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 Response and Amendment after Non-Final Office Action filed 10/06/2025 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 3, 4, 7, 10, 12, 13, 16, 18-20, 22, 23, 25, 27, and 30-39
Withdrawn claims: None
Previously canceled claims: 2, 5, 6, 8, 9, 11, 14, 15, 17, 21, 24, 26, 28, and 29
Newly canceled claims: None
Amended claims: 1, 10, 20, 30, and 31
New claims: None
Claims currently under consideration: 1, 3, 4, 7, 10, 12, 13, 16, 18-20, 22, 23, 25, 27, and 30-39
Currently rejected claims: 1, 3, 4, 7, 10, 12, 13, 16, 18-20, 22, 23, 25, 27, and 30-39
Allowed claims: None
Claim Interpretation
The newly-added phrase, “of the following”, at the top of page 3 (and in subsequent independent claims) is interpreted as applying to the three following indented claim limitations, such that only one of the three sweetness characteristics is actually required.
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.
Claims 1, 3, 4, 7, 10, 12, 13, 16, 18-20, 22, 23, 25, 27, and 30-39 are rejected under 35 U.S.C. 103 as being unpatentable over Prakash et al. (U.S. 2014/0171519 A1) in view of Purkayastha (U.S. 2013/0316043 A1), and Prakash et al. (hereinafter, “Prakash ‘311”) (U.S. 2007/0128311 A1).
Regarding claim 1, Prakash et al. discloses a sweetness modifying composition ([0172], [0174]) comprising about 50-360 ppm rebaudioside M (i.e., rebaudioside X) (specifically, “from about 25 ppm to about 800 ppm” or “from about 100 ppm to about 300 ppm”) ([0179], [0524]) in an amount that provides off-notes ([0201], where “the additives act to improve the temporal and flavor profile of the sweetener”, thus indicating off-notes initially being perceptible), about 60-430 ppm glucosylated steviol glycoside (specifically, “from about 0.3 ppm to about 3,500 ppm”) ([0190], [0194], [0508]), and about 500 to 4,000 ppm of chlorogenic acid (specifically, from about 10 ppm to about 5,000 ppm”) ([0201], [0211], [0212]) to mask off-notes of the rebaudioside M and improve mouthfeel ([0201], “the additives act to improve the temporal and flavor profile of the sweetener”), wherein the glucosylated steviol glycoside is present in an amount greater than rebaudioside M and wherein the ratio of rebaudioside M to glucosylated steviol glycoside is from about 1:>1 to about 1:1.5 ([0194], [0508], [0524], where a sweetness modifying composition providing final concentrations in a beverage of 300 ppm glucosylated steviol glycoside and 250 ppm rebaudioside M would fall within the disclosed limits and both of the claimed limitations), and wherein the composition improves at least one sweetness characteristic of a sweetened composition ([0542], [0544]).
Prakash et al. does not disclose the glucosylated steviol glycoside as being from among the claimed list or the sweetness characteristic as being at least one of: upfront sweetness, weakened bitter off-note taste, or weakened dry/astringent mouthfeel.
However, Purkayastha discloses glucosylated steviol glycosides for use as taste/flavor modifiers ([0010]) that include glucosylated stevioside ([0027]).
It would have been obvious to one of ordinary skill in the art to use glucosylated stevioside in the composition of Prakash et al. Since Prakash et al. teaches only generally that glucosylated steviol glycosides may be used in the composition ([0194]), a skilled practitioner would be motivated to consult Purkayastha for more specific instruction regarding suitable glucosylated steviol glycosides. Since Purkayastha teaches glucosylated stevioside as being an example of such a compound, the addition of glucosylated stevioside to the composition of Prakash et al. would be obvious.
Regarding the effect of the composition, Prakash ‘311 discloses the inclusion of sweet taste improving compositions for compositions comprising natural high-potency sweeteners (NHPS) ([0081], [0096]), including chlorogenic acid ([0101]), where the undesirable taste attributes of the NHPS to be improved may include bitter and astringent off tastes ([0004], [0006]).
