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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/12/2026 has been entered.
Response to Arguments
Applicant's arguments filed 2/12/2026 have been fully considered but they are not persuasive. Applicant argues that claim 1 has been amended to require an initial, intermediate, and final composition each having unique compositional and viscosity requirements and that the Final Rejection has not identified where the cited art teaches the initial and intermediate compositions are not suitable for intake prior to inclusion in the final composition and where the allulose is completely dissolved in the aqueous liquid composition.
First, regarding the arguments directed to initial and intermediate compositions and the allulose is completely dissolved in the initial aqueous liquid composition, the limitations are related to how the product is made and not to the structure of the final product. The claims are therefore treated as product-by-process limitations where the Office maintains that the cited references teaches compositions comprising all of the structural limitations of the final composition implied by the product-by-process limitations.
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 1, 4, 7, 50, 58, 62, 64, 71, 83-84, and 94 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.
Claim 1 recites the limitation "the aqueous liquid composition" in lines 4-7. There is insufficient antecedent basis for this limitation in the claim. For purposes of compact prosecution, this limitation is interpreted to refer to the initial aqueous liquid composition in the same clause.
Claim 1 recites the limitation “the liquid composition” at line 23. There is insufficient antecedent basis for this limitation in the claim. For purposes of compact prosecution, this limitation is interpreted to refer to the composition of the preamble as well as corresponding to the final composition.
Claims 4, 7, 50, 58, 62, 64, 67, 71, 83-84 and 94 depend on claim 1 and are rejected for the same lack of clarity.
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claim 7 rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends. Claim 7 claims “the weight content of allulose is at least 98 wt% relative to the total weight of the liquid composition” yet claim 1 is already limited to allulose in an amount of less than 30 wt% relative to the total weight of the final composition. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
Claim Rejections - 35 USC § 103
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 1, 4, 7, 62, 64, 67, 71, 83, 84 and 94 are rejected under 35 U.S.C. 103 as being unpatentable over Woodyer, et. al. (WO 2015/075473; cited on IDS of 12-27-2024; hereinafter Woodyer) in view of Technovation (“Food Science: Make a pH Neutral Drink, pages 1-2, March 2014 submitted in the IDS filed 12/27/2024), Telis, et.al. (“Viscosity of Aqueous Carbohydrate Solutions at Different Temperatures and Concentrations”, International Journal of Food Properties, 10: 185–195, 2007 submitted in the IDS filed 12/27/2024; hereinafter Telis), CSC Scientific Company Inc. (“Viscosity – Testing the Flowability of Liquid Products”, CSC Scientific Company, August 29, 2014 submitted in the IDS filed 12/27/2024; hereinafter CSC Scientific) and CST (“Viscosity Comparison Chart”, CST Sales – The Composite Store, February 20, 2014 submitted in the IDS filed 12/27/2024; hereinafter CST.)
Regarding claim 1, Woodyer teaches a food and beverage product comprising allulose [Title, Field of Invention, p. 1, lines 5-6] including liquid aqueous composition that include sauces and dressing comprising allulose in an amount of from 2% by weight to about 80% by weight [p.5, lines 18-20; p. 35, lines 32-34], “In addition to allulose, the sauce or dressing according to the present invention preferably comprises at least one acidic ingredient, especially in the case of a dressing. The sauce or dressing preferably also comprises water, preferably in an amount of from about 5% by weight of the sauce or dressing to about 80% by weight of the sauce or dressing. The water can be added as pure water or as a fruit and/or vegetable juice, for example.” [p. 35, lines 5-10].
As set forth in MPEP 2144.05, in the case where the claimed range “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); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed.Cir. 1990). It would have been obvious to one of ordinary skill in the art at the time of filing of the invention to prepare the sauce or dressings containing allulose where the concentration of allulose is in any workable or optimum range overlapping with 2 wt% to 80 wt% as taught by Woodyer including the claimed range in order to produce a sauce or dressing.
Regarding a final composition has a pH within the range of 2 to 9, Woodyer is silent to the pH of the composition. Technovation teaches that bases provided an earthiness taste and acids provided a sour taste (Making Your pH Neutral Drink first paragraph), and that the taste of foods was changed by adding ingredients to change from a sour and acidic taste to a more neutral taste (Science of a pH neutral Drink, last bullet). It would have been obvious to one of ordinary skill in the art at the time of filing of the invention to adjust the pH of the product of Woodyer to a neutral pH, which is around 7, in order to provide a product that did not have an earthy or sour taste. To adjust the pH to obtain a desired taste was well known in the food arts as seen by Technovation and therefore would have been obvious and well within the purview of one of ordinary skill in the art. Thus the prior art makes obvious the use of an overlapping pH range which is considered to encompass, or at least make obvious the claimed range.
