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 was filed in this application after appeal to the Patent Trial and Appeal Board, but prior to a decision on the appeal. 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examination under 37 CFR 1.114 and the fee set forth in 37 CFR 1.17(e) has been timely paid, the appeal has been withdrawn pursuant to 37 CFR 1.114 and prosecution in this application has been reopened pursuant to 37 CFR 1.114. Applicant’s submission filed on 1/27/2026 has been entered.
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.
Claims 1, 7, 8 are rejected under 35 U.S.C. 112(a) or 35 U.S.C. 112 (pre-AIA ), first paragraph, as failing to comply with the written description requirement. The claim(s) contains subject matter which was not described in the specification in such a way as to reasonably convey to one skilled in the relevant art that the inventor or a joint inventor, or for applications subject to pre-AIA 35 U.S.C. 112, the inventor(s), at the time the application was filed, had possession of the claimed invention. Amended Claims 1, 7 and 8 now recite subject matter that does not appear to have support in the originally filed specification. The Examiner had noted in the prior office action that Paragraph 16 of the originally filed specification discloses “preferred reduced sugar syrups have a DP3 content in the range of 32-42% of the saccharides in the reduced sugar syrup” and also discloses “trisaccharides represent the highest percentage of saccharides in the reduced sugar glucose syrups used in the invention and the combination of DP3 plus DP4 represents 40-50% of the saccharides in the reduced glucose syrup, and less than 25% of the saccharides in the reduced sugar glucose syrup have a DP of greater than 10”. However, Applicant amended Claims 1, 7, and 8 to recite these limitations refer to the sweetener syrup, not the reduced sugar syrup. Therefore, the amended claims constitute new matter and Applicant is respectfully encouraged to point out where support is in the specification for the above discussed limitations in the sweetener syrup specifically.
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, 2, 7-10, 12-20 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.
Claims 1 and 7 as amended recite the limitations "trisaccharides (DP3)” and “DP3 plus DP4" in line 8 of Claim 1 and line 1 of Claim 7. There is insufficient antecedent basis for these limitations in the claims because Claim 1 was amended and no longer first recites “trisaccharides or DP3 or DP4”. The Examiner recommends introducing these limitations into Claim 1 so that they provide proper antecedence for the above limitations later in Claim 1 and in Claim 7.
Allowable Subject Matter
Claims 13 and 14 are objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims. Provided the 112 issues can be resolved in the claims, Claims 13 and 14 would be allowable and have not been rejected over prior art.
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, 15-17, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Zhou (USPA 2011/0081474), previously made of record.
Regarding amended Claims 1, 2, 7-10, 12, Zhou teaches a sweetener syrup comprising soluble indigestible maltodextrin, which would have some amount of dissolved solids, and the remainder of the dissolved solids comprising saccharides and oligosaccharides and wherein a ratio of trisaccharides to monosaccharides plus disaccharides is at least 1.2:1, where trisaccharides are the highest percentage of saccharides in the reduced glucose syrup, as Zhou teaches a sweetener composition comprising soluble indigestible maltodextrin as the soluble dietary fiber component and reduced glucose syrup (Paragraphs 15, 16, 42-44), where the maltodextrin/dietary fiber component can be present in an amount of 50% by weight of the composition (Paragraph 42), which leave around 50% for the reduced glucose syrup, which reads on a 50:50 ratio recited in amended Claim 1. Since Zhou teaches the claimed ratio of soluble indigestible maltodextrin and reduced glucose syrup, the maltodextrin is understood to be at last 85% by weight of the dissolved solids in the syrup.
Zhou teaches that digestible mono and di-saccharides are no more than 10% of the glucose syrup or composition (Paragraph 16), therefore reading less than 25% DP1 and 2. Zhou teaches preferably isomaltotriose, which is a trisaccharide is present in amount of about 5% or higher, preferably about 15-25% or higher, and also teaches panose, which is also a trisaccharide, is preferably present at about 10 or 25 or 40% or higher of the syrup (Paragraph 16), therefore teaching or rendering obvious the claimed limitations of trisaccharides being in the highest percentage of saccharides in the sweetener syrup and reduced glucose syrup and trisaccharides or DP3, and DP3 plus DP4 representing 32-42% or 40-50% of the saccharides in the syrup, respectfully. Therefore, a ratio of trisaccharides to the combination of monosaccharides and disaccharides can be calculated to be about 1.5:1, which reads on the claimed ratios.
