DETAILED ACTION
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 11/17/2025 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 4, 16, 20-37
Withdrawn claims: None
Previously cancelled claims: 1-3, 5-15, 17-19
Newly cancelled claims: None
Amended claims: 16, 20
New claims: 23-37
Claims currently under consideration: 4, 16, 20-37
Currently rejected claims: 4, 16, 20-37
Allowed claims: None
Claim Objections
Claims 29-35, and 36-37 are objected to because of the following informalities:
In claims 29 and 30, “The mixture of claim or 24” should be read as “The mixture of claim 24”.
In claims 31-35, “free from extracts if Stevia ssp.” should be read as “free from extracts of Stevia ssp.”
In claims 36-37, “hersperetin” should be read as “hesperetin”.
In claim 37, “wherein all wt.% and ppm values” should be read as “wherein all ppm values”.
Appropriate correction is required.
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.
Claims 27 and 30 are rejected under 35 U.S.C. 112(b) 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 27 and 30 recite that the sum of all compounds (a), (b), and (c) provides sweetness impact equivalent to sucrose. However, it is unclear as to what amount of sucrose the sum of all compounds (a), (b), and (c) is intended to be equivalent (e.g., equivalent to the sweetness impact of an equal amount of sucrose). Therefore, the claims are indefinite.
For the purpose of this examination, the claims will be interpreted as meaning the sweetness impact of the sum of all compounds (a), (b), and (c) is equivalent to an amount of sucrose which equals the sum of all compounds (a), (b), and (c).
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.
Claims 4 and 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Prakash (US 2018/0263269; previously cited).
Regarding claims 4, 20, and 21, Prakash teaches a mixture (corresponding to a consumable or beverage) [0257], [0260] comprising: (a) D-allulose (corresponding to allulose) [0055], [0378]; (b1) the taste modifying compound phloretin; and (b2) the taste modifying compound phyllodulcin [0078]. Prakash teaches that (a) is present in an amount of about 0.5 wt.% to about 3 wt.% [0378], which overlaps the claimed concentration as recited in present claim 21. Prakash also teaches that (b1) and (b2) are present in a total amount of about 0.0005 wt.% to about 0.005 wt.% (corresponding to about 5 ppm to about 50 ppm) [0068]. These disclosures mean that the mixture comprises weight ratios of (a) : (b) (corresponding to (a):(b1)+(b2) ) of about 6,000:1 to about 100:1, which falls within the claimed range. These disclosures also mean that the mixture comprises (b1) from an amount greater than 0 ppm to an amount less than 50 ppm; and (b2) from an amount greater than 0 ppm to an amount less than 50 ppm. These values provide weight ratios of (b1) and (b2) (corresponding to (b1):(b2) ) which overlap the claimed weight ratio (e.g., the mixture comprising (b1) in an amount of 5 ppm and (b2) in an amount of 5 ppm to provide a weight ratio of 1:1 in the mixture). The selection of a value within the overlapping ranges renders the claimed weight ratios and claimed allulose concentration obvious, particularly in view of the fact that “[t]he normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages” In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP §2144.05.I.
Claims 4, 16, and 20-37 are rejected under 35 U.S.C. 103 as being unpatentable over Prakash (WO 2018/200663; previously cited), hereinafter referred to as “Prakash II”, in view of Ohtani (Ohtani et al., “Further Study on the 1,4-α-Transglucosylation of Rubusoside, a Sweet Steviol-Bisglucoside from Rubus suavissimus”, 1991, Agric. Biol. Chem., 55(2), pages 449-453; previously cited).
Regarding claims 4, 16, 20, 21, and 22, Prakash II teaches a mixture (corresponding to compositions and sweetened consumables such as a sweetener compositions and beverages) (page 1, lines 7-8; page 22, lines 6-9) comprising D-allulose (corresponding to allulose) (page 31, lines 8-9, 15-16); hesperetin (page 48, lines 5, 15-18); glycosylated rubusoside (corresponding to enzymatically glucosylated steviol glycosides wherein the glycoside is rubusoside) (page 11, lines 17-18, 24-26); phloretin; and hesperetin dihydrochalcone (page 3, lines 10-11). Therefore, Prakash II teaches that the mixture comprises the single component of (a) (corresponding to allulose); both components of (b1) (corresponding to hesperetin and phloretin), and one component of (b2) (corresponding to hesperetin dihydrochalcone) as recited in present claims 4 and 16.