Regarding the composition has a viscosity of not more than 200 mPa-s measured by means of a rotary viscometer at 23°C at a speed of 100 rpm, Woodyer does not teach that the liquid composition has a viscosity of not more than 200 mPa·s measured by means of a rotary viscosimeter at 23 °C at a speed of 100 rpm. Woodyer teaches “The term "allulose" (or "D-allulose") as used herein refers to a monosaccharide sugar of the structure shown in Formula I. It is also known as "D-psicose", and is a C3 epimer of D-fructose” [p. 13, lines 8-10]. The examiner notes that both D-fructose and D-allulose have the same chemical structure (except that D-allulose is an enantiomer of D-fructose) and both are monosaccharides and have the same molecular formula of C6H12O6. The phrase in the claim limitation “measured by means of a rotary viscosimeter at 23 °C at a speed of 100 rpm” is considered product by process language and has not been given patentable weight. See In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983- in MPEP 2113.
Telis teaches viscosity measurements of aqueous carbohydrate solutions at different temperatures and concentrations and “Aqueous solutions of sucrose, glucose, or fructose at different temperatures and concentrations are found in several food processes, such as in crystallization and osmotic dehydration, as well as being the basis to formulation of a number of food products or ingredients in the bakery, ice cream, and confectionary industries.” [Introduction, p. 185]. Telis teaches viscosities of D-glucose and D-fructose solutions ranging from 10-50 % w/w and at temperatures ranging from 0–85 oC for D-glucose solutions [Table 3] and ranging from 10-60 % w/w and at temperatures ranging from 0–85 oC for D-fructose solutions [Table 2] using two different brands of rotary viscometer instruments. Telis teaches a 10 % D-glucose solution, at 25 oC, to have a viscosity of 1.07 MPas and 1.15 MPas when measured using a Rheotest 2.1 rheometer and a Brookfield HADV-I+ rheometer, respectively. Telis teaches a 10 % D-fructose solution, at 25 oC, to have a viscosity of 1.02 MPas and 1.00 MPas when measured using a Rheotest 2.1 rheometer and a Brookfield HADV-I+ rheometer, respectively. Also, Telis teaches a 50 % D- glucose solution, at 25 oC, to have a viscosity of 8.75 MPas and 12.75 MPas when measured using a Rheotest 2.1 rheometer and a Brookfield HADV-I+ rheometer, respectively. And, Telis teaches a 50 % D-fructose solution has a viscosity of 8.00 mPas and 8.00 mPas when measured using a Rheotest 2.1 rheometer and a Brookfield HADV-I+ rheometer, respectively. Telis teaches a 60 % D- fructose solution, at 25 oC, to have a viscosity of 24.30 MPas and 25.00 MPas when measured using a Rheotest 2.1 rheometer and a Brookfield HADV-I+ rheometer, respectively. The Rheotest 2.1 rheometer was operated with “The speed of the rotating cylinder varied from 0.028 to 243 rpm” [p. 187, Experimental Apparatus and Measurement Procedure section]. The Brookfield viscometer was “fitted with a Spiral Adapter SA70 spindle, rotating at 20 rpm” [p. 187, Experimental Apparatus and Measurement Procedure section]. The examiner notes that the Rheotest 2.1 rheometer is a viscometer with additional measurement capabilities.
CST reports that corn syrup has a viscosity of 50-100 cps (50-100 mPa·s) [p.1, Viscosity Comparison Chart]. As CST does not report the temperature for the viscosity measurements, one of ordinary skill in the art would understand or at least find it obvious that the temperature for measurement was at room temperature (about 20-25C).
CSC Scientific teaches that “Gathering viscosity data on a material gives manufacturers the ability to predict how the material will behave in the real world.”[p. 2, “Why Should You Measure Viscosity?” section] and “Viscosity is also a characteristic of the texture of food. The product’s viscosity must be measured and monitored during production to ensure that each batch is consistent and will go through the production process efficiently.” [p. 3, “Who Does Viscosity Testing” section].
