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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 February 17, 2026 has been entered.
Information Disclosure Statement
The information disclosure statement (IDS) submitted on February 17, 2026 was filed after the mailing date of the Office Action mailed on August 14, 2025. The submission is in compliance with the provisions of 37 CFR 1.97. Accordingly, the information disclosure statement is being considered by the examiner.
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.
Claim 157 is 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.
Claim 157 recites the limitation “wherein the infused fruit body has a Brix level of about 70-85 Brix” in lines 1-2. There was not adequate written description support at the time of filing for the infused fruit body to have the specific claimed Brix level range of about 70-85 Brix. The disclosure at the time of filing mentions a specific Brix level of the product containing a Brix level of about 70 to about 80 Brix (Specification, Page 2, lines 14-18). However, the disclosure at the time of filing never mentions any specific examples or broader disclosures of a Brix concentration of 80-85 Brix. Therefore, this limitations constitutes new matter.
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 146-147, 150, and 157-166 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 pre-AIA the applicant regards as the invention.
Claim 146 recites the limitation “wherein the infusion component comprises an allulose content of about 5% to about 50%” in lines 5-6. It is unclear if the claimed concentration of about 5% to about 50% is based on the total weight of the infusion component only or if the claimed concentration of about 5% to about 50% is based on the total weight of the infused fruit body.
Claim 150 recites the limitation “wherein the extracted fruit hull is a cranberry hull” in lines 1-2. Wordsmith Talk “A hull of a question” <https://wordsmith.org/board/ubbthreads.php?ubb=showflat&Number=184824> (published May 18, 2009) discloses there is ambiguity in the term “hull” in the context of berry foods wherein a hull has a first meaning of an outer shell, which strawberries do not have, and a second meaning of the enlarged calyx of a fruit, such as a strawberry, that is usually green and easily detached and that the definition goes from a skin or husk which needs to be removed to the green, tough bit that needs to be removed (Wordsmith, Page 1). A cranberry does not have a detachable green structure. It is unclear what is meant by the term “cranberry hull.”
Claim 160 recites the limitation “the food body” in line 1 as well as several times thereafter. There is insufficient antecedent basis for this limitation in the claim. There is only antecedent basis for “An infused fruit body” as recited in Claim 146, line 1.
Claim 166 recites the limitation “food product” in line 1. There is insufficient antecedent basis for this limitation in the claim. There is only antecedent basis for “An infused fruit body” as recited in Claim 146, line 1.
Clarification is required.
Claims 147, 157-159, 161-165 are rejected as being dependent on a rejected base claim.
Claim Rejections - 35 USC § 102
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 the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claim 146 is rejected under 35 U.S.C. 102(a)(2) as being anticipated by Woodyer et al. US 2016/0302463.
Regarding Claim 146, Woodyer et al. discloses an infused fruit body (fruit based sweet spread) comprising a fruit body having an uncomminuted native structure (whole fruit) (‘463, Paragraph [0174]) and an infusion component retained in the native structure of the fruit body (whole fruit) wherein the infusion component comprises an allulose content of about 3% by weight to about 50% by weight, (‘463, Paragraphs [0023] and [0178]), which encompasses the claimed allulose content concentration of about 5% to about 50%. When the prior art discloses a range which touches or overlaps the claimed range, but no specific examples falling within the claimed range are disclosed, a case by case determination must be made as to anticipation. In order to anticipate the claims, the claimed subject matter must be disclosed in the reference with sufficient specificity to constitute an anticipation under the statute. What constitutes a sufficient specificity is fact dependent. If the claims are directed to a narrow range and the reference teaches a broader ranges, other facts of the case must be considered when determining whether the narrow range is disclosed with sufficient specificity to constitute an anticipation of the claims in view of ClearValue Inc. v. Pearl River Polymers Inc., 668 F.3d 1340, 101 USPQ2d 1773 (Fed. Cir. 2012) with Atofina v. Great Lakes Chem. Corp, 441 F.3d 991, 999, 78 USPQ2d 1417, 1423 (Fed. Cir. 2006) (MPEP § 2131.03.II.). In the present instance, the claimed allulose content concentration of about 5% to about 50% is broad and is encompassed by the similarly broad disclosure of Woodyer et al. of about 3% by weight to about 50% by weight of allulose in the sweet spread (‘463, Paragraph [0023]) made of whole fruit (‘463, Paragraph [0174]). Therefore, the broad disclosure of about 3% by weight to about 50% by weight of allulose in the embodiment of sweet spread made of whole fruit anticipates the broad claimed concentration of allulose of about 5% by weight to about 50% by weight. Woodyer et al. also discloses the infusion component comprising at least one flavor modifier. The flavor modifier includes natural and/or artificial flavors (‘463, Paragraph [0176]) and/or stevia which is used in combination with allulose (‘463, Paragraphs [0052]-[0054]).
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 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 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claim 146 is rejected under 35 U.S.C. 103 as being unpatentable over Woodyer et al. US 2016/0302463.
Regarding Claim 146, Woodyer et al. anticipates the claimed limitations of Claim 146 as discussed above. However, in the event that it can be argued that the disclosure of about 3% by weight to about 50% by weight of allulose in the embodiment of sweet spread made of whole fruit does not teach with sufficient specificity of the claimed allulose concentration and therefore does not anticipate the broad claimed concentration of allulose of about 5% by weight to about 50% by weight, differences in the allulose concentration within the infusion component of the infused fruit body will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such allulose concentration in the infusion formulation of the infused fruit body is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the allulose concentration of the infusion formulation of the infused fruit body of Woodyer et al. based upon the desired sweetness intensity of the infused fruit body while maintaining low calories of the infused fruit body as suggested by Woodyer et al. (‘463, Paragraphs [0070] and [0082]).
Claims 146-147, 150, 157, 160, and 163-165 are rejected under 35 U.S.C. 103 as being unpatentable over Roy et al. US 2011/0256279 in view of Woodyer et al. US 2016/0302463.
Regarding Claim 146, Roy et al. discloses an infused fruit body comprising a fruit body having an uncomminuted native structure and an infusion component retained in the native structure of the fruit body (‘279, Paragraphs [0020] and [0040]) wherein the infusion component comprises at least one flavor modifier (stevia) (‘279, Paragraph [0034]).
Roy et al. discloses the infusion composition comprising a fruit syrup (‘279, Paragraphs [0018] and [0028]) and a non-nutritive/low calorie sweetener in place of sucrose sugar (‘279, Paragraphs [0018] and [0034]). However, Roy et al. is silent regarding the infusion component comprising an allulose content of about 5% to about 50%.