It would have been obvious to one having ordinary skill in the art to weaken bitter off-note taste and dry/astringent mouthfeel of a sweetened composition via the additives disclosed in Prakash et al. First, Prakash et al. discloses the sweetenable compositions may already contain a sweetener component ([0173], [0176], [0383]), where the initial sweetener may be another steviol glycoside, such as rebaudioside A ([0508], [0195]). Since Prakash et al. provides limited instruction regarding the nature of the sweet taste improvement ([0544]), a skilled practitioner would be motivated to consult Prakash ‘311 for clarification. Since Prakash ‘311 indicates that the sweet taste improvement may include an improvement of bitter and astringent off tastes ([0081], [0096], [0004], [0006]) and that rebaudioside A is among the high-potency sweeteners that exhibit such undesirable tastes ([0004]), a skilled practitioner would find the weakening of bitter off-note tastes and dry/astringent mouthfeel of a sweetened composition to be obvious.
As for claims 3 and 4, the example concentrations of 300 ppm glucosylated steviol glycoside and 250 ppm rebaudioside M would fall within the limitations disclosed in Prakash et al. Such concentrations would result in a rebaudioside M to glucosylated steviol glycoside ratio of 1:1.2.
As for claim 7, Prakash et al. discloses that the sweetener composition imparts “a more sugar-like temporal profile, flavor profile, or both to a sweetenable composition” ([0542]) and that “the ‘sugar-like’ characteristics include any characteristic similar to that of sucrose and include, but are not limited to, maximal response, flavor profile, temporal profile, adaptation behavior, mouthfeel, concentration/response function, tastant/and flavor/sweet taste interactions, spatial pattern selectivity, and temperature effects ([0544]). Though Prakash et al. does not explicitly disclose the improvement as being in “upfront sweetness”, the breadth of the disclosure encompasses the improvement of any sweetness characteristic to be closer to that of sucrose. The claimed improvement is thus considered obvious to a skilled practitioner.
Regarding claim 10, Prakash et al. discloses a sweetness modifying composition ([0172], [0174]) comprising about 50-360 ppm rebaudioside M (i.e., rebaudioside X) (specifically, “from about 25 ppm to about 800 ppm” or “from about 100 ppm to about 300 ppm”) ([0179], [0524]) in an amount that provides off-notes ([0201], where “the additives act to improve the temporal and flavor profile of the sweetener”, thus indicating off-notes initially being perceptible), about 60-430 ppm glucosylated steviol glycoside (specifically, “from about 0.3 ppm to about 3,500 ppm”) ([0190], [0194], [0508]), about 500 to 4,000 ppm of chlorogenic acid (specifically, from about 10 ppm to about 5,000 ppm”) ([0201], [0211], [0212]) to mask off-notes of the rebaudioside M and improve mouthfeel ([0201], “the additives act to improve the temporal and flavor profile of the sweetener”), wherein the glucosylated steviol glycoside is present in an amount greater than rebaudioside M and wherein the ratio of rebaudioside M to glucosylated steviol glycoside is from about 1:>1 to about 1:1.5 ([0194], [0508], [0524], where a sweetness modifying composition providing final concentrations in a beverage of 300 ppm glucosylated steviol glycoside and 250 ppm rebaudioside M would fall within the disclosed limits and both of the claimed limitations), wherein the amount of the taste modifier is effective to mask off-notes of the rebaudioside M and improve mouthfeel ([0201], “the additives act to improve the temporal and flavor profile of the sweetener”), and wherein the composition improves at least one sweetness characteristic of a sweetened composition ([0542], [0544]). Prakash et al. further discloses the sweetness modifying composition as being added to a sweetened composition that may further comprise at least one additional sweetener ([0173]-[0174], [0176]).
Prakash et al. does not disclose the glucosylated steviol glycoside as being from among the claimed list or the sweetness characteristic as being at least one of: upfront sweetness, weakened bitter off-note taste, or weakened dry/astringent mouthfeel.
However, Purkayastha discloses glucosylated steviol glycosides for use as taste/flavor modifiers ([0010]) that include glucosylated stevioside ([0027]).
