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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 2/18/26 has been entered.
Response to Amendment
The amendment filed 2/18/26 has been entered. Claims 1 and 6-18 are pending in this U.S. Patent Application, with claims 1, 6-8, and 17-18 being examined, claims 2-5 previously canceled, and claims 9-16 previously withdrawn. Applicant amended the ratio of a weight of the defoaming agent (Wdef) to a weight of rebaudioside D (Wreb) (Wdef/Wreb) from 0.1 or more to 0.1 to 1 in claim 1, and from 1 or more to 1 to 10 in claim 17.
Claim Objections
Claim 7 is objected to because of the following informalities:
Claim 7 recites “wherein when the rebaudioside D- containing aqueous composition is stored in an environment of atmospheric pressure and a temperature of 10°C after production….”. For better claim construction the term “when” is required to be deleted.
Appropriate correction is required.
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.
Claim(s) 1, 6, and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yoo et al. [US 20110189360 A1], hereinafter Yoo, in view of Admix® [Rotosolver® Cutsheet, 2016], hereinafter Admix, and Bell et al. [US 20140342043 A1], hereinafter Bell.
Regarding claim 1, Yoo teach methods for producing saturated aqueous solutions of rebaudioside D and products comprising the rebaudioside D composition [Title, 0001], wherein the concentration of rebaudioside D in the supersaturated solution may be from about 500ppm or more [0018]. The rebaudioside D concentration when dissolved in water may be from at least 50% to 99% or more [0018-0019], (equivalent to steviol glycoside component is more than 50% by weight of rebaudioside D based on a total weight of the steviol glycoside component since Yoo teach rebaudioside D may be the only steviol glycoside present, i.e., 100% rebaudioside D). The method teach dispersing the steviol glycoside component comprising rebaudioside D in liquid such as water [0016-0019, 0030] at temperatures from 60°C to 100°C [0019] under high shear [0008, 0010, 0012, claim 6]. In some embodiments of Yoo’s invention, the steviol glycoside is stirred/dispersed in water in the presence of citric acid, malic acid, ascorbic acid and mixtures thereof [0008, 0010, 0012], a citrate such as sodium citrate [0045, 0055] (a citrate as claimed and defoaming agent is sodium citrate as disclosed on par.0026 of the instant specification, therefore, equivalent to stirring for dispersing the steviol glycoside component and water in the presence of a defoaming agent).
Regarding the claimed rotor tip speed:
Yoo teach using an Admix® high shear mixer with a Rotosolver® disperser for the stirring, mixing and/or dispersion of the steviol glycoside component (rebaudioside D) in water [0062, 0067], but is silent regarding performing the stirring at a tip speed of 15 m/s or more.
Admix (mixer manufacturer) disclose that the Rotosolver® high shear mixer provides a variety of Rotosolver® models having different mixing speeds ranging from 900-3600 RPM and different mixing head diameters ranging from 2.4-11.8 inches (about 61-300 mm) [Admix, Table, p.2]. Admix teach various Rotosolver® models capable of providing stirring with a tip speed of 15 m/s or more, for example model 112RS88 with a mixing head diameter of 3.5 inches or 88.9 mm, at a speed of 3600 RPM would provide for a tip speed of about 17 m/s based on the tip speed formula provided by applicant on page 2 of the Affidavit filed 7/22/25.
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to incorporate the claimed stirring tip speed into the invention of Yoo in view of Admix, since Yoo already disclosed mixing using a Rotosolver®, but simply did not mention a tip speed, and since the claimed stirring tip speed would have been used during the course of normal experimentation and optimization procedures due to factors such as the ratios of the various ingredients (i.e., sweetener, water, antifoam agents, etc.), the temperature of the water in which the sweetener is being dissolved, and/or the total time of stirring in the method of Yoo in view of Admix, and since Yoo does not teach an upper or lower limit for stirring speeds. Doing so would provide methods for producing sweetener aqueous compositions comprising rebaudioside D, where a skilled artisan can select a suitable Rotosolver® model with a suitable mixing head diameter and mixing speeds according to the ingredients and ratios or amounts of ingredients being used, which may require higher/lower tip speeds accordingly for best performance where different mixer selection may also be necessary for optimum mixer configuration based on the particular application [Admix, p.2, par.1].