Woodyer et al. discloses an infused fruit body (fruit based sweet spread) comprising a fruit body having an uncomminuted native structure (whole fruit) (‘463, Paragraph [0174]) and an infusion component retained in the native structure of the fruit body (whole fruit) wherein the infusion component comprises an allulose content of about 3% by weight to about 50% by weight, (‘463, Paragraphs [0023] and [0178]), which encompasses the claimed allulose content concentration of about 5% to about 50%. Woodyer et al. also discloses the infusion component comprising at least one flavor modifier. The flavor modifier includes natural and/or artificial flavors (‘463, Paragraph [0176]) and/or stevia which is used in combination with allulose (‘463, Paragraphs [0052]-[0054]). Woodyer et al. also discloses the infused fruit body (fruit based sweet spread) having sucrose being completely or partially replacement by allulose the help address the issue that sucrose can be unstable under acidic conditions (‘463, Paragraph [0177]) and that allulose is a rare sugar that occurs in nature in only very small amounts and is essentially considered to be a “zero calorie” sweetener (‘463, Paragraph [0070]). The food or beverage product is useful as a low calorie product (‘463, Paragraph [0082]).
Both Roy et al. and Woodyer et al. disclose food or beverage products of whole/uncomminuted fruits sweetened by a sweetener system made of low calorie sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the low calorie sweetened infused fruit body of Roy et al. and make the infusion component formulation in which the uncomminuted fruit body is infused into to have allulose and at least one flavor modifier as taught by Woodyer et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Woodyer et al. also teaches the use of allulose in combination with at least one flavor modifier of natural and/or artificial flavors and/or stevia to replace sucrose in sweetener systems addresses the issue that sucrose can be unstable under acidic conditions (‘463, Paragraph [0177]). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sweetener system of the infusion formulation of Roy et al. to have the claimed concentration range of allulose content as taught by Woodyer et al. since where the claimed allulose concentration of the infusion formulation encompasses allulose content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the allulose concentration of the infusion formulation will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such allulose concentration in the infusion formulation is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the allulose concentration of the infusion formulation of Roy et al. based upon the desired sweetness intensity of the infused fruit body while maintaining low calories of the infused fruit body as suggested by Woodyer et al. (‘463, Paragraphs [0070] and [0082]).
Regarding Claim 147, Roy et al. discloses the fruit body having an uncomminuted native structure being an extracted fruit hull (‘279, Paragraphs [0020] and [0040]).
Regarding Claim 150, Roy et al. discloses the extracted fruit hull being a cranberry hull (‘279, Paragraphs [0020] and [0040]).
Regarding Claim 157, Roy et al. discloses the infusion infused fruit body having a Brix level of at least about 75 Brix (‘279, Paragraph [0018]), which overlaps the claimed product Brix level of about 70-85 Brix. Where the claimed infused fruit body Brix level ranges overlaps infused fruit body Brix level ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the infused fruit body Brix concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such infused fruit body Brix concentration is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the Brix concentration levels of the infused fruit body of modified Roy et al. based upon the desired sweetness levels of the infused fruit body.
Regarding Claim 160, Roy et al. discloses the fruit food body containing the infusion component fruit food body is dried (‘279, Paragraph [0018]) and the fruit food body being a fruit hull that is uncomminuted (‘279, Paragraph [0020]). The disclosure of infused fruit body being dried reads on the claimed infused fruit body defining a volume wherein the volume of the infused fruit body after infusion is less than the volume of the infused fruit body prior to infusion.
Regarding Claim 163, Roy et al. discloses the infused fruit body being disposed in an infusion formulation having acid (‘279, Paragraphs [0013] and [0037]). Roy et al. also discloses a specific example wherein citric acid is present in the infusion formulation in an amount of 0-2% citric acid (‘279, Paragraph [0063]), which encompasses the claimed acidity of about 1% to about 2%. Where the claimed infused fruit body acidity level ranges overlaps infused fruit body acidity level ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the infused fruit body acidity levels will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such infused fruit body acidity levels is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the acidity levels of the final infused fruit body of modified Roy et al. based upon the desired acidity and degree of tartness of the infused fruit body.
Regarding Claim 164, Woodyer et al. discloses the flavor modifier being stevia in combination with allulose (‘463, Paragraphs [0215]-[0216]). Both Roy et al. and Woodyer et al. disclose food or beverage products of whole/uncomminuted fruits sweetened by a sweetener system made of low calorie sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the low calorie sweetened infused fruit body of Roy et al. and make the infusion component formulation in which the uncomminuted fruit body is infused into to have stevia flavor modifier in combination with allulose as taught by Woodyer et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Woodyer et al. teaches that there was known utility in the food and beverage art to make a low calorie sweetener system out of stevia in combination with allulose.
Regarding Claim 165, Woodyer et al. discloses the flavor modifier comprising a natural flavor modifier (‘463, Paragraphs [0039] and [0174]-[0176]). Both Roy et al. and Woodyer et al. disclose food or beverage products of whole/uncomminuted fruits sweetened by a sweetener system made of low calorie sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the low calorie sweetened infused fruit body of Roy et al. and make the infusion component formulation in which the uncomminuted fruit body is infused into to have a natural flavor modifier in combination with allulose as taught by Woodyer et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Woodyer et al. teaches that there was known utility in the food and beverage art to make a low calorie sweetener system out of natural flavor modifier in combination with allulose.
Claims 157, 161-162, and 166 are rejected under 35 U.S.C. 103 as being unpatentable over Roy et al. US 2011/0256279 in view of Woodyer et al. US 2016/0302463 as applied to claim 150 above in further view of Sinha et al. US 2007/0031553.
Regarding Claim 157, Roy et al. renders obvious the limitations regarding the Brix level of the infused fruit body. However, in the event that it can be argued that Roy et al. discloses the Brix of the infused fruit body disclosed by Roy et al. is achieved before drying the food body (‘279, Paragraph [0018]) refers to the Brix of an intermediate product of the infused fruit body and not to the final infused fruit body, Sinha et al. discloses a whole, infused, buoyant, and dried cranberry made by sizing individually quick frozen cranberries, scarifying the sized cranberries, infusing the sized cranberries in an infusion solution having a Brix of from 40 to 80, removing the infused cranberries from the infused solution and drying until they have a final Brix of 76 to 84 (‘553, Paragraph [0006]), which overlaps the claimed infused fruit body Brix level of about 70-85 Brix. The disclosure of the dried cranberries to be whole cranberries reads on the claimed fruit body having an uncomminuted native structure. Sinha et al. also discloses the infusion solution comprises one or more of any known natural or artificial sweeteners (‘553, Paragraph [0010]).