It would have been obvious to one of ordinary skill in the art to use glucosylated stevioside in the composition of Prakash et al. Since Prakash et al. teaches only generally that glucosylated steviol glycosides may be used in the composition ([0194]), a skilled practitioner would be motivated to consult Purkayastha for more specific instruction regarding suitable glucosylated steviol glycosides. Since Purkayastha teaches glucosylated stevioside as being an example of such a compound, the addition of glucosylated stevioside to the composition of Prakash et al. would be obvious.
Regarding the effect of the composition, Prakash ‘311 discloses the inclusion of sweet taste improving compositions for compositions comprising natural high-potency sweeteners (NHPS) ([0081], [0096]), including chlorogenic acid ([0101]), where the undesirable taste attributes of the NHPS to be improved may include bitter and astringent off tastes ([0004], [0006]).
It would have been obvious to one having ordinary skill in the art to weaken bitter off-note taste and dry/astringent mouthfeel of a sweetened composition via the additives disclosed in Prakash et al. First, Prakash et al. discloses the sweetenable compositions may already contain a sweetener component ([0173], [0176], [0383]), where the initial sweetener may be another steviol glycoside, such as rebaudioside A ([0508], [0195]). Since Prakash et al. provides limited instruction regarding the nature of the sweet taste improvement ([0544]), a skilled practitioner would be motivated to consult Prakash ‘311 for clarification. Since Prakash ‘311 indicates that the sweet taste improvement may include an improvement of bitter and astringent off tastes ([0081], [0096], [0004], [0006]) and that rebaudioside A is among the high-potency sweeteners that exhibit such undesirable tastes ([0004]), a skilled practitioner would find the weakening of bitter off-note tastes and dry/astringent mouthfeel of a sweetened composition to be obvious.
As for claims 12 and 13, the example concentrations of 300 ppm glucosylated steviol glycoside and 250 ppm rebaudioside M would fall within the limitations disclosed in Prakash et al. Such concentrations would result in a rebaudioside M to glucosylated steviol glycoside ratio of 1:1.2.
As for claim 16, Prakash et al. discloses that the sweetener composition imparts “a more sugar-like temporal profile, flavor profile, or both to a sweetenable composition” ([0542]) and that “the ‘sugar-like’ characteristics include any characteristic similar to that of sucrose and include, but are not limited to, maximal response, flavor profile, temporal profile, adaptation behavior, mouthfeel, concentration/response function, tastant/and flavor/sweet taste interactions, spatial pattern selectivity, and temperature effects ([0544]). Though Prakash et al. does not explicitly disclose the improvement as being in “upfront sweetness”, the breadth of the disclosure encompasses the improvement of any sweetness characteristic to be closer to that of sucrose. The claimed improvement is thus considered obvious to a skilled practitioner.
As for claims 18 and 19, Prakash et al. discloses the sweetener as being a sugar alcohol (claim 18) that is erythritol (claim 19) ([0191], [0535]-[0536]).
Regarding claim 20, Prakash et al. discloses a sweetness modifying composition ([0172], [0174]) comprising about 50-360 ppm rebaudioside M (i.e., rebaudioside X) ([0179], [0524]) in an amount that provides off-notes ([0201], where “the additives act to improve the temporal and flavor profile of the sweetener”, thus indicating off-notes initially being perceptible), about 60-430 ppm glucosylated steviol glycoside (specifically, “from about 0.3 ppm to about 3,500 ppm”) ([0190], [0194], [0508]), and about 500 to 4,000 ppm of chlorogenic acid (specifically, from about 10 ppm to about 5,000 ppm”) ([0201], [0211], [0212]) to mask off-notes of the rebaudioside M and improve mouthfeel ([0201], “the additives act to improve the temporal and flavor profile of the sweetener”), wherein the glucosylated steviol glycoside is present in an amount greater than rebaudioside M and wherein the ratio of rebaudioside M to glucosylated steviol glycoside is from about 1:>1 to about 1:1.5 ([0194], [0508], [0524], where a sweetness modifying composition providing final concentrations in a beverage of 300 ppm glucosylated steviol glycoside and 250 ppm rebaudioside M would fall within the disclosed limits and both of the claimed limitations), and wherein the composition improves at least one sweetness characteristic of a sweetened composition ([0542], [0544]). Prakash et al. further discloses the sweetness modifying composition as being added to a sweetened consumable that may further comprise a beverage base composition and at least one additional sweetener present in an amount at or above its sweetness recognition threshold ([0173]-[0174], [0176]).
