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 .
Status of Claims
Receipt of Remarks/Amendments filed on 12/01/2025 is acknowledged. Claims 10 and 15 are cancelled. No claim amendment was made. Claims 1-9, 11-14 and 16-22 are herein presented for examination on the merits for patentability.
Rejection(s) not reiterated from the previous Office Action are hereby withdrawn. The following rejections are either reiterated or newly applied. They constitute the complete set of rejections presently being applied to the instant application.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claims 1-9, 11-14, 16, and 21-22 are rejected under 35 U.S.C. 103 as being unpatentable over Wittenberg, A. (WO 00/56939, machine translated in IP.com), and in view of Graham, C. (US 3642535; Of record).
Regarding Claim 1, Wittenberg teaches preparing a sugar suspension by adding sugar powder to an aqueous sugar solution to crystallize sugar (Abstract; Claim 1). A saturated sugar solution is used as suspending agent, and sugar dust crystals are added as suspension (p. 3). Wittenberg teaches sucrose crystallization by first preparing a pre-crystallized product by wet grinding a defined amount of crystal sugar, the resulting crystallized product referred to as a slurry, in a second stage curing the sucrose fragments and crystal growth in supersaturated sucrose solution, in a third step gradual enlargement of the crystals by growth in supersaturated sucrose solution under water evaporation with simultaneous addition of crystal-free mother solution to maintain supersaturation and in a fourth step separation of the sucrose crystals obtained from the mother solution (p. 3).
Wittenberg noted the formation of secondary crystal and large proportion of aggregates that tend to form resulting from crystal nuclei growing together (pp. 2-3). Wittenberg looks to ways to avoid these so that the number of crystals introduced during the process remain constant over the stages of crystallization, and obtaining high purity sugar with constant properties, without impairing product quality (p. 5). Wittenberg teaches intensive mixing ensures optimal wetting of the particles which counteracts the formation of aggregates (p. 7). Additionally, Wittenberg teaches gradual cooling of the crystal suspension or evaporation of water to maintain supersaturation while simultaneous adding crystal-free mother solution; the temperature in the suspension container is lower than in the crystallizer (p. 7). Doing so also counteracts aggregate formation (p. 8).
Wittenberg does not teach the bulking agent comprising fiber.
Graham teaches preparing a superior tableting sugar composition consisting essentially of aggregates or agglomerates of fondant-size sucrose crystals, such as sucrose crystals having a crystal size in the range 3-50 microns, together with a minor amount of maltodextrin; a sugar composition consisting essentially of water, sucrose, and maltodextrin is also prepared as a syrup (Col. 1, lines 38-66). The agglomerates of fondant-size sucrose crystals are intimately and homogeneously admixed with maltodextrin (Col. 2, lines 10-12).
Graham teaches that maltodextrin or hydrolyzed cereal solids employed in the preparation of tableting sugar compositions are particularly useful since they act as crystallization inhibitors during the concentration operation and are low enough in reducing sugar content to minimize the degradation of any active additive or component or ingredient which may be admixed with the tableting sugar (Col. 2, lines 69-75). Furthermore, maltodextrin provide a sweet base, which gives a pleasant taste to the composition (Col. 3, lines 1-5). Because maltodextrin is a bulking agent comprising fiber, Graham renders obvious the claim feature of “one or more bulking agent(s) comprising fiber.”
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Wittenberg and Graham and use maltodextrin bulking agent, i.e. make a suspension with a maltodextrin slurry taught by Graham with the sucrose solution according to the teachings of Wittenberg.
Regarding Claim 2, Wittenberg teaches supersaturated sucrose solution (p. 2).
Regarding Claims 3 and 9, Wittenberg does not teach a drying step nor using a dryer to dry the sweetener composition. However, Graham teaches a drying step with a dryer (Col. 4, line 29-42).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Graham with Wittenberg and dry a composition comprising the crystals with a dryer. One with ordinary skill in the art would have applied the known technique of drying. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Regarding Claim 4, Wittenberg teaches the steps of adding sugar to a prepared sugar solution, therefore reading on the sequential process (Claim 1).
