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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 April 27, 2026 has been entered. Claims 200-206, 208-210, 212-217, 219 and 221-223 are pending. Claims 207, 218 and 220 have been canceled. Claims 221-223 are new.
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 (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 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 200-206, 208-210, 212-217, 219 and 221-223 are rejected under 35 U.S.C. 103 as being unpatentable over Yamazaki et al. (JP 2008120789 Al May 29, 2008; using English Translation) in view of Ryu et al. (KR 20190133438 A; Dec. 12, 2019) and Yamasaki et al. (US 2014/0005139 A1; Jan. 2, 2014).
Regarding claims 200 and 203-204, Yamazaki discloses a sweetener composition comprising an oligosaccharide component comprising xylo-oligosaccharides and cello-oligosaccharides ([0001]-[0004]).
Yamazaki teaches that the xylo-oligosaccharides have a degree of polymerization of more than 7 ([0011] and [0020]), thus overlapping the claimed range of 2 to 12. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
While Yamazaki discloses the degree of polymerization for the xylo-oligosaccharides, Yamazaki is silent with respect to the degree of polymerization for the cello-oligosaccharides.
Ryu teaches a sweetener composition comprising oligosaccharides, wherein the oligosaccharides can be selected from xylo-oligosaccharides and cello-oligosaccharides. Ryu further teaches that the oligosaccharides have a polymerization degree of 3 or more (Derwent Abstract). Ryu teaches that using oligosaccharides having a degree of polymerization of 3 or more results in a similar sweetness to sugar without the sugar content (Derwent Abstract).
Therefore, it would have been obvious to one of ordinary skill in the art to have the cello-oligosaccharides of Yamazaki have a degree of polymerization of 3 or more as taught by Ryu, which overlaps the claimed range of 2 to 6, in order to provide the composition of Yamazaki with a similar sweetness to sugar but with a low sugar content as taught by Ryu.
As stated above, Yamazaki discloses a sweetener composition comprising an oligosaccharide component comprising xylo-oligosaccharides and cello-oligosaccharides. Yamazaki teaches that the xylo-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight and the cello-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight ([0045]), which results in a ratio of xylo-oligosaccharides to cello-oligosaccharides that can be 1:1, which overlaps the claimed ratio of 19:1 to 1:1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Yamazaki further teaches that the oligosaccharide component is combined with an additional component that can be a high-intensity sweetener and/or a bulking sweetener ([0041]-[0056]). Yamazaki teaches that the additional component can be present in an amount of 0.01 to 99.99 % by weight, which can result in an overlapping ratio of the oligosaccharide component to high intensity sweetener or the bulking sweetener.
Further, it would have been obvious to one of ordinary skill in the art to vary the amount of each component to result in a desired ratio depending on the desired taste/sweetness and effect of the composition.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
With respect to the cello-oligosaccharides comprising at least 50% by weight cellobiose, Yamazaki fails to teach such limitation, however, Yamasaki discloses a sweetener composition comprising cello-oligosaccharide that can also be combined with another oligosaccharide and a high intensity sweetener ([0140]-[0145], [0161]). Yamasaki further teaches that the cello-oligosaccharide comprises cellobiose in an amount of 70% by weight or higher ([0059]), thus falling within the claimed range of at least 50% by weight. Yamasaki teaches that a high cellobiose content improve water solubility and bioavailability of the cello-oligosaccharide after administration ([0076]).
Therefore, it would have been obvious to one of ordinary skill in the art to have the cello-oligosaccharide of Yamazaki comprise cellobiose in a similar amount as taught by Yamasaki as it would predictably improve the water solubility and bioavailability of the cello-oligosaccharide in Yamazaki.
Regarding claims 201-202, as stated above, Yamazaki further teaches that the oligosaccharide component is combined with an additional component that can be a high-intensity sweetener and/or a bulking sweetener ([0041]-[0050]).
Yamazaki teaches that the high intensity sweetener can be sugar alcohols, aspartame, stevia, glycyrrhizin, etc. ([0050] and [0056]). Yamazaki teaches that the bulking sweetener can be a sugar alcohol or erythritol ([0050]).
Regarding claim 205, Yamazaki teaches that the composition as described above comprises an oligosaccharide component and can also have a high intensity sweetener component, but fails to specifically disclose that the high intensity sweetener is at least about 5 times greater than an average sweetness level of the oligosaccharide component. Yamazaki, however, teaches that the high intensity sweetener can be the same as the instant invention (sugar alcohols, aspartame, stevia, glycyrrhizin, etc. [0050] and [0056]) and the oligosaccharide component is the same as the instant invention, comprising celli-oligosaccharides and xylo-oligosaccharides. Therefore, the high intensity sweetener of Yamazaki would have at least about 5 times greater than an average sweetness level of the oligosaccharide component as it is the same components as used in the instant invention.
