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 05/22/2026 is acknowledged. Claims 10 and 15 are cancelled. Claims 1-9, 11-12 and 16-22 are amended. Claims 1-9, 11-14 and 16-22 are 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Rejection(s) not reiterated from the previous Office Action are hereby withdrawn.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 Objections
Claim 1 is objected to because of the following informalities: In Claim 1, line 8, the phrase “wherein the combining comprises” is missing the word “step” after “combining”. Appropriate correction is required.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1-9, 11-14 and 16-22 rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 recites “combining the carbohydrate solution with 20 wt-% to 80 wt-%, by weight of the sweetener composition, of one or more bulking agent(s) in particulate form and optionally one or more crystalline carbohydrate(s), to form a mixture…”. The recitation is indefinite because: i.) the sentence structure makes it appear that the carbohydrate solution is being combined with a certain amount of sweetener composition; ii.) it is not easily understood as to which component the range is in reference to; iii) it is unclear whether the range applies only to the bulking agent(s), or if it applies to the bulking agent(s) and the optional crystalline carbohydrate(s). Clarification is required. For the purpose of compact prosecution, the Examiner will interpret the recitation to mean that the carbohydrate solution is being combined with 20 wt% to 80 wt% of bulking agent based on the total weight of the sweetener composition, and that no range is given for the carbohydrate in the carbohydrate solution. All claims depending from Claim 1 are also rejected.
Claim 7 recites “wherein the one or more crystalline carbohydrate is sucrose”. Claim 7 depends from Claim 1, which requires a carbohydrate solution, comprises “optionally one or more crystalline carbohydrate”, and also refers to the product obtained as “comprising one or more crystalline carbohydrate”. It is therefore unclear as to which carbohydrate is being referred to in Claim 7. Clarification is required.
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 1-7, 12-14, and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Cherukuri et al. (US 4,271,199), hereinafter Cherukuri, as evidenced by STBC Products (Sorbitol. Obtained on 06/09/2026 from WayBack Machine, archive Feb. 24, 2018, URL: <web.archive.org/web/20180224025806/https://www.stbc.co.id/product_app3.php>), hereinafter STBC.
Cherukuri teaches preparing a premixed recrystallized combination of liquid and solid sweeteners for use in a chewing gum formulation (Abstract; Claim 1).
Regarding Claims 1 and 13, Cherukuri teaches a preformed sweetener combination comprising solid sweeteners, such as sucrose, lactose, maltose, sorbitol, fructose, dextrose, hydrogenated starch hydrolysate etc. and liquid sweeteners dissolved in water such as corn syrup, invert syrup, glucose syrup, hydrogenated starch syrup etc. (Col. 2 lines 12-27; Claims ). The solid sweeteners taught by Cherukuri include known bulking agents such as sorbitol, as evidenced by STBC. Cherukuri expressly teaches heating the mixture of the solid sweetener and the liquid sweetener and then cooling the homogeneous mass to recrystallize; alternatively, seeding or stirring to cause the sweeteners to recrystallize, forming an amorphous mass (Col. 5, lines 5-18; Col. 6, lines 15-20; Example 1).
Regarding the amount of bulking agent, Cherukuri expressly teaches various amounts of the bulking agent as part of the preformed sweetener combination in a chewing gum composition, for example 20-85% by weight (Table in Col. 5) ; or 45% sorbitol in the preformed sweetener composition out of the 70% in the chewing gum composition (Example 2). By Examiner’s calculation, the sorbitol amount is 64% of the preformed sweetener, and is within the claimed range.
Regarding Claim 2, Cherukuri teaches crystallization which means that a saturation point is reached, which initiates the crystallization process (Example 1).
Regarding Claim 3, Cherukuri teaches that the preformed combination of a particulate solid sweetener particles with a syrup sweetener mixture is heated, dried to a homogeneous mass, and then cooled to recrystallize the mass (Col. 1, lines 50-60).