Regarding Claim 5, Wittenberg teaches concentration of the supersaturated sucrose solution under water evaporation to enlarge the crystals (p. 3).
Regarding Claims 6 and 7, because Wittenberg teaches sucrose, these claims are obvious (Claim 3).
Regarding the temperature difference in Claims 8 and 22, Wittenberg teaches the sugar dust suspension homogenized in the suspension container can then be drawn into a desired crystallization apparatus, and relates that for crystal growth to take place in supersaturated sucrose solution, the temperature in the suspension container is generally chosen to be lower than in the crystallizer, for example by 20 ° C to 30 ° C (p 8). This implies that the content of the suspension container, i.e. the seed for crystallization, would also be lower in temperature than the supersaturated solution in the crystallizer (p. 2).
Regarding Claim 11, Wittenberg recognizes crystal size spectrum of the preliminary crystals has a direct influence on the spectrum of the end product (p. 7). Graham expressly teaches sucrose crystals in the sugar tablet having a crystal size in the range 3-50 microns (Claim 1).
Regarding Claim 12, Graham teaches that the recovered from the crystal consisting essentially of water, sucrose and maltodextrin have less than about 2.5-3.0 % by weight moisture, then it renders obvious the claimed feature “wherein at least 95 % of the 95% carbohydrate in the sweetener composition is in crystalline form” (Abstract).
Regarding Claim 13, Graham teaches a tableting sugar compositions comprising sucrose crystals (Abstract).
Regarding Claim 14, Graham teaches application of its sugar compositions in confectionary products (Col. 1, lines 7-8).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine Wittenberg and Graham and use the sucrose crystals obtained by the method of Wittenberg in view of Graham, i.e. with maltodextrin bulking agent, and use the crystalline product in the sugar composition of Graham and in confectionary products. One would prepare the sucrose crystals in the crystal size taught by Graham which is useful in tableting sugar and for use in confectionery, and modify the parameter as needed. Obviousness is established by combining or modifying the teachings of the prior art to produce the claimed invention where there is some teaching, suggestion, or motivation to do so. See MPEP § 2143.01 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Regarding Claims 16 and 21, Graham teaches maltodextrin, which is a type of dextrin and is a soluble fiber (Col. 1, lines 38-45).
Claims 17-19 are rejected under 35 U.S.C. 103 as being unpatentable over Wittenberg in view of Graham, as applied to Claim 1 above, and further in view of Kannar et al. (WO 2019/203733; Of record), hereinafter Kannar.
The teachings of Wittenberg and Graham have been set forth supra.
Regarding Claim 17, Wittenberg is silent on resistant dextrin.
Kannar also teaches a bulked sweetener composition which further comprises a bulking agent, wherein the bulking agent is selected from the group consisting of non-digestible oligosaccharides or oligosaccharides of low digestibility such as xylooligosaccharides etc.; inulin; pectin; beta-glucans; lactulose; hi-maize; sugarcane bagasse; digestive resistant dextrin derivatives or digestive resistant maltodextrin, thereby also reading on “insoluble fiber” in Claim 18 (Claim 12). Kannar teaches that bulking agents can make handling the sweetener composition more straightforward, and in preferred embodiments, the bulking agent is a prebiotic fiber such as those mentioned above (p. 15). Kannar teaches incorporation of soluble fiber, insoluble fiber, or a combination thereof as edible density lowering agent (p. 9, lines 8-10). Kannar expressly teaches 19% resistant maltodextrin and 1% soluble/insoluble fiber (pp. 27, 57-58; Table 14).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to apply the teachings of Kannar and substitute the maltodextrin in the method of Wittenberg in view of Graham with the bulking agent taught by Kannar, particularly resistant maltodextrin. The rationale to support a conclusion that the claim would have been obvious is that the substitution of one known element for another yields predictable results to one of ordinary skill in the art. See MPEP 2143. One would also be motivated to use both soluble and insoluble fiber, as needed to lower the density with the desired bulking agent. One would use resistant dextrin or resistant maltodextrin together with maltodextrin as Kannar has taught these bulking agents to be further useful as drying agents and compatible with sweetener compositions.
