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 .
This office action is in regard to the application filed on July 23, 2021 and in response to Applicant’s Amendments and Arguments/Remarks filed on February 24, 2026.
Status of Application
The amendment filed February 24, 2026 has been entered. Claims 1, 2, 7-10, 12, 13, 15-18, 20, and 21 are currently pending in the application. Claims 7, 17, and 18 have been amended; claims 3-6, 11, 14, and 19 have been canceled; claim 21 is new. Claims 1, 2, 7-10, 12, 13, 15-18, 20, and 21 are hereby examined on the merits.
Claim Objections
Claim 21 is objected to because of the following informalities: The claim is a newly added claim; however, there are markings indicating amendments to a claim (e.g., underlines). Since it is a new claim, there does not need to be any underlining or any other markings of edits. Appropriate correction is required.
Claim Interpretation
Claims 7 and 21 recite “a mixture of disaccharides containing glucose and steviol glycosides” each in line 3 and 2, respectively. This claim language is interpreted as:
“a mixture of:
a. disaccharides containing glucose, and
b. steviol glycosides.”
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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.
Claims 1, 2, 7-10, 12, 13, 15-18, 20, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Abelyan et al. (US PG Pub 2010/0189861; listed in IDS dated Nov. 14, 2022) as evidenced by Niness (“Inulin and Oligofructose: What Are They?”, The Journal of Nutrition, vol. 129, issue 7, July 1999, pp. 1402S-1406S; cited on PTO-892 dated May 8, 2024), Sun et al. (“Expanding the biotechnology potential of lactobacilli through comparative genomics of 213 strains and associated genera,” nature communications, September 2015; 6:8322; cited on PTO-892 dated May 8, 2024), and Purkayastha et al. (WO 2018/090020; cited on PTO-892 dated Nov. 24, 2025), herein after referred to as Abelyan, Niness, Sun, and Purkayastha, respectively.
Regarding claims 7, 9, 15, 16, 18, 20, and 21, Abelyan teaches a process for preparing a sweetener composition (claim 1), the process comprising:
adding sucrose (i.e., a disaccharide containing glucose) (claim 10; [0048]), steviosides (i.e., steviol glycosides) (claim 9; [0048]), and CGTase (i.e., a glycosyltransferase) (claim 10; [0021]) to a reaction mixture to obtain glucosylated sweet glycoside derivatives (i.e., transglycosylated stevia) and saccharides (claim 10; Table 1, sample 2),
wherein the saccharides comprise fructose-terminated oligosaccharides (claim 9; [0049]).
Abelyan does not teach that the glycosyltransferase is derived from Lactobacilli mali, instead teaching that the glycosyltransferase is derived from Bacillus stearothemophilus (claim 11).
However, where Abelyan and the instant claim both teach a glycosyltransferase for the same purpose (preparing a sweetener), the bacteria from which the glycosyltransferase is derived does not offer any patentable weight where there is no showing of unexpected results or criticality. Both Abelyan and the instant claim teach that the glycosyltransferase enzyme is used to produce a sweetener by mixing the enzyme with sucrose and steviol glycosides to obtain transglycosylated stevia and saccharides. As such, Abelyan is considered to render obvious the instant claims.
Abelyan is silent as to the degree of polymerization of the oligosaccharide, but teaches that the oligosaccharide obtained in the sweetener is a fructose-terminated oligosaccharide (i.e., oligofructose, fructooligosaccharide, oligofructan) (claim 9). Oligofructose, as evidenced by Niness, necessarily has a degree of polymerization of less than or equal to 10 (Abstract). This evidentiary range of the degree of polymerization, less than or equal to 10, overlaps with the claimed range of 3 or more. Where the claimed ranges 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). See MPEP 2144.05.I.
Abelyan is silent as to that the glycosyltransferase comprises the sequence represented by SEQ ID NO:1. However, Sun, in the same field of invention, teaches the SEQ ID NO:1 as claimed from Lactobacillus mali (see Result 1 of the sequence Search Results received April 9, 2026). As evidenced by Sun, this sequence is present in glycosyltransferases (p. 5, left column). Thus, where Abelyan teaches glycosyltransferases, the sequence of these glycosyltransferases must be the same as, or comprise, the sequence evidenced by Sun.