Regarding Claim 4, Cherukuri teaches mixing the solids and liquids together and heating with constant agitation, which reads on the feature of simultaneous processes being performed together (Col. 6, lines 15-17). Further, the mass is cooled and recrystallizes, which means removal of water, i.e. drying, which are all co-occurring (Col. 6, lines 17-20).
Regarding Claim 5, Cherukuri expressly teaches a cooling step (Example 1).
Regarding Claim 6, Cherukuri teaches liquid glucose and high fructose syrup, which reads on the monosaccharides and polyols (Example 1).
Regarding Claim 7, Cherukuri teaches the pre-mixing of crystals of solid sweetener, such as crystals of sugar, and teaches sucrose crystals (Col. 2, lines 12-38). Because Cherukuri recites using crystals of sugars, Cherukuri also renders obvious the feature of “at least 95 % of the carbohydrate in the sweetener composition is in crystalline form” in Claim 12.
Regarding Claim 14, Cherukuri teaches the premixed recrystallized combination of liquid and solid sweeteners for use in a chewing gum (Examples 1-3).
Regarding Claim 19, as calculated supra, Cherukuri’s sorbitol bulking agent amounts to is 64% of the preformed sweetener, which indicates that the ratio of carbohydrate solution to bulking agent is 36:64, which is within the claimed ratio (Example 2).
Claims 11, 16-18 and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Cherukuri, as applied to Claims 1-7, 12-14, and 19 above, and in view of Kannar et al. (Of record), hereinafter Kannar.
The teachings of Cherukuri have been set forth supra.
Regarding Claim 11, Cherukuri does not teach the particle size of the sweetener composition.
Kannar also teaches sweetener compositions comprising crystalline sugar useful in the preparation of foods such as chocolate, confectionary, cereals etc. (Abstract; (p. 2, lines 27-29). Kannar discloses embodiments wherein the amorphous sugar comprises homogenous particles between 1 and 100 µm in diameter, e.g. with a D90 of 100 µm or less (p. 8, lines 28-32). Kannar expressly teaches amorphous sugar particles with particle size varying from less than 10 µm to about 60 µm (p. 52, lines 11-13).
It would have been prima facie obvious to one of ordinary skill in the art before the effective filing date to make the sweetener composition of Cherukuri wherein the particle size is D90 of 100 µm or less, which Kannar teaches to be suitable for various food compositions. Therefore, all of the claimed elements were known in the prior art and one skilled in the art could have combined the elements as claimed by known methods with no change in their respective functions and the combination would have yielded predictable results to one of ordinary skill in the art at the time of the invention. Note: MPEP 2141 KSR International CO. v. Teleflex Inc. 82 USPQ 2d 1385 (Supreme Court 2007).
Regarding Claims 16-18 and 21, Cherukuri is silent on the dextrin, resistant dextrin, and soluble and insoluble fiber bulking agents.
Kannar teaches that bulking agents can make handling the sweetener composition more straightforward, and in preferred embodiments, the bulking agent is a prebiotic fiber (bottom half of 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 teaches different forms of dextrin including maltodextrin (p. 27, lines 10-20). Kannar also teaches a bulked sweetener composition 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” (Claim 12). 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 sorbitol bulking agent in the composition and method of Cherukuri with any of the bulking agent taught by Kannar, such as 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 as Kannar has taught these bulking agents to be further useful as drying agents and compatible with sweetener compositions.
Claims 9 and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Cherukuri in view of Kannar, as applied to Claims 1-7, 11-14, 16-19 and 21 above, and Bunnick et al. (Of record), hereinafter Bunnick.
The teachings of Cherukuri and Kannar have been set forth above.
Cherukuri teaches drying but does not teach using a dryer or 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).
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 Cherukuri in rendering Claims 9 and 20 obvious.
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 Cherukuri 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 Cherukuri in view of Kannar. Kannar has taught a drying method using fluidized bed drying, which is suitable for drying 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.