It would have been obvious to one of ordinary skill in the art to prepare the inventive allulose-containing products of Woodyer to have the bulk, sweetening and functional properties conventionally provided by corn syrup and the like and to have a viscosity about the same as corn syrup, including from 50-100 mPa·s at about 23C as reported by CST. For a food product to have a viscosity of the conventional product to which it was to mimic would have been obvious and well within the purview of one of ordinary skill in the art. Furthermore, CST reports that common foods have different viscosities [page 1, Viscosity Comparison Chart] and CSC Scientific teaches that viscosity is characteristic of food texture [p. 3, “Who Does Viscosity Testing” section].
It would have been obvious to adjust the viscosity of the product of Woodyer based upon the desired food product texture to be produced. Thus, prior to the effective filing dates of the claimed invention, it would have been obvious to one of ordinary skill in the art to utilize the method of Woodyer in view of Telis, CSC Scientific and CST (hereinafter “modified Woodyer”) to prepare an allulose aqueous liquid composition wherein allulose is at least 10 wt.%, relative to the total weight of the liquid composition; and at least 10 wt. %, relative to the total content of all carbohydrates that are contained in the liquid composition; and wherein the liquid composition has a viscosity of not more than 200 mPa-s, measured by means of a rotary viscosimeter at 23 °C at a speed of 100 rpm. The teaching or suggested motivation for doing so being “It would also be desirable to provide allulose in a form such that end users (such as home cooks and other consumers) can readily incorporate it into food and beverage products.” [Woodyer, p. 2, lines 24-26].
Regarding the claim language to the initial aqueous liquid composition and the diluted intermediate liquid compositions, the claim language is directed to product by process limitations. Here, the product claimed is limited to the composition comprising a “final composition formed as a foodstuff or beverage […] including allulose in an amount of less than 30 wt% relative to the total weight of the final composition; and the final composition has a pH value within the range of at least 2 and no more than 9; and the composition has a viscosity of more than 200 mPa-s, as measured by means of a rotary viscometer at 23°C at a speed of 100 rpm.”
“[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985).
As a practical matter, the Patent Office is not equipped to manufacture products by the myriad of processes put before it and then obtain prior art products and make physical comparisons therewith. A lesser burden of proof is required to make out a case of prima facie obviousness for product-by-process claims because of their particular nature than when a product is claimed in the conventional fashion. In re Brown, 59 CCPA 1063, 173 USPQ 685 (1972); In re Fessmann, 180 USPQ 324 (CCPA 1974).
Here, the prior art Woodyer discloses a composition comprising allulose in a weight content range of 2% to 80% by weight which includes the claimed range. The instant claim implies the identical structure of the final composition. It would have been obvious to one of ordinary skill in the art at the time of the invention that changes in the mixture by dilution would not impart structural differences to the end product since the allulose is unchanged. In the event any slight differences can be shown between the two liquid compositions, the burden is on Applicant to provide concrete evidence that the difference exhibits unexpected properties compared to the prior art Woodyer. See Ex parte Gray, 10 USPQ2d 1922.
Regarding claim 4, modified Woodyer teaches the composition of claim 1, and the composition further requires “which comprises no carbohydrate other than allulose.” Woodyer teaches sauces and dressings, “a sauce or dressing comprising allulose in an amount of from about 2% by weight to about 80% by weight” [p. 5, lines 18-20; p. 35, lines 32-34], “In addition to allulose, the sauce or dressing according to the present invention preferably comprises at least one acidic ingredient, especially in the case of a dressing. The sauce or dressing preferably also comprises water, preferably in an amount of from about 5% by weight of the sauce or dressing to about 80% by weight of the sauce or dressing. The water can be added as pure water or as a fruit and/or vegetable juice, for example.” [p. 35, lines 5-10]. It would have been obvious to one of ordinary skill in the art at the time of filing of the invention to prepare the composition as taught by Woodyer where the sauce or dressing comprises allulose, an acid ingredient and pure water and therefore no other carbohydrate as disclosed by Woodyer.
Regarding claim 7, modified Woodyer teaches the composition of claim 1, and the composition further requires “wherein the weight content of allulose is at least 70 wt.-%, relative to the total weight of the liquid composition. Woodyer teaches “a sauce or dressing comprising allulose in an amount of from about 2% by weight to about 80% by weight [p. 5, lines 18-20; p. 35, lines 32-34] and “Allulose may typically be provided in crystalline form (i.e. pure allulose) or in the form of a syrup comprising allulose. Syrups comprising allulose may contain allulose in varying amounts on a dry solids (ds or OS) basis (typically from about 70 to about 90% by weight).” [p. 16, lines 31-34]. Thus, prior to the effective filing dates of the claimed invention, it would have been obvious to one of ordinary skill in the art to utilize the method of modified Woodyer to prepare an allulose aqueous liquid composition with at least 70 wt. % allulose relative to the total weight of the liquid composition. The teaching or suggested motivation for doing so being to provide allulose solutions ready for use in food product formulation, such as for syrups, sauces and dressings.