Regarding the claimed ratio of a weight of the defoaming agent (Wdef) to a weight of rebaudioside D (Wreb) (Wdef/Wreb) being 0.1 to 1:
Yoo teach that the acid (defoaming agent as explained above) may be used in the solution or aqueous composition in amount of 0.01% to 1.0% (acid or defoaming agent in amount of 100 ppm to 10000 ppm) by weight of the beverage (solution or aqueous composition) [0034], and that the concentration of rebaudioside D in the aqueous composition may be from about 500 ppm to about 3000 ppm [0018] or from about 1000 ppm to about 5000 ppm [0027]. Therefore, based on the concentration amounts of acid (defoaming agent) and rebaudioside D present in Yoo’s sweetener composition, there is a reasonable basis to conclude that the sweetener composition of Yoo would have a ratio of a weight of the defoaming agent (Wdef) to a weight of rebaudioside D (Wreb) (Wdef/Wreb) within 0.1 to 1. For example, a composition of Yoo’s invention comprising 0.0279% by weight of solution of acid (defoaming agent), which is 279 ppm of defoaming agent (between the ppm range of 100-10000 ppm disclosed by Yoo) and 500 ppm of rebaudioside D would have a ratio of defoaming agent to rebaudioside D of 0.558 which falls within the claimed ratio of 0.1 to 1 (as disclosed on page 24, Table 4, Sample 18 of the instant specification).
Moreover, Bell teach rebaudioside sweetener compositions [Title] for use in beverage products [Abstract], wherein rebaudioside D may be used in amounts of 70% in combination with other rebaudiosides such as 30% of rebaudioside A (i.e., Reb D to Reb A ratio of 7:3) to obtain a composition with an advantageous sweetening and taste profile [0020, 0033]. Bell teach the sweetening composition may be liquid concentrate [0047] and may comprise citric and/or malic acids (defoaming agent(s)) [0065]. Bell further explicitly teach a ratio of acid defoaming agent to rebaudioside on Example 2, wherein a rebaudioside D containing aqueous composition “Variant 2” comprise 1.63 g of citric acid and 4.8 g of rebaudioside D [0088, Table 4], providing for a weight of the defoaming agent (Wdef) to a weight of rebaudioside D (Wreb) (Wdef/Wreb) of 0.34, which falls within the claimed ratio (Wdef/Wreb) of 0.01 to 1.
It would have been obvious before the effective filing date to one of ordinary skill in the art to use the claimed defoaming agent to rebaudioside D ratio in the invention of Yoo in view of Bell, since the claimed amount of rebaudioside D is already taught by Yoo, but simply did not specifically recited the term ratio, and because the amount of defoaming agent (acid) would have been used during the course of normal experimentation and optimization in the method of Yoo in view of Bell, due to factors such as the type and quantities of the various ingredients, the desired taste of the final product, and/or the desired degree of sweetness or acidity, and since one of ordinary skill in the art would recognize the amount and/or types of acids (defoaming agent) to use according to the particular application or beverage being prepared to obtain the desired results [Yoo, 0035]. Furthermore, it would also provide methods for making aqueous rebaudioside compositions characterized by having advantageous sweetening and taste profile, because Bell teaches that acidic aqueous beverages may be prepared with the method [Bell, 0020], wherein at least one acid is used to lend tartness to the taste of the beverage [Bell, 0065], and wherein a desired ratio of different rebaudiosides (i.e., rebaudioside M, D, and A) may be employed as well as acids [Bell, 0068], in order to achieve cost-effective sweetening compositions with a desirable taste profile which may be further used for making beverages and other foods, as well as obtaining substantial sweetening from the different rebaudioside components of the combination without incurring the unwanted lingering or bitter aftertaste typically associated with the use of some rebaudioside sweeteners [Bell, 0033].