Claims 8 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Cherukuri, Claims 1-7, 12-14, and 19 above, and in view of Jackson et al. (US 2015/0245996 A1), hereinafter Jackson, as evidenced by NewSeed (Microcrystalline Cellulose Side Effects, Side Effects of Microcrystalline Cellulose. Obtained on 06/10/2026 from URL:< https://www.foodsweeteners.com/microcrystalline-cellulose-side-effects/. Published July 17, 2015).
The teachings of Cherukuri have been set forth above.
Cherukuri does not teach the temperature difference between the carbohydrate solution and bulking agent.
Jackson discloses a method of preparing an ingestible product comprising: i) heating a sugar material to a first temperature until liquefied; ii) cooling the liquefied sugar material to a solid or semi-solid form; iii) heating the cooled sugar material to a second temperature; iv) combining the sugar material with one or more temperature sensitive ingredients before, during, or after said heating step to obtain a mixture of the second liquefied sugar material and the one or more temperature sensitive ingredients; and v) cooling the intimate mixture to form an orally ingestible product (Abstract; Claim 1). The temperature sensitive ingredients to combine with the sugar material include buffering agents, flavorings, pharmaceutically active ingredients, and combinations thereof; e.g. nicotinic compound sorbed onto a porous particulate carrier [0016]. In one embodiment, the orally ingestible product comprises a nicotinic compound sorbed onto a porous particulate carrier, and wherein the particulate carrier is microcrystalline cellulose (MCC) ([0070], Claims 77-78). MCC is a bulking agent as evidenced by NewSeed (p. 1, 2nd paragraph).
The one or more temperature sensitive ingredients can be incorporated by mixing with the sugar substitute at various stages of the process, e.g. before, during, or after the second heating step when the sugar substitute is sufficiently liquefied to allow for mixing, or may be added when the heating has ceased and the sugar substitute is cooling, but is still sufficiently liquefied to allow for mixing [0039]. The mixture is liquefied in a short amount of time and the temperature sensitive ingredients are exposed to a relatively low elevated temperature for only a brief period of time, which is insufficient to cause decomposition [0038]. Jackson teaches an example where in isomalt is heated to 330˚F then cooled to 300˚F to obtain the melted isomalt, and into which aqueous tobacco extract with solids are added, rendering the claimed temperature difference in Claims 8 and 22 obvious.
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 Jackson with that of Cherukuri and add the bulking agent at a temperature that is lower than the heated carbohydrate solution if one desires to, for example, incorporate a temperature-sensitive ingredient in the bulking agent such as that taught by Jackson. One would also do so to mix desired amount of bulking agent solids into liquefied sugar solution to enable mixing while maintaining the physical integrity of the bulking agent.
Claims 1-7, 9, 11-14, 16, 19, and 21 are rejected under 35 U.S.C. 103 as being unpatentable over Graham, C. (Of record).
Graham teaches preparing a superior tableting sugar composition consisting essentially of aggregates or agglomerates of fondant-size sucrose crystals with a minor amount of maltodextrin; a sugar composition consisting essentially of water, sucrose, and maltodextrin is also prepared as a syrup (Abstract; Col. 1, lines 38-66).
Graham teaches forming a syrup consisting essentially of water, sucrose and maltodextrin, wherein the maltodextrin amount is in the range 0.5 to 7.5 percent by weight based on the sucrose component dissolved in the syrup, and the amount of water in the syrup should give a solids content of 60-75%, such as 67% solid (Col. 1, lines 38-66).
Regarding Claim 1, Graham teaches the claimed carbohydrate solution wherein the carbohydrate is sucrose, and the maltodextrin reads on the claimed bulking agent, as evidenced by the instant Specification [0016]. Because maltodextrin is a bulking agent comprising fiber, Graham also renders obvious the claim feature of “one or more bulking agent(s) comprising fiber.” Graham teaches the syrup is concentrated to a temperature in the range from about 120° to about 130° C., and to 91-97% solids content (Col. 1, lines 55-58).