Both modified Roy et al. and Sinha et al. are directed towards the same field of endeavor of infused fruit bodies comprising a fruit body having an uncomminuted native structure/whole fruit structure and an infusion component comprising a sweetener system. It would have been obvious to one of ordinary skill in the art to modify the infused fruit body of Roy et al. that is dried (‘279, Paragraph [0018]) and dry the infused fruit body to the claimed final Brix level as taught by Sinha et al. since where the claimed infused fruit body final Brix level ranges overlaps infused fruit body final Brix level ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the infused fruit body final Brix concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such infused fruit body final Brix concentration is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the Brix concentration levels of the final infused fruit body of modified Roy et al. based upon the desired sweetness levels of the final infused fruit body.
Regarding Claim 161, Sinha et al. discloses the infused fruit body having a moisture content of from 8 to 15% by weight (‘553, Paragraph [0012]), which overlaps the claimed infused fruit body moisture content of about 15% to about 20%. Roy et al. discloses drying the food body (‘279, Paragraph [0018]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the infused fruit body of Roy et al. and dry the infused fruit body to the claimed moisture content range claimed as taught by Sinha et al. since where the claimed infused fruit body moisture content ranges overlaps infused fruit body moisture content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the moisture content of the infused fruit body will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such moisture content of the infused fruit body is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the moisture content of the infused fruit body via drying of modified Roy et al. based upon the desired mouthfeel of the infused fruit body.
Regarding Claim 162, Sinha et al. discloses the infused fruit body having a water activity of from 0.25 to 0.60 (‘553, Paragraphs [0006] and [0012]), which overlaps the claimed water activity level of about 0.4 to about 0.7. Roy et al. discloses drying the food body (‘279, Paragraph [0018]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the infused fruit body of Roy et al. and dry the infused fruit body to the claimed water activity level range claimed as taught by Sinha et al. since where the claimed infused fruit body water activity level ranges overlaps infused fruit body water activity level ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the water activity level of the infused fruit body will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such water activity level of the infused fruit body is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the water activity level of the infused fruit body via drying of modified Roy et al. based upon the desired mouthfeel of the infused fruit body.
Regarding Claim 166, Roy et al. discloses the infused fruit body being disposed in an infusion formulation having acid (‘279, Paragraphs [0013] and [0037]). Roy et al. also discloses a specific example wherein citric acid is present in the infusion formulation in an amount of 0-2% citric acid (‘279, Paragraph [0063]), which encompasses the claimed acidity of about 1.8%. Where the claimed infused fruit body acidity level ranges falls within infused fruit body acidity levels disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the infused fruit body acidity levels will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such infused fruit body acidity levels is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the acidity levels of the final infused fruit body of modified Roy et al. based upon the desired acidity and degree of tartness of the infused fruit body.
Further regarding Claim 166, Roy et al. modified with Woodyer et al. is silent regarding the infused fruit body having a water activity of about 0.53 and a Brix level of at least 77 Brix.
Sinha et al. discloses the infused fruit body having an acidity in an amount of from 0.5 to 2.5% by weight based on the weight of the infused fruit body of cranberries (‘553, Paragraph [0010]) and a water activity of from 0.25 to 0.60 and a final Brix of 76 to 84 (‘553, Paragraph [0006]), which encompasses the claimed acidity of about 1.80%, encompasses, the claimed water activity of about 0.53, and also overlaps the claimed Brix level of at least 77 Brix, respectively.
Roy et al. discloses drying the infused fruit body (‘279, Paragraph [0018]). Both modified Roy et al. and Sinha et al. are directed towards the same field of endeavor of infused fruit bodies comprising a fruit body having an uncomminuted native structure/whole fruit structure and an infusion component comprising a sweetener system. It would have been obvious to one of ordinary skill in the art to modify the infused fruit body of Roy et al. that is dried (‘279, Paragraph [0018]) and dry the infused fruit body to the claimed final Brix level as taught by Sinha et al. since where the claimed infused fruit body final Brix level ranges overlaps infused fruit body final Brix level ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the infused fruit body final Brix concentration will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such infused fruit body final Brix concentration is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the Brix concentration levels of the final infused fruit body of modified Roy et al. based upon the desired sweetness levels of the final infused fruit body. Additionally, it would have been obvious to one of ordinary skill in the art at the time to modify the infused fruit body of Roy et al. and dry the infused fruit body to the claimed water activity level range claimed as taught by Sinha et al. since where the claimed infused fruit body water activity level ranges overlaps infused fruit body water activity level ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the water activity level of the infused fruit body will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such water activity level of the infused fruit body is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the water activity level of the infused fruit body via drying of modified Roy et al. based upon the desired mouthfeel of the infused fruit body.
Claim 158 is rejected under 35 U.S.C. 103 as being unpatentable over Roy et al. US 2011/0256279 in view of Woodyer et al. US 2016/0302463 as applied to claim 150 above in further view of Sinha et al. US 2007/0031553 and Schwarz US 2004/0142072.
Regarding Claim 158, Roy et al. discloses the infused fruit body being dried (‘279, Paragraph [0018]). Roy et al. also discloses a specific example wherein citric acid is present in the infusion formulation in an amount of 0-2% citric acid (‘279, Paragraph [0063]), which encompasses the claimed acidity of about 1.72%. Where the claimed infused fruit body acidity level ranges overlaps infused fruit body acidity level ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the infused fruit body acidity levels will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such infused fruit body acidity levels is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the acidity levels of the final infused fruit body of modified Roy et al. based upon the desired acidity and degree of tartness of the infused fruit body.
Further regarding Claim 158, Roy et al. modified with Woodyer et al. is silent regarding the infused fruit body having a moisture level of about 18% and a water activity of about 0.585.
Sinha et al. discloses an infused fruit body having a water activity of from 0.25 to 0.60 (‘553, Paragraphs [0006] and [0012]), which overlaps the claimed water activity level of about 0.585. Roy et al. discloses drying the food body (‘279, Paragraph [0018]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the infused fruit body of Roy et al. and dry the infused fruit body to the claimed water activity level range claimed as taught by Sinha et al. since where the claimed infused fruit body water activity level ranges overlaps infused fruit body water activity level ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the water activity level of the infused fruit body will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such water activity level of the infused fruit body is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the water activity level of the infused fruit body via drying of modified Roy et al. based upon the desired mouthfeel of the infused fruit body.
Further regarding Claim 158, Sinha et al. discloses the infused fruit body being dried to a moisture level of from 8 to 15% by weight (‘553, Paragraph [0012]), which is close to but does not overlap the claimed infused fruit body moisture content of about 15% to about 20%. A prima facie case of obviousness exists where the claimed moisture content ranges do not overlap but are merely close in view of Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (MPEP § 2144.05.I.). Furthermore, Schwarz discloses an infused fruit body (cranberry) comprising a fruit body having a native structure (original cranberry shape is maintained) and an infusion component (infusion of sugar) retained in the native structure of the fruit body (‘072, Paragraph [0001]) allowing sugar infusion into the cranberries into the flesh of the fruit (‘072, Paragraph [0025]) wherein the cranberries are dried once the infusion process is completed (‘072, Paragraph [0037]) wherein slow low temperature drying allows for higher moisture finished product having a soft pleasant texture as opposed to a hard chewy surface from the faster and higher temperature process (‘072, Paragraphs [0025] and [0044]). It would have been obvious to one of ordinary skill in the art to modify the moisture content of the infused fruit body of 8 to 15% by weight to be slightly higher to fall within the claimed moisture content of about 15% to about 20% as taught by the disclosure of Schwarz that slow low temperature drying allows for higher moisture finished product since differences in the moisture content of the infused fruit body will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such moisture content of the infused fruit body is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the moisture content of the infused fruit body of modified Roy et al. based upon the desired texture of the infused fruit body as suggested by Schwarz (‘072, Paragraph [0044]).