Prakash II teaches that the mixture may contain allulose in an amount of about 0.5 wt.% to about 3.0 wt.% (page 31, lines 12, 14-15). This disclosed concentration of allulose falls within the range recited by present claim 21 and encompasses the range recited by present claim 22. Prakash II also teaches that glycosylated rubusoside may be present in the mixture in combination with rebaudioside A so that the combined amount of glycosylated rubusoside and rebaudioside A may be about 0.005 wt.% to about 0.06 wt.% (corresponding to about 50 ppm to about 600 ppm) (page 11, lines 13-14; page 11, line 24-page 12, line 3; page 21, lines 8-9). Therefore, the amount of glycosylated rubusoside in the mixture may be from an amount greater than 0 wt.% to an amount less than 0.06 wt.%.
Prakash II further teaches the mixture may contain about 0.00001 wt.% to about 0.1 wt.% (corresponding to about 0.1 ppm to about 1,000 ppm) of a flavonone ( page 46, lines 11012, 17-18). Since hesperetin is a flavonone, Prakash II at least suggests that the mixture may comprise hesperetin in an amount of about 0.00001 wt.% to about 0.1 wt.%. Prakash II also teaches that the mixture contains phloretin and hesperetin dihydrochalcone in a combined amount of about 0.0001 wt.% to about 0.005 wt.% (corresponding to about 1 ppm to about 50 ppm) (page 3, lines 10-11; page 20, lines 29-30). Therefore, Prakash II discloses that the amount of phloretin in the mixture may be from an amount greater than 0 wt.% to an amount less than about 0.005 wt.%; and that the amount of hesperetin dihydrochalcone may be from an amount greater than 0 wt.% to an amount less than about 0.005 wt.%.
Prakash II teaches that the enzymatically glycosylated rubusoside is present in the mixture to sweeten it (page 11, lines 17-20), but Prakash II does not expressly teach that the glycosylated rubusoside is an alpha-glycosyl rubusoside. Prakash II also does not teach that the mixture comprises the claimed weight ratios of (a) to (b) (corresponding to (a) to (b1)+(b2)) and (b1) to (b2) recited in present claims 4, 16, 20, and 22.
However, Ohtani discloses that alpha-glycosyl rubusoside may be produced enzymatically and has an improved sweetness when compared to non-glycosylated rubusoside (page 449, 1st column – 2nd column, 1st paragraph).
It would have been obvious for a person of ordinary skill in the art to have modified the enzymatically glycosylated rubusoside of Prakash II to be alpha-glycosyl rubusoside as taught by Ohtani. Since Prakash II discloses that the glycosylated rubusoside is present in the mixture to sweeten the mixture (page 11, lines 17-20), but does not specify whether the enzymatically glycosylated rubusoside is an alpha- or beta-glycosyl, a skilled practitioner would have been motivated to consult an additional reference such as Ohtani in order to determine a suitable form of enzymatically glycosylated rubusoside for sweetening the mixture. Therefore, the claimed alpha-glycosyl rubusoside as a component of (b2) as recited in present claims 4, 16, 20, and 22 is rendered obvious.
The combination of Prakash II and Ohtani discloses a mixture comprising allulose in an amount of about 0.5 wt.% to about 3.0 wt.% (page 31, lines 12, 14-15); hesperetin in an amount of about 0.00001 wt.% to about 0.1 wt.% (page 46, lines 11-12, 17-18; page 48, lines 5, 15-18); phloretin from an amount greater than 0 wt.% to an amount less than about 0.005 wt.%; alpha-glycosyl rubusoside in an amount greater than 0 wt.% to less than about 0.06 wt.% (page 11, lines 13-14; page 21, lines 8-9); and hesperetin dihydrochalcone from an amount greater than 0 wt.% to an amount less than about 0.005 wt.% (page 3, lines 10-11; page 20, lines 29-30). Therefore, modified Prakash II discloses a mixture comprising (a) in an amount of about 0.5 wt.% to about 3.0 wt.%; (b1) in an amount from greater than about 0.00001 wt.% to an amount of about 0.105 wt.%; and (b2) in an amount from greater than about 0 wt.% to less than about 0.065 wt.%. These values mean that a weight ratio of (a) and (b) (corresponding to (a):(b1)+(b2) ) overlaps the claimed weight ratio of (a) to (b) recited in present claims 4, 16, 20, and 22 (e.g., a mixture containing (a) in an amount of 3 wt.%; (b1) in an amount of 0.0015 wt.%; and (b2) in an amount of 0.0011 wt.% has a weight ratio of (a):(b) of 1,154:1). These values also mean that a weight ratio of (b1) and (b2) (corresponding to (b1):(b2) ) overlaps the claimed weight ratio of (b1) to (b2) recited in present claims 4, 16, 20, and 22 (e.g., a mixture containing (b1) in an amount of 0.0015 wt.%; and (b2) in an amount of 0.0011 wt.% has a weight ratio of (b1):(b2) of 1.3:1).