Prakash et al. does not disclose the glucosylated steviol glycoside as being from among the claimed list or the sweetness characteristic as being at least one of: upfront sweetness, weakened bitter off-note taste, or weakened dry/astringent mouthfeel.
However, Purkayastha discloses glucosylated steviol glycosides for use as taste/flavor modifiers ([0010]) that include glucosylated stevioside ([0027]).
It would have been obvious to one of ordinary skill in the art to use glucosylated stevioside in the composition of Prakash et al. Since Prakash et al. teaches only generally that glucosylated steviol glycosides may be used in the composition ([0194]), a skilled practitioner would be motivated to consult Purkayastha for more specific instruction regarding suitable glucosylated steviol glycosides. Since Purkayastha teaches glucosylated stevioside as being an example of such a compound, the addition of glucosylated stevioside to the composition of Prakash et al. would be obvious.
Regarding the effects of the composition, Prakash ‘311 discloses the inclusion of sweet taste improving compositions for compositions comprising natural high-potency sweeteners (NHPS) ([0081], [0096]), including chlorogenic acid ([0101]) where the undesirable taste attributes of the NHPS to be improved may include bitter and astringent off tastes ([0004], [0006]).
It would have been obvious to one having ordinary skill in the art to weaken bitter off-note taste and dry/astringent mouthfeel of a sweetened composition via the additives disclosed in Prakash et al. First, Prakash et al. discloses the sweetenable compositions may already contain a sweetener component ([0173], [0176], [0383]), where the initial sweetener may be another steviol glycoside, such as rebaudioside A ([0508], [0195]). Since Prakash et al. provides limited instruction regarding the nature of the sweet taste improvement ([0544]), a skilled practitioner would be motivated to consult Prakash ‘311 for clarification. Since Prakash ‘311 indicates that the sweet taste improvement may include an improvement of bitter and astringent off tastes ([0081], [0096], [0004], [0006]) and that rebaudioside A is among the high-potency sweeteners that exhibit such undesirable tastes ([0004]), a skilled practitioner would find the weakening of bitter off-note tastes and dry/astringent mouthfeel of a sweetened composition to be obvious.
As for claims 22 and 23, the example concentrations of 300 ppm glucosylated steviol glycoside and 250 ppm rebaudioside M would fall within the limitations disclosed in Prakash et al. Such concentrations would result in a rebaudioside M to glucosylated steviol glycoside ratio of 1:1.2.
As for claim 25, Prakash et al. discloses the consumable as comprising a carbonated beverage having a carbon dioxide gas content of about 2.0-3.5% v/v based on the total volume of the beverage ([0501], [0529], where about 2% w/w is considered to be instructive of a comparable percentage by volume).
As for claim 27, Prakash et al. discloses that the sweetener composition imparts “a more sugar-like temporal profile, flavor profile, or both to a sweetenable composition” ([0542]) and that “the ‘sugar-like’ characteristics include any characteristic similar to that of sucrose and include, but are not limited to, maximal response, flavor profile, temporal profile, adaptation behavior, mouthfeel, concentration/response function, tastant/and flavor/sweet taste interactions, spatial pattern selectivity, and temperature effects ([0544]). Though Prakash et al. does not explicitly disclose the improvement as being in “upfront sweetness”, the breadth of the disclosure encompasses the improvement of any sweetness characteristic to be closer to that of sucrose. The claimed improvement is thus considered obvious to a skilled practitioner.
