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 .
The amendment filed May 14, 2026 is acknowledged. Claims 1 and 10-28 are pending in the application. Claims 2-9 have been cancelled. Claims 13-14 have been withdrawn from consideration.
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 14, 2026 has been entered.
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, 15-17, 21-23, 27, and 28 are rejected under 35 U.S.C. 103 as being unpatentable over Chaturvedula et al. US 20160192684 (hereinafter “Chaturvedula”).
With respect to claim 1, Chaturvedula teaches a sweetener composition (Abstract).
Regarding the recitation of which comprises rebaudioside A, rebaudioside D, and rebaudioside M, wherein the weight ratio of rebaudioside A to rebaudioside M ranges from 5:1 to 9:1, and wherein the weight ratio of rebaudioside A to rebaudioside D ranges from 3:1 to 4:1 in claim 1, Chaturvedula teaches the sweetener composition comprises approximately 45-84% by weight of stevia leaf extract, which contains greater than about 50% rebaudioside A (reb A), and approximately 8-42% by weight of a mixture of rebaudioside D (reb D) and rebaudioside M (reb M) (50:50 to 98:2) (paragraphs [0029]-[0031] and [0053]). The ranges of Chaturvedula include the weight ratio of about 6-7.5:1 of reb A to reb M and the weight ratio of about 3-4.5:1 reb A to reb D and encompass the presently claimed weight ratios (about 22.5%-84% rebaudioside A in the sweetener composition calculated from 0.50 rebaudioside A x 45% stevia leaf extract and 1.00 rebaudioside A x 84% stevia leaf extract; about 5% reb D and about 3% reb M to about 28% reb D and about 14% reb M in the sweetener composition calculated from about 8-42% of a mixture of reb D and reb M at a ratio of about 64:36 to about 67:33; weight ratio of about 6-7.5:1 of reb A to reb M calculated from about 84% reb A: about 14% reb M to about 22.5% reb A:about 3% reb M; weight ratio of about 3-4.5:1 of reb A to reb D calculated from about 84% reb A:about 28% reb D to about 22.5% reb A:about 5% reb D). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 15, Chaturvedula teaches a flavored product (paragraph [0026]).
Regarding the recitation of which comprises a sweetening composition of claim 1 in claim 15, Chaturvedula teaches the flavored product comprises a sweetener composition and Chaturvedula is relied upon for the teaching of the claimed sweetening composition as addressed above in claim 1 (Abstract; and paragraphs [0026], 0048], [0049], [0052], and [0053]).
With respect to claim 16, Chaturvedula is relied upon for the teaching of the flavored product as addressed above in claim 15.
Regarding the recitation of wherein the flavored product is a food product, a beverage product, an oral care product, or a pharmaceutical product in claim 16, Chaturvedula teaches the flavored product is a food, beverage, or pharmaceutical (paragraphs [0024] and [0026]).
With respect to claim 17, Chaturvedula teaches a sweetener composition (Abstract).
Regarding the recitation of which comprises rebaudioside A, rebaudioside D, and rebaudioside M, wherein the weight ratio of rebaudioside A to rebaudioside M ranges from 3:1 to 1:3, and wherein the weight ratio of rebaudioside A to rebaudioside D ranges from 3.5:1 to 10:1 in claim 17, Chaturvedula teaches the sweetener composition comprises approximately 45-84% by weight of stevia leaf extract, which contains greater than about 50% rebaudioside A (reb A), and approximately 8-42% by weight of a mixture of rebaudioside M (reb M) and rebaudioside D (reb D) (50:50 to 98:2) (paragraphs [0029]-[0031] and [0053]). The ranges of Chaturvedula include the weight ratio of about 3:1 to about 1:2 of reb A to reb M and the weight ratio of about 3-22.5:1 reb A to reb D and encompass the presently claimed weight ratios (about 22.5%-84% rebaudioside A in the sweetener composition calculated from 0.50 rebaudioside A x 45% stevia leaf extract and 1.00 rebaudioside A x 84% stevia leaf extract; about 21% reb M and about 21% reb D to about 41% reb M and about 1% reb D in the sweetener composition calculated from about 42% of a mixture of reb M and reb D at a ratio of about 50:50 to about 98:2; weight ratio of about 3:1 to about 1:2 of reb A to reb M calculated from about 63% reb A: about 21% reb M to about 22.5% reb A:about 41% reb M; weight ratio of about 3-22.5:1 of reb A to reb D calculated from about 63% reb A:about 21% reb D to about 22.5% reb A:about 1% reb D). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 21, Chaturvedula teaches a flavored product (paragraph [0026]).
Regarding the recitation of which comprises a sweetening composition of claim 17 in claim 21, Chaturvedula teaches the flavored product comprises a sweetener composition and Chaturvedula is relied upon for the teaching of the claimed sweetening composition as addressed above in claim 17 (Abstract; and paragraphs [0026], 0048], [0049], [0052], and [0053]).
With respect to claim 22, Chaturvedula is relied upon for the teaching of the flavored product as addressed above in claim 21.
Regarding the recitation of wherein the flavored product is a food product, a beverage product, an oral care product, or a pharmaceutical product in claim 22, Chaturvedula teaches the flavored product is a food, beverage, or pharmaceutical (paragraphs [0024] and [0026]).
With respect to claim 23, Chaturvedula teaches a sweetener composition (Abstract).
