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 .
Claim Objections
Claims 164-165 are objected to because of the following informalities:
Claim 164 recites the limitation “the flavor modifier” in lines 1-2. It appears the claim should recite “the at least one flavor modifier” in order to maintain consistency with “at least one flavor modifier” recited in Claim 146, lines 4-5.
Claim 165 recites the limitation “the flavor modifier” in lines 1-2. It appears the claim should recite “the at least one flavor modifier” in order to maintain consistency with “at least one flavor modifier” recited in Claim 146, lines 4-5.
Appropriate correction is required.
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.
Claims 146, 157, and 163-164 are rejected under 35 U.S.C. 103 as being unpatentable over Roy et al. US 2011/0256279 (cited on Information Disclosure Statement filed December 11, 2023) in view of Bak et al. US 2019/0247323 (cited on Information Disclosure Statement filed August 25, 2026).
Regarding Claim 146, Roy et al. discloses an infused fruit body (‘279, Paragraphs [0014] and [0020]) comprising a dried cranberry (‘279, Paragraph [0043]) having an uncomminuted native structure and an infusion component (infusion formulation) retained in the native structure (‘279, Paragraph [0020]) of the dried cranberry (‘279, Paragraph [0043]). The infusion component (infusion formulation) comprises one or more types of sugar, a fruit syrup, or sugar alcohols (‘279, Paragraphs [0018] and [0034]) and at least one flavor modifier (spices and vitamins) (‘279, Paragraph [0037]). Roy et al. also discloses the infused fruit body comprising the infusion component (exogenously added infusion formulation) (‘279, Paragraph [0040]) retaining the infusion component (infusion formulation) of at least about 20% total weight of the fruit food body after infusion (‘279, Paragraph [0041]), which encompasses the claimed infused fruit body comprising the infusion component at about 20% to about 90% of the total finished fruit body weight. Where the claimed concentration of infusion component within the infused fruit body ranges overlaps infusion component within the infused fruit body 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.).
Roy et al. discloses the infusion component (infusion formulation) comprising one or more types of sugar, a fruit syrup, or sugar alcohols (‘279, Paragraphs [0018] and [0034]) wherein an infusion syrup infuses into the fruit (‘279, Paragraph [0028]). However, Roy et al. is silent regarding the one or more types of sugar, fruit syrup, or sugar alcohols of the infusion component of infusion syrup comprising allulose. Roy et al. is also silent regarding the infusion component of infusion syrup comprising an allulose content of about 5% to about 50% by weight of the infusion component wherein the infused fruit body comprises the infusion component at about 20% to about 90% of the total finished fruit body weight.
Bak et al. discloses an infused fruit body (‘323, Paragraphs [0020]-[0021]) comprising an infusion component (plant soaked solution of infusion syrup) comprising allulose (‘323, Paragraphs [0018], [0027], and [0031]) and at least one flavor modifier (flavors and vitamins) (‘323, Paragraph [0026]) wherein the infusion component (plant soaked solution of infusion syrup) comprises an allulose content of about 33% to about 67% by weight of the infusion component (plant soaked solution) (‘323, Paragraph [0011]), which overlaps the claimed allulose content of about 5% to about 50% by weight of the infusion component.
Both Roy et al. and Bak et al. are directed towards the same field of endeavor of infused fruit bodies comprising a fruit disposed in an infusion component in the form of a syrup containing one or more sweeteners (‘279, Paragraphs [0018] and [0028]) (‘323, Paragraphs [0018] and [0027]). Roy et al. discloses the one or more sweeteners being a low calorie sweetener (‘279, Paragraph [0018]). Bak et al. teaches that allulose is a sweetener useful in infusion components in the form of a soaked solution wherein allulose has low calories (‘323, Paragraph [0035]) and allulose has reduced calories compared to soaked solutions containing sucrose (‘323, Paragraph [0076]). It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the infusion component of Roy et al. that teaches using one or more sweeteners and specifically use allulose as the sweetener of the infusion component instead of sucrose as taught by Bak et al. in order to reduce the calories of the infused fruit body. Additionally, the selection of a known material 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). Furthermore, it would have been obvious to one of ordinary skill in the art at the time of the invention to modify the infusion component of Roy et al. and use allulose in the claimed concentration of the infusion component as taught by Bak et al. since where the claimed allulose concentration of the infusion component ranges overlaps allulose concentration of the infusion component 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.).