Zhou teaches that the glucose syrup preferably comprises about 75% or higher of isomaltooligosaccharides or about 80% or higher of DP3 to DP 8 saccharides (Paragraph 16), which meets the limitation of at least 75% of saccharides have a DP of 10 or less. Zhou teaches less than 10% of mono and di-saccharides, therefore teaching less than 25% of the saccharides are mono and di-saccharides. Therefore, if the syrup preferably has about 80% or higher of DP3 to DP8 saccharides, this would only leave 20% or less of sugars outside of this range, therefore rendering obvious the claimed limitation of less than 25% of saccharides in the syrup having a DP of greater than 10.
Regarding amended Claims 15-17 and new Claim 20, Zhou is taken as cited above in the rejection of amended Claim 1 and teaches a food comprising the sweetener syrup of Claim 1, where the food product is characterized as having a sugar content of no more than 1 gram of sugar/60g serving size and greater than or equal to 6g fiber/60 gram serving size, as Zhou teaches the sweetener which comprises isomaltooligosaccharides without mono and di-saccharides can be used in the production of a reduced sugar or sugar-free isomaltooligosaccharide that may be used in sugar-free food, beverage or pharmaceutical applications, and teaches exemplary foods include nutrient bars comprising particulate ingredients (Paragraphs 50 and 100). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used the sweetener of Zhou in a sugar-free food, such as a nutrient bar, in light of the teachings of Zhou.
Since Zhou provides for sweeteners having a 50:50 ratio of the soluble fiber/reduced glucose syrup, which is within the range recited in Claim 1 for the soluble fiber/reduce glucose syrup, one of ordinary skill in the art would have reasonably expected a food product comprising the claimed sweetener would possess the claimed amount of fiber as recited in Claims 15 and 20.
Claims 18-19 are rejected under 35 U.S.C. 103 as being unpatentable over Zhou (USPA 2011/0081474) in view of Harrison et al. (USPA 2007/0184177), previously made of record.
Regarding amended Claims 18-19, Zhou is taken as cited above in the rejection of amended Claim 15 and teaches a food product comprising the disclose sweetener but fails to specifically teach other food products such as pudding or ketchup.
Harrison teaches a non-digestible sweetener comprising oligosaccharides which can be used as complete replacement for sugar/and a source of fiber, and can be used in a variety of food products (Paragraphs 15 and 16) including ketchup (Example 46), food bars (Example 34) and gelatin dessert mixes which read on pudding (Example 33). Harrison teaches a combination of a food composition with an edible carbohydrate composition that is slowly digestible or digestion-resistant (Paragraph 14). Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have used the sweetener composition of Zhou in other types of food products, as set forth by Harrison, in order to expand the offering of reduced sugar or sugar-free foods that also have increased fiber contents.
Response to Arguments
The Examiner has withdrawn some of the 112 a and b rejections previously set forth in light of claim amendments and cancellations. However, Applicant’s claim amendments raise further 112 a and b issues that have been set forth above. A phone call was attempted to discuss some of these issues, but the Examiner was not able to reach Applicant’s representative. The closest prior art of Zhou fails to teach Claims 13 and 14, as Zhou teaches a maximum of 50% by weight of the soluble indigestive digestive fiber component, or maltodextrin, and fails to motivate the claimed amount of the soluble indigestible maltodextrin component in the range of 80-90% or 88% by weight of the sweetener syrup, with the balance being the reduced glucose syrup. Therefore, one of ordinary skill in the art would not have been motivated by the prior art to modify the sweetener syrup of Zhou to arrive at the sweetener syrup composition recited in Claims 13 and 14. The Examiner is prepared to discuss these issues with Applicant’s representative in order to work toward moving the case to allowance. However, the above issues necessitate the mailing of a non-final rejection at this time.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNA A WATTS whose telephone number is (571)270-7368. The examiner can normally be reached Monday-Friday. 9am-4:30pm.
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, Nikki Dees can be reached at 571-270-3435. 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.
JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/ Primary Examiner, Art Unit 1791 2/4/2026