare the beverage of the amended claims from Prakash nor would they have possessed any reasonable expectations regarding the sensory properties of the claimed beverages from Prakash.
Examiner argues Claim 1 and Claim 26 do not recite any particular sensory properties. Applicant argues limitations that are not commensurate in scope with Claim 1 and/or Claim 26. Furthermore, in the event that it can be argued that the disclosure of Carlson et al. teaching the natural high potency sweetener of siamenoside is present in a concentration of about 0.1 ppm to about 3000 ppm (‘750, Paragraph [0091]) does not teach the siamenoside concentration of the beverage with sufficient specificity, Prakash et al. discloses a beverage (‘996, Paragraph [0002]) comprising a dihydrochalcone (‘996, Paragraph [0278]) and a sweetener of siamenoside in a concentration of about 100 ppm or less (‘996, Paragraph [0078]), which overlaps the claimed siamenoside concentration of about 50 ppm to about 300 ppm. Both modified Carlson et al. and Prakash et al. are directed towards the same field of endeavor of beverages comprising a dihydrochalcone and a sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the siamenoside sweetener concentration of the beverage of modified Carlson et al. and incorporate a sweetener of siamenoside I as taught by Prakash et al. since where the claimed sweetener concentration encompasses sweetener concentrations 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 concentration of the siamenoside sweetener in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentrations of the siamenoside sweetener 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 would adjust the amount of the siamenoside sweetener present in the beverage depending upon the desired level of sweetness desired by a particular consumer. It is noted that Example 9 of Prakash is not cited to or relied upon in the rejection. Disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or nonpreferred embodiments in view of In re Susi, 440 F.2d 442, 169 USPQ 423 (CCPA 1971) (MPEP § 2123.II.). Therefore, this argument is not found persuasive.
Applicant argues on Pages 11-12 of the Remarks with respect to Claim 22 that Patron does not disclose or suggest any of the claimed beverages or the dihydrochalcone compounds of the pending claims. Applicant asserts that Patron does not provide any evidence or guidance regarding the impact of combining any sweeteners with any taste modifying compounds and that the Examples of Patron are largely directed to synthesis of compounds.
Examiner argues that the particular embodiments relied upon in the rejection of Claim 22 are Examples 7 and 10 that applicant points to of Patron et al. US 2017/0119032 that uses the 1,6-α isomer of siamenoside I (Specification, Page 14, lines 15-24). Both modified Carlson et al. and Patron et al. are directed towards the same field of endeavor of beverages comprising sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Delattre et al. and use the 1,6-α isomer of siamenoside I the selection of a known material based on its suitability for its intended use 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). Patron et al. teaches that there was known utility in using the 1,6-α isomer of siamenoside I as a beverage ingredient as admitted by applicant (Specification, Page 14, lines 15-24). Therefore, this argument is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Kappes et al. “Relationship between Physical Properties and Sensory Attributes of Carbonated Beverages” (published December 5, 2006) discloses the mouthfeel of beverages is influenced by the sweetener type (Kappes et al., Left Column on Page 10) and the removal of sugar from regular beverages decreases viscosity and thus reduces mouthfeel and body, which relate to the consumer’s perception of drinkability (Kappes et al., Right Column on Page 1).
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.
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/ERICSON M LACHICA/Examiner, Art Unit 1792