Claim 159 is rejected under 35 U.S.C. 103 as being unpatentable over Roy et al. US 2011/0256279 in view of Woodyer et al. US 2016/0302463 as applied to claim 150 above in further view of Schwarz US 2004/0142072.
Regarding Claim 159, applicant discloses the infused food body having a peak positive force of about 6000 g/sec to about 8000 g/sec as measured by a texture analyzer (Specification, Pages 23-24). Roy et al. discloses drying the infused fruit body (‘279, Paragraph [0018]). However, Roy et al. modified with Woodyer et al. is silent regarding the infused fruit body having a peak positive force of about 6000 g/sec to about 8000 g/sec and is also silent regarding any texture modifications to the infused fruit body.
Schwarz discloses an infused fruit body (cranberry) comprising a fruit body having a native structure (original cranberry shape is maintained) and an infusion component (infusion of sugar) retained in the native structure of the fruit body (‘072, Paragraph [0001]) allowing sugar infusion into the cranberries into the flesh of the fruit (‘072, Paragraph [0025]) wherein the cranberries are dried once the infusion process is completed (‘072, Paragraph [0037]) wherein slow low temperature drying allows for higher moisture finished product having a soft pleasant texture as opposed to a hard chewy surface from the faster and higher temperature process (‘072, Paragraph [0044]) and by employing various additives to improve the texture of the final infused fruit product and to enhance the stability of the fruit against possible leakage of the infused solutes from the fruit during storage (‘072, Paragraph [0035]).
Both modified Roy et al. and Schwarz are directed towards the same field of endeavor of infused fruit bodies disposed in an infusion component containing a sweetener system which infusion component is retained in the fruit body. Although Schwarz does not explicitly disclose the claimed range of peak positive force of the infused fruit body, Schwarz establishes adjusting the texture, i.e. adjusting the softness/hardness of the dried infused fruit body via temperature drying conditions. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the texture of the infused fruit body and adjust the peak positive force of the infused fruit body of modified Roy et al. to the claimed levels since differences in the peak positive force representing the texture of the infused fruit body will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such texture of the infused fruit body is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the texture of the infused fruit body of modified Roy et al. based upon the desired texture of the infused fruit body via temperature drying conditions and the addition of various additives to the infusion bath to improve the texture of the final infused fruit product as suggested by Schwarz (‘072, Paragraphs [0035] and [0044]).
Claim 146 is rejected under 35 U.S.C. 103 as being unpatentable over Sinha et al. US 2007/0031553 as further evidenced by Herickhoff et al. US 2006/0222724 and Froseth et al. US 2005/0064082 in view of Karolina “Sugar Free Cranberry Sauce Healthy Low Carb” <https://ikarolina.com/sugar-free-cranberry-sauce-healthy-low-carb/> (published November 3, 2020) and Woodyer et al. US 2016/0302463.
Regarding Claim 146, Sinha et al. discloses an infused fruit body (infused dried whole fruit) (‘553, Paragraph [0003]) comprising a fruit body having an uncomminuted native structure (cranberry fruit having skin left largely intact) (‘553, Paragraph [0009]) and an infusion component (infusion solution) retained in the native structure of the fruit body (cranberry fruit) wherein the infusion component comprises a sweetener system made of any known natural or artificial sweeteners (‘553, Paragraph [0010]).
Sinha et al. discloses the infused fruit body (cranberries) being processed by producing minute cuts through the skin of the fruit without cutting or fractionating the fruit wherein the skin is left largely intact with a series of cuts in the skin wherein the whole cranberry is intact other than the scarification cuts in the skin and does not mean fractions or pieces of cranberries (‘553, Paragraph [0009]) and infusing the scarified cranberries in an infusion solution containing any known natural or artificial sweeteners (‘553, Paragraph [0010]). Herickhoff et al. provides evidence that it was known in the food art that the term “comminuted” means that the fruit is broken up, cut in pieces, or otherwise reduced as necessary (‘724, Paragraph [0031]). Since Sinha et al. teaches that the cranberries are produced with minute cuts through the skin of the fruit without cutting or fractionating the fruit and not making fractions or pieces of cranberries (‘553, Paragraph [0009]), the disclosure of Sinha et al. reads on the fruit body of cranberries having an uncomminuted native structure as evidenced by Herickhoff et al. that comminuting means that the fruit is broken up, cut in pieces, or reduced as necessary (‘724, Paragraph [0031]). Furthermore, Froseth et al. provides evidence that it was known in the food art to make an infused fruit body of dried cranberries (‘082, Paragraph [0026]) from a fruit body having an uncomminuted native structure (‘082, Paragraph [0029]) that is infused in an infusion solution having a reduced caloric content (‘082, Paragraphs [0042]-[0043] and [0052]).
Sinha et al. is silent regarding the sweetener system of the infusion component comprising an allulose content of about 5% to about 50% and at least one flavor modifier.
Karolina discloses sugar free cranberry sauce (Karolina, Page 3) comprising at least one flavor modifier (granulated erythritol) and allulose wherein allulose blends well into the sauce without crystallizing, has no aftertaste, and is a natural sweetener wherein the recipe is flexible in terms of sweeteners and you can use whatever you have wherein erythritol can be swapped with stevia (Karolina, Page 4).
Both Sinha et al. and Karolina are directed towards the same field of endeavor of infused fruit bodies of cranberry based fruit wherein cranberry fruit is infused in an infusion component containing a sweetener system. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the sweetener system of the infusion component of Sinha et al. and use allulose and at least one flavor modifier of granulated erythritol or stevia as taught by Karolina since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Karolina teaches that there was known utility in the food and beverage art to infuse fruit bodies such as cranberry products in an infusion component containing a sweetener system of allulose and at least one flavor modifier of erythritol or stevia. Furthermore, it would have been obvious to one of ordinary skill in the art to replace the sucrose sweetener system disclosed by Sinha et al. (‘553, Paragraph [0010]) and substitute the sucrose sweetener system with allulose and at least one flavor modifier of erythritol or stevia as taught by Karolina in order to make a sugar free infused fruit body product (Karolina, Page 3). One of ordinary skill in the art would utilize low or zero sugar sweeteners in the infused fruit body of Sinha et al. based upon the desired calories of the infused fruit body. It is noted that Claim 146 does not specify any particular at least one flavor modifier. The erythritol or stevia sweetener disclosed by Karolina broadly reads on at least one flavor modifier since erythritol or stevia imparts added sweetness to the infused fruit body.
