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 .
Claims 7 and 8 are presented for examination.
The amendments and remarks filed on 10/29/2025 have been received and entered.
Claim Rejections - 35 USC § 103
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.
Claim(s) 7 and 8 is/are rejected under 35 U.S.C. 103 as being unpatentable over Hirooka et al. (JP 1786397) in view of Markosyan et al. (US 20180070533).
Hirooka teaches the use of stevia having >5/100 content of diterpene glycosides are preferred in a foliar spray agent capable of enhancing the yield in combination with oligosaccharide containing saccharides. See the abstract and claims.
Markosyan et al. teach Steviol glycosides are characterized structurally by a common aglycone, steviol,
and differ by the number and type of carbohydrate residues at positions C13 and C19. In Stevia, they
accumulate mainly in leaves, composing approximately 10% to 20% of the leaf total I dried weight.
Typically, on a dried weight basis, the three major glycosides found in the leaves of Stevia include
stevioside, rebaudioside A, and rebaudioside C. Other minor glycosides include steviolmonoside,
steviolbioside, rubusoside, rebaudiosides B, D, E, F, G, H, I, J, K, L, M, O, dulcosides A, B and others. See
Para [0004]. Markosyan teaches that the term "steviol glycoside(s)" will mean steviol glycosides
naturally occurring in Stevia rebaudiana, including but not limited to steviolmonoside, steviolbioside,
rubusoside, stevioside, stevioside A, stevioside B, stevioside D, stevioside E, stevioside E2, stevioside F,
dulcoside A, dulcoside B, rebaudioside A, rebaudioside A2, rebaudioside A3, rebaudioside B,
rebaudioside C, rebaudioside D, rebaudioside D2, rebaudioside E, rebaudioside F, rebaudioside G,
rebaudioside H, rebaudioside I, rebaudioside 12, rebaudioside 13, rebaudioside J, rebaudioside K,
rebaudioside L, rebaudioside M, rebaudioside M2, rebaudioside N, rebaudioside O, rebaudioside Q,
rebaudioside Q2, rebaudioside Q3, and combinations thereof. See Para [0013]. Markosyan teaches that in Stevia rebaudiana, the percentage ratio of RebE content to TSG (Total Steviol Glycoside) content is at least about 1%, about 5%, about 10%, about 15%, about 20%, about 25%, about 30%, about 35%, about 40%, about 45%, about 50%, about 55%, about 60%, about 65%, about 70%, about 75%, about 80%, or about 85%, about 90%, or about 95% to about 100%. Markosyan makes clear that stevia containing 80% or more of steviol glycosides have been previously obtained from stevia plant.
It would have been obvious toa person skilled in the art to use steviol glycosides for improving
photosynthesis, considering that Hirooka et al. teach the use of steviol glycoside at the ratio of >5/100 for improving yield in the plants. Markosyan makes clear that the stevia derivatives have been produced in having 80% or more steviol glycosides. Therefore, it would have been obvious to a person skilled in the art to select any stevia extract having different glycoside concentrations as taught in Markosyan and use it for the purposes taught by Hirooka in the absence of evidence to the contrary. The determination of the type plant the stevia is applied to is considered to be within the skill of the artisan in the absence of evidence to the contrary.
Response to arguments
Applicant’s arguments have been noted. Applicant in his remarks argues that “Hirooka does not state that any of the purified stevia dry leaf extract, unpurified stevia dry stem and leaf extract, enzyme-treated stevia, or fructose-transferred stevia is preferred. Also, the results in Table 4 of the examples state that sections A to D, which contain vinegar and one of the four types mentioned above, improved the quality and yield of rice. However, there is no mention that the results using purified stevia dry leaf extract were superior to or preferable to the others. The foliar spray agent described in Hirooka is characterized by the combined use of vinegar containing branched oligosaccharide-containing saccharides and stevia and does not describe spraying stevia alone. Furthermore, there is no motivation in Hirooka to select "purified stevia dry leaf extract" (stevia extract) from the four types of stevia mentioned. Hirooka does not teach the application of a stevia composition containing a stevia extract,
and wherein the stevia extract comprises 80% or more of steviol glycosides”. It is the examiner’s position that that obviousness rejection does not require for the prior art to indicate a preferred product. As long as Hirooka teaches a stevia glycoside with the glycoside content of more than 5/100, the requirement for obviousness rejection is met. It is also the examiner’s position that the claims of the instant application use the phrase “comprising”, which permits the addition of other ingredients. Additionally, there is no evidence of record to the advantages of the claimed method of use over Hirooka et al. Markosyan is relied upon to show that the stevia extract can comprise 80% or more of glycoside.
THIS ACTION IS MADE FINAL. 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.
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/ZOHREH A FAY/Primary Examiner, Art Unit 1617