Regarding claim 30, Prakash et al. discloses a sweetness modifying composition ([0172], [0174]) comprising about 50-360 ppm rebaudioside M (i.e., rebaudioside X) (specifically, “from about 25 ppm to about 800 ppm” or “from about 100 ppm to about 300 ppm”) ([0179], [0524]), in an amount that provides off-notes ([0201], where “the additives act to improve the temporal and flavor profile of the sweetener”, thus indicating off-notes initially being perceptible), about 60-430 ppm glucosylated steviol glycoside (specifically, “from about 0.3 ppm to about 3,500 ppm”) ([0190], [0194], [0508]), and about 500 to 4,000 ppm of chlorogenic acid (specifically, from about 10 ppm to about 5,000 ppm”) ([0201], [0211], [0212]) to mask off-notes of the rebaudioside M and improve mouthfeel ([0201], “the additives act to improve the temporal and flavor profile of the sweetener”), wherein the glucosylated steviol glycoside is present in an amount greater than rebaudioside M and wherein the ratio of rebaudioside M to glucosylated steviol glycoside is from about 1:>1 to about 1:1.5 ([0194], [0508], [0524], where a sweetness modifying composition providing final concentrations in a beverage of 300 ppm glucosylated steviol glycoside and 250 ppm rebaudioside M would fall within the disclosed limits and both of the claimed limitations), and wherein the composition improves at least one sweetness characteristic of a sweetened composition ([0542], [0544]). Prakash et al. further discloses the sweetness modifying composition as being added to a sweetened base composition to enhance its sweetness, where the composition may further comprise a beverage base composition and at least one additional sweetener present in an amount at or above its sweetness recognition threshold ([0173]-[0174], [0176]).
Prakash et al. does not disclose the glucosylated steviol glycoside as being from among the claimed list or the composition as achieving at least on of improving upfront sweetness, weakening bitter off-note taste or weakening dry/astringent mouthfeel of a sweetened composition.
However, Purkayastha discloses glucosylated steviol glycosides for use as taste/flavor modifiers ([0010]) that include glucosylated stevioside ([0027]).
It would have been obvious to one of ordinary skill in the art to use glucosylated stevioside in the composition of Prakash et al. Since Prakash et al. teaches only generally that glucosylated steviol glycosides may be used in the composition ([0194]), a skilled practitioner would be motivated to consult Purkayastha for more specific instruction regarding suitable glucosylated steviol glycosides. Since Purkayastha teaches glucosylated stevioside as being an example of such a compound, the addition of glucosylated stevioside to the composition of Prakash et al. would be obvious.
Regarding the effect of the composition, Prakash ‘311 discloses the inclusion of sweet taste improving compositions for compositions comprising natural high-potency sweeteners (NHPS) ([0081], [0096]), including chlorogenic acid ([0101]), where the undesirable taste attributes of the NHPS to be improved may include bitter and astringent off tastes ([0004], [0006]).
It would have been obvious to one having ordinary skill in the art to weaken bitter off-note taste and dry/astringent mouthfeel of a sweetened composition via the additives disclosed in Prakash et al. First, Prakash et al. discloses the sweetenable compositions may already contain a sweetener component ([0173], [0176], [0383]), where the initial sweetener may be another steviol glycoside, such as rebaudioside A ([0508], [0195]). Since Prakash et al. provides limited instruction regarding the nature of the sweet taste improvement ([0544]), a skilled practitioner would be motivated to consult Prakash ‘311 for clarification. Since Prakash ‘311 indicates that the sweet taste improvement may include an improvement of bitter and astringent off tastes ([0081], [0096], [0004], [0006]) and that rebaudioside A is among the high-potency sweeteners that exhibit such undesirable tastes ([0004]), a skilled practitioner would find the weakening of bitter off-note tastes and dry/astringent mouthfeel of a sweetened composition to be obvious.
Regarding claim 31, Prakash et al. discloses a sweetness modifying composition ([0172], [0174]) comprising about 50-360 ppm rebaudioside M (i.e., rebaudioside X) ([0179], [0524]) in an amount that provides off-notes ([0201], where “the additives act to improve the temporal and flavor profile of the sweetener”, thus indicating off-notes initially being perceptible), about 60-430 ppm glucosylated steviol glycoside (specifically, “from about 0.3 ppm to about 3,500 ppm”) ([0190], [0194], [0508]), and about 500 to 4,000 ppm of chlorogenic acid (specifically, from about 10 ppm to about 5,000 ppm”) ([0201], [0211], [0212]) to mask off-notes of the rebaudioside M and improve mouthfeel ([0201], “the additives act to improve the temporal and flavor profile of the sweetener”), wherein the glucosylated steviol glycoside is present in an amount greater than rebaudioside M and wherein the ratio of rebaudioside M to glucosylated steviol glycoside is from about 1:>1 to about 1:1.5 ([0194], [0508], [0524], where a sweetness modifying composition providing final concentrations in a beverage of 300 ppm glucosylated steviol glycoside and 250 ppm rebaudioside M would fall within the disclosed limits and both of the claimed limitations), and wherein the composition improves at least one sweetness characteristic of a sweetened composition ([0542], [0544]). Prakash et al. further discloses the sweetness modifying composition as being added to a sweetened base composition to enhance its sweetness, where the composition may further comprise a beverage base composition and at least one additional sweetener present in an amount at or above its sweetness recognition threshold ([0173]-[0174], [0176]). Prakash et al. also discloses that the composition may range from “zero-calorie” to “full-calorie” ([0196]-[0199]). Since sucrose is a caloric component, the reduction in caloric content of the composition implicitly involves reducing the amount of sugar in a sweetened composition compared to a composition that is not sweetened at least in part by the rebaudioside M sweetening composition.