Regarding claim 6, Yoo teach in some embodiments a concentration of rebaudioside D in the rebaudioside D-containing aqueous composition is from about 1000 ppm to about 5000 ppm by weight [0027].
Regarding claim 8, Yoo teach the rebaudioside D aqueous composition of the invention may be a concentrated liquid for a drink [0001, 0024, 0026, 0030, 0054].
Claim(s) 7 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yoo in view of Admix, and Bell as applied to claim 1 above, and further in view of Browne et al. [US 20190208803 A1], hereinafter Browne.
Regarding claim 7, modified Yoo teach the methods and concepts discussed above in claim 1 rejection, and further teach that the rebaudioside D containing aqueous composition [0011] (i.e., beverages and/or concentrates) [0024-0027] may be subjected to further processes including cooling, refrigeration and/or freezing [0028] and are suitable for long term storage [0055].
Yoo does not explicitly recites “when the rebaudioside D-containing aqueous composition is stored in an environment of atmospheric pressure and a temperature of 10°C after production, a ratio of a concentration of rebaudioside D in the rebaudioside D-containing aqueous composition on day 38 after the production (C1) to a concentration of rebaudioside D in the rebaudioside D-containing aqueous composition on day 0 of the production (Co) (C1/Co) is 0.75 or more.”
Browne teach sweetener compositions and methods of making the same [Abstract] comprising the steviol glycoside rebaudioside D [0008, 0041-0045] and the rebaudioside D may be present in amounts of from 0.5 wt% to 1.5 wt% (5000 to 15000 ppm) in the aqueous steviol glycoside composition [0046]. In some embodiments, the aqueous sweetener composition comprising rebaudioside D may be stored at a temperature range of from about 10°C to about 65°C [0253], (equivalent to the rebaudioside D-containing aqueous composition is stored in an environment of atmospheric pressure and a temperature of 10°C after production), for a time range of from about a few hours to at least about 5 weeks or 6 weeks (35 days or 42 days or more) [0254], (equivalent to rebaudioside D-containing aqueous composition on day 38 after the production), and the rebaudioside D may be present in amounts of from 0.5 wt% to 1.5 wt% (5000 to 15000 ppm) or from 1.4 wt% to 1.5 wt% (14000 to 15000 ppm) in the aqueous steviol glycoside composition [0262].
Regarding the ratio of a concentration of rebaudioside D in the rebaudioside D-containing aqueous composition on day 38 after the production (C1) to a concentration of rebaudioside D in the rebaudioside D-containing aqueous composition on day 0 of the production (Co) (C1/Co) being 0.75 or more, Yoo in view of Browne are silent in regards to the claimed concentration ratios. However, given that the process of preparing the aqueous rebaudioside D composition based on the disclosure in Yoo, as well as in Yoo combined with the teachings in Browne is substantially similar to that in instant claims, it is the examiner's position that the aqueous rebaudioside D composition made by the process of Yoo and Yoo in view of Browne would inherently have the instantly claimed ratio of a concentration of rebaudioside D in the rebaudioside D-containing aqueous composition on day 38 after the production (C1) to a concentration of rebaudioside D in the rebaudioside D-containing aqueous composition on day 0 of the production (Co) (C1/Co) of 0.75 or more. Since PTO cannot conduct experiments the proof of burden is shifted to the applicants to establish an unobviousness difference, see In re Best, 562 F.2d 1252, 195 USPQ 430 (CCPA 1977).
Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Regarding composition claims, if the composition is the same, it must have the same properties (see MPEP § 2112.01, II.).
“Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). MPEP §2112.01.
