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
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.
Claim(s) 1,2,6,8-13,20,22,26,30 is/are rejected under 35 U.S.C. 103 as being unpatentable over Meunier(WO 2017/093302).
Regarding claims 1,2,10,11, Meunier teaches spray dried sweetener powder amorphous composition comprising a sugar such as allulose and a bulking agent(powdering agent) such as dextrin or dietary fiber(p.13, line 351-358; p.12, line 325-330, example 1). Meunier teaches that the sweetener powder has a glass transition temperature of at least 40C(p.9, line 219-221). The sweetener powder comprises sugar(allulose) in an amount of 5 to 70% based on the content of allulose the powdering agent(bulking agent)(p.13, line 330-335), since the powdering agent and the sugar are the primary ingredients with only a surfactant present in a small amount of 1.5%(example 1). Meunier further teaches a powdering agent content of 5 to 70%(p.13, line 346-348).
Meunier is silent on the glass transition temperature of allulose. However, glass transition temperature is an inherent feature of allulose. Therefore, the glass transition temperature would be expected to be -5.5C as claimed.
Meunier is silent on the glass transition temperature of the powdering agent. However, Meunier teaches the use of a dextrin or dietary fiber powdering agent as claimed. Therefore, one of ordinary skill in the art would expect the powdering agent to have the claimed glass transition temperature.
Applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Meunier is silent on the dextrose equivalent of the sweetener powder. However, Meunier teaches the same allulose and powdering agent spray dried sweetener powder as claimed. Therefore, one of ordinary skill in the art would expect the sweetener powder to have the same dextrose equivalent as claimed.
Applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Meunier does not specifically teach that the sweetener powder has a dissolution time of less than 80% of the dissolution time of a sample in which the powdering agent and allulose crystals are mixed in a solid state. However, Meunier teaches that the amorphous particles dissolves more rapidly than crystalline sugar particles of a similar size(p.6, line 150-161). Therefore, one of ordinary skill in the art would expect the sweetener powder has a dissolution time of less than 80% of the dissolution time of a sample in which the powdering agent and allulose crystals are mixed in a solid state.
Applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 6, Meunier is silent on the calorie content of the sweetener powder. However, Meunier teaches the same allulose and powdering agent spray dried sweetener powder as claimed. Therefore, one of ordinary skill in the art would expect the sweetener powder to have the same calorie content as claimed.
Applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding claim 8, Meunier teaches that the powdering agent can be in the form of dietary fiber and/or maltodextrin (p.13, line 351-358). Therefore, it would have been obvious to use indigestible dextrin since it is a source of dietary fiber.
Regarding claim 9, Meunier teaches that the amorphous particles have a moisture content of between 1% and 5%(p.23, line 619-620).
Regarding claims 12,22, Meunier teaches a method for preparing a sweetener powder composition according to claim 1, comprising the steps of:
preparing a liquid product comprising a powdering agent such as dietary fiber or dextrin and allulose having a solids content of 50% (p.13, line 351-358; p.12, line 325-330, example 1), and
spray-drying the liquid product under an outlet air temperature condition of 85C to prepare the sweetener powder composition(example 1).
Meunier is silent on the dextrose equivalent of liquid product. However, Meunier teaches the same allulose and powdering agent liquid product as claimed. Therefore, one of ordinary skill in the art would expect the sweetener powder to have the same dextrose equivalent as claimed.
Applicant is reminded that where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Meunier is silent on the glass transition temperature of allulose. However, glass transition temperature is an inherent feature of allulose. Therefore, the glass transition temperature would be expected to be -5.5C as claimed.
Regarding claim 13, Meunier teaches high intensity are commonly included in sweetener compositions in order to lower the calorie content of the composition(p.7, line 169-170). Therefore, it would have been obvious to include high intensity sweeteners in sweetener composition of Meunier in order to lower the caloric content of the composition.
Regarding claim 20, Meunier teaches that the sweetener powder is included in a confections such as chocolate(abstract).
Regarding claim 26, Meunier teaches that the spray drying is performed at a temperature of 85C(example 1) that the sweetener powder has a glass transition temperature of at least 40C (p.9, line 219-221). Therefore, the spray drying is performed at a temperature lower than the glass transition temperature, since “at least 40C” includes values above 85C.
Regarding claim 30, Meunier does not specifically teach that the spray-drying includes at least two or more drying steps. However, it would have been obvious to have multiple drying steps in order to achieve the desired moisture content.
Response to Arguments
Applicant's arguments filed 11/17/2025 have been fully considered but they are not persuasive.
The applicant argues that Meunier does not recognize the challenges present in spray drying of allulose due to its low glass transition temperature and that Meunier focuses more on spray drying of sucrose. However, Meunier renders obvious the spray drying of allulose with a powdering agent such as dextrin or dietary fiber since Meunier directly teaches that the sweetener can be in the form of allulose, despite it being known that allulose has a low glass transition temperature (p.13, line 351-358; p.12, line 325-330, example 1). As such, a reference is resumed to be enabled for all that it teaches. Therefore, since allulose is directly taught, one of ordinary skill in the art would assume that the allulose powder can be effectively spray dried as claimed.
Conclusion
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KATHERINE D LEBLANC whose telephone number is (571)270-1136. The examiner can normally be reached 8AM-4PM EST M-F.
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/KATHERINE D LEBLANC/Primary Examiner, Art Unit 1791