Prakash et al. does not disclose the glucosylated steviol glycoside as being from among the claimed list or the sweetness characteristic as being at least one of: upfront sweetness, weakened bitter off-note taste, or weakened dry/astringent mouthfeel.
However, Purkayastha discloses glucosylated steviol glycosides for use as taste/flavor modifiers ([0010]) that include glucosylated stevioside ([0027]).
It would have been obvious to one of ordinary skill in the art to use glucosylated stevioside in the composition of Prakash et al. Since Prakash et al. teaches only generally that glucosylated steviol glycosides may be used in the composition ([0194]), a skilled practitioner would be motivated to consult Purkayastha for more specific instruction regarding suitable glucosylated steviol glycosides. Since Purkayastha teaches glucosylated stevioside as being an example of such a compound, the addition of glucosylated stevioside to the composition of Prakash et al. would be obvious.
Regarding the effect of the composition, Prakash ‘311 discloses the inclusion of sweet taste improving compositions for compositions comprising natural high-potency sweeteners (NHPS) ([0081], [0096]), including chlorogenic acid ([0101]), where the undesirable taste attributes of the NHPS to be improved may include bitter and astringent off tastes ([0004], [0006]).
It would have been obvious to one having ordinary skill in the art to weaken bitter off-note taste and dry/astringent mouthfeel of a sweetened composition via the additives disclosed in Prakash et al. First, Prakash et al. discloses the sweetenable compositions may already contain a sweetener component ([0173], [0176], [0383]), where the initial sweetener may be another steviol glycoside, such as rebaudioside A ([0508], [0195]). Since Prakash et al. provides limited instruction regarding the nature of the sweet taste improvement ([0544]), a skilled practitioner would be motivated to consult Prakash ‘311 for clarification. Since Prakash ‘311 indicates that the sweet taste improvement may include an improvement of bitter and astringent off tastes ([0081], [0096], [0004], [0006]) and that rebaudioside A is among the high-potency sweeteners that exhibit such undesirable tastes ([0004]), a skilled practitioner would find the weakening of bitter off-note tastes and dry/astringent mouthfeel of a sweetened composition to be obvious.
As for claim 32, Prakash et al. discloses that the composition may range from “zero-calorie” to “full-calorie” ([0196]-[0199]). Since sucrose is a caloric component, the reduction in caloric content of the composition implicitly involves reducing the amount of sugar in a sweetened composition compared to a composition that is not sweetened at least in part by the rebaudioside M sweetening composition. Such reduction to a “zero-calorie” composition would involve replacing sugar in an amount of up to 100%. Also, Prakash et al. discloses that the beverage may simply be unsweetened initially ([0173]).
As for claims 33-36, Prakash et al. discloses that the composition may comprise sucrose ([0191]) and that the rebaudioside M and the carbohydrate sweetener may be present “in any weight ratio” ([0193]). Such disclosure anticipates, or at least renders obvious, the replacement of any amount of sugar in the sweetened composition, including within the claimed ranges of about 30-70% (claim 33), about 50-100% (claim 34), about 50-80% (claim 35), and about 50-70% (claim 36).