Regarding Claim 19, Kannar teaches embodiments wherein the ratio of sugar source and density lowering agent is 95:5 to 60:40 by solid weight or 95:5 to 70:30, preferably 90:10 to 80:20 by solid weight.
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine Kannar with Graham and optimize the sugar to bulking agent ratio as desired, starting with the ratios taught by Kannar. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Wittenberg in view of Graham, as applied to Claim 1 above, and further in view of Kannar and Bunnick et al. (US 5,021,249), hereinafter Bunnick.
The teachings of Wittenberg, Graham, and Kannar have been set forth above.
Wittenberg does not teach fluidizing the bulking agent in a fluidized bed dryer, and introducing the solution into the fluidized bed dryer. However, Kannar teaches drying amorphous sugar in rapid drying such as spray drying and other drying methods (p. 33; p. 45, Example 9; pp. 51-52). Kannar teaches appropriate drying methods for its composition include fluidized bed drying, ring drying, freeze drying and low temperature vacuum dehydration (p. 33).
Kannar teaches that a drying agent increases the overall glass transition temperature, which allows cane juice and molasses to be dried without becoming sticky or caking; suitable resistant drying digestive resistant dextrin etc. (pp. 7-8).
Bunnick is in a related field of interest and discloses an invention relating to a free-flowing flavored granule prepared using a nonsweet carbohydrate bulking agent (Col. 1, lines 8-15).
Regarding Claim 20, Bunnick teaches the preparation of granules by (a) forming a core particle comprising a particulate bulking agent, (b) spray coating the core particles with a solvent containing the savory flavor to coat the core particles; (c) drying the flavored coated particles and recovering a free-flowing savory flavored granule (Col. 2, lines 37-45; Col. 8, lines 46-51). Bunnick expressly teaches placing the desweetened sugar particles in a fluidized granulator, where it is sprayed with a flavor solution (Example II, Part II).
As such, Bunnick and Kannar together cure the deficiency of Wittenberg.
Therefore, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine Kannar with Wittenberg to dry the amorphous sugar to the desired moisture content, avoiding stickiness and caking by using a spray drying method and/or drying agents. The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination. In re Sernaker, 702 F.2d 989, 994-95, 217 USPQ 1, 5-6 (Fed. Cir. 1983). Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to add the teachings of Bunnick to the method of Wittenberg in view of Graham and Kannar. Kannar has taught a drying method using fluidized bed drying, which is suitable for making the sweetener composition of Graham to dry the amorphous sugar to the desired moisture content. One would have been motivated to use the spray-drying technique of Bunnick wherein the solid bulking agent is fluidized, and a solution of flavoring is coated in the fluidized bed dryer because Kannar has taught the drying method using fluidized bed drying. The strongest rationale for combining references is a recognition, expressly or impliedly in the prior art or drawn from a convincing line of reasoning based on established scientific principles or legal precedent, that some advantage or expected beneficial result would have been produced by their combination. In re Sernaker, 702 F.2d 989, 994-95, 217 USPQ 1, 5-6 (Fed. Cir. 1983). Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007). Furthermore, applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007). Herein, one of ordinary skill in the art would dry the composition with the guidance of Bunnick wherein the carbohydrate solution flavoring is sprayed unto the fluidized bulking agent.
Response to Arguments:
Applicant traversed the 103 rejection over Wittenberg in view Graham. The crux of Applicant argument is that Wittenberg requires that the sugar crystals be of high chemical purity, and therefore one skilled in the art would not replace the sugar dust of Wittenberg with the maltodextrin slurry of Graham, nor would have the motivation to add a bulking agent to the sugar composition of Wittenberg
Applicant’s arguments have been considered but was not found persuasive. Firstly, the Examiner’s position is not that the sugar dust will be replaced by the maltodextrin slurry, but rather the maltodextrin is added as bulking agent to the sucrose solution of Wittenberg, making a slurry, which is a type of suspension. The Examiner underlines this sentence “As such, one preparing a sugar or sweetener composition such as tableting sugar with sugar crystals would benefit from incorporating maltodextrin” in the rejection supra. As such, it would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to combine the teachings of Wittenberg and Graham and add maltodextrin bulking agent in the suspension of Wittenberg because Graham has taught that maltodextrin are particularly useful since they act as crystallization inhibitors and therefore will prevent formation of secondary nuclei that would disrupt the uniformity in the crystallization process, which is one of the problems Wittenberg is trying to solve. Furthermore, there is an added motivation as maltodextrin gives a pleasant taste to a composition, per Graham. Additionally, slurry is a type of suspension making the two references compatible.
