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 Final Office Action filed 05/06/2026 and the Request for Continued Examination (RCE under 37 CFR 1.114) filed 07/06/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment of the claims: the 35 U.S.C. 112(b) rejections of claims 21 and 24-26 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 18, 21, 24-26, and 28-36
Withdrawn claims: None
Previously canceled claims: 1-17, 19, 20, 22, 23, and 27
Newly canceled claims: None
Amended claims: 18, 21, and 24-26
New claims: 37 and 38
Claims currently under consideration: 18, 21, 24-26, and 28-38
Currently rejected claims: 18, 21, 24-26, and 28-38
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05/06/2026 has been entered.
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 28-38 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. Guthrie et al. further discloses the beverage may further comprise other steviol glycosides than rebaudiosides A, B, D, and M, including “other glycosides from the stevia plant” in relatively small concentrations ([0018]), which anticipates the claimed inclusion of “a steviol glycosides extract”. Such inclusion in relatively small concentrations would not appreciably alter the previous exemplary concentration calculations of rebaudiosides A, B, D, and M.
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. discloses 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.
As for claim 37 and 38, Guthrie et al. discloses the other stevia plant glycosides may comprise no more than 1% of the composition, which anticipates the claimed ranges of “from 5 to 100 ppm” (claim 37) and “from 5 to 75 ppm” (claim 38). The disclosure of Guthrie et al. is considered to be sufficiently specific to anticipate the claimed ranges due to lack of any specific compositional requirement for “the steviol glycosides extract”. MPEP 2131.03 II.
Claim Rejections - 35 USC § 103
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. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejections of claims 21 and 24-26 based on amendment to the claims. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 18, 21, 24, 26, and 28-36 over Guthrie et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant asserted that claim 18 was amended to require “a steviol glycosides extract” and that Guthrie et al. thus allegedly fails to anticipate the claim as amended (Applicant’s Remarks, p. 5, ¶4).
As detailed in the claim rejection, though, Guthrie et al. discloses that the beverage may comprise other steviol glycosides than rebaudiosides A, B, D, and M ([0018]), which is adequate to anticipate the claim as presently amended. Whether the other steviol glycosides are added as a steviol extract per se or as a mixture of purified steviol glycosides does not affect the anticipation of the claim. MPEP 2113 I.
The rejections of claims 18, 21, 24, 26, and 28-36 have been maintained herein.
Claim Rejections - 35 U.S.C. § 103 of claim 25 over Guthrie et al. and Prakash et al.: Applicant’s arguments have been fully considered but they are not persuasive.
After reasserting the argument regarding Guthrie et al. that was previously determined to be unpersuasive (Applicant’s Remarks, p. 6, ¶2), Applicant argued that the claimed composition exhibited unexpected results in that a sweetening composition comprising increased amounts of rebaudiosides M, A, and D tasted better than one comprising only a steviol glycosides extract (Applicant’s Remarks, p. 6, ¶3). Applicant alleged that a skilled practitioner would have expected that substitution of steviol glycosides would have resulted in a similar off-taste profile. Id.
However, MPEP 716.02(d) states: “Whether the unexpected results are the result of unexpectedly improved results or a property not taught by the prior art, the ‘objective evidence of nonobviousness must be commensurate in scope with the claims which the evidence is offered to support.’ In other words, the showing of unexpected results must be reviewed to see if the results occur over the entire claimed range.” The presently-asserted evidence is not commensurate in scope with the claims at least because (i) Composition 4 is added to a “pineapple-orange juice beverage” (p. 83, ¶3) and no evidence is apparent as to whether the observed effect would occur in other flavors of beverages; and (ii) only a single data point is provided (MPEP 716.02(d) II: “To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the claimed range.”).
Also, MPEP 716.02(b) states: “The evidence relied upon should establish ‘that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.’” Applicant has provided no basis for the assertion that a skilled practitioner would expect similar off-taste profiles when substituting one set of stevia-derived sweeteners for another. To the contrary, Guthrie et al. discloses that various mixtures of steviol glycosides have better taste properties than other mixtures ([0004]). Applicant’s arguments are thus unpersuasive.
The rejection of claim 25 has been maintained herein.
Conclusion
Claims 18, 21, 24-26, and 28-38 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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