DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application is being examined under the pre-AIA first to invent provisions.
The amendment filed February 9, 2026 is acknowledged. Claims 21-23, 46, 48, and 50-51 are pending in the application. Claims 1-20, 24-45, 47, and 49 have been cancelled.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 9, 2026 has been entered.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of pre-AIA 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this country, more than one year prior to the date of application for patent in the United States.
Claims 21, 23, and 50 are rejected under pre-AIA 35 U.S.C. 102(b) as being anticipated by Chen et al. CN 101701238 (hereinafter “Chen”) (refer to the corresponding machine translation).
With respect to claim 21, Chen teaches food products (Abstract; and P3, Top).
Regarding the recitation of “for human consumption that is classified as a food, beverage, pharmaceutical composition, tobacco, nutraceutical, oral hygienic composition, or cosmetic” in the preamble of claim 21, it is noted that this recitation is a statement of intended use or field of use. If the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states the purpose or intended use of the invention, then the preamble is not considered a limitation and is of no significance to the claim construction. See MPEP 2111.02.
Regarding the recitation of “consisting essentially of” at line 6, it is noted that the phrase “consisting essentially of” is limited to the specified materials or steps “and those that do not materially affect the basic and novel characteristic(s)”. In re Herz, 537 F.2d 549, 551-52, 190 USPQ 461, 463 (CCPA 1976). See also PPG, 156 F.3d at 1355, 48 USPQ2d at 1355 (“PPG could have defined the scope of the phrase consisting essentially of’ for purposes of its patent by making clear in its specification what it regarded as constituting a material change in the basic and novel characteristics of the invention.”).
Upon review of Applicant’s disclosure, there does not appear to be any explicit or implicit disclosure of additional materials that would materially change the characteristics of the purified steviol glycoside composition. Additionally, the basic and novel characteristics of the claimed purified steviol composition have not been clearly identified in the specification or by the Applicant in their remarks filed February 9, 2026. Applicant is reminded that if an Applicant contends that additional steps or materials in the prior art are excluded by the recitation of “consisting essentially of,” Applicant has the burden of showing that the introduction of additional steps or components would materially change the characteristics of Applicant' s invention. In re De Lajarte, 337 F.2d 870, 143 USPQ 256 (CCPA 1964). Thus, for the purpose of the examination, absent a clear indication in the specification or claims of what the basic and novel characteristics actually are, the recitation of “consisting essentially of” at line 6 of claim 21 will be construed as equivalent to “comprising.”
Regarding the recitation of the product comprising a sweetness enhancer, flavor enhancer, or a sweetener, the sweetness enhancer, flavor enhancer, or sweetener comprising a purified steviol glycoside composition consisting essentially of rubusoside and stevioside, wherein the purified steviol glycoside composition comprises 95-99% rubusoside on a dry basis and 1-5% stevioside on a dry basis in claim 21, Chen teaches the food product comprises a sweetener comprising a purified steviol glycoside composition containing rubusoside and stevioside. In one embodiment, the purified steviol glycoside composition contains 95% rubusoside and 5% stevioside (Abstract; P3, Top and 3rd and 7th paragraphs; P4, 7th paragraph; P5, 4th paragraph; P7, Example 4; and P8, Example 13).
With respect to claim 23, Chen is relied upon for the teaching of the product of claim 21 as addressed above.
Regarding the recitation of further comprising one natural high intensity sweetener in claim 23, Chen teaches the product may also comprise rebaudioside C (Abstract; P3, Top; P4, 7th paragraph; and P5, 4th and 9th paragraphs).
With respect to claim 50, Chen is relied upon for the teaching of the product of claim 21 as addressed above.
Regarding the recitation of further comprising rebaudioside A in claim 50, Chen teaches the product may also comprise rebaudioside A (Abstract; P3, Top; P4, 7th paragraph; P5, 4th and 9th paragraphs; and P6, Example 1).
Claim Rejections - 35 USC § 103
The following is a quotation of pre-AIA 35 U.S.C. 103(a) which forms the basis for all obviousness rejections set forth in this Office action:
(a) A patent may not be obtained though the invention is not identically disclosed or described as set forth in section 102, if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter 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 pre-AIA 35 U.S.C. 103(a) 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.
Claim 48 is rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Chen et al. CN 101701238 (hereinafter “Chen”) (refer to the corresponding machine translation) as applied to claim 21 above.
With respect to claim 48, Chen is relied upon for the teaching of the product of claim 21 as addressed above.