Regarding claim 62, modified Woodyer teaches the composition of claim 1, and the composition further requires “which has a weight content of undissolved material of not more than 1.0 wt.-%, relative to the total weight of the liquid composition”. Given that the composition of modified Woodyer does not disclose any undissolved material, it is clear that modified Woodyer meets the currently presented claim limitation.
Regarding claims 64, 67 and 71, modified Woodyer teaches the composition of claim 1, and the composition further requires “which has a viscosity of at least 5.0 mPa-s, measured by means of a rotary viscosimeter at 23 °C at a speed of 100 rpm.” (claim 62), “which has a viscosity of not more than 160 mPa-s, measured by means of a rotary viscosimeter at 23 °C at a speed of 100 rpm” (claim 64) and “which has a viscosity of not more than 80 mPa-s, measured by means of a rotary viscosimeter at 23 °C at a speed of 100 rpm” (claim 71), to which Woodyer is silent. Woodyer teaches “The term "allulose" (or "D-allulose") as used herein refers to a monosaccharide sugar of the structure shown in Formula I. It is also known as "D-psicose", and is a C3 epimer of D-fructose” [p. 13, lines 8-10]. The examiner notes that both D-fructose and D-allulose have the same chemical structure (except that D-allulose is an enantiomer of D-fructose) and both are monosaccharaides and have the same molecular formula of C6H12O6. The phrase in the claim limitation “measured by means of a rotary viscosimeter at 23 °C at a speed of 100 rpm” is considered product by process language and has not been given patentable weight. See In re Marosi, 710 F.2d 798, 802, 218 USPQ 289, 292 (Fed. Cir.1983). See MPEP 2113.
Telis teaches viscosity measurements of aqueous carbohydrate solutions at different temperatures and concentrations and “Aqueous solutions of sucrose, glucose, or fructose at different temperatures and concentrations are found in several food processes, such as in crystallization and osmotic dehydration, as well as being the basis to formulation of a number of food products or ingredients in the bakery, ice cream, and confectionary industries.” [Introduction, p. 185]. Telis teaches viscosities of D-glucose and D-fructose solutions ranging from 10-50 % w/w and at temperatures ranging from 0–85 oC for D-glucose solutions [Table 3] and ranging from 10-60 % w/w and at temperatures ranging from 0–85 oC for D-fructose solutions [Table 2] using two different brands of rotary viscometer instruments. Telis teaches a 50 % D-glucose solution, at 25 oC, to have a viscosity of 8.75 MPas and 12.75 MPas when measured using a Rheotest 2.1 rheometer and a Brookfield HADV-I+ rheometer, respectively. Telis teaches a 50 % D-fructose solution has a viscosity of 8.00 mPAS and 8.00 mPAs when measured using a Rheotest 2.1 rheometer and a Brookfield HADV-I+ rheometer, respectively. Telis teaches a 60 % D- fructose solution, at 25 oC, to have a viscosity of 24.30 MPas and 25.00 MPas when measured using a Rheotest 2.1 rheometer and a Brookfield HADV-I+ rheometer, respectively. The Rheotest 2.1 rheometer was operated with “The speed of the rotating cylinder varied from 0.028 to 243 rpm” [p. 187, Experimental Apparatus and Measurement Procedure section]. The Brookfield viscometer was “fitted with a Spiral Adapter SA70 spindle, rotating at 20 rpm” [p. 187, Experimental Apparatus and Measurement Procedure section]. The examiner notes that the Rheotest 2.1 rheometer is a viscometer with additional measurement capabilities.
CST reports that corn syrup has a viscosity of 50-100 cps (50-100 mPa·s) [p.1, Viscosity Comparison Chart]. As CST does not report the temperature for the viscosity measurements, one of ordinary skill in the art would understand or at least find it obvious that the temperature for measurement was at room temperature (about 20-25C).
CSC Scientific teaches that “Gathering viscosity data on a material gives manufacturers the ability to predict how the material will behave in the real world.”[p. 2, “Why Should You Measure Viscosity?” section] and “Viscosity is also a characteristic of the texture of food. The product’s viscosity must be measured and monitored during production to ensure that each batch is consistent and will go through the production process efficiently.” [p. 3, “Who Does Viscosity Testing” section].
