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 .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114), the Response and Amendment filed 05/18/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or the filing of a terminal disclaimer: (1) the objections to claims 9, 12, and 13 have been withdrawn; (2) the 35 U.S.C. 112(b) rejection of claim 9 has been withdrawn; (3) the 35 U.S.C. 102(a)(1) rejections of claims 10, 11, 17, and 18 have been withdrawn; and (4) the double patenting rejections of claims 5, 14, 23, 24, 32, and 33 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 5, 7-14, 16-18, 20, 22-24, 27, 28, and 31-33
Withdrawn claims: None
Previously canceled claims: 1-4, 6, 15, 19, 21, 25, 26, 29, and 30
Newly canceled claims: None
Amended claims: 5, 9, and 12-14
New claims: None
Claims currently under consideration: 5, 7-14, 16-18, 20, 22-24, 27, 28, and 31-33
Currently rejected claims: 5, 7-14, 16-18, 20, 22-24, 27, 28, and 31-33
Allowed claims: None
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 05/18/2026 has been entered.
Claim Rejections - 35 USC § 102
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 5, 7-9, 12-14, 16-18, 20, 27, and 28 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Prakash et al. (U.S. 2014/0271996 A1).
Regarding claim 5, Prakash et al. discloses a beverage comprising brazzein, rebaudioside M, and a liquid matrix (claims 1 and 4), where the brazzein is in an amount of 10-50 ppm (specifically, about 1-50 ppm) ([0233]), the rebaudioside M is in an amount of about 100-450 ppm (specifically, about 1-300 ppm) ([0232]).
As for claim 7, Prakash et al. discloses the brazzein is in an amount of about 10-40 ppm (specifically, about 1-50 ppm) ([0233]).
As for claim 8, Prakash et al. discloses the brazzein is in an amount of about 10-30 ppm (specifically, about 1-50 ppm) ([0233]).
As for claim 9, Prakash et al. discloses the beverage as having at least one improved organoleptic property compared to a beverage that does not contain brazzein, where the organoleptic property is taste (i.e., sweeter taste) ([0020], [0231], [0233]).
As for claim 12, Prakash et al. discloses the beverage as being a low-calorie or no-calorie beverage ([0185]).
As for claim 13, Prakash et al. discloses the beverage as being a soft drink ([0212]-[0213]).
As for claim 14, Prakash et al. discloses a method of improving at least one organoleptic property of a beverage, the method comprising adding brazzein and rebaudioside M to a liquid matrix to provide the beverage having at least one improved organoleptic property ([0007], [0017], claims 1 and 4, [0020], [0231], [0233]), where the brazzein is in an amount of 10-50 ppm (specifically, about 1-50 ppm) ([0233]), the rebaudioside M is in an amount of about 100-450 ppm (specifically, about 1-300 ppm) ([0232]).
As for claims 16-18, Prakash et al. discloses the organoleptic property may be improved temporal profile (claim 16), reduction in bitter aftertaste (claim 17), and/or an improvement in mouthfeel (claim 18) ([0003], [0007], [0469]).
As for claim 20, Prakash et al. discloses the brazzein is in an amount of about 10-40 ppm (specifically, about 1-50 ppm) ([0233]).
As for claim 27, Prakash et al. discloses the beverage as comprising an organic acid additive that is a sodium salt of an organic acid ([0248], [0264]).
As for claim 28, Prakash et al. discloses organic acid as being citric acid ([0264]).
Claims 23, 24, 32, and 33 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Prakash et al. (U.S. 2014/0271996 A1) as evidenced by admitted prior art.
Regarding claims 23, 24, 32, and 33, Prakash et al. discloses the beverage of claim 5 and the method of claim 14. The present specification states: “At least three forms of the protein are known, although only two forms are present in ripe fruit. The major form (pGlu-brazzein) (about 80%) contains a pyroglutamate (pGlu) residue at its N-terminus, and the minor form (des-pGlu1-brazzein, commonly referred to as ‘brazzein’) (about 20%) lacks that residue. The 53-amino acid sequence of wild-type brazzein, minor form, is shown in SEQ ID NO: 1.” (p. 11, l. 26 – p. 12, l. 2). The disclosure of brazzein in Prakash et al. at [0233] is thus presumptively the minor form that is equivalent to that shown in SEQ ID NO: 1 (claims 23 and 32), which is also known as des-pGlu1-brazzein (claims 24 and 33).
Claim Rejections - 35 USC § 103
Claims 10 and 11 are rejected under 35 U.S.C. 103 as being unpatentable over Prakash et al. (U.S. 2014/0271996 A1).
Regarding claims 10 and 11, Prakash et al. discloses the beverage product of claim 9.
Prakash et al. does not specifically disclose the at least one organoleptic property improved due to the presence of brazzein in particular as being a reduction in bitter aftertaste (claim 10) or an improvement in mouthfeel (claim 11).
However, MPEP 2144 IV states: “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” Thus, the disclosure of the product comprising the noted ingredients is adequate to render the claimed product obvious, including wherein the beverage exhibits a reduction in bitter aftertaste (claim 10) and an improvement in mouthfeel (claim 11) as a result of the brazzein component.
Claims 22 and 31 are rejected under 35 U.S.C. 103 as being unpatentable over Prakash et al. (U.S. 2014/0271996 A1) in view of Walters et al., "Design and Evaluation of New Analogs of the Sweet Protein Brazzein," Chem. Senses, 34:679-683 (2009).
Regarding claim 22, Prakash et al. discloses the beverage of claim 5.
Prakash et al. does not disclose a brazzein analog having one of the claimed mutations.
However, Walters et al. discloses brazzein analogs having at least one of each of the claimed mutations (p. 679, column 2, ¶2; p. 681, Table 1).
It would have been obvious to one having ordinary skill in the art to incorporate the brazzein analogs taught in Walters et al. into the beverage of Prakash et al. First, Prakash et al. indicates that “[t]he natural high potency sweetener may vary”, where brazzein is one example ([0199]), suggesting that additional sweeteners not explicitly listed would be suitable for use in the beverage as well. A skilled practitioner would thus be motivated to consult Walters et al. for additional instruction regarding such sweeteners. Walters et al. teaches that several of the brazzein analogs are sweeter than wild-type brazzein (p. 681, Table 1), and further indicates that the analogs allow for improved taste of brazzein (p. 683 column 1, ¶1). As such, the incorporation of the brazzein analogs that are sweeter than wild-type brazzein into the beverage of Prakash et al. would be obvious to a skilled practitioner.
Regarding claim 31, Prakash et al. discloses the method of claim 14.
Prakash et al. does not disclose a brazzein analog having one of the claimed mutations.
However, Walters et al. discloses brazzein analogs having at least one of each of the claimed mutations (p. 679, column 2, ¶2; p. 681, Table 1).
It would have been obvious to one having ordinary skill in the art to incorporate the brazzein analogs taught in Walters et al. into the beverage of Prakash et al. First, Prakash et al. indicates that “[t]he natural high potency sweetener may vary”, where brazzein is one example ([0199]), suggesting that additional sweeteners not explicitly listed would be suitable for use in the beverage as well. A skilled practitioner would thus be motivated to consult Walters et al. for additional instruction regarding such sweeteners. Walters et al. teaches that several of the brazzein analogs are sweeter than wild-type brazzein (p. 681, Table 1), and further indicates that the analogs allow for improved taste of brazzein (p. 683 column 1, ¶1). As such, the incorporation of the brazzein analogs that are sweeter than wild-type brazzein into the beverage of Prakash et al. would be obvious to a skilled practitioner.
Response to Arguments
Claim Objections: Applicant has overcome the objections of claims 9, 12, and 13 based on amendments to the claims. Accordingly, the claim objections have been withdrawn.
Claim Rejections - 35 U.S.C. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejections of claim 9 based on amendment to the claim. Accordingly, the 35 U.S.C. § 112(b) rejection has been withdrawn.
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 5, 7-14, 16-18, 20, 27, and 28 over Prakash et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant asserted that the claims as presently amended to require an optional additional sweetener are no longer anticipated by Prakash et al., since Prakash et al. requires a rare sugar (Applicant’s Remarks, p. 8, ¶2 – p. 7, ¶2).
However, the claims as presently amended do not require the exclusion of any of the rare sugars of Prakash et al. and also do not require the presence of any the listed carbohydrates, due to the component being optional. A list of optional carbohydrates does not implicitly preclude the inclusion of any carbohydrates that are not listed. MPEP 2111.03 I (“The transitional term ‘comprising’…is inclusive or open-ended and does not exclude additional, unrecited elements or method steps.”). Applicant’s argument is unpersuasive, and the claims remain anticipated in view of Prakash et al.
The rejections of claims 5, 7-9, 12-14, 16-18, 20, 27, and 28 have been maintained herein.
The 35 U.S.C. 102(a)(1) rejections of claims 10 and 11 have been withdrawn, but the claims are newly rejected under 35 U.S.C. § 102(a)(1).
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 23, 24, 32, and 33 over Prakash et al. and admitted prior art: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant reasserted arguments pertaining to parent claims 5 and 14 (Applicant’s Remarks, p. 10, ¶2) that were previously determined to be unpersuasive.
The rejections of claims 23, 24, 32, and 33 have been maintained herein.
Claim Rejections - 35 U.S.C. § 103 of claims 22 and 31 over Prakash et al. and Walters et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant reasserted arguments pertaining to parent claims 5 and 14 (Applicant’s Remarks, p. 10, ¶5) that were previously determined to be unpersuasive.
The rejections of claims 22 and 31 have been maintained herein.
Double patenting: The terminal disclaimed filed 05/18/2026 overcomes the nonstatutory double patenting rejections of claims 5, 14, 23, 24, 32, and 33, which are hereby withdrawn.
Conclusion
Claims 5, 7-14, 16-18, 20, 22-24, 27, 28, and 31-33 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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