Further regarding Claim 146, Sinha et al. in view of Karolina is silent regarding the infusion component comprising allulose in an amount of about 5% to about 50%.
Woodyer et al. discloses an infused fruit body (fruit based sweet spread) comprising a fruit body having an uncomminuted native structure (whole fruit) (‘463, Paragraph [0174]) and an infusion component retained in the native structure of the fruit body (whole fruit) wherein the infusion component comprises an allulose content of about 3% by weight to about 50% by weight, (‘463, Paragraphs [0023] and [0178]), which encompasses the claimed allulose content concentration of about 5% to about 50%. Woodyer et al. also discloses the infusion component comprising at least one flavor modifier. The flavor modifier includes natural and/or artificial flavors (‘463, Paragraph [0176]) and/or stevia which is used in combination with allulose (‘463, Paragraphs [0052]-[0054]) and/or erythriol as a cosweetener (‘463, Paragraph [0034]). Woodyer et al. also discloses the infused fruit body (fruit based sweet spread) having sucrose being completely or partially replacement by allulose the help address the issue that sucrose can be unstable under acidic conditions (‘463, Paragraph [0177]) and that allulose is a rare sugar that occurs in nature in only very small amounts and is essentially considered to be a “zero calorie” sweetener (‘463, Paragraph [0070]). The food or beverage product is useful as a low calorie product (‘463, Paragraph [0082]).
Both modified Sinha et al. and Woodyer et al. disclose food or beverage products of whole/uncomminuted fruits sweetened by a sweetener system made of low calorie sweeteners. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the low calorie sweetened infused fruit body of modified Sinha et al. and make the infusion component formulation in which the uncomminuted fruit body is infused into to have the claimed concentration range of allulose content as taught by Woodyer et al. since where the claimed allulose concentration of the infusion formulation encompasses allulose content ranges disclosed by the prior art, a prima facie case of obviousness exists in view of In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990) (MPEP § 2144.05.I.). Furthermore, differences in the allulose concentration of the infusion formulation will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such allulose concentration in the infusion formulation is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the allulose concentration of the infusion formulation of Sinha et al. based upon the desired sweetness intensity of the infused fruit body while maintaining low calories of the infused fruit body as suggested by Woodyer et al. (‘463, Paragraphs [0070] and [0082]).
Response to Amendment
The affidavit under 37 CFR 1.132 filed February 17, 2026 is insufficient to overcome the obviousness rejection of Claim 146 under 35 USC 103(a) to Roy et al. in view of Woodyer et al. as set forth in the last Office action because of the following:
Applicant submits an affidavit in which Paragraphs 5-7 of the affidavit state that Exhibit 1 is an analytical reports of four products, three of which are Ocean Spray products and one of which is a Non Ocean Spray competitor wherein two of the Ocean Spray products include allulose, i.e. an OS NSA prototype including stevia, Code 272 including allulose and the sweetener, and OS NSA prototype 2 of natural flavors, and Code 357 including natural flavors and allulose and no added sugar, and Code 577 including added sugar and no allulose and a non-Ocean Spray in market competitive product that does not include added sugar and has no allulose. Applicant points to data pertaining to four products listed in Exhibit 1.
Examiner notes that all products of Exhibit 1 are dried cranberries. None of the claims are directed to dried cranberries specifically. Independent Claim 146 recites a generic infused fruit body. Claim 150 recites an extracted fruit of a cranberry hull but does not specify the cranberry hull to be dried or any particular moisture content of the cranberry hull. Claims 158, 161-162, and 166 all recite moisture content levels and/or water activity levels but does not specify the infused fruit body to be cranberry. Applicant provides data relating to the more specific embodiment of a dried cranberry. Claim 146 does not specify the infused fruit body to be cranberry or have a cranberry flavor and also does not specify any particular moisture content levels and/or water activity levels. Applicant’s data in Exhibit 1 are not commensurate in scope with all of the claims since independent Claim 146 does not recite cranberries and/or the moisture content level and/or water activity levels. Objective evidence of nonobviousness including commercial success must be commensurate in scope with the claims in view of In re Tiffin, 448 F.2d 791, 171 USPQ 294 (CCPA 1971) (MPEP § 716.03(a).I.). Applicant has not provided any data showing the alleged criticality of the claimed generically claimed infused fruit body of independent Claim 146. Furthermore, applicant has not provided any data against the closest prior art of record. It is noted that Woodyer et al. already teaches infused fruit bodies containing allulose sugar. Due to the absence of tests comparing applicant’s cranberry infused fruit body with those of the closest prior art, applicant’s assertions of unexpected results constitute mere argument in view of In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); Ex parte George, 21 USPQ2d 1058 (Bd. Pat. App. & Inter. 1991) (MPEP § 716.01(c).I.).
Applicant argues on Paragraph 8 of the affidavit that Exhibit 2 that Biofortis performed an analysis of six snack products, i.e. four fruit snacks derived from dried cranberries with different added sugar levels, one fruit snack made from commercially available raisins, and one hard candy sweet snack wherein one of the four fruit snacks derived from dried cranberries had zero added sugar and contained allulose having a very low postprandial blood glucose response and reached a highest concentration of 5-6 mg/dL in a 2 hour postprandial blood glucose testing relative to the other tested products and also had a very low insulin response.
Examiner argues that Exhibit 2 tests dried cranberry products. Again, none of the claims are directed to dried cranberries specifically. Independent Claim 146 recites a generic infused fruit body. Claim 150 recites an extracted fruit of a cranberry hull but does not specify the cranberry hull to be dried or any particular moisture content of the cranberry hull. Claims 158, 161-162, and 166 all recite moisture content levels and/or water activity levels but does not specify the infused fruit body to be cranberry. Applicant provides data relating to the more specific embodiment of a dried cranberry. Claim 146 does not specify the infused fruit body to be cranberry or have a cranberry flavor and also does not specify any particular moisture content levels and/or water activity levels. Applicant’s data in Exhibit 2 are not commensurate in scope with all of the claims since independent Claim 146 does not recite cranberries and/or the moisture content level and/or water activity levels. Objective evidence of nonobviousness including commercial success must be commensurate in scope with the claims in view of In re Tiffin, 448 F.2d 791, 171 USPQ 294 (CCPA 1971) (MPEP § 716.03(a).I.). Applicant has not provided any data showing the alleged criticality of the claimed generically claimed infused fruit body of independent Claim 146. Furthermore, applicant has not provided any data against the closest prior art of record. It is noted that Woodyer et al. already teaches infused fruit bodies containing allulose sugar in the claimed amounts as discussed in the rejections above. Due to the absence of tests comparing applicant’s cranberry infused fruit body with those of the closest prior art, applicant’s assertions of unexpected results constitute mere argument in view of In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); Ex parte George, 21 USPQ2d 1058 (Bd. Pat. App. & Inter. 1991) (MPEP § 716.01(c).I.).