Additionally, sweetness perception is subjective and can vary from human subject to human subject. It is well within the ordinary skill in the art to vary the amount and type of sweeteners in Yamazaki to results in a desired sweetness perception.
Regarding claim 206, Yamazaki teaches that the composition as described above comprises a high intensity sweetener component, but fails to specifically disclose a sweetness level ratio of the high intensity sweetener to a sweetness level of sucrose.
However, it is well known in the art that high intensity sweetness have a sweetness level that is much higher than sucrose for a given amount.
As Yamazaki teaches that the high intensity sweetener can be the same as the instant invention (sugar alcohols, aspartame, stevia, glycyrrhizin, etc. [0050] and [0056]), the high intensity sweetener of Yamazaki would have a similar sweetness level ratio as claimed.
Additionally, sweetness level is subjective and can vary from human subject to human subject. It is well within the ordinary skill in the art to vary the amount and type of sweeteners in Yamazaki to results in a desired sweetness level ratio.
Regarding claims 208-209, Yamazaki teaches that the composition as described above comprises an oligosaccharide component, but fails to specifically disclose the oligosaccharide component decreases an average undesirable bitter aftertaste. Yamazaki, however, teaches that the the oligosaccharide component is the same as the instant invention, comprising celli-oligosaccharides and xylo-oligosaccharides. Therefore, the oligosaccharide component of Yamazaki would necessarily decrease an undesirable bitter aftertaste compared to a composition made without oligosaccharides.
Additionally, bitter aftertaste perception is subjective and can vary from human subject to human subject. It is well within the ordinary skill in the art to vary the amount and type of oligosaccharide in Yamazaki to results in a desired decrease of bitter aftertaste perception.
Regarding claim 210, as stated above, Yamazaki teaches that the additional component other than the oligosaccharide component can be present in in an amount from 0.01 to 99.9% by weight ([0046]), which overlaps the claimed range of less than 40% by weight monosaccharides. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Regarding claims 212, Yamazaki teaches that the additional component other than the oligosaccharide component can be present in in an amount from 0.01 to 99.9% by weight ([0046]), which includes sucrose, lactose, and maltose ([0048]). Therefore, the amount of sucrose, lactose, and maltose can be less than the amount of the oligosaccharide component.
Further, it would have been obvious to one of ordinary skill in the art to vary the amount of each component to result in a desired ratio depending on the desired taste/sweetness and effect of the composition.
Regarding claim 213, Yamazaki teaches that the composition does not comprise maltodextrin and therefore meets the claimed range of less than 20% by weight maltodextrin.
Regarding claim 214, Yamazaki teaches that the xylo-oligosaccharides comprise xylose and arabinose ([0013]), but fails to specifically disclose a ratio of xylose to arabinose.
It would have been obvious to one of ordinary skill in the art to vary the amount of each monomer depending on the desired effect of each component in the composition.
Regarding claim 215, Yamazaki further teaches that the additional component can be a polysaccharide or a cellulose ([0050]).
Regarding claim 216, Yamazaki further teaches that the additional component can be a polysaccharide ([0050]). As stated above, Yamazaki teaches that the additional component other than the oligosaccharide component can be present in in an amount from 0.01 to 99.9% by weight ([0046]), which overlaps the claimed range of at most 30% by weight polysaccharides. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Regarding claim 217, Yamazaki further teaches that the additional component can be a phenolic compound ([0048]).
Regarding claim 219, Yamazaki teaches adding the sweetener composition to food products, wherein it is added in an amount of 0.1 to 99.99% by weight ([0045]), thus overlapping the claimed range of 1 to 50% by weight. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Regarding claim 221, as stated above, Yamazaki teaches that the xylo-oligosaccharides have a degree of polymerization of more than 7 ([0011] and [0020]), while the instant claim requires a DP of two to six.
Additionally, as stated above, Ryu teaches a sweetener composition comprising oligosaccharides, wherein the oligosaccharides can be selected from xylo-oligosaccharides and cello-oligosaccharides. Ryu further teaches that the oligosaccharides have a polymerization degree of 3 or more (Derwent Abstract). Ryu teaches that using oligosaccharides having a degree of polymerization of 3 or more results in a similar sweetness to sugar without the sugar content (Derwent Abstract).
Therefore, it would have been obvious to one of ordinary skill in the art to have the xylo-oligosaccharides of Yamazaki have a degree of polymerization of 3 or more as taught by Ryu, which overlaps the claimed range of 2 to 6, in order to provide the composition of Yamazaki with a similar sweetness to sugar but with a low sugar content as taught by Ryu.