It would have been obvious to one of ordinary skill in the art to prepare the inventive allulose-containing products of Woodyer to have the bulk, sweetening and functional properties conventionally provided by corn syrup and the like to have a viscosity about the same as corn syrup, including from 50-100 mPa·s at about 23C as reported by CST. For a food product to have a viscosity of the conventional product to which it was to mimic would have been obvious and well within the purview of one of ordinary skill in the art. Furthermore, CST reports that common foods have different viscosities [page 1, Viscosity Comparison Chart] and CSC Scientific teaches that viscosity is characteristic of food texture [p. 3, “Who Does Viscosity Testing” section].
It would have been obvious to adjust the viscosity of the product of Woodyer based upon the desired food product texture to be produced. Thus, prior to the effective filing dates of the claimed invention, it would have been obvious to one of ordinary skill in the art to utilize the method of modified Woodyer to prepare an allulose aqueous liquid composition with a viscosity of at least 5.0 mPa-s (claim 64), of not more than 160 mPa-s (claim 67) and of not more than 80 mPa-s (claim 68). The teaching or suggested motivation for doing so being “It would also be desirable to provide allulose in a form such that end users (such as home cooks and other consumers) can readily incorporate it into food and beverage products.” [Woodyer, p. 2, lines 24-26].
Regarding claim 83, modified Woodyer teaches the composition of claim 1, and the composition further requires “which comprises no carbohydrate other than allulose.” Woodyer teaches sauces and dressings, “a sauce or dressing comprising allulose in an amount of from about 2% by weight to about 80% by weight” [p. 5, lines 18-20; p. 35, lines 32-34], “In addition to allulose, the sauce or dressing according to the present invention preferably comprises at least one acidic ingredient, especially in the case of a dressing. The sauce or dressing preferably also comprises water, preferably in an amount of from about 5% by weight of the sauce or dressing to about 80% by weight of the sauce or dressing. The water can be added as pure water or as a fruit and/or vegetable juice, for example.” [p. 35, lines 5-10]. It would have been obvious to one of ordinary skill in the art at the time of filing of the invention to prepare the composition as taught by Woodyer where the sauce or dressing comprises allulose, an acid ingredient and pure water and therefore no other carbohydrate as disclosed by Woodyer.
Regarding claim 84, modified Woodyer teaches the composition of claim 1, and the composition further requires “which comprises - no sweeteners and/or - no antioxidants and/or - no preservatives and/or - no hydroxymethyl furfural.” Woodyer teaches sauces and dressings, “a sauce or dressing comprising allulose in an amount of from about 2% by weight to about 80% by weight” [p. 5, lines 18-20; p. 35, lines 32-34], “In addition to allulose, the sauce or dressing according to the present invention preferably comprises at least one acidic ingredient, especially in the case of a dressing. The sauce or dressing preferably also comprises water, preferably in an amount of from about 5% by weight of the sauce or dressing to about 80% by weight of the sauce or dressing. The water can be added as pure water or as a fruit and/or vegetable juice, for example.” [p. 35, lines 5-10]. Given that modified Woodyer does not disclose any sweetener or antioxidant or hydroxymethyl furfural, it is clear that modified Woodyer meets the presently claimed limitation.
Regarding claim 94, “In addition to allulose, the sauce or dressing according to the present invention preferably comprises at least one acidic ingredient, especially in the case of a dressing. The sauce or dressing preferably also comprises water, preferably in an amount of from about 5% by weight of the sauce or dressing to about 80% by weight of the sauce or dressing. The water can be added as pure water or as a fruit and/or vegetable juice, for example.” [p. 35, lines 5-10]. Therefore, since Woodyer discloses that an acidic ingredient is only preferred, Woodyer discloses an embodiment consisting only of allulose and pure water.
Claim 50 is rejected under 35 U.S.C. 103 as being unpatentable over modified Woodyer as applied to claim 1, further in view of Montanez-Soto [“Effect of the fructose and glucose concentration on the rheological behavior of high fructose syrups”, African Journal of Biotechnology, Vol. 12(12), pp. 1401-1407, 20 March, 2013; hereinafter Soto] and Martins, et.al. (“Food colorants: Challenges, opportunities and current desires of agro-industries to ensure consumer expectations and regulatory practices”, Trends in Food Science Technology 52 (2016), pp. 1-15; available online 04-05-2016).