Applicant argues on Paragraph 9 of the affidavit that Exhibit 3 is an independent ketogenic certification provided by ketogenic.com which performed testing and analysis of Ocean Spray Cranberries and tested blood tests to determine the impact on a variety of metabolic markers including glucose monitoring and Zero Sugar Added Dried Cranberries does not have a low enough impact on an individual’s glucose to be consistent with a ketogenic diet.
Examiner first notes that none of the claims requires the claimed infused fruit body to be a ketogenic friendly type of food. Klein US 2016/0015069 discloses ketogenic diets are diets high in fats and low in carbohydrates resulting in low glucose levels to thereby promote ketogenesis and provide a ready source of fatty acids for ketogenesis (‘069, Paragraph [0004]). Splenda “Top 4 Keto Sweeteners To Use Instead of Sugar” <https://www.splenda.com/blog/top-4-keto-sweeteners-to-use-instead-of-sugar/> (published April 22, 2021) discloses a keto diet requires low net carb consumption to keep blood sugar low to keep the hormone insulin low to allow your body to access stored fat for energy wherein eating sugar raises insulin levels and inhibits fat burning and eating sugar is not suitable for keto diets wherein keto friendly sweeteners include allulose, which is a naturally occurring sweetener found in figs, raisins, and jackfruit and is low in calories, and stevia, which contains zero calories, does not raise blood sugar or insulin levels, and has promising antioxidant properties. Klein and Stevia provides evidence that it was known in the art that a keto diet is a low carb diet. However, none of the claims specify the infused fruit body as a whole to be low in carbs. Claim 146 recites an allulose infusion component. However, Splenda teaches that it was known in the food art that allulose by itself is a type of keto friendly sweetener that is low in calories. It is noted that Claim 146 recites “an allulose content…and at least one flavor modifier.” The phrase “at least one flavor modifier” broadly encompasses infusion component sweeteners that are high in carbs and/or sugar content. Nafisi-Movaghar US 4,996,070 discloses a fruit flavoring solution containing natural fruit extracts, fruit flavors, and sugars used as a sweetener for treating fruits with an infusion solution (‘070, Column 1, lines 13-19) wherein the infusion solution for treating the fruit contains sucrose sugars (‘070, Column 4, lines 40-50). The infusion solution containing fruit extracts and sucrose disclosed by Nafisi-Moyaghar broadly reads on the claimed “at least one flavor modifier” that is not keto friendly due to the presence of sucrose. Claim 146 does not require the claimed infused fruit body to be keto friendly since the claimed infusion component containing at least one flavor modifier encompasses flavor modifiers that are high in sugar such as that disclosed by Nafisi-Moyghar and is therefore not keto friendly. Additionally, Examiner argues that “Keto Cranberry Sauce” <https://thekelliekitchen.com/keto-cranberry-sauce/> (published November 7, 2020) discloses a low sugar keto cranberry sauce comprising a no carb sweetener of allulose that thickens and does not harden or crystallize like most low carb sweeteners (Keto Cranberry Sauce, Page 9) and stevia extract or monkfruit extract wherein using extracts does not have jelling effects (Keto Cranberry Sauce, Page 13). The multiple prior art rejections of independent Claim 146 above all teach an infused fruit body comprising a fruit and an infusion component comprising allulose and at least one flavor modifier. Keto Cranberry Sauce explicitly teaches that low sugar cranberry fruit bodies containing allulose and at least one flavor modifier of stevia extract are in compliance with ketogenic diets. Applicant has not found anything unexpected by the presence of the claimed fruit body containing an infusion component comprising allulose and at least one flavor modifier retained in the native structure of the fruit body since Keto Cranberry Sauce teaches that it was known that cranberry fruit bodies containing in infusion of sweetener of allulose combined with at least one flavor modifier was known to be suitable for a keto diet. Therefore, applicant’s argument regarding alleged unexpected results of Exhibit 3 being keto friendly is not found persuasive. Additionally, applicant provides data relating to the more specific embodiment of a dried cranberry. Claim 146 does not specify the infused fruit body to be cranberry or have a cranberry flavor and also does not specify any particular moisture content levels and/or water activity levels. Applicant’s data in Exhibit 2 are not commensurate in scope with all of the claims since independent Claim 146 does not recite cranberries and/or the moisture content level and/or water activity levels. Objective evidence of nonobviousness including commercial success must be commensurate in scope with the claims in view of In re Tiffin, 448 F.2d 791, 171 USPQ 294 (CCPA 1971) (MPEP § 716.03(a).I.). Applicant has not provided any data showing the alleged criticality of the claimed generically claimed infused fruit body of independent Claim 146. Furthermore, applicant has not provided any data against the closest prior art of record. It is noted that Woodyer et al. already teaches infused fruit bodies containing allulose sugar in the claimed amounts as discussed in the rejections above. Due to the absence of tests comparing applicant’s cranberry infused fruit body with those of the closest prior art, applicant’s assertions of unexpected results constitute mere argument in view of In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); Ex parte George, 21 USPQ2d 1058 (Bd. Pat. App. & Inter. 1991) (MPEP § 716.01(c).I.). Furthermore, Roberts “Is Allulose Keto or Paleo Friendly?” <https://paleofoundation.com/is-allulose-keto-or-paleo-friendly/> (published October 5, 2019) discloses allulose is an acceptable sweetener alternative to sugar for people interested in limiting their carb intake wherein allulose helps control blood glucose levels while drastically reducing your carbohydrate intake and allulose is a suitable ingredient for a Keto diet (Roberts, Pages 2-3). Roberts teaches that it was known in the food and diet art that allulose controls blood glucose levels while reducing carb intake. Applicant has not provided any unexpected benefits of the claimed invention and merely mentions known properties of the claimed allulose.
Response to Arguments
Examiner notes that a new matter rejection under 35 USC 112(a) has been made in view of the amendments.
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Applicant’s arguments with respect to the previous obviousness rejections under 35 USC 103(a) to Roy et al. in view of Shi et al. have been considered but are moot because none of the current rejections relies upon Shi et al. as a secondary reference.
Examiner notes that Claim 146 is also currently being rejected under the anticipation rationale under 35 USC 102 to Roy et al.
Examiner also notes that Claim 146 is also currently being rejection under the obviousness rational under 35 USC 103 to Sinha et al. as further evidenced by Herickoff et al. and Froseth et al. in view of Karolina and Woodyer et al.