Abelyan is silent as to the linkages in the transglycosylated stevia and the chemical structures of the glycosylated steviosides as claimed. However, Purkayastha, in the same field of invention, teaches the structures as claimed (claim 1). As evidenced by Purkayastha, these structures are stevia-derived molecules that are steviol glycosides derived from Stevia plant leaves using any method. Thus, where Abelyan teaches a method of producing steviol glycosides, the structures of these compounds must be the same as the derived compounds (and have the same structure) as the compounds evidenced by Purkayastha.
Regarding claims 1 and 8, Abelyan teaches that the carbohydrates (i.e., saccharides) comprise 4.7 parts by weight of oligosaccharides with respect to 26 parts by weight of the total saccharides (Table 1: Sample 2), which is equivalent to 18 parts by weight of oligosaccharides with respect to 100 parts by weight of the total saccharides. This amount lies within the claimed range of 5 to 90 parts by weight. Regarding the degree of polymerization, as stated in the rejection above, the oligosaccharide of Abelyan necessarily has a degree of polymerization of less than or equal to 10, which overlaps with the claimed range of 3 or more, and where the claimed ranges 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). See MPEP 2144.05.I.
Regarding claims 2 and 13, Abelyan teaches that the carbohydrates (i.e., saccharides) are contained in an amount of 26% by weight with respect to the total weight of the sweetening material composition (Table 1, sample 2).
Regarding claim 10, Abelyan teaches that the disaccharides containing glucose are sucrose and maltose in a mixed weight ratio of 2.4:1.4 (Table 1: Sample 2), equivalent to 1.71, which lies within the claimed range of 1:20 to 20:1, or 0.05 to 20.
Regarding claim 12, Abelyan teaches that the steviol glycosides comprise 33.3% by weight of total rebaudioside A of the 74% by weight of steviol glycosides (Table 1: Sample 2). Thus, all of the rebaudioside A is 45% by weight with respect to the total weight of steviol glycosides. This amount lies within the claimed range of 30 to 70% by weight of rebaudioside A with respect to the total weight of steviol glycosides.
Regarding claim 17, Abelyan teaches that the process temperature (i.e., temperature of contacting the mixture of disaccharides containing glucose and steviol glycosides with a glycosyltransferase of Lactobacillus mali) is 65-75°C [0047]. This is above the claimed range of 30-45°C.
However, generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). See MPEP 2144.05.II.A. Since process temperature is a known variable that affects various properties of a resulting composition, this is a result-effective variable. Therefore, one of ordinary skill in the art would have had a reasonable expectation of success to formulate the claimed range through routine optimization, as varying the process temperature would achieve recognized results. It would have been obvious to one of ordinary skill in the art to have adjusted the process temperature through no more than routine optimization until the desired end product was achieved.
Response to Arguments
Applicant's arguments filed February 24, 2026 have been fully considered but they are not persuasive.
The prior art rejection has been amended in light of Applicant’s amendments to the claims, however, the essential prior art rejection has been maintained by the Examiner for the following reasons.
Applicant argues that the structure of Purkayastha does not show an α-1,6 glycosidic linkage but instead shows a β-1,6 glycosidic linkage (Remarks, p. 6-7).
This argument is not persuasive. As shown on page 5 of the STIC Structure Search (received November 10, 2025 in the application) Purkayastha teaches the claimed structure with an α-1,6 glycosidic linkage. See also below a copy of the structure with the linkage circled.
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Applicant argues against the reasoning that the claimed sequence is not considered to provide a patentable distinction (Remarks, p. 7). This argument is moot as the prior art rejection has been amended to include a new reference that teaches the sequence as claimed.
In the absence of any further arguments with regard to the rejections of the additional dependent claims, the rejections of these dependent claims are maintained.
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.
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/M.E.S./Examiner, Art Unit 1791
/Nikki H. Dees/Supervisory Patent Examiner, Art Unit 1791
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