"[I]t is elementary that the mere recitation of a newly discovered function or property, inherently possessed by things in the prior art, does not cause a claim drawn to those things to distinguish over the prior art". In re Swinehart, 439 F.2d 210, 212-13, 169 USPQ 226, 228-29 (CCPA 1971). See MPEP 2114. "[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art’s functioning, does not render the old composition patentably new to the discoverer." Atlas Powder Co. v. IRECO Inc., 190 F.3d 1342, 1347, 51 USPQ2d 1943, 1947 (Fed. Cir. 1999). Thus the claiming of a new use, new function or unknown property which is inherently present in the prior art does not necessarily make the claim patentable. In re Best, 562 F.2d 1252, 1254, 195 USPQ 430, 433 (CCPA 1977). See MPEP 2112.
Therefore, it would have been obvious before the effective filing date to one of ordinary skill in the art to incorporate the claimed storage time period (days) at an environment of atmospheric pressure and a temperature of 10°C after production into the invention of Yoo in view of Browne and achieve the claimed concentration ratio of rebaudioside D on day 38 after production (C1) to a concentration of rebaudioside D on day 0 (Co) (C1/Co) of 0.75 or more, since the claimed amount of rebaudioside D, preparation methods and dissolution temperatures of the rebaudioside D in water as claimed are disclosed by Yoo as explained in claim 1 rejection, since Yoo also teach the rebaudioside D composition may be subjected to further processes including cooling, refrigeration and/or freezing [Yoo, 0028] and are suitable for long term storage [Yoo, 0055], thus the claimed concentration ratio would have been achieved during the course of normal experimentation and optimization in the method of Yoo, due to factors such as the pH of the composition, type and quantities of the various ingredients, the desired taste of the final product, and/or the desired degree of sweetness, and since one of ordinary skill in the art would recognize the storage of compositions under reduced (refrigerated/freezing) temperatures would aid in preservation of the rebaudioside D aqueous composition [Yoo, 0035, 0055], and further because Browne teach that the flavor of steviol glycosides can be modified by storage temperature and storage time periods/conditions to obtain a sweetener composition with the desired taste properties (i.e., reduced bitterness and/or astringency, and/or improved sweet quality (i.e., sugar like taste and roundness)) [Browne, 0235].
Claim(s) 17-18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Yoo et al. [US 20110189360 A1], hereinafter Yoo in view of Bell et al. [US 20140342043 A1], hereinafter Bell.
Regarding claim 17, Yoo teach the concentration of rebaudioside D in the supersaturated solution of the invention in some embodiments may be about 500 ppm or more (500-3000 ppm, or 1000-5000 ppm) [0008, 0018, 0027], and the steviol glycoside is stirred/dispersed in water in the presence of (defoaming agents) citric acid, malic acid, ascorbic acid and mixtures thereof [0008, 0010, 0012], a citrate such as sodium citrate [0045, 0055] (a citrate as claimed and defoaming agent is sodium citrate as disclosed on par.0026 of the instant specification, therefore, equivalent to stirring for dispersing the steviol glycoside component and water in the presence of a defoaming agent). Yoo further teach that the acid (defoaming agent as explained in claim 1 rejection above) may be used in the solution or aqueous composition in amounts of 0.01% to 1.0% (acid or defoaming agent in amount of 100 ppm to 10000 ppm) by weight of the beverage (solution or aqueous composition) [0034].