In regards to the overlapping and encompassing ranges disclosed by modified Prakash, the selection of a value within the overlapping and encompassing ranges renders the claimed weight ratios and claimed allulose concentration obvious, particularly in view of the fact that “[t]he normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages” In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP §2144.05.I.
Regarding claims 23 and 24, Prakash II teaches a mixture (corresponding to compositions and sweetened consumables such as a sweetener compositions and beverages) (page 1, lines 7-8; page 22, lines 6-9) comprising D-allulose (corresponding to allulose) (page 31, lines 8-9, 15-16); hesperetin dihydrochalcone (page 3, lines 10-11); and sucrose (page 16, lines 23-25, page 17, lines 9-11). Prakash II teaches that the mixture may comprise allulose in an amount of about 500 ppm to about 3,000 ppm (corresponding to about 0.5 wt.% to about 3.0 wt.%) (page 31, lines 12, 14-15); and hesperetin dihydrochalcone in an amount from about 1 ppm to about 50 ppm (page 4, lines 16-17). Therefore, Prakash II teaches that components (a) allulose and (b) hesperetin dihydrochalcone may be in a weight ratio of (a) : (b) from about 10:1 to about 3,000:1, which overlaps the claimed weight ratio range recited in present claims 23 and 24. The selection of a value within the overlapping range renders the claimed ranges obvious. MPEP §2144.05.
Regarding claims 25 and 28, Prakash II teaches the invention as described above in claims 23 and 24, including the mixture may have a sucrose equivalence of at least about 2 w/v% (page 21, lines 25-26). The term “about” in the phrase “about 2 w/v%” is considered to imply a ±10% deviation from 2 w/v%; therefore, Prakash II is considered to disclose a minimum sucrose equivalence of 1.8 w/v%. This disclosed sucrose equivalence provides a range of sucrose equivalents that at least overlap the claimed sucrose equivalents for the sum amount of all compounds of (a) and (b), especially wherein the total sucrose equivalence for the entire mixture is below 2 w/v%. The selection of a value within the overlapping range renders the claimed range obvious. MPEP §2144.05.
Regarding claims 26 and 29, Prakash II teaches the invention as described above in claims 23 and 24, including that the mixture may comprise component (a) allulose in an amount of about 0.5 wt.% to about 3.0 wt.% (page 31, lines 12, 14-15). It is known in the art that the sweetness threshold of allulose is about 2.7 wt.%. Therefore, Prakash II is considered to teach a concentration of allulose in the mixture that overlaps the sweetness threshold of allulose. Prakash II also teaches that component (b) hesperetin dihydrochalcone may be present in an amount that is below its sweetness threshold (page 3, lines 12-14). Therefore, the concentrations of components (a) and (b) disclosed by Prakash II is considered to provide sums of the concentrations of components (a) and (b) which overlap the claimed sweetness threshold of the sum of concentrations of components (a) and (b), especially wherein the individual concentrations of allulose and hesperetin dihydrochalcone in the mixture are below the individual sweetness thresholds of allulose and hesperetin dihydrochalcone. The selection of a value within the overlapping range renders the claimed range obvious. MPEP §2144.05.
Regarding claims 27 and 30, Prakash II teaches the invention as described above in claims 23 and 24, including the mixture has a taste more like a sucrose-sweetened mixture (page 5, lines 11-12), which includes a sugar-like profile (i.e., a taste profile that is equivalent to the taste profile of sugar) (page 84, lines 8-9). Since (1) Prakash II discloses a mixture comprising the ingredients and weight ratio of ingredients required by present claims 23 and 24, from which claims 27 and 30 depend; and (2) Prakash II discloses that the mixture has a taste more like a sucrose-sweetened mixture including a taste which is the same as sucrose-sweetened mixture (page 5, lines 11-12; page 84, lines 8-9), Prakash II is considered to disclose a mixture wherein the sum of all compounds (a), (b), and (c) provides a sweetness impact equivalent to sucrose as recited in present claims 27 and 30, thereby rendering the claims obvious.
