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 02/04/2026 is acknowledged.
In light of the claim amendments necessitating a shift to a better-aligned primary reference, the 35 U.S.C. 102(a)(1) rejections of claims 18 and 21-27 over Prakash ‘284 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 18 and 21-27
Withdrawn claims: None
Previously canceled claims: 1-17, 19, and 20
Newly canceled claims: 22, 23, and 27
Amended claims: 18
New claims: 28-36
Claims currently under consideration: 18, 21, 24-26, and 28-36
Currently rejected claims: 18, 21, 24-26, and 28-36
Allowed claims: None
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 21 and 24-26 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claims 21 and 24-26 recite the limitation “the flavored article” in line 1 of each claim. There is insufficient antecedent basis for this limitation in the claims, since parent claim 18 has been amended to recite “a beverage”.
Claim Rejections - 35 USC § 102
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 18, 21, 24, 26, and 28-36 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Guthrie et al. (U.S. 2017/0258121 A1).
Regarding claim 18, Guthrie et al. discloses a beverage ([0044]) comprising 300-500 ppm of a mixture of steviol glycosides comprised of 5-15% rebaudioside A (RA), 5-15% rebaudioside B (RB), 20-30% rebaudioside D (RD), and 50-60% rebaudioside M (RM) ([0019], Table 1), which anticipates the claimed ranges of 10-100 ppm RA, 20-267 ppm RD, and 20-400 ppm RM. For example, a beverage according to Guthrie et al. comprising 500 ppm of a steviol glycoside mixture comprised of 10% RA, 10% RB, 30% RD, and 50% RM would comprise 50 ppm RA, 50 ppm RB, 150 ppm RD and 250 ppm RM. The disclosure of Guthrie et al. is considered to be sufficiently specific to anticipate the claimed ranges due to the relatively narrow ranges disclosed in the reference for each specific steviol glycoside, the specific steviol glycosides corresponding to those claimed (in conjunction with claim 26), and the relatively narrow range of concentrations of the overall steviol glycoside mixture in the liquid. MPEP 2131.03 II.
As for claim 21, Guthrie et al. discloses the beverage as comprising a bulking agent ([0038]).
As for claims 24 and 26, Guthrie et al disclose the beverage as further comprising another natural steviol glycoside that is rebaudioside B ([0019], Table 1).
As for claims 28-30, the rationale detailed previously in relation to claim 18 showed that achieving an RA concentration of 50 ppm falls within the scope of the disclosure of Guthrie et al., which would anticipate the claimed ranges of 20-80 ppm (claim 28), 30-60 ppm (claim 29), and 40-50 ppm (claim 30).
As for claims 31-33, the rationale detailed previously in relation to claim 18 showed that achieving an RD concentration of 150 ppm falls within the scope of the disclosure of Guthrie et al., which would anticipate the claimed ranges of 100-180 ppm (claim 31), 130-170 ppm (claim 32), and 140-160 ppm (claim 33).
As for claims 34-36, Guthrie et al. discloses a beverage that may comprise 300-500 ppm of a mixture of steviol glycosides comprised of 5-15% rebaudioside A (RA), 5-15% rebaudioside B (RB), 20-30% rebaudioside D (RD), and 50-60% rebaudioside M (RM) ([0019], Table 1), which would anticipate the claimed ranges of 10-100 ppm RA, 20-267 ppm RD, and 20-400 ppm RM (claim 18), as well as the claimed ranges for RM of 50-150 ppm (claim 34), 100-150 ppm (claim 35), and 140-150 ppm (claim 36). For example, a beverage according to Guthrie et al. comprising 300 ppm of a steviol glycoside mixture comprised of 10% RA, 10% RB, 30% RD, and 50% RM would comprise 30 ppm RA, 30 ppm RB, 90 ppm RD and 150 ppm RM. The disclosure of Guthrie et al. is considered to be sufficiently specific to anticipate the claimed ranges due to the relatively narrow ranges disclosed in the reference for each specific steviol glycoside, the specific steviol glycosides corresponding to those claimed, and the relatively narrow range of concentrations of the overall steviol glycoside mixture in the liquid. MPEP 2131.03 II.
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.
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.
Claim 25 is rejected under 35 U.S.C. 103 as being unpatentable over Guthrie et al. (U.S. 2017/0258121 A1) in view of Prakash et al. (hereinafter “Prakash ‘269”) (U.S. 2018/0263269 A1).
Regarding claim 25, Guthrie et al. discloses the beverage of claim 18.
Guthrie et al. does not disclose the product as further comprising phloretin or naringenin.
However, Prakash ‘269 discloses the inclusion of phloretin ([0077]) and naringenin ([0067], [0069], [0071]) in a beverage flavored with steviol glycosides ([0009]).
It would have been obvious to one having ordinary skill in the art to incorporate phloretin and/or naringenin into the beverage of Guthrie et al. First, Guthrie et al. discloses that the beverage composition may include a sweetness enhancer ([0038]), which would motivate a skilled practitioner to consult a secondary reference in order to determine suitable sweetness enhancers. Prakash ‘269 discloses that both naringenin and phloretin are thought to improve the sweetness temporal profile and enhance sweetness of steviol glycoside compositions ([0067], [0077]). As such, incorporation of phloretin and/or naringenin into the beverage of Guthrie et al. would be obvious for the purpose of enhancing sweetness as taught in Prakash ‘269.
Response to Arguments
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 18 and 21-27 over Prakash ‘284: Applicant’s arguments (Applicant’s Remarks, p. 4, ¶3-¶4) have been fully considered, and the rejections in view of Prakash ‘284 are withdrawn. New grounds of rejection are made in view of Guthrie et al. as detailed previously herein. The claim amendments altered the patentability analysis such that Guthrie et al. better supports an anticipation rejection of the independent claim than Prakash ‘284. Examiner does not concede that the claims as presently amended would necessarily overcome the rejection in view of Prakash ‘284. Applicant’s arguments regarding Prakash ‘284 are moot due to that reference not being relied on in any of the present claim rejections.
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.
Claims 18, 21, 24-26, and 28-36 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