While Yoo does not explicitly recites “wherein a ratio of a weight of the defoaming agent (Wdef) to a weight of rebaudioside D (Wreb) (Wdef/Wreb) is 1 to 10” as instantly claimed, one of ordinary skill in the art would recognize that the aqueous composition of Yoo comprising rebaudioside D and acids (defoaming agents) in the various concentrations disclosed in the different embodiments of Yoo’s invention would produce a composition wherein a ratio of a weight of the defoaming agent (acid) to a weight of rebaudioside D is within 1 to 10. For example, a composition of Yoo’s invention comprising 0.05% by weight of solution of acid (defoaming agent), which is 500 ppm of defoaming agent (acid between the ppm range of 100-10000 ppm disclosed by Yoo) and 500 ppm of rebaudioside D would have a ratio of defoaming agent to rebaudioside D of 1, and/or a composition of Yoo’s invention comprising 0.06% by weight of solution of acid (defoaming agent), which is 600 ppm of defoaming agent (between the ppm range of 100-10000 ppm disclosed by Yoo) and 500 ppm of rebaudioside D would have a ratio of defoaming agent to rebaudioside D of 1.2, which is a (Wdef/Wreb) ratio that falls within 1 to 10 as instantly claimed.
Moreover, Bell teach rebaudioside sweetener compositions [Title] for use in beverage products [Abstract], wherein rebaudioside M may be used in combination with at least one other edible ingredient or food ingredient [Abstract], such as other rebaudiosides like rebaudioside A and rebaudioside D (i.e., Reb D to Reb A ratio of 7:3) [0020, 0033], and with edible acids including citric and/or malic acids (defoaming agent(s)) [0065], to produce liquid or aqueous sweetener compositions such as beverages and/or liquid sweetener concentrates [0047]. Bell further explicitly teach a ratio of acid defoaming agent to rebaudioside on Example 7, wherein a rebaudioside (rebaudioside M) containing aqueous composition comprise 3.98 g of citric acid and 0.5 g of rebaudioside (rebaudioside M) [0098, Table 9], providing for a weight of the acid defoaming agent (Wdef) to a weight of rebaudioside (Wreb) (Wdef/Wreb) of 7.96, which falls within the claimed (Wdef/Wreb) of 1 to 10.
It would have been obvious before the effective filing date to one of ordinary skill in the art to use the claimed defoaming agent to rebaudioside D ratio in the invention of Yoo in view of Bell since the claimed amount of rebaudioside D is already taught by Yoo and the amount of defoaming agent (acid) would have been used during the course of normal experimentation and optimization in the method of Yoo in view of Bell, due to factors such as the type and quantities of the various ingredients, the desired taste of the final product, and/or the desired degree of sweetness or acidity, and since one of ordinary skill in the art would recognize the amount and/or types of acids (defoaming agent) to use according to the particular application or beverage being prepared to obtain the desired results [Yoo, 0035]; since the substitution of one known form (i.e., rebaudioside M) for another (i.e., rebaudioside D) would have yielded predictable results to one of ordinary skill in the art, particularly since both Yoo and Bell teach using rebaudioside D. Further, based on Bell’s teaching one would modify Yoo to provide methods for making aqueous rebaudioside compositions characterized by having advantageous sweetening and taste profile, because Bell teaches that acidic aqueous beverages may be prepared with the method [Bell, 0020], wherein at least one acid is used to lend tartness to the taste of the beverage [Bell, 0065], and wherein a desired ratio of different rebaudiosides (i.e., rebaudioside M, D, and A) may be employed as well as acids [Bell, 0068], in order to achieve cost-effective sweetening compositions with a desirable taste profile which may be further used for making beverages and other foods, as well as obtaining substantial sweetening from the different rebaudioside components of the combination without incurring the unwanted lingering or bitter aftertaste typically associated with the use of some rebaudioside sweeteners [Bell, 0033].
Regarding claim 18, modified Yoo teach the rebaudioside D concentration when dissolved in water may be from at least 50% to 99% or more [0018-0019], (equivalent to steviol glycoside component is more than 50% by weight of rebaudioside D based on a total weight of the steviol glycoside component since Yoo teach rebaudioside D may be the only steviol glycoside present, i.e., 100% rebaudioside D).
Response to Arguments
Applicant's arguments filed 2/18/26 have been fully considered but they are not persuasive.
