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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114), the Response and Amendment filed 01/09/2026 is acknowledged.
The application was transferred to the present examiner as of the response filed 01/09/2026.
Applicant has overcome the following rejections by virtue of the cancellation of the claims: (1) the 35 U.S.C. 112(b) rejections of claims 85, 94, and 106 have been withdrawn; and (2) the 35 U.S.C. 103 rejections of claims 85, 87, 89, 91, 92, 94, and 96-110 over Hansen, Yoshinaka, Bernal, Murata, and Markosyan have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 85, 87, 89, 91, 92, 94, and 96-110
Withdrawn claims: None
Previously canceled claims: 1-84, 86, 88, 90, 93, and 95
Newly canceled claims: 85, 87, 89, 91, 92, 94, and 96-110
Amended claims: None
New claims: 111-124
Claims currently under consideration: 111-124
Currently rejected claims: 111-124
Allowed claims: None
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on 01/09/2026 has been entered.
Claim Objections
Claims 113-119 are objected to because of the following informalities: the claims depend from canceled claims. Appropriate correction is required. The claims are presumed to be intended to depend from claim 111 for those claims reciting claim 1, and claim 112 for those claims reciting claim 2.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 113 and 117 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claims 113 and 117 require only that “the at least one sweetener is a nutritive or non-nutritive sweetener”, which fails to further limit the subject matter of the parent claims, since any sweetener may be designated as being either nutritive or non-nutritive. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
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 111-124 are rejected under 35 U.S.C. 103 as being unpatentable over Prakash et al. (U.S. 2015/0017284 A1).
Regarding claim 111, Prakash et al. discloses a sweetened composition comprising a sweetener ([0299]-[0302]; [0305]-[0306]) in an amount having a sweetness equal to or greater than 1.5% (w/v) sucrose equivalence ([0585], where the composition may comprise 100-140,000 ppm, or 0.01-14% w/v, of a carbohydrate sweetener; [0306], where the carbohydrate sweetener may be sucrose) and a sweetness enhancer comprising neomogroside in an amount of 15-50 ppm (specifically, about 0.01-3,000 ppm) ([0305]-[0309]). The disclosure of Prakash et al. is not considered to disclose the claimed ranges with sufficient specificity to support an anticipation rejection under 35 U.S.C. § 102(a)(1), so the rejection is under 35 U.S.C. § 103 on the basis of obviousness. MPEP 2131.03 II.
As for claim 112, Prakash et al. discloses the sweetness enhancer as being present in a total amount ranging from 15-35 ppm (specifically, about 0.01-3,000 ppm) ([0309]).
As for claim 113, Prakash et al. discloses the sweeteners as being nutritive ([0306]) and non-nutritive ([0299]).
As for claim 114, Prakash et al. discloses the at least one sweetener as being a steviol glycoside ([0299]).
As for claim 115, Prakash et al. discloses the composition as being a beverage ([0576], [0585]).
As for claim 116, Prakash et al. discloses the sweetness enhancer “can be provided as a pure compound” ([0309]), which renders the claimed range of at least 80 wt% pure obvious.
As for claim 117, Prakash et al. discloses the sweeteners as being nutritive ([0306]) and non-nutritive ([0299]).
As for claim 118, Prakash et al. discloses the at least one sweetener as being a steviol glycoside ([0299]).
As for claim 119, Prakash et al. discloses the sweetness enhancer “can be provided as a pure compound” ([0309]), which renders the claimed range of at least 80 wt% pure obvious.
As for claim 120, Prakash et al. discloses a method comprising adding neomogroside in an amount of 15-50 ppm ([0305]-[0309]) to a sweetened composition ([0299]-[0302], [0577]). Although Prakash et al. does not explicitly disclose the neomogroside as being added as a “sweetness enhancer”, the disclosed method is adequate to render the claimed method obvious. MPEP 2144 IV (“The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.”).
As for claim 121, Prakash et al. discloses the sweetness enhancer as being present in a total amount ranging from 15-35 ppm (specifically, about 0.01-3,000 ppm) ([0309]).
As for claim 122, Prakash et al. discloses the composition as being a beverage ([0576], [0585]).
As for claim 123, Prakash et al. discloses the sweetness enhancer “can be provided as a pure compound” ([0309]), which renders the claimed range of at least 80 wt% pure obvious.
As for claim 124, Prakash et al. discloses the sweetness enhancer “can be provided as a pure compound” ([0309]), which renders the claimed range of at least 80 wt% pure obvious.
Response to Arguments
Claim Rejections - 35 U.S.C. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 85, 94, and 106 based on cancellation of the claims. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. § 103 of claims 85, 87, 89, 91, 92, 94, and 96-110 over Hansen, Yoshinaka, Bernal, Murata, and Markosyan: Applicant has overcome the 35 U.S.C. § 103 rejections of claims 85, 87, 89, 91, 92, 94, and 96-110 based on cancellation of the claims. Accordingly, the 35 U.S.C. § 103 rejections have been withdrawn.
Conclusion
Claims 111-124 are rejected.
No claims are allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793