Regarding Claim 157, Roy et al. discloses the infused fruit body having a Brix level of about 40 to about 80 Brix (‘279, Paragraph [0033]), which encompasses the claimed Brix level of about 70-80 Brix. Where the claimed Brix level of the infused fruit body ranges overlaps Brix level of the infused fruit body 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.).
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, Roy et al. discloses the at least one flavor modifier comprising Stevia (‘279, Paragraph [0034]).
Claims 157, 161-162, and 166 are rejected under 35 U.S.C. 103 as being unpatentable over Roy et al. US 2011/0256279 (cited on Information Disclosure Statement filed December 11, 2023) in view of Bak et al. US 2019/0247323 (cited on Information Disclosure Statement filed August 25, 2026) as applied to claim 146 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 (cited on Information Disclosure Statement filed December 11, 2023) in view of Bak et al. US 2019/0247323 (cited on Information Disclosure Statement filed August 25, 2026) as applied to claim 146 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 Bak 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 (cited on Information Disclosure Statement filed December 11, 2023) in view of Bak et al. US 2019/0247323 (cited on Information Disclosure Statement filed August 25, 2026) as applied to claim 146 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 Bak 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 165 is rejected under 35 U.S.C. 103 as being unpatentable over Roy et al. US 2011/0256279 (cited on Information Disclosure Statement filed December 11, 2023) in view of Bak et al. US 2019/0247323 (cited on Information Disclosure Statement filed August 25, 2026) as applied to claim 146 above in further view of Woodyer et al. US 2016/0302463.
Regarding Claim 165, Roy et al. is silent regarding the flavor modifier comprising a natural flavor modifier.
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]). Woodyer et al. further discloses the flavor modifier comprising a natural flavor modifier (‘463, Paragraphs [0039] and [0174]-[0176]).
Both modified 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.
Response to Arguments
Examiner notes that the previous new matter rejection under 35 USC 112(a) has been withdrawn in view of the amendments.
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Examiner notes that new Claim Objections have been made.
Applicant’s arguments with respect to the obviousness rejections of Claim 146 under 35 USC 103(a) have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument. The reliance on the new combination of Roy et al. in view of Bak et al. was necessitated by amendment. The claims have been amended to incorporation the newly present limitations regarding dried cranberries, which limitations were not previously considered.
It is noted that the previous anticipation rejections under 35 USC 102 and the previous obviousness rejections under 35 USC 103 have been withdrawn in view of the amendments.
Examiner notes that applicant comments on Pages 6-8 of the Remarks that the Declaration of Katy Galle under 37 CFR 1.132 filed on February 17, 2026 allegedly illustrates evidence of unexpected results sufficient to rebut a prima facie case of obviousness. Examiner notes that Claim 146 has been amended to recite the newly presented limitations “wherein the infused fruit body comprises the infusion component at about 20% to about 90% of the total finished fruit body weight.” The data presented on February 17, 2026 does not state that the infused fruit body comprises the infusion component in an amount of about 20% to about 90% of the total finished fruit body weight. Evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims in view of In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980) (MPEP § 716.02(b).III.). Applicant’s data presented on February 17, 2026 is not commensurate in scope with the amended claims since said data does not state that the infused fruit body comprises the infusion component in an amount of about 20% to about 90% of the total finished fruit body weight as required by amended Claim 146. With respect to the limitations regarding the infusion component comprising an allulose content of about 5% to about 50% by weight of the infusion component, Bak et al. US 2019/0247323 (which was presented by applicant in the Information Disclosure Statement filed August 25, 2026 and has been relied herein in the current rejection), teaches overlapping concentrations of allulose within the infusion component.
With respect to applicant’s arguments pertaining to alleged unexpected results and/or properties in the affidavit filed February 17, 2026, Examiner has repeated applicant’s previous arguments and Examiner maintains the previous positions set forth in the Non-Final Office Action mailed February 25, 2026.
Applicant argues on Paragraph 9 of the affidavit filed February 17, 2026 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.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Mantius et al. US 5,419,251 discloses an extraction and infusion of fruits, especially cranberries to obtain an infused food product while maintain substantial physical integrity of the original raw fruit and provide unique flavors by virtue of the various infusion fluids such as fruit juices from fruits other than the fruit decharacterized wherein the ratio of infusion syrup to fruit is adjusted to extract the requisite amount of inherent soluble fruit component into the infusion medium wherein the infusion liquid is fruit juice, fruit juice concentrate, corn syrup, sugar water solutions, and/or artificial sweeteners wherein the infused fruit is dried to remove excess water to a water activity of 0.5 to 0.55 wherein the infusion liquid includes flavorings such as spices and are fortified with vitamins such as ascorbic acid wherein the dried infused fruit product has a sugar level of about 88 brix.