Criticality of (Wdef/Wreb) ratio and data provided for specific defoaming agent (citric acid):
In regards to Applicant arguments on page 7, last paragraph, and page 8 regarding the criticality of the ratio of a weight of the defoaming agent (Wdef) to a weight of rebaudioside D (Wreb) (Wdef/Wreb), the examiner agree that the defoaming effect is excellent at a specific ratio range as shown by Applicant in Tables 6-7 and Figure 4, particularly samples 24-28 where the foaming effect increase (shorter/faster defoaming times) as the (Wdef/Wreb) ratio increase in samples 24, 25, 26, 27 (ratios of 0.1, 1, 3, and 4, respectively) providing for faster defoaming times (seconds) of 63, 35, 31, and 27, respectively, while sample 28 having a higher (Wdef/Wreb) ratio of 6 shows a slight foaming effect decrease (longer/slower) defoaming time (seconds) of 30. There is clearly a show in unexpected results as shown between samples 27-28 where even when the (Wdef/Wreb) ratio is higher in sample 28 (ratio of 6) than in sample 27 (ratio of 4), it takes longer for sample 28 (30 seconds) compared to sample 27 (27 seconds) for defoaming as well as sample 28 showing a higher foam formation (13 mm) than sample 27 (11.5 mm) as presented in Table 7. However, the examiner notes that while there is showing of criticality, the data in Tables 6-7 and Figure 4 only applies to the defoaming agent of citric acid, and because claims 1 and 17 recites various other defoaming agents different than citric acid such as L-ascorbic acid, DL-malic acid, hydrochloric acid, a citrate, an L-ascorbate, a DL-malate, potassium chloride, sodium chloride, magnesium chloride, calcium chloride, and a mixture of two or more thereof, and there is no indication or showing that the same defoaming effects of citric acid are transferable or the same as these other claimed defoaming agents, the data is not commensurate in scope with the claims.
NOTE: Samples 29-30 are considered as additional supporting data but are not relied by the examiner for determining criticality because they are below the 500 ppm concentration of rebaudioside D as claimed.
Criticality of (Wdef/Wreb) ratio and data provided for various defoaming agents:
In regards to the other defoaming agents being claimed of L-ascorbic acid, DL-malic acid, hydrochloric acid, a citrate, an L-ascorbate, a DL-malate, potassium chloride, sodium chloride, magnesium chloride, calcium chloride, and a mixture of two or more, the examiner recognize the data provided by Applicant on Tables 8-9, and Figure 5, however each different defoaming agent is present in different concentrations (thus having different (Wdef/Wreb) ratios) for samples 32, and 35-39, while sample 33 (DL-malic acid) and sample 34 (citric acid) having the same concentration of defoaming agent (thus having same (Wdef/Wreb) ratios) showing a difference in defoaming effect. That is, samples 33-34 having the same rebaudioside D and defoaming agent concentration and the same (Wdef/Wreb) ratios show sample 33 with a defoaming time of 49 s, while sample 34 shows a defoaming time of 35. Therefore there is reasonable basis to conclude that different defoaming agents would require different (Wdef/Wreb) range ratios that are critical and provide unexpected results.
Moreover, claims 1 and 17 recites “a citrate, an L-ascorbate, a DL-malate” (broadly), and the data provided on Tables 8-9, and Figure 5, shows the specific defoaming agents of trisodium citrate (citrate), L-ascorbic acid (ascorbate), DL-malic acid (malate). The claims also recite “potassium chloride, magnesium chloride, calcium chloride, as well as mixtures” of these and the previously discussed defoaming agents, however there is no data on Tables 8-9, and Figure 5, showing potassium chloride, magnesium chloride, calcium chloride, and mixtures of these.