As for claims 37-39, Prakash et al. discloses the composition may comprise stevioside together with the glucosylated steviol glycoside ([0194]-[0195]). That the claims appear to require the glucosylated steviol glycoside component per se as including the stevioside does not patentably distinguish the claims from Prakash et al. The limitation is effectively directed to an intermediate ingredient that is incorporated into a broader overall composition. Whether the stevioside present in the overall composition is extraneously added or added as part of the glucosylated steviol glycoside ingredient is immaterial.
Response to Arguments
Claim Rejections - 35 U.S.C. § 103 of claims 1, 3, 4, 7, 10, 12, 13, 16, 18-20, 22, 23, 25, 27, and 30-39 over Prakash et al., Purkayastha, and Prakash ‘311: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant first argued that the claims as presently amended are not disclosed or rendered obvious by the prior art, particularly the improved sweetness characteristics (Applicant’s Remarks, p. 14, ¶2).
However, the updated claim rejections address the new claim limitations and establish the basis for deeming the present claims obvious in view of the prior art.
Applicant next argued that Prakash et al. does not disclose the claimed glucosylated steviol glycosides or the claimed taste modifiers and that the cited secondary references do not recite other elements of the present claims (Applicant’s Remarks, p. 15, ¶3).
However, Purkayastha discloses the claimed glucosylated steviol glycoside and, in combination with Prakash et al., was determined to render the inclusion of glucosylated stevioside obvious. Prakash et al. further discloses the inclusion of chlorogenic acid, which is one of the claimed taste modifiers. Purkayastha and Prakash ‘311 are relied on only as secondary references and thus need not disclose all of the elements of the present claims. The secondary references are considered adequate for all that is relied on in the present claim rejections.
Applicant further asserted that the present claim rejections rely on improper hindsight (Applicant’s Remarks, p. 15, ¶3).
In response to Applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Examiner maintains that the present claim rejections rely only on knowledge that was within the level of ordinary skill in the art at the time the claimed invention was made and thus do not rely on improper hindsight rationale. Accordingly, Examiner maintains that the present claim rejections are proper.
Applicant then argued specifically that the claimed taste modifiers are not disclosed or suggested (Applicant’s Remarks, p. 16, ¶1-¶2).
However, Prakash et al. discloses the inclusion of chlorogenic acid as a taste modifier ([0201], [0211]), which undermines Applicant’s argument.
Applicant further argued that Purkayastha does not disclose rebaudioside M in particular in combination with a glucosylated steviol glycoside, such that there would be no reasonable expectation of success in combining rebaudioside M with a glucosylated steviol glycoside (Applicant’s Remarks, p. 16, ¶3 – p. 17, ¶1). Applicant also asserted that the range of ratios of components in Purkayastha is outside the claimed range (Applicant’s Remarks, p. 17, ¶1).
However, the primary reference, Prakash et al., discloses rebaudioside M and glucosylated steviol glycosides generally ([0190], [0194]). Purkayastha is relied on only for clarification regarding the type of glucosylated steviol glycoside. The claim rejection does not rely on Purkayastha for any instruction regarding rebaudioside M specifically. Similarly, the concentrations relied on are from Prakash et al., not Purkayastha, which undermines Applicant’s argument regarding the ratios disclosed in Purkayastha.
The rejections of claims 1, 3, 4, 7, 10, 12, 13, 16, 18-20, 22, 23, 25, 27, and 30-39 have been maintained herein.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Ungureanu et al. (U.S. 2010/0284944 A1), disclosing 4-(2,2,3-trimethylcyclopentyl)butanoic acid as an off-note blocking compound ([0001]-[0002]);
Shi et al. (U.S. 2015/0050408 A1), disclosing N-geranoyl-Pro, N-palmiteneoyl-Pro, N-stearoyl-Pro, N-linoleoyl-Pro and N-linolenoyl-Pro ([0089]) and N-geranoyl-Met, N-palmitenoyl-Met, N-stearoyl-Met, N-linoleoyl-Met and N-linolenoyl-Me ([0124]) as flavor modifiers ([0001]-[0007]).
Shi et al. (U.S. 2015/0064326 A1); and
Shi et al. (U.S. 2015/0064327 A1).
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.
Claims 1, 3, 4, 7, 10, 12, 13, 16, 18-20, 22, 23, 25, 27, and 30-39 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