Regarding the recitation of which comprises rebaudioside A, rebaudioside D, and rebaudioside M, wherein the weight ratio of rebaudioside A to rebaudioside M ranges from 1:1 to 2.5:1, and wherein the weight ratio of rebaudioside A to rebaudioside D ranges from 3:1 to 10:1 in claim 23, Chaturvedula teaches the sweetener composition comprises approximately 45-84% by weight of stevia leaf extract, which contains greater than about 50% rebaudioside A (reb A), and approximately 8-42% by weight of a mixture of rebaudioside M (reb M) and rebaudioside D (reb D) (50:50 to 98:2) (paragraphs [0029]-[0031] and [0053]). The ranges of Chaturvedula include the weight ratio of about 3-1:1 of reb A to reb M and the weight ratio of about 3-41:1 reb A to reb D and encompass the presently claimed weight ratios (about 22.5%-84% rebaudioside A in the sweetener composition calculated from 0.50 rebaudioside A x 45% stevia leaf extract and 1.00 rebaudioside A x 84% stevia leaf extract; about 21% reb M and about 21% reb D to about 41% reb M and about 1% reb D in the sweetener composition calculated from about 42% of a mixture of reb M and reb D at a ratio of about 50:50 to about 98:2; weight ratio of about 3-1:1 of reb A to reb M calculated from about 63% reb A: about 21% reb M to about 41% reb A:about 41% reb M; weight ratio of about 3-41:1 of reb A to reb D calculated from about 63% reb A:about 21% reb D to about 41% reb A:about 1% reb D). As set forth in MPEP 2144.05, in the case where the claimed range “overlap or lie inside ranges disclosed by the prior art”, a prima facie case of obviousness exists, In re Wertheim, 541 F.2d 257, 191 USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
With respect to claim 27, Chaturvedula teaches a flavored product (paragraph [0026]).
Regarding the recitation of which comprises a sweetening composition of claim 23 in claim 27, Chaturvedula teaches the flavored product comprises a sweetener composition and Chaturvedula is relied upon for the teaching of the claimed sweetening composition as addressed above in claim 23 (Abstract; and paragraphs [0026], 0048], [0049], [0052], and [0053]).
With respect to claim 28, Chaturvedula is relied upon for the teaching of the flavored product as addressed above in claim 27.
Regarding the recitation of wherein the flavored product is a food product, a beverage product, an oral care product, or a pharmaceutical product in claim 28, Chaturvedula teaches the flavored product is a food, beverage, or pharmaceutical (paragraphs [0024] and [0026]).
Claims 10, 18, and 24 are rejected under 35 U.S.C. 103 as being unpatentable over Chaturvedula et al. US 20160192684 (hereinafter “Chaturvedula”) as applied to claims 1, 17, and 23 above and in further view of Purkayastha et al. US 20140017378 (hereinafter “Purkayastha”).
With respect to claims 10, 18, and 24, Chaturvedula is relied upon for the teaching of the sweetening composition as addressed above in claims 1, 17, and 23, respectively.
Regarding the recitation of further comprising glucosylated natural steviol glycosides in claims 10, 18, and 24, Chaturvedula teaches the sweetener composition further comprises glycosylated steviol glycosides (paragraph [0020]).
However, Chaturvedula does not expressly disclose the sweetener composition further comprises glucosylated natural steviol glycosides.
Purkayastha teaches a combination of steviol glycosides and glucosylated steviol glycosides. The steviol glycosides may be rebaudioside A, rebaudioside D, and rebaudioside M, and the glucosylated natural steviol glycosides are steviol glycosides extracted from the Stevia rebaudiana plant that have been glycosylated with glucose molecules (paragraphs [0008]-[0011], [0017]-[0018], and [0025]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Purkayastha, to select the glucosylated natural steviol glycosides in the sweetener composition of Chaturvedula based in their suitability for their intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Purkayastha and Chaturvedula similarly teach compositions comprising rebaudioside A, rebaudioside D, rebaudioside M, and glycosylated steviol glycosides, Purkayastha teaches the glucosylated steviol glycoside can contribute to the modification of sweetness profiles and is a taste improver and flavor modifier (paragraphs [0009] and [0037]), Chaturvedula teaches the sweetener composition has a modified and enhanced taste profile (paragraph [0007]), and said modification would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Claims 11, 19, and 25 are rejected under 35 U.S.C. 103 as being unpatentable over Chaturvedula et al. US 20160192684 (hereinafter “Chaturvedula”) as applied to claims 1, 17, and 23 above and in further view of Crespo et al. US 20170071242 (hereinafter “Crespo”).
With respect to claims 11, 19, and 25, Chaturvedula is relied upon for the teaching of the sweetening composition as addressed above in claims 1, 17, and 23, respectively.
Regarding the recitation of further comprising hesperitin, naringenin, phloretin, rhoifolin, or any combination thereof in claims 11, 19, and 25, Chaturvedula does not disclose this limitation.
Crespo teaches enhancing the sweetness of sweeteners. Naringenin, an antioxidant, is combined with sweeteners, such as rebaudioside A, rebaudioside D, and rebaudioside M, to enhance the sweetness thereof (paragraphs [0002], [0029], and [0034]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Crespo, to select the naringenin in the sweetener composition of Chaturvedula based in its suitability for its intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Crespo and Chaturvedula similarly teach sweetener compositions comprising rebaudioside A, rebaudioside D, and rebaudioside M, Crespo teaches naringenin is an antioxidant and provides sweetness enhancement to the sweetener (paragraphs [0002] and [0029]), Chaturvedula teaches the sweetener composition may further comprