DETAILED ACTION
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 08/19/2025 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the objections to the claims have been withdrawn; (2) the 35 U.S.C. 112(b) rejections have been withdrawn; (3) the 35 U.S.C. 102(a)(1) rejections of claims 1-20, 25, and 27-29 over Lee et al. have been withdrawn; (4) the 35 U.S.C. 102(a)(1) rejections of claims 23, 24, 32, and 33 over Lee et al. and admitted prior art have been withdrawn; (5) the 35 U.S.C. 102(a)(1) rejections of claims 1, 2, and 26 over Prakash et al. have been withdrawn; (6) the 35 U.S.C. 103 rejections of claims 21, 22, 30, and 31 over Lee et al. and Walters et al. have been withdrawn; (7) the double patenting rejections of claims 1-3, 5, 14, 15, 23-25, 29, 32, and 33 in view of U.S. Patent No. 8,383,183 B2 have been withdrawn; (8) the double patenting rejections of claims 1-5, 14, 15, 23-25, 29, 32, and 33 in view of U.S. Patent No. 11,897,916 B2 have been withdrawn; and (9) the double patenting rejections of claims 1, 2, and 15 in view of U.S. Patent No. 12/077,556 B2 have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-33
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: 1-4, 6, 15, 19, 21, 25, 26, 29, and 30
Amended claims: 5, 7-11, 13, 14, 17, 18, 20, 22-24, and 31
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
Claim Objections
Claims 9, 12, and 13 are objected to because of the following informalities: the claims depend from claim 6, which was canceled. Appropriate correction is required. The claims are presumed to be intended to depend from claim 5 and are examined herein accordingly.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 9 is 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 regards as the invention.
Claim 9 recites the limitation “the sweetener composition” in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
Claims 5, 7-14, 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]), and wherein the beverage does not comprise a monosaccharide (claim 1, where the required rare sugar may be D-turanose, which is a disaccharide).
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 claims 9-11, Prakash et al. discloses the beverage has at least one improved organoleptic property compared to a beverage that does not contain the sweetener components, wherein the organoleptic property may be improved temporal profile (claim 9), reduction in bitter aftertaste (claim 10), and/or an improvement in mouthfeel (claim 11) ([0003], [0007], [0469], where the results of the D-psicose experiment would be expected to be comparable to a D-turanose beverage).
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), 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]), and wherein the beverage does not comprise a monosaccharide (claim 1, where the required rare sugar may be D-turanose, which is a disaccharide).
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], where the results of the D-psicose experiment would be expected to be comparable to a D-turanose beverage).
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 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.
Double Patenting
Claims 5, 14, 23, 24, 32, and 33 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 16 of U.S. Patent No. 12,077,556 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims are merely directed to a composition that would fall within the scope of the compositions produced according to the method of claim 16 of the ‘556 patent and would thus be obvious in view of the patented claim.
Response to Arguments
Claim Objections: Applicant has overcome the objections of claims 22 and 31 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 claims 8-11, 13, 20, 21, and 30 based on amendment to the claims and/or cancellation. Accordingly, the 35 U.S.C. § 112(b) rejections have been withdrawn. Claim 9 is newly rejected under 35 U.S.C. § 112(b) due to the present claim amendments as detailed above.
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 1-20, 25, and 27-29 over Lee et al.; claims 23, 24, 32, and 33 over Lee et al. and admitted prior art; and claims 1, 2, and 26 over Prakash et al.: Applicant has overcome the 35 U.S.C. § 102(a)(1) rejections based on amendments to the claims and/or cancellation. Accordingly, the 35 U.S.C. § 102(a)(1) rejections of claims 1-20, 23-29, 32, and 33 have been withdrawn.
Claims 5, 7-14, 16-18, 20, 23, 24, 27, 28, 32, and 33 are newly rejected under 35 U.S.C. § 102(a)(1) in view of Prakash et al. as detailed above.
Applicant argued that the claims as presently amended to require the exclusion of a monosaccharide should distinguish the claims from Prakash et al. (Applicant’s Remarks, p. 8, ¶8 – p. 9, ¶2).
However, D-turanose is a disaccharide, which undermines Applicant’s argument. The composition of Prakash et al. may be produced to include a required rare sugar—D-turanose—while still excluding a monosaccharide as presently required.
Claim Rejections - 35 U.S.C. § 103 of claims 21, 22, 30, and 31 over Lee et al. and Walters et al.: Applicant’s arguments have been fully considered and are persuasive to the extent that parent claims 5 and 14 are not anticipated or rendered obvious by Lee et al. However, upon further consideration, new grounds of rejection for claims 22 and 31 are made in view of Prakash et al. and Walters et al.
Double patenting: Applicant has overcome the double patenting rejections in view of U.S. Patent No. 8,383,183 B2 and U.S. Patent No. 11,897,916 B2 based on amendments to the claims and/or cancellation. Accordingly, the double patenting rejections have been withdrawn.
Applicant has overcome the double patenting rejections of claims 1, 2, and 15 in view of U.S. Patent No. 12/077,556 B2 based on cancellation of the claims. Accordingly, the double patenting rejections have been withdrawn.
For the remaining claims, Applicant asserted that claim 16 of the ‘916 patent does not include the feature of rebaudioside M (Applicant’s Remarks, p. 12, ¶5).
However, claim 16 depends from claims 8 and 1. Claim 1 recites rebaudioside M. Applicant’s argument is thus unpersuasive.
The double patenting rejections of claims 5, 14, 23, 24, 32, and 33 have been maintained herein.
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.
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