Regarding claim 50, modified Woodyer teaches the composition of claim 1, and the composition further requires “which has a coloring capacity of not more than 1000 EBC”, to which modified Woodyer is silent.
Soto teaches that fructose, glucose and sucrose syrups are colorless [p. 1406, Table 2 and 1st paragraph]. The examiner notes that both D-fructose and D-allulose have the same chemical structure (except that D-allulose is a C3-epimer of D-fructose) and both are monosaccharaides and have the same molecular formula of C6H12O6. There would be every expectation that D-allulose would exhibit similar coloration properties as D-fructose, given the near identical nature of these two compounds.
Martins teaches “An increasing delivery of more and more specific products with different formats, colors, tastes, smells, textures and so on, are available in supermarkets, mostly created to ensure consumers' expectations” [p. 1, Introduction, Section 1.1] and “Color may be considered one of the most impressive and delightful attributes of foodstuffs, which directly influences preference, selection and eating desires of the consumers” [p. 1, right column] and “It is not new that several external conditions, such as light, air, temperature, moisture and storage conditions play a crucial role on the food color loss” [p. 2, Section 1.2, left column] and “Thus, food colorants are mainly applied to offset and overcome those unpleasant characteristics, as also to homogenize the color of foodstuffs, through correction of color variations and/or enhancement of the naturally occurring food color, and even making available colorless products. The final result arising from this intervention is the appearance of specifically targeted and requested products by consumers, and the commonly named “fun foods”, that significantly improves their attractiveness and consequent worldwide demand” [p. 2, Section 1.2, left column].
Thus, prior to the effective filing dates of the claimed invention, it would have been obvious and well within the purview of one of ordinary skill in the art to utilize the method of modified Woodyer in view of Soto and Martins to adjust the coloring capacity to not more than 1000 EBC. The teaching or suggested motivation for doing so being to prepare food product formulations based on the consumer’s demand for desired color and “Not least important to highlight is their sensorial attractiveness, namely the visual perception, color and smell, and in particular food colorants revealed to be of the utmost importance in this field” [Martins p. 1, Introduction, right column].
Claim 58 is rejected under 35 U.S.C. 103 as being unpatentable over modified Woodyer as applied to claim 1, further in view of Yoshino et.al.,(WO2002092545A1, English translation; hereinafter Yoshino) and Fukada.
Regarding claim 58, modified Woodyer teaches the composition of claim 1, and the composition further requires “wherein at least 90% of the allulose are present in form of β-D-allulose, relative to the total weight of allulose”. Woodyer teaches “The term "allulose" (or "D-allulose") as used herein refers to a monosaccharide sugar of the structure shown in Formula I. It is also known as "D-psicose", and is a C3 epimer of D-fructose” [p. 13, lines 8-10] and “In view of its scarcity in nature, production of allulose relies on the epimerization of readily available fructose. Ketose-3-epimerases can interconvert fructose and allulose, and various ketose-3-epimerases are known for carrying out this conversion” [p.13, lines 19-21]. Modified Woodyer does not teach at least 90 % of the allulose are present in a β-D-allulose form.
Yoshino teaches “At present, however, it has become possible to produce large quantities of high-purity products by reactions using epimerase. For example, D-psicose uses D-ketohexose-3, epimerase and D-fructose. High-performance liquid chromatography (HPLC) has made it possible to produce large quantities of nearly 100% pure. (Journal of Fermentation and Bioengineering, 80, 101- 103, 1995).” [bottom of p. 2 – top of p. 3 of the English translation].
Fukada teaches, in Table 3, that D-psicose (D-allulose) has a β-pyranose ring structure and provides, in Figure 6, a graphical representation of β-D-allulose, also known by the name β-D-psicopyranose. The examiner notes that the six-membered ring in the graphic is a pyranose ring.
Thus, prior to the effective filing dates of the claimed invention, it would have been obvious to one of ordinary skill in the art to utilize the method of modified Woodyer in view
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of Yoshino and Fukada to obtain allulose wherein at least 90 % of the allulose are present in a β-D-allulose form. The teaching or suggested motivation for doing so being to obtain and utilize the form of allulose that is most readily available either by manufacture or by purchase, as a cost-effective sweetener that may be used as “a zero-calorie sweetener” [Woodyer, p. 13, line 17] in food formulations such as syrups, sauces and dressings and others taught by Woodyer.
Conclusion
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/MICHAEL FORREST/Primary Examiner, Art Unit 1738