Regarding claims 31, 32, and 33, Prakash II teaches the invention as described above in claims 4, 16, and 20, including the mixture may further comprise steviol glycoside or mogroside sweeteners (page 3, lines 1-9). Steviol glycosides and mogrosides are found in extracts of Stevia sp. and extracts of Siraitia grosvenorii, respectively (page 1, line 26- page 2, line 15). However, Prakash II teaches that the steviol glycoside or mogroside sweeteners may be synthetic (page 11, lines 17-21; page 14, lines 12-14). Therefore, Prakash II teaches that the mixture is free from extracts of Stevia sp. and extracts of Siraitia grosvenorii as recited in present claims 31, 32, and 33.
Regarding claims 34 and 35, Prakash II teaches the invention as described above in claims 23 and 24, including the mixture may further comprise steviol glycoside or mogroside sweeteners (page 3, lines 1-9). Steviol glycosides and mogrosides are found in extracts of Stevia sp. and extracts of Siraitia grosvenorii, respectively (page 1, line 26- page 2, line 15). However, Prakash II teaches that the steviol glycoside or mogroside sweeteners may be synthetic (page 11, lines 17-21; page 14, lines 12-14). Therefore, Prakash II teaches that the mixture is free from extracts of Stevia sp. and extracts of Siraitia grosvenorii as recited in present claims 34 and 35.
Regarding claim 36, Prakash II teaches a mixture (corresponding to compositions and sweetened consumables such as a sweetener compositions and beverages) (page 1, lines 7-8; page 22, lines 6-9) that may consist of D-allulose (corresponding to allulose) (page 31, lines 8-9, 15-16); hesperetin (page 48, lines 5, 15-18); glycosylated rubusoside (corresponding to enzymatically glucosylated steviol glycosides wherein the glycoside is rubusoside) (page 11, lines 17-18, 24-26); phloretin; hesperetin dihydrochalcone (page 3, lines 10-11); sucrose (page16, lines 23-25, page 17, lines 9-11); and one or more steviol glycosides (page 11, lines 17-18).
Prakash II teaches that the enzymatically glycosylated rubusoside is present in the mixture to sweeten it (page 11, lines 17-20), but does not expressly teach that the glycosylated rubusoside is an alpha-glycosyl rubusoside.
However, Ohtani discloses that alpha-glycosyl rubusoside may be produced enzymatically and has an improved sweetness when compared to non-glycosylated rubusoside (page 449, 1st column – 2nd column, 1st paragraph).
It would have been obvious for a person of ordinary skill in the art to have modified the enzymatically glycosylated rubusoside of Prakash II to be alpha-glycosyl rubusoside as taught by Ohtani. Since Prakash II discloses that the glycosylated rubusoside is present in the mixture to sweeten it (page 11, lines 17-20), but does not specify whether the enzymatically glycosylated rubusoside is an alpha- or beta-glycosyl, a skilled practitioner would have been motivated to consult an additional reference such as Ohtani in order to determine a suitable form of enzymatically glycosylated rubusoside for sweetening the mixture. Therefore, the claimed alpha-glycosyl rubusoside is rendered obvious.
Regarding claim 37, modified Prakash II teaches the invention as described above in claim 16, including the mixture containing D-allulose (Prakash II, page 31, lines 8-9, 15-16); hesperetin (page 48, lines 5, 15-18); alpha-glycosyl rubusoside (Prakash II, page 11, lines 17-18, 24-26; Ohtani, page 449, 1st column – 2nd column, 1st paragraph); phloretin; hesperetin dihydrochalcone (Prakash II, page 3, lines 10-11); sucrose (Prakash II, page16, lines 23-25, page 17, lines 9-11), rebaudioside A (Prakash II, page 1, lines 24-25), and water (Prakash II, page 29, lines 25-28).