Regarding the argument on purity, the Examiner notes that Wittenberg does not ascribe a specific number to “high chemical purity”, and in fact only states: “The pre-crystallized product obtained according to the invention is distinguished in particular by high homogeneity and reproducible properties. The crystal content of the preliminary crystals obtained according to the invention is preferably 30 to 50%, in particular 35 to 45%” (p. 7, 2nd paragraph from bottom of page). On the other hand, Graham envisage a sugar composition comprising 98% sucrose content and 2% maltodextrin, which the Examiner would consider relatively high purity. Additionally, it is within the skills of an artisan to adjust the amount of maltodextrin to obtain its benefits while still getting the desired purity for food product application. One would be further motivated to add the maltodextrin because Graham has taught the usefulness of maltodextrin, which inhibits crystallization and prevents the formation of the problematic secondary nuclei; additionally, maltodextrin gives a pleasant taste to a composition.
Applicant argued that the Examiner has provided no teaching in Wittenberg or Graham that a maltodextrin slurry and a sugar solution, combined in the process of Wittenberg, would form a suspension.
Applicant’s arguments have been considered but the Examiner traverses. The Examiner explains that slurry is a type of suspension. The maltodextrin slurry is not incorporated into the sugar solution of Wittenberg, but the maltodextrin is. In the Non Final Action mailed 09/11/25 and maintained above: “…one preparing a sugar or sweetener composition such as tableting sugar with sugar crystals would benefit from incorporating maltodextrin.”
.
Applicant argues that the skilled artisan would not have a reasonable expectation of success in processing the maltodextrin slurry of Graham through the screening machine 7 of Wittenberg; i.e. Wittenberg teaches that the screening machine 7 is provided to achieve a desired crystal size, and one of ordinary skill in the art would not have been motivated to substitute a dust stream with a slurry.
As mentioned above, the dust is not being replaced with the slurry. In the previous rejection and the rejection supra, Wittenberg is noted for its deficiency in teaching the bulking agent, and Graham is relied on to teach this feature.
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 USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The 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/process/file/efs/guidance/eTD-info-I.jsp.
Claims 1-9, 11-14 and 16-22 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over Claims 1-6, 11-15 and 17-22 of co-pending Application 17/905,958 in view of Wittenberg, A. (WO 00/56939, machine translated in IP.com).
Although the claims at issue are not identical, they are not patentably distinct from each other because they are drawn to the same subject matter and composition components.
Both the instant claims and ‘958 are drawn to a process of preparing a sweetener composition comprising one or more crystalline carbohydrate(s) and one or more bulking agent(s), and the sweetener composition product thereof. The claims overlap almost in entirety. The difference only lies in the forming of a suspension of the bulking agent in the solvent required in the instant claim. This deficiency is cured by Wittenberg, whose teachings have been presented in the 103 rejection supra.
‘958 and Wittenberg are in the related fields. IT would have been prima facie obvious to one of ordinary skill in the art before the effective filing date and with reasonable expectations of success to combine the teachings of ‘958 and Wittenberg and utilize the method steps taught by Wittenberg in suspending the bulking agent of ‘958 in the sugar solution to obtain crystallized carbohydrates for a sweetener composition. One with ordinary skill in the art would have applied the known technique of with reasonable expectations of success. Applying a known technique to a known method ready for improvement to yield predictable results is the rationale supporting obviousness. See MPEP § 2143 and KSR International Co. v. Teleflex Inc., 550 U.S. 398, 82 USPQ2d 1385, 1395-97 (2007).
Therefore, the claims are drawn to the same subject matter and are not patentably distinct from the instant claims.
Conclusion
No claims are allowed.
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/J.Y.S./Examiner, Art Unit 1792 /ERIK KASHNIKOW/ Supervisory Patent Examiner, Art Unit 1792