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 .
Response to Arguments
Applicant's arguments filed 6/24/2026 have been fully considered but they are not persuasive.
Applicant argues in the Remarks at Page 7 that the current Office Action requires a combination of five or more references to arrive at the claimed composition. Applicant further argues that the Office Action is engaging in hindsight analysis and using Applicant’s own disclosure as a roadmap to find prior art features.
First, In response to applicant's argument that the examiner has combined an excessive number of references, reliance on a large number of references in a rejection does not, without more, weigh against the obviousness of the claimed invention. See In re Gorman, 933 F.2d 982, 18 USPQ2d 1885 (Fed. Cir. 1991). Here, the Office maintains that the references presently cited are all relevant to the invention as being directed to a diluted liquid sweetening composition or to allulose directly.
In response to applicant's argument that the examiner's conclusion of obviousness is based upon improper hindsight reasoning, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Here, the Office maintains that the references presently cited are all relevant to the invention as being directed to a diluted liquid sweetening composition or to allulose directly. Furthermore, all motivations to combine can be find in the cited references supporting a conclusion of obviousness.
Regarding Applicant’s argument that it has not been identified where the cited art teaches a diluted intermediate aqueous liquid composition, the Office maintains that the Woodyer teaches a liquid composition where the allulose sweetener is dissolved in water.
Claim Rejections - 35 USC § 112
The following is a quotation of the first paragraph of 35 U.S.C. 112(a):
(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention.
The following is a quotation of the first paragraph of pre-AIA 35 U.S.C. 112:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor of carrying out his invention.
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 67 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 67 depends on claim 1 which limits the viscosity to not more than 10 mPa-s as measured by means of a rotary viscometer at 23°C at a speed of 100 rpm. 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, 50, 62, 64, 67, 83, 84, 94 and 99-100 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 Atenucci et al (EP 0493919) and in further view of Kakizawa et al (JP H09220069).
Regarding claim 1, first the Office notes that the limitation to the intermediate aqueous solution is below 10 wt% relative to the total weight of the final composition, is a recitation of intended use and therefore not limiting on the intermediate aqueous solution.
Woodyer teaches a food and beverage product comprising allulose [Title, Field of Invention, p. 1, lines 5-6] including liquid table-top sweetener comprising allulose in an amount of 2.5% to about 50% by weight relative to the total weight of the table-top sweetener, high intensity sweetener in an amount of from 9% to about 10% by weight, preservative in an amount of from 0.05% to about 0.15% by weight, and 84.85% to about 88.45% by weight water (see Page 9, Ln 13-35). Woodyer teaches an intermediate aqueous liquid composition since as a sweetener it is intended to be added to a final product. Woodyer also clearly teaches a composition suitable for shipping and storage since it comprises a preservative.
Regarding the intermediate aqueous liquid composition has a pH within the range of 2 to 9, Woodyer is silent to the pH of the composition. Atenucci teaches a liquid sucralose concentrate composition comprising sucralose, water, preservative, and a buffering system to maintain a desired pH range during storage where the desired pH is from 4.0 to 5.5 pH (see Page 2, Ln 47 to Page 3, Ln 10). Atenucci further teaches that such composition exhibits excellent stability and are resistance to discoloration and hydrolysis (see Page 2, Ln 39-43). 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 pH of 4.0 to 5.5 pH so that the product is suitable for storage as suggested by Atenucci.
Regarding the composition has a viscosity of not more than 10 mPa-s measured by means of a rotary viscometer at 23°C at a speed of 100 rpm,
Kakizawa teaches a low-viscosity liquid sweetener comprising a sweetener with high sweetness and water where the specific viscosity is 0.1-20 cps and preferably 0.1-10 cps) (see Abstract). Kakizawa teaches that the effect of the viscosity range is that the sweetener can be easily blended with beverages and foods to which the additives are added (see BEST MODE FOR CARRYING OUT THE INVENTION). It would have been obvious to one of ordinary skill in the art at the time of filing of the invention to prepare the liquid sweetener as taught by Woodyer where the viscosity is controlled to range of 0.1 to 10 cps (mPas-s) as taught by Kakizawa so that the sweetener can be easily blended with the beverage or food to which it is to be added.
Kakizawa teaches measurement on a B-type viscometer (a spindle rotor, rotary viscometer) at room temperature, for example 24°C (See BEST MODE FOR CARRYING OUT THE INVENTION). A person of ordinary skill in the art would reasonably expect the viscosity measured at 24°C to be comparable to 23°C since the temperature is extremely close.
Regarding claim 4, Woodyer teaches a composition comprising allulose and no other carbohydrate since sucralose is not a carbohydrate.
Regarding claim 50, Atenucci teaches a sweetener that is colorless (See Examples).
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 claim 64, modified Woodyer teaches the composition where the viscosity is in the range of 0.1 to 10 cps. 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 sweetener as taught by modified Woodyer where the viscosity is in any workable or optimum range overlapping with 0.1 to 10 cps including the claimed range.
Regarding claim 67, modified Woodyer teaches the composition where the viscosity is in the range of 0.1 to 10 cps.
Regarding claim 83, Woodyer teaches a composition comprising allulose and no other carbohydrate since sucralose is not a carbohydrate.
Regarding claim 84, given that the table-top sweetener as taught by modified Woodyer does not disclose any antioxidant or hydroxymethyl furfural, it is clear that modified Woodyer meets the presently claimed limitation.
Regarding claim 94, although Woodyer teaches an embodiment comprising a high intensity sweetener and a preservative, Woodyer also teaches food and beverage products that do not contain any high intensity sweetener and a tabletop sweetener only optionally comprising a preservative (See Page 7, Line 18 and Page 9, Line 14). It would have been obvious to one of ordinary skill in the art at the time of filing of the invention to prepare a liquid sweetener consisting of only allulose and water if there is no need for intense sweetness or for preservation.
Regarding claim 99, Woodyer, Atenucci and Kakizawa each teach liquid sweeteners to be added to food and beverages and therefore meet the claim.
Regarding claim 100, as applied above modified Woodyer teaches a liquid table-top sweetener that comprises allulose in at least 100 wt% relative to the total content of all carbohydrate.
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 et al (“Crystal Structure, Solubility, and Mutarotation of the Rare Monosaccaride D-psicose”, Bull. Chem. Soc. Jpn. Vol. 83, No. 10, 1193-1197, 2010).
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
PNG
media_image1.png
155
158
media_image1.png
Greyscale
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 taught by Woodyer.
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.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to MICHAEL FORREST whose telephone number is (571)270-5833. The examiner can normally be reached Monday-Friday (10AM-6PM).
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Sally A Merkling can be reached at (571)272-6297. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/MICHAEL FORREST/Primary Examiner, Art Unit 1738
Prosecution Insights