Examiner notes that applicant does not comment on the obviousness rejection of Roy et al. in view of Woodyer et al under 35 USC 103(a). Applicant makes no specific remarks regarding the secondary reference of Woodyer et al. This particular rejection relying upon this combination of references has been maintained herein. Examiner notes that the current obviousness rejection to Roy et al. in view of Woodyer et al. uses a new rationale. Claim 146 has been amended from a generic food product to an infused fruit body. The corresponding rejection to Roy et al. in view of Woodyer et al. has been updated to reflect the newly amended claim language.
Applicant's arguments filed February 17, 2026 with respect to the allegations of unexpected results have been fully considered but they are not persuasive.
Applicant argues on Pages 7-8 of the Remarks that the limitations regarding the allulose content of about 5% to about 50% and at least one flavor modifier is not merely a selection of a known material based on its suitability for its intended use and applicant alleges that the claimed composition has a number of results that are unexpected and surprising. Applicant has attached a Declaration of Katy Galle under 37 CFR 1.132 describing analytical reports that illustrate some of the alleged unexpected results achieved by the products encompassed by the claims as an attachment in Appendix A.
Applicant asserts that Exhibit 1 shows that two products within the scope of the claims outperform an in market competitive product having no sugar added, in particular cranberry flavor intensity, in moistness, in overall liking, and in purchase intent. Applicant points to data of a first food product and a second food product allegedly within the scope of the claims and their corresponding results of cranberry flavor intensity, moistness, mean overall liking, and would purchase intent and compared these results to that of in market competitive products with zero sugar added. Applicant continues that the two food product allegedly within the scope of the claims also outperformed a food product having added sugar but in reduced amounts compared to certain other products, e.g. 50% of the sugar when compared to certain other food products not having reduced sugar, in moistness.
Examiner argues Claim 146 recites a generic infused fruit body whereas the products mentioned in Exhibit 1 all had results pertaining to a cranberry flavor. Claim 146 does not specify the infused fruit body to be cranberry or have a cranberry flavor. Applicant’s data in Exhibit 1 are not commensurate in scope with all of the claims since independent Claim 146 does not recite cranberries. Objective evidence of nonobviousness including commercial success must be commensurate in scope with the claims in view of In re Tiffin, 448 F.2d 791, 171 USPQ 294 (CCPA 1971) (MPEP § 716.03(a).I.). Furthermore, applicant has not provided any data against the closest prior art of record. It is noted that Woodyer et al. already teaches infused fruit bodies containing allulose sugar. Due to the absence of tests comparing applicant’s cranberry infused fruit body with those of the closest prior art, applicant’s assertions of unexpected results constitute mere argument in view of In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); Ex parte George, 21 USPQ2d 1058 (Bd. Pat. App. & Inter. 1991) (MPEP § 716.01(c).I.).
Applicant asserts that Exhibit 2 provides a second independent analysis allegedly demonstrating that a food product within the scope of the claims provides a low postprandial blood glucose and insulin response in individuals who consumed the food product and that individuals who consumed the food product had a postprandial blood glucose response with a highest concentration of 5-6 mg/dL in 2 hour postprandial blood glucose testing relative to the other tested products.
Examiner argues that Exhibit 2 tests dried cranberry products. Again, none of the claims are directed to dried cranberries specifically. Independent Claim 146 recites a generic infused fruit body. Claim 150 recites an extracted fruit of a cranberry hull but does not specify the cranberry hull to be dried or any particular moisture content of the cranberry hull. Claims 158, 161-162, and 166 all recite moisture content levels and/or water activity levels but does not specify the infused fruit body to be cranberry. Applicant provides data relating to the more specific embodiment of a dried cranberry. Claim 146 does not specify the infused fruit body to be cranberry or have a cranberry flavor and also does not specify any particular moisture content levels and/or water activity levels. Applicant’s data in Exhibit 2 are not commensurate in scope with all of the claims since independent Claim 146 does not recite cranberries and/or the moisture content level and/or water activity levels. Objective evidence of nonobviousness including commercial success must be commensurate in scope with the claims in view of In re Tiffin, 448 F.2d 791, 171 USPQ 294 (CCPA 1971) (MPEP § 716.03(a).I.). Applicant has not provided any data showing the alleged criticality of the claimed generically claimed infused fruit body of independent Claim 146. Furthermore, applicant has not provided any data against the closest prior art of record. It is noted that Woodyer et al. already teaches infused fruit bodies containing allulose sugar in the claimed amounts as discussed in the rejections above. Due to the absence of tests comparing applicant’s cranberry infused fruit body with those of the closest prior art, applicant’s assertions of unexpected results constitute mere argument in view of In re Lindner, 457 F.2d 506, 508, 173 USPQ 356, 358 (CCPA 1972); Ex parte George, 21 USPQ2d 1058 (Bd. Pat. App. & Inter. 1991) (MPEP § 716.01(c).I.).
Applicant asserts that Exhibit 3 provides an independent ketogenic certification that allegedly shows an unexpected result that the food product within the scope of the claims is able to be consumed in compliance with a ketogenic diet which is allegedly highly beneficial and an unexpected effect exhibited by the claimed food product.
Examiner argues that “Keto Cranberry Sauce” <https://thekelliekitchen.com/keto-cranberry-sauce/> (published November 7, 2020) discloses a low sugar keto cranberry sauce comprising a no carb sweetener of allulose that thickens and does not harden or crystallize like most low carb sweeteners (Keto Cranberry Sauce, Page 9) and stevia extract or monkfruit extract wherein using extracts does not have jelling effects (Keto Cranberry Sauce, Page 13). The multiple prior art rejections of independent Claim 146 above all teach an infused fruit body comprising a fruit and an infusion component comprising allulose and at least one flavor modifier. Keto Cranberry Sauce explicitly teaches that low sugar cranberry fruit bodies containing allulose and at least one flavor modifier of stevia extract are in compliance with ketogenic diets. Applicant has not found anything unexpected by the presence of the claimed fruit body containing an infusion component comprising allulose and at least one flavor modifier retained in the native structure of the fruit body since Keto Cranberry Sauce teaches that it was known that cranberry fruit bodies containing in infusion of sweetener of allulose combined with at least one flavor modifier was known to be suitable for a keto diet. Therefore, applicant’s argument regarding alleged unexpected results of Exhibit 3 being keto friendly is not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
“Keto Cranberry Sauce” <https://thekelliekitchen.com/keto-cranberry-sauce/> (published November 7, 2020) discloses a low sugar keto cranberry sauce comprising a no carb sweetener of allulose that thickens and does not harden or crystallize like most low carb sweeteners (Keto Cranberry Sauce, Page 9) and stevia extract or monkfruit extract wherein using extracts does not have jelling effects (Keto Cranberry Sauce, Page 13).