Graham teaches a system where sugar syrup made with sucrose is supplied from a tank 10, and maltodextrin is added to a tank 16 with water to effect its dissolution. As such, the maltodextrin is initially supplied in particulate form prior to dissolution (See Drawing). The syrup is directed to a preheater, then to a vacuum concentrator operated at a temperature between 120°- 130° C., and crystallized and dried (Drawing; Col. 3, line 20 to Col. 4, line 56).
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Graham does not teach the intermediate formation of a suspension of mixture comprising the carbohydrate solution and particulate bulking agent, this form appears not to be a critical form in the instant application, which further require the adjustment of temperature and/or concentration and/or solubility conditions to facilitate crystallization of the carbohydrate in the final form. As such, the particulate bulking agent appears to be either dissolved or occluded in the crystalline carbohydrate, but its form is not defined, and therefore appears to be not critical in the final form. In other words, there appears to be no utility or advantage to having the intermediate form, as recited in the instant claims to create the crystalline product; and Graham similarly teaches fondant-size sucrose crystals together with co-crystallized maltodextrin (Col. 4, lines 29-33). MPEP §2112.01 states where the claimed and prior art are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
Additionally, it is well within the capability of a skilled artisan to incorporate the bulking agent in any desired form, and therefore eschew the dissolution step in Tank 16 of Graham if the particulate form is desired. According to MPEP § 2144.04, a rejection based on design choice can arise when the Examiner asserts that the claimed feature represents an arbitrary selection between alternatives that perform the same function in substantially the same way. Per MPEP § 2144.04, a design choice rejection hinges on the principle that “[a]n obviousness rejection based on a design choice is appropriate where the applicant has not shown that the particular design provides any unexpected results.” The Examiner may argue that the claimed feature or configuration is an obvious variant of prior art because it does not yield a functional or technical benefit beyond what was already known.
Regarding Claim 2, Graham teaches crystallization which means that a saturation point is reached, which initiates the crystallization process (Col. 3, line 51 to Col. 4, line 56).
Regarding Claims 3 and 9, Graham teaches a dryer for drying the crystals (Col. 4, lines 34-40).
Regarding Claim 4, Graham teaches using a heated vacuum concentrator, i.e. simultaneous adjustment of temperature as well as concentration (Col. 3, lines 44-47).
Regarding Claim 5, Graham teaches a cooler for cooling the crystals (Col. 4, lines 41-45).
Regarding Claims 6-7, Graham teaches sucrose, which is a disaccharide carbohydrate (Claim 1).
Regarding Claim 11, 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).
Regarding Claims 16 and 21, Graham teaches maltodextrin, which is a type of dextrin and is a soluble fiber (Col. 1, lines 38-45).
Regarding Claim 19, Graham teaches the amount of maltodextrin in a range 0.5 to 7.5 percent by weight based on the sucrose component dissolved in the syrup, with the preferable amount of total solids content being , for example, 67% (Col. 1, lines 38-66). By Examiner’s calculation, at 67% total solid, and at the maximum maltodextrin at 7.5%, the amount of sucrose solid would be 59.5% in 33% water. Thus, the ratio of maltodextrin bulking agent to the sucrose carbohydrate solution is 7.5: 92.5. This ratio is outside the claimed range. However, while the exact ratio is not disclosed by Graham, it is generally noted that differences in ratios and concentrations do not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such ratio is critical. "[W]here 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). Given that applicant did not point out the criticality of ratio of the invention, it is concluded that the normal desire of scientists or artisans to improve upon what is already generally known would provide the motivation to determine where in a disclosed set of ranges is the optimum ratio. NOTE: MPEP 2144.05.
Furthermore, one of ordinary skill in the art would find it obvious to adjust the ratio of the carbohydrate solution to the bulking agent as a matter of experimentation and optimization. The adjustment of particular conventional working conditions (e.g., determining result effective amounts of the ingredients beneficially taught by the cited references) is deemed merely a matter of judicious selection and routine optimization which is well within the purview of the skilled artisan. Accordingly, this type of modification would have been well within the purview of the skilled artisan and no more than an effort to optimize results.
Claims 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Graham, as applied to Claims 1-7, 9, 11-14, 16, 19, and 21 above, and further in view of Kannar.
The teachings of Graham and Kannar have been set forth supra.
Regarding Claims 17-18, Graham is silent on the resistant dextrin and insoluble fiber.
Kannar cures the deficiency by teaching these features (Claim 12; bottom half of p. 15). Vide supra. Briefly, 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 bulking agent in the composition and method of Graham with any of the bulking agent taught by Kannar, such as 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.
Claim 20 is rejected under 35 U.S.C. 103 as being unpatentable over Graham in view of Kannar, as applied to Claims 1-7, 9, 11-14, 16-19, and 21 above, and Bunnick.
The teachings of Graham, Kannar, and Bunnick have been set forth above.
Graham teaches drying but does not teach fluidizing the bulking agent in a fluidized bed dryer, and introducing the solution into the fluidized bed dryer.
Regarding Claim 20, the teachings of Kannar and Bunnick have been set forth above. As such, Bunnick and Kannar together cure the deficiency of Graham.
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 Graham 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 and composition of Graham in view of 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.
Claims 8 and 22 are rejected under 35 U.S.C. 103 as being unpatentable over Graham Claims 1-7, 9, 11-14, 16, 19, and 21 above, and in view of Jackson, as evidenced by NewSeed.
The teachings of Graham have been set forth above.
Graham does not teach the temperature difference between the carbohydrate solution and bulking agent.
The teachings of Jackson have been set forth supra.
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 Jackson with that of Graham and add the bulking agent at a temperature that is lower than the heated carbohydrate solution if one desires to, for example, incorporate a temperature-sensitive ingredient in the bulking agent such as that taught by Jackson. One would also do so to mix desired amount of bulking agent solids into liquefied sugar solution to enable mixing while maintaining the physical integrity of the bulking agent.
Response to Arguments:
Applicant traversed the 103 rejection over Wittenberg in view Graham, appearing to argue that the prior art does not teach the amended feature of combining the carbohydrate solution with 20 wt-% to 80 wt-% of one or more bulking agent(s) in particulate form.
Applicant’s arguments have been considered but are moot because the new ground of rejection necessitated by the amendment does not rely on Wittenberg for any teaching or matter specifically challenged in the argument.
Applicant remarked that Graham teaches that the maltodextrin is in solution even before it is added to the sugar feed tank 22, and not in particulate form.
Applicant’s arguments have been considered but the Examiner traverses. The Examiner has addressed this point in the rejection supra.
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 Cherukuri (US 4,271,199).
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 lies in the forming of a suspension of the bulking agent in the solvent required in the instant claim whereas ‘958 requires a dry blending process. This deficiency is cured by Cherukuri, whose teachings have been presented in the 103 rejection supra.
‘958 and Cherukuri 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 Cherukuri and utilize the method steps taught by Cherukuri 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). For example, one would have been motivated to change the form in ‘958 and prepare a suspension of the particles if crystals with occluded bulking agent is desired in the final product.
Therefore, the claims are drawn to the same subject matter and are not patentably distinct from the instant claims.
Response to Arguments:
Applicant traversed the rejection arguing that the ‘958 recites a process that comprises dry blending of the crystalline carbohydrate and bulking agent.
The Examiner has considered the argument but was not persuaded. ‘958 is modified by Cherukuri, which teaches dissolution of the carbohydrate to make a preformed recrystallized sweetener. As stated above, 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).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Neergard, J. (US 2018/0295856 A1) discloses a nicotine chewing gum comprising MCC as carrier for nicotine.
No claims are allowed.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JANICE Y SILVERMAN whose telephone number is (571)272-2038. The examiner can normally be reached M-F, 10-6 EST.
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/JANICE Y SILVERMAN/Examiner, Art Unit 1792
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