(Wdef/Wreb) ratio of 1-10 in claim 17:
In regards to the claimed (Wdef/Wreb) ratio of 1-10 in claim 17, the examiner notes that the data supports for the (Wdef/Wreb) ratio in the range of 0.1 to 6 as shown in Table 6 and Figure 4. Further, the comments regarding the defoaming agent discussed above in sections I-II apply to this section as well.
High shear stirring tip speed:
In regards to Applicant arguments on page 7 regarding the high shear stirring at a tip speed rotor of 15 m/s or more as claimed, the Examiner agrees that there is data showing support for showing differences in stirring under high shear at the claimed tip speed as disclosed in Example 2 of the specification (paragraph [0054], Table 3 and Fig. 3 of the specification) where Applicant shows the stirring was performed at a tip speed of 17.95 m/s (3000 rpm). However, because modified Yoo in view of Admix (mixer manufacturer) disclose that the Rotosolver® model 112RS88 with a mixing head diameter of 3.5 inches or 88.9 mm, at a speed of 3600 RPM would provide for a tip speed of about 17 m/s based on the tip speed formula provided by applicant on page 2 of the Affidavit filed 7/22/25, and modified Yoo in view of Bell teach each limitation including the claimed ratio (Wdef/Wreb) within 0.1 to 1 and within 1 to 10 (see unexpected effect and criticality of the (Wdef/Wreb) ratio discussion above) as explained above in claims 1 and 17, it is the examiners position that there is still a reasonable basis to conclude that modified Yoo would have used the claimed stirring speed by selection of a suitable Rotosolver® model with a suitable mixing head diameter based on various factors during the process such as the ratios or amounts of ingredients being used, which may require higher/lower tip speeds accordingly for best performance where different mixer selection may also be necessary for optimum mixer configuration based on the particular application [Admix, p.2, par.1], the temperature of the solution at the time of stirring (i.e., high/low temperature would cause faster/slower dissolution), the amount of sweetener solution being stirred, the viscosity of the sweetener solution, the speed (RPM) capability of a specific Rotosolver mixer, and/or the size and shape of the stirring head amongst other factors as taught by Admix and as disclosed by Applicant on page 16, paragraph 0037, of the instant Specification. As such, Yoo in view of Admix teachings would suggest to one of ordinary skill in the art to pursue the known options (the Rotosolver model 112RS88 with a stirring head diameter of 3.5 inches taught by Admix) within his or her technical grasp. Therefore, choosing from a finite number of identified, predictable solutions, with a reasonable expectation for success, is likely to be obvious to a person if ordinary skill in the art. See KSR International Co. v. Teleflex Inc., 550 U.S. 398, 415-421, USPQ2d 1385, 1395 – 97 (2007) (see MPEP § 2143, E.).
Summary:
In regards to element I. discussed above, the examiner suggests to amend the claim to the defoaming agent being citric acid in order to make the claim commensurate in scope with the data.
In regards to element II. discussed above, the examiner suggests to provide showing (preferably with data) along with arguments as how the same critical (Wdef/Wreb) ratio in the range of 0.1 to 6 shown by citric acid provide the same unexpected results when using the other defoaming agents (defoaming agents in Table 8 and Figure 5). The examiner further suggests to amend claims 1 and 17 to recite the specific defoaming agents (i.e., trisodium citrate, instead of “a citrate”) supported by the data on Tables 8-9, and Figure 5, of the Specification.
In regards to element III. discussed above, the examiner suggests to amend claim 17 (Wdef/Wreb) ratio from 1-10 to 1-6 in order to make the claim commensurate in scope with the data.
In regards to element IV. discussed above, the examiner notes that addressing elements I-III would overcome the prior art of record.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to LUIS EUGENIO DIOU BERDECIA whose telephone number is (571)270-0963. The examiner can normally be reached Monday-Friday 7:30-4:30.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at (571) 270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/LUIS EUGENIO DIOU BERDECIA/Examiner, Art Unit 1792
/ERIK KASHNIKOW/Supervisory Patent Examiner, Art Unit 1792