Kennedy “Easy Sugar Free Candied Cranberries For the Holidays” <https://sugarfreesprinkles.com/sugar-free-candied-cranberries/> (published January 3, 2021) discloses a method of making sugar free candied cranberries comprising the steps of stirring allulose with water, cooking the mixture of allulose and water on medium to medium-low heat to form a syrup, bubbling the syrup, placing cranberries into the bubbling syrup, cooking the syrup until the first few bursts, stirring the berries, covering, and sitting overnight to allow the berries to slurp up the syrup, and coating the cranberries with granular erythritol (Kennedy, Page 14).
Elviira “Homemade Sugar Free Craisins aka Dried Cranberries” <https://www.lowcarbsosimple.com/homemade-sugar-free-craisins-aka-dried-cranberries/> (published January 3, 2021) discloses sugar free dried cranberries made by adding powdered erythritol and stevia glycerite to frozen cranberries wherein the cranberries are left whole (Elviira, Pages 19-20)
Adrienne “Super Easy Sugar Free Cranberry Sauce” <https://wholenewmom.com/keto-cranberry-sauce-recipe/> (published November 23, 2020) discloses a sugar free cranberry sauce made with stevia and another low carb sweetener wherein you can use whatever sweeteners you like (Adrienne, Page 3) such as stevia and allulose (Adrienne, Page 5) wherein seasonings are added and adjusted if desired (Adrienne, Page 9) wherein cranberries are fine for the keto diet (Adrienne, Page 3) and the recipe made is a keto cranberry sauce (Adrienne, Page 2).
Porter et al. US 2004/0219281 discloses craisins are dried cranberries (‘281, Paragraph [0252]).
Evenson et al. US 6,558,718 discloses craisins are dried cranberries (‘718, Column 5, line 57).
Maxwell et al. US 6,063,432 discloses craisins are sugar infused cranberries (‘432, Column 2, line 25).
Blanthorn et al. US 4,961,943 discloses craisins are dried cranberries (‘943, Column 3, line 15).
Wray et al. “Microwave Osmotic/Microwave Vacuum Drying of Whole Cranberries: Comparison with Other Methods” (published 2015) discloses a method of drying frozen thawed whole cranberries by combining microwave osmotic dehydration under continuous flow medium spray conditions with microwave vacuum finishing (Wray et al., Abstract on Page E2792) wherein the process is applied to whole frozen thawed cranberries with no need for skin pretreatment (Wray et al., Page E2793).
Thomas et al. US 4,716,044 discloses a method of processing fruit comprising the step of subjecting to some type of comminution such as conventional grinding, a hammer, mill, a Fitz mill, or the like for conversion of the same.
West et al. US 2005/0153049 discloses a method of processing a fruit precursor comprising the step of comminuting or reducing the fruit by rupturing the precursor cells and making a fruit puree, drying and, pulverizing into a powder (‘049, Paragraph [0004]).
Stoecker US 2018/0221426 discloses comminution involves increasing the surface area of a compound (‘426, Paragraph [0037]).
Margolis et al. US 2007/0104842 discloses a method of processing fruit (grape) comprising the steps of finely comminuting grape skins and adding back to a partially fermented pulp (‘842, Paragraph [0025]).
Powrie et al. US 2001/0053404 discloses communition of an apple includes maceration and screening of steamed cooked apple pieces in a finisher/pulper which produces apple mince (‘404, Paragraph [0028]).
Gresh US 5,090,306 discloses a unit for preparation of fruits and/or berries comprising a comminuting device which supplies the fruits and/or berries as raw materials to obtain mash.
Klein US 2016/0015069 discloses ketogenic diets are diets high in fats and low in carbohydrates resulting in low glucose levels to thereby promote ketogenesis and provide a ready source of fatty acids for ketogenesis (‘069, Paragraph [0004]).
Olsen et al. US 2018/0110241 discloses a ketogenic diet is a high fat, adequate protein, low carbohydrate diet whose consumption shifts metabolism from glycolysis (the metabolism of carbohydrates) and favors ketosis, the metabolism of fatty acid derived ketone bodies (‘241, Paragraph [0004]).
Nafisi-Movaghar US 4,996,070 discloses a fruit flavoring solution containing natural fruit extracts, fruit flavors, and sugars for treating fruit containing sucrose sugars.
Roberts “Is Allulose Keto or Paleo Friendly?” <https://paleofoundation.com/is-allulose-keto-or-paleo-friendly/> (published October 5, 2019) discloses allulose is an acceptable sweetener alternative to sugar for people interested in limiting their carb intake wherein allulose helps control blood glucose levels while drastically reducing your carbohydrate intake and allulose is a suitable ingredient for a Keto diet (Roberts, Pages 2-3).
Splenda “Top 4 Keto Sweeteners To Use Instead of Sugar” <https://www.splenda.com/blog/top-4-keto-sweeteners-to-use-instead-of-sugar/> (published April 22, 2021) discloses a keto diet requires low net carb consumption to keep blood sugar low to keep the hormone insulin low to allow your body to access stored fat for energy wherein eating sugar raises insulin levels and inhibits fat burning and eating sugar is not suitable for keto diets (Splenda, Page 2) wherein keto friendly sweeteners include allulose, which is a naturally occurring sweetener found in figs, raisins, and jackfruit and is low in calories (Splenda, Page 3), and stevia, which contains zero calories, does not raise blood sugar or insulin levels, and has promising antioxidant properties (Splenda, Page 5).
“Is Allulose Safe on a Keto Diet?” <https://eatsweetlogic.com/blogs/news/is-allulose-safe-on-a-keto-diet?srsltid=AfmBOoo-W11VpMpc-aD49p-cmw23OcZV3NJTcMNUigNA1xLrpS1c2ZMk> (published December 17, 2018) discloses allulose is a natural sweetener derived from figs and dates and is naturally found in fruits and is low in carbs and low in calories and does not raise blood sugar or insulin levels to make it suitable on a ketogenic diet wherein allulose notably reduces blood glucose and does not cause intestinal gas or stimulate bloating and is known to reduce inflammation and promotes a fat loss when used instead of table sugar wherein a ketogenic diet is a low carb diet helping you burn fat more effectively instead of glucose to provide energy for your body wherein blood sugar levels stay the same when you eat allulose based products and provides no blood sugar spikes or insulin spikes to remain in ketosis whereas table sugar is high in carbs and creates blood sugar spikes and buzzes you off ketosis (Is Allulose Safe on a Keto Diet?, Pages 2-4).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to ERICSON M LACHICA whose telephone number is (571)270-0278. The examiner can normally be reached M-F, 8:30am-5pm, EST.
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, 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.
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.
/ERICSON M LACHICA/Examiner, Art Unit 1792