Prakash II discloses that the mixture may contain hesperetin in an amount of about 0.1 ppm to about 1,000 ppm (page 46, lines 11-12, 17-18; page 48, lines 5, 15-18); phloretin from an amount greater than 0 ppm to an amount less than about 50 ppm; alpha-glycosyl rubusoside in an amount greater than 0 ppm to less than about 600 ppm; rebaudioside A in an amount greater than 0 ppm to less than about 600 ppm (page 11, lines 13-14; page 11, line 24-page 12, line 3; page 21, lines 8-9); and hesperetin dihydrochalcone from an amount greater than 0 ppm to an amount less than about 50 ppm (page 3, lines 10-11; page 20, lines 29-30). These disclosed amounts of hesperetin, phloretin, alpha-glycosyl rubusosides, hesperetin dihydrochalcone, and rebaudioside A encompass the claimed concentrations. The selection of a value within the encompassing ranges renders the claimed range obvious. MPEP §2144.05.
Prakash II also teaches that the mixture may further contain flavorings and/or aroma substances (corresponding to bitter orange oil) (page 41, lines 8-13; page 44, lines 20-21). Therefore, modified Prakash II discloses a mixture that may consist of (a)-(f) as recited in present claim 37.
Response to Amendment
The Declaration under 37 CFR 1.132 filed 11/17/2025 is insufficient to overcome the rejection of claims 4, 16, and 20-22 based upon Prakash and Prakash II as set forth in the last Office action.
The Declaration stated that the present inventors found that combinations of D-allulose and one or more taste-modifying compounds, wherein the taste-modifying compounds are from two different groups denoted as (b1) and (b2), “enhance the perceived sweetness and overall flavor quality of sweetened products to a surprising degree, while minimizing artificial aftertastes and lingering synthetic notes”, even when D-allulose and the taste-modifying compounds are used in very small amounts. The Declaration stated that the results in Tables I and III of the present specification demonstrate the critical contribution of combining D-allulose with taste modifiers in a mixture to enhance sweetness impact, intensity, and mouthfeel of the mixture when compared to the same mixture that does not contain D-allulose. The Declaration stated that the data in Table III indicates that D-allulose acts with the taste-modifying compounds hesperetin dihydrochalcone (HC) and alpha-glycosyl rubusoside (OR) to enhance sweetness and texture of a mixture beyond what is achieved by D-allulose alone and by the combination of taste-modifying compounds alone. The Declaration stated that the data in Table IV indicates that D-allulose acts with the taste-modifying compounds hesperetin (HT) and phloretin (PH) to enhance sweetness impact, intensity, and mouthfeel of a mixture beyond what is achieved by each component individually. The Declaration stated that the data in Table V indicates that D-allulose acts with the taste-modifying compounds HT and OR to enhance sweetness impact, intensity, and mouthfeel of a mixture beyond what is achieved by D-allulose alone. The Declaration stated that the data in Table VI indicates that D-allulose acts with the taste-modifying compounds PH and OR to enhance sweetness impact, intensity, and mouthfeel of a mixture beyond what is achieved by D-allulose alone (Declaration, paragraphs 3-16).
However, in response to the assertion in the Declaration that the data in Tables I, III, IV, V, and VI indicates that D-allulose acts with the taste-modifying compounds HT, PH, HC, and OR to enhance sweetness and texture of a mixture beyond what is achieved by D-allulose alone or by the combination of taste-modifying compounds alone, the Examiner points out that D-allulose is known to have flavor modifying properties when used in a concentration below its sweetness threshold as evidenced by the abstract of Smythe (Smythe et al., “D-Allulose as a flavoring substance with flavor modifying properties”, 2017, Global Journal of Food Science and Technology, vol. 5(4), page 258-261). It is also known in the art that allulose exhibits a synergistic effect with other sweeteners (i.e., HC, OR, sucrose, and rebaudioside A are known in the art as sweeteners) as evidenced by the 14th paragraph on the 2nd page of Pacyniak (Pacyniak, B. “Sugar reduction trend opens field to alternative sweeteners”, 2018, Candy Industry, https://www.snackandbakery.com/articles/105939-sugar-reduction-trend-opens-field-to-alternative-sweeteners). Therefore, it would be expected for D-allulose to have a synergistic taste-enhancing effect in a mixture with HC, OR, sucrose, and/or rebaudioside A. Also, HT and PH are well-known as taste-modifying compounds, and are thus considered to also display a synergistic taste-enhancing effect with sweeteners such as D-allulose, HC, OR, sucrose, and/or rebaudioside A. Therefore, the taste enhancement in a mixture comprising a combination of D-allulose and other taste-modifying compounds such as the claimed HT, PH, HC, and OR demonstrated in the Tables is not considered to be unexpected by a skilled practitioner.