Regarding claim 222, as stated above, it would have been obvious to have the xylo-oligosaccharides have a DP of 3 or more, thus overlapping the claimed DP of 6, as Ryu teaches that using oligosaccharides having a degree of polymerization of 3 or more results in a similar sweetness to sugar without the sugar content.
It would have been obvious to vary the amount of xylo-oligosacchairdes having a DP of 6 depending on the desired sweetness and similarity to the sweetness of sugar in the composition of Yamazaki.
As stated in MPEP 2144.05: Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955)
Regarding claim 223, as stated above, Yamazaki teaches that the xylo-oligosaccharides have a degree of polymerization of more than 7 ([0011] and [0020]), while the instant claim requires a DP of two to six. Ryu teaches that using oligosaccharides having a degree of polymerization of 3 or more results in a similar sweetness to sugar without the sugar content (Derwent Abstract).
Yamasaki further teaches that cellobiose is a cello-oligosaccharide having a DP of 2 to 7 ([0034]).
Therefore, as the combination of the prior art with respect to claim 200 comprises at least 50% cellobiose as described above, it would have been obvious for the cello-oligosaccharides to have a DP of 2 in order to provide a similar sweetness to sucrose and improve water solubility and bioavailability.
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 200-206, 208-210, 212-217, 219 and 221-223 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-17 of U.S. Patent No. 11,006,658 in view of Yamazaki et al. (JP 2008120789 Al May 29, 2008; using English Translation).
Both make claim to a sweetener composition comprising a combination of cello-oligosaccharides having a DP from 2 to 6 and xylo-oligosaccharides having a DP from 2 to 12, wherein the cello-oligosaccharides comprise cellobiose. ‘658 and the instant invention differ in the present claims require the addition of a high intensity sweetener and specific ratios of componements. However, such features are rendered obvious as taught by Yamazaki. Yamazaki discloses a sweetener composition comprising an oligosaccharide component comprising xylo-oligosaccharides and cello-oligosaccharides. Yamazaki teaches that the xylo-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight and the cello-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight ([0045]), which results in a ratio of xylo-oligosaccharides to cello-oligosaccharides that can be 1:1, which overlaps the claimed ratio of 19:1 to 1:1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Yamazaki further teaches that the oligosaccharide component is combined with an additional component that can be a high-intensity sweetener and/or a bulking sweetener ([0041]-[0056]). Yamazaki teaches that the additional component can be present in an amount of 0.01 to 99.99 % by weight, which can result in an overlapping ratio of the oligosaccharide component to high intensity sweetener or the bulking sweetener.
Further, it would have been obvious to one of ordinary skill in the art to vary the amount of each component to result in a desired ratio depending on the desired taste/sweetness and effect of the composition.
Claims 200-206, 208-210, 212-217, 219 and 221-223 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-20 of U.S. Patent No. 11,596,165 in view of Yamazaki et al. (JP 2008120789 Al May 29, 2008; using English Translation).
Both make claim to a sweetener composition comprising a combination of cello-oligosaccharides having a DP from 2 to 6 and xylo-oligosaccharides having a DP from 2 to 12, wherein the cello-oligosaccharides comprise cellobiose. ‘658 and the instant invention differ in the present claims require the addition of a high intensity sweetener and specific ratios of componements. However, such features are rendered obvious as taught by Yamazaki. Yamazaki discloses a sweetener composition comprising an oligosaccharide component comprising xylo-oligosaccharides and cello-oligosaccharides. Yamazaki teaches that the xylo-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight and the cello-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight ([0045]), which results in a ratio of xylo-oligosaccharides to cello-oligosaccharides that can be 1:1, which overlaps the claimed ratio of 19:1 to 1:1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Yamazaki further teaches that the oligosaccharide component is combined with an additional component that can be a high-intensity sweetener and/or a bulking sweetener ([0041]-[0056]). Yamazaki teaches that the additional component can be present in an amount of 0.01 to 99.99 % by weight, which can result in an overlapping ratio of the oligosaccharide component to high intensity sweetener or the bulking sweetener.
Further, it would have been obvious to one of ordinary skill in the art to vary the amount of each component to result in a desired ratio depending on the desired taste/sweetness and effect of the composition.
Claims 200-206, 208-210, 212-217, 219 and 221-223 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-26 of U.S. Patent No. 11,903,399 in view of Yamazaki et al. (JP 2008120789 Al May 29, 2008; using English Translation).