O’Mahony et al. US 4,551,348 discloses a process for rapidly infusing fruit with sugar solutes by means of an infusion bath maintained at a substantially constant solutes concentration and viscosity during the course of the infusion process wherein whole fruits are treated for infusion of the fruit wherein additional sites may be treated by prickling the skin of the fruit or scarifying the fruit by providing slits on the surface of the whole fruit wherein the fruit is soaked in an edible aqueous salt or acid solution of ascorbic acid solution wherein fresh fruits or frozen fruits are infused wherein the infusion solution comprises fructose wherein the entire body of the fruit is submerged in the infusion bath.
Weckel US 2,865,758 discloses a method of processing whole cranberries in a form suitable for use in confections, mixed fruit, beverage, and the like wherein the processed cranberries are firm and pump and retain the natural color and natural flavor unless modified by spices of the natural berry wherein the cranberries are further treated with highly concentrated sugar syrups to product products containing 65-70% sugar.
Mathews US 2,785,071 discloses a method of impregnating fruit with a sugar solution comprising flavoring or additives such as citric acid in an amount sufficient to increase the pH of the syrup wherein the temperature of the syrup supplied is not a critical factor.
Woodyer et al. US 2016/0302463 discloses a liquid table top sweetener comprising allulose in an amount of from about 45% to about 50% by weight (‘463, Paragraph [0049]) or the liquid table top sweetener comprising allulose in an amount of from about 2.5% to about 5% (‘463, Paragraph [0050]) or a sweetener system comprising allulose in an amount of from about 5% by weight to about 95% by weight relative to the total weight of the sweetener system (‘463, Paragraph [0053]) wherein the allulose has a high level as a single ingredient for the complete or partial replacement of nutritive sweeteners in food or beverage products (‘463, Paragraph [0078]) wherein the amount of allulose which constitutes a high level will vary according to the food or beverage product under consideration wherein high level means an amount up to and including the amount required to fully replace the nutritive sweetener in the corresponding conventional food or beverage product in terms of providing equivalent sweetness (‘463, Paragraph [0079]) wherein the food and beverage product including allulose is in an amount of up to about 80% by weight relative to the total weight of the food or beverage product, e.g. from around 1% by weight to around 80% by weight relative to the total weight of the food or beverage product (‘463, Paragraph [0080]) wherein allulose is provided in crystalline form or in the form of a syrup comprising allulose containing allulose in varying amounts on a dry solids basis, typically from about 70% to about 90% by weight (‘463, Paragraph [0084]) wherein the sweetener system is provided in a syrup liquid form (‘463, Paragraph [0058]).
Park et al. US 2020/0157131 discloses a method of preparing an allulose with stability at high yield by concentrating allulose containing solution at low temperature to reduce the content of impurities such as fructose and reducing sugars and increase the allulose content (‘131, Paragraph [0001]).
Jo et al. US 2020/0367541 discloses a low calorie hot sauce comprising at least 75% by weight of an allulose based on the total amount of sauce composition (‘541, Paragraph [0013]) and the sauce composition includes the allulose as a saccharide and an additional sweetener including sugars, sugar syrups, oligosaccharides, fructose, artificial sweeteners, and high intensity sweeteners (‘541, Paragraph [0034]) wherein the content of allulose is an amount suitable for the degree of sweetness and sensory properties of the sauce composition and the solid content of allulose is 30 to 65% by weight (‘541, Paragraph [0036]) wherein the allulose is in the form of syrup or powder (‘541, Paragraph [0038]) wherein allulose is a functional saccharide known as a rare sugar and an epimer of D-fructose and has a sweetness of about 60 to 70% of sugar but almost zero calories so as to have an effect of preventing and improving diabetes and has excellent solubility (‘541, Paragraph [0008]) wherein the spicy sauce is used to prepare a blended sauce of a spicy fruit dressing (‘541, Paragraph [0048]).
Koch et al. US 2019/0315790 discloses a method of making D-allulose (‘790, Paragraph [0001]) comprising employing fructose syrup as a starting material for allulose production wherein the pH value is adjusted by adding appropriate salts (‘790, Paragraphs [0325]-[0326]).
Joo et al. US 2019/0254323 discloses a saccharide syrup composition comprising allulose (‘323, Paragraph [0001]) wherein the allulose syrup has an allulose content of 95 wt% (‘323, Paragraph [0047]) wherein allulose is an epimer of carbon number 3 in fructose and has a sweetness equivalent to 70% of fructose and is a functional sugar which controls blood sugar, prevents, cavities, and inhibits lipogenesis in liver (‘323, Paragraph [0006]) wherein the syrup composition comprises an oligosaccharide of 20 to 90 wt% based on 100 wt% of the total syrup composition and comprises syrup of allulose saccharides (‘323, Paragraph [0027]).
Agarwala US 4,542,033 discloses a method of preparing shelf stable fruit pieces comprising the steps of providing fresh fruit pieces, cooking in an acidified sugar syrup.
Waitman et al. US 4,364,968 discloses a method of preparing dried grapes which are further processed to remain soft with minimal color, flavor, or textural changes over extended periods of time wherein the grapes are dried to a moisture content of less than 30% and then converted to simulated raisins by storing the dry grapes for a period of time under controlled humidity and at an elevated temperature effective to provide a darkening of color and to develop a natural raisin like flavor within the grapes without further drying of the grapes.
JP 2014/036645 discloses a method of enhancing the flavor of food and beverages by including a rare sugar containing syrup in the food and beverage (‘645 Machine Translation, Paragraph [0001]) wherein 10 to 100% by mass of rare sugar containing syrup in the total solid content of carbohydrates used as raw materials for the food and beverages is used (‘645 Machine Translation, Paragraph [0007]) wherein the food or beverage contains fruit flavor in the form of fruit pulp (‘645 Machine Translation, Paragraph [0011]) wherein the rare sugar containing syrup contains D-psicose mixed with a general liquid syrup (‘645 Machine Translation, Paragraph [0014]).
Laruen “Homemade Keto Simple Syrup” <https://www.bonappeteach.com/homemade-keto-simple-syrup/> (published February 21, 2019) discloses a keto simple syrup sugar free sweetener that dissolves into desserts without crystallizing and is an easy low carb substitute for traditional simple syrup that swaps traditional sugar with keto approved sweeteners like allulose or stevia to provide sweetness without causing significant spikes in blood sugar levels (Lauren, Page 2) and is into the ketogenic diet that emphasizes minimal carbohydrate consumption to trigger a state of ketosis where your body burns fat for fuel wherein the keto simple syrup comprising allulose blended with a few drops of liquid stevia for added sweetness (Lauren, Pages 5 and 8) and does not have a weird aftertaste (Lauren, Page 6) wherein the keto simple syrup is used to infuse a touch of sweetness into berries or other low carb fruits (Lauren, Page 11).
Megan “Sugar Free Cranberry Sauce” <https://skinnyfitalicious.com/sugar-free-cranberry-sauce/> (published November 11, 2017) discloses a sugar free cranberry sauce comprising cranberries (Megan, Page 7), water, and sweetener of choice (Megan, Page 19) wherein the sweetener of choice is allulose (Megan, Page 15).
Nurnberger “Sugar Free Dried Cranberries” <https://web.archive.org/web/20210414200648/https://sugarfreelondoner.com/sugar-free-dried-cranberries/> (published December 5, 2020) discloses sugar free dried cranberries comprising fresh cranberries, coconut oil, and powdered sweetener of erythritol or allulose wherein allulose absorbs more into the cranberries and sits less on top compared to erythritol (Nurnberger, Pages 11-12).
Holley “Sugar Free Low Carb Dried Cranberries” <https://peaceloveandlowcarb.com/sugar-free-low-carb-dried-cranberries/> (published October 9, 2018) discloses sugar free low carb dried cranberries comprising fresh cranberries, erythritol or granular monk fruit sweetener, and avocado oil and/or orange extract (Holley, Pages 7-8).
Karen “Sugar Free Dried Cranberries” <https://ketohh.com/sugar-free-dried-cranberries/> (published December 4, 2019) discloses sugar free dried cranberries comprising cut cranberries, a stevia blend, and oil (Karen, Page 3).
Susie T. “Sugar Free Dried Cranberries – Winning the Low Carb Craisin Wars” <https://fluffychixcook.com/sugar-free-dried-cranberries-winning-the-low-carb-craisin-wars/> (published September 14, 2014) discloses low carb dried cranberries craisins comprising fresh or frozen cranberries, sugar free cranberry syrup, and coconut oil (Susie T., Pages 8-9).
The Kellie Kitchen “Allulose, The Rare Sugar” <https://thekelliekitchen.com/allulose-the-rare-sugar/> (published November 9, 2020) discloses allulose is often referred to as a rare sugar due to its discovery in small quantities in nature that is a no calorie monosaccharide sweetener, or simple sugar and is absorbed by the body but not metabolized so it is nearly calorie free (The Kellie Kitchen, Page 5) and does not raise blood sugar levels (Kellie Kitchen, Page 6).
Laura “Allulose: Here’s Everything You Need To Know” <https://sugarfreesprinkles.com/allulose-heres-everything-you-need-to-know/> (published February 3, 2020) discloses allulose (also known as D-psicose) is a kind of sugar that is typically used in a low calorie/low carb diet and used as a sugar replacement to lower the sugar content for those who are on the keto or diabetes friendly diet and is not metabolized by the body like standard sugar and can be made by converting fructose from corn and some other plants (Laura, Page 3) wherein allulose contains about 10% of the regular calories you will find in white table sugar (Laura, Page 4) and allulose helps naturally lower blood sugar and the risk of developing type two diabetes (Laura, Page 5).
Raffa “How To Make Sugar Covered Cranberries” <https://www.theclevercarrot.com/2012/12/how-to-make-sugar-covered-cranberries/> (published June 9, 2020) discloses sugar covered cranberries comprising sugar syrup comprising sugar and water wherein fresh cranberries are dipped in the warm sugar syrup without the cranberries bursting (Raffa, Pages 9-10).
Romero “Not Sugared Cranberries” <https://healthylivinghowto.com/healthy-holidays-cranberries/> (published November 13, 2012) discloses a not sugared cranberry comprising water, stevia extract powder, cinnamon sticks, fresh or frozen cranberries, and erythritol or xylitol (Romero, Pages 3-4).
Cocomels “What Is Allulose?” <https://cocomels.com/blogs/news/what-is-allulose?srsltid=AfmBOor_CFfpujEI7h4leQXQyxGbtwAYjANvsBjanmu_b-5VDszRtO3Z> (published March 31, 2021) discloses allulose is a keto friendly, sugar free sweetener that gives you all the sweetness you want without the calories and is a low calorie alternative to sugar that is considered a rare sugar having many of the same properties as fructose sugar naturally found in fruit (Cocomels, Page 1) and does not raise blood sugar levels and is diabetes friendly (Cocomels, Page 2) and often mixed with monk fruit (Cocomels, Page 4).
Adrienne “Sugar free Keto Simple Syrup Recipe” <https://web.archive.org/web/20210516001621/https://wholenewmom.com/sugar-free-simple-syrup/> (published December 22, 2020) discloses a sugar free simple syrup used for making homemade infused syrups or to candy fruit (Adrienne, Page 3) wherein the simple syrup uses all kinds of sweeteners such as allulose (Adrienne, Page 5) which dissolves really well, tastes a lot like sugar, and will not recrystallize (Adrienne, Page 7).
Link “The 6 Best Sweeteners on a Low Carb Keto Diet (And 6 to Avoid) <https://web.archive.org/web/20191112075223/https://www.healthline.com/nutrition/keto-sweeteners> (archived November 12, 2019) discloses a ketogenic diet involves cutting back on high carb foods like starches, desserts, and processed snacks which is essential to reaching a metabolic state called ketosis causing your body to break down fat stores instead of carbs to produce energy (Link, Page 1) wherein stevia is a type of keto friendly sweetener (Link, Page 2).
The prior art made of record, cited on a previous 892 Notice of References Cited form, and not relied upon is considered pertinent to applicant's disclosure.
The Kellie Kitchen “Keto Cranberry Sauce” <https://thekelliekitchen.com/keto-cranberry-sauce/> (published November 7, 2020) discloses a keto cranberry sauce comprising allulose which is a no carb sweetener that thickens (Kellie Kitchen, Pages 6 and 13).
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 craisins aka dried cranberries comprising frozen whole cranberries, powdered erythritol, and stevia glycerite (elviira, Page 20) wherein other natural zero carb sweeteners can be used such as allulose (elviira, Page 22).
Kennedy “Easy Sugar Free Candied Cranberries For The Holidays” <https://sugarfreesprinkles.com/sugar-free-candied-cranberries/> (published January 3, 2021) discloses a sugar free candied cranberry comprising fresh cranberries, allulose, water, and granular erythritol (Kennedy, Page 14).
Woodyer et al. US 2018/0049458 discloses a food and beverage product made using allulose syrups (‘458, Paragraph [0001]) wherein the allulose syrup has a total dry solids content of from 50% to 80% by weight on a dry solids basis (‘458, Paragraph [0012]) wherein the food of beverage is a flavored syrup comprising an allulose syrup (‘458, Paragraph [0124]).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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.
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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