The Examiner also points out that: (A) in Table I, the taste-modifying compounds in the mixture were HT, PH, HC, and OR; (B) in Table III, the taste-modifying compounds in the mixture were HC and OR; (C) in Table IV, the taste-modifying compound the mixture were HT and PH; (D) in Table V, the taste-modifying compound the mixture were HT and OR; and (E) in Table VI, the taste-modifying compound the mixture were OR and PH. However, in present claims 4 and 20, HT, PH, HC, and OR are not required to be present in the mixture at all. Therefore, the asserted effects seen in Tables I, III, IV, V, and VI are not necessarily seen in the mixtures of claims 4 and 20 and, as such, claims 4 and 20 are not commensurate in scope with the data.
The Examiner also points out that the data in Tables I, III, IV, V, and VI used a base mixture comprising sucrose and rebaudioside A in water whereas present claims 4, 16, and 20-36 do not require sucrose and rebaudioside A to be present in the mixture. Furthermore, only claims 26 and 29 require D-allulose to be present in a concentration below its sweetness threshold whereas all the other claims allow for D-allulose to be present in concentrations above its sweetness threshold. Therefore, the asserted effects seen in Tables I, III, IV, V, and VI are not necessarily seen in the mixtures of any of claims 4, 16, and 20-36 and, as such, claims 4, 16, and 20-36 are not commensurate in scope with the data.
The Declaration then stated that Table VII demonstrated that the addition of D-allulose in a mixture comprising sucrose, PH, and OR improved the onset and overall sweetness intensity while reducing lingering artificial sweetness and off-notes compared to the same mixture not containing D-allulose. The Declaration stated that Table VIIII demonstrated combinations of HT, PH, OR, and HC are not required for D-allulose’s sweetness-enhancing effects as meaningful improvements in sweetness profile were observed when using only HT in combination with D-allulose. The Declaration stated that Table IX demonstrated that D-allulose consistently enhanced sweetness and mouthfeel across a range of mixtures of carbohydrate and sweetener types. The Declaration stated that the results in Table IX demonstrated that D-allulose and each of the various taste-modifying compounds produced only modest improvements to the base mixture when used alone while combinations of D-allulose and taste-modifying compounds produced greater improvements in sweetness impact, intensity, and mouthfeel in the base mixture when compared to the improvements of the mixtures containing D-allulose or a various taste-modifying compound alone (Declaration, paragraphs 17-22).
However, the Examiner points out that D-allulose is known to have flavor modifying properties when used in a concentration below its sweetness threshold as evidenced by the abstract of Smythe. It is also known in the art that allulose exhibits a synergistic effect with other sweeteners (i.e., HC, OR, sucrose, and rebaudioside A are known in the art as sweeteners) as evidenced by the 14th paragraph on the 2nd page of Pacyniak. Therefore, it would be expected for D-allulose to have a synergistic taste-enhancing effect in a mixture with HC, OR, sucrose, and/or rebaudioside A. Also, HT and PH are well-known as taste-modifying compounds, and are thus considered to also display a synergistic taste-enhancing effect with sweeteners such as D-allulose, HC, OR, sucrose, and/or rebaudioside A. Therefore, the taste enhancement in a mixture comprising a combination of D-allulose and other taste-modifying compounds such as those mixtures demonstrated in the Tables is not considered to be unexpected by a skilled practitioner.
For at least these reasons, the prior art is not considered to overcome the rejection of claims 4, 16, and 20-22 based upon Prakash and Prakash II as set forth in the last Office action.
Response to Arguments
Claim Rejections – 35 U.S.C. §103 of claims 4 and 20-21 over Prakash; claims 4, 16, 20-22 over Prakash II and Ohtani: Applicant’s arguments and amendments have been fully considered and are considered unpersuasive.
Applicant amended claims 16 and 20 to depend from claim 4. Applicant restated the arguments made in the Declaration filed 11/17/2025 (Applicant’s Remarks, page 7, 1st paragraph under “Response to Rejections Under 35 U.S.C. § 103” – page 13, 2nd paragraph).
See the responses to the arguments made in the Declaration in the section labeled “Response to Amendments” above.
Since the prior art has been shown to render the present claims obvious and Applicant’s arguments have been shown to be unpersuasive, the rejections of the claims stand as written herein.
Conclusion
THIS ACTION IS MADE FINAL. 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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/KELLY P KERSHAW/Examiner, Art Unit 1791