Both make claim to a sweetener composition comprising a combination of cello-oligosaccharides having a DP from 2 to 6 and xylo-oligosaccharides having a DP from 2 to 12, wherein the cello-oligosaccharides comprise cellobiose. ‘658 and the instant invention differ in the present claims require the addition of a high intensity sweetener and specific ratios of componements. However, such features are rendered obvious as taught by Yamazaki. Yamazaki discloses a sweetener composition comprising an oligosaccharide component comprising xylo-oligosaccharides and cello-oligosaccharides. Yamazaki teaches that the xylo-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight and the cello-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight ([0045]), which results in a ratio of xylo-oligosaccharides to cello-oligosaccharides that can be 1:1, which overlaps the claimed ratio of 19:1 to 1:1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Yamazaki further teaches that the oligosaccharide component is combined with an additional component that can be a high-intensity sweetener and/or a bulking sweetener ([0041]-[0056]). Yamazaki teaches that the additional component can be present in an amount of 0.01 to 99.99 % by weight, which can result in an overlapping ratio of the oligosaccharide component to high intensity sweetener or the bulking sweetener.
Further, it would have been obvious to one of ordinary skill in the art to vary the amount of each component to result in a desired ratio depending on the desired taste/sweetness and effect of the composition.
Claims 200-206, 208-210, 212-217, 219 and 221-223 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-1 of U.S. Patent No. 11,871,763 in view of Yamazaki et al. (JP 2008120789 Al May 29, 2008; using English Translation).
Both make claim to a foodstuff comprising a sweetener composition comprising a combination of cello-oligosaccharides having a DP from 2 to 6 and xylo-oligosaccharides having a DP from 2 to 12, wherein the cello-oligosaccharides comprise cellobiose. ‘658 and the instant invention differ in the present claims require the addition of a high intensity sweetener and specific ratios of componements. However, such features are rendered obvious as taught by Yamazaki. Yamazaki discloses a sweetener composition comprising an oligosaccharide component comprising xylo-oligosaccharides and cello-oligosaccharides. Yamazaki teaches that the xylo-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight and the cello-oligosaccharides can be present in an amount of 0.1% by weight to 99.99 % by weight ([0045]), which results in a ratio of xylo-oligosaccharides to cello-oligosaccharides that can be 1:1, which overlaps the claimed ratio of 19:1 to 1:1. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Yamazaki further teaches that the oligosaccharide component is combined with an additional component that can be a high-intensity sweetener and/or a bulking sweetener ([0041]-[0056]). Yamazaki teaches that the additional component can be present in an amount of 0.01 to 99.99 % by weight, which can result in an overlapping ratio of the oligosaccharide component to high intensity sweetener or the bulking sweetener.
Further, it would have been obvious to one of ordinary skill in the art to vary the amount of each component to result in a desired ratio depending on the desired taste/sweetness and effect of the composition.
Response to Arguments
Applicant’s argues with respect to the 103 rejection are moot based upon the new grounds of rejection over Yamasaki.
Yamasaki discloses a sweetener composition comprising cello-oligosaccharide that can also be combined with another oligosaccharide and a high intensity sweetener ([0140]-[0145], [0161]). Yamasaki further teaches that the cello-oligosaccharide comprises cellobiose in an amount of 70% by weight or higher ([0059]), thus falling within the claimed range of at least 50% by weight. Yamasaki teaches that a high cellobiose content improve water solubility and bioavailability of the cello-oligosaccharide after administration ([0076]).
Therefore, it would have been obvious to one of ordinary skill in the art to have the cello-oligosaccharide of Yamazaki comprise cellobiose in a similar amount as taught by Yamasaki as it would predictably improve the water solubility and bioavailability of the cello-oligosaccharide in Yamazaki.
With respect to new claims 221-223, Yamazaki teaches that the xylo-oligosaccharides have a degree of polymerization of more than 7 ([0011] and [0020]), while the instant claim requires a DP of two to six. Ryu further teaches that the oligosaccharides have a polymerization degree of 3 or more (Derwent Abstract). Ryu teaches that using oligosaccharides having a degree of polymerization of 3 or more results in a similar sweetness to sugar without the sugar content (Derwent Abstract).
Therefore, it would have been obvious to one of ordinary skill in the art to have the xylo-oligosaccharides of Yamazaki have a degree of polymerization of 3 or more as taught by Ryu, which overlaps the claimed range of 2 to 6, in order to provide the composition of Yamazaki with a similar sweetness to sugar but with a low sugar content as taught by Ryu.
Yamasaki further teaches that cellobiose is a cello-oligosaccharide having a DP of 2 to 7 ([0034]). Therefore, as the combination of the prior art with respect to claim 200 comprises at least 50% cellobiose as described above, it would have been obvious for the cello-oligosaccharides to have a DP of 2 in order to provide a similar sweetness to sucrose and improve water solubility and bioavailability.
For the reasons stated above, the 103 rejection is maintained.
Conclusion
No claims are allowed.
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/STEPHANIE A KOHLER/Primary Examiner, Art Unit 1791
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