Regarding the recitation of wherein the purified steviol glycoside composition comprises 98-99% rubusoside on a dry basis and 1-2% stevioside on a dry basis in claim 48, Chen teaches the purified steviol glycoside composition contains at least 90% rubusoside and up to 10% stevioside (P3, 5th paragraph; P4, 7th paragraph; P5, 4th paragraph; P7-P8, Examples 2-13). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, 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).
Claims 22, 46, and 51 are rejected under pre-AIA 35 U.S.C. 103(a) as being unpatentable over Chen et al. CN 101701238 (hereinafter “Chen”) (refer to the corresponding machine translation) as applied to claim 21 above, and in further view of Corliss et al. WO 2009137838 (hereinafter “Corliss”).
With respect to claim 22, Chen is relied upon for the teaching of the product of claim 21 as addressed above.
Regarding the recitation of further comprising rebaudioside D in claim 22, Chen does not expressly disclose this recitation.
Corliss teaches food products. The products comprise a sweetener. The sweetener comprises a purified steviol glycoside composition which may include from about 95% to about 100% of a particular steviol glycoside, such as rubusoside, and the remainder of the composition (up to about 5%) of other steviol glycoside(s), such as stevioside. The product may also include rebaudioside D (P2, L15-16; and P6, L9-11 and 18-20; and P7, L12-27).
It would have been obvious to one of ordinary skill in the art at the time of the invention, given the teachings of Corliss, to select rebaudioside D in the product of Chen based in its suitability for its intended purpose with the expectation of successfully preparing an organoleptically desirable product. One of ordinary skill in the art would have been motivated to do so because Chen and Corliss similarly teach products comprising rubusoside and stevioside, Corliss teaches combinations of high intensity sweeteners may be used and steviol glycosides, such as rebaudioside D, provide sweet taste and can be used as high intensity sweeteners (P6, L9-11 and 18-20; and P7, L3-4 and 12-27), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
With respect to claim 46, modified Chen is relied upon for the teaching of the product of claim 22 as addressed above.
Regarding the recitation of further comprising one natural high intensity sweetener in claim 46, Chen teaches the product may also comprise rebaudioside C (Abstract; P3, Top; P4, 7th paragraph; and P5, 4th and 9th paragraphs).
With respect to claim 51, modified Chen is relied upon for the teaching of the product of claim 21 as addressed above.
Regarding the recitation of further comprising a natural flavor compound selected from the group consisting of lemon, orange, fruity, banana, grape, pear, pineapple, bitter almond, cola, cinnamon, sugar, cotton candy, and vanilla flavors in claim 51, Chen does not expressly disclose this limitation.
Corliss teaches food products. The products comprise a sweetener. The sweetener comprises a purified steviol glycoside composition which may include from about 95% to about 100% of a particular steviol glycoside, such as rubusoside, and the remainder of the composition (up to about 5%) of other steviol glycoside(s), such as stevioside. The product may also comprise natural taste modifying compositions, such as flavors, including vanilla, lemon, pineapple, fruity, sugar, cola, orange, banana, and cinnamon (P2, L15-16; P3, L13-14 and 16-18; P5, L3-7; P6, L9-11 and 18-20; P7, L12-27; P8, L28-31; P10, L1-2; P11, L27-35; P15, L24-32; and P26-P27).
It would have been obvious to one of ordinary skill in the art at the time of the invention, given the teachings of Corliss, to select a taste modifying composition (natural flavor compound) in the product of Chen based in its suitability for its intended purpose with the expectation of successfully preparing an organoleptically desirable product. One of ordinary skill in the art would have been motivated to do so because Chen and Corliss similarly teach products comprising rubusoside and stevioside, Corliss teaches the taste modifying composition can be used to modify the sweet quality, duration, or intensity of the high intensity sweetener (P3, L30-32; and P9, L27-31), and said combination would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Response to Arguments
Applicant’s remarks filed February 9, 2026 are acknowledged.
Due to the amendments to the claims, the 35 USC 102 rejection of claims 21-23, 46, 48, 50, and 51 over Corliss in the previous Office Action have been withdrawn. Upon further searching and consideration, a new ground(s) of rejection has been made. As addressed above, Chen is relied upon for the teaching of the presently claimed product. Applicant’s arguments with respect to Corliss have been considered but are moot as this reference is no longer being used as the primary reference in the current rejection (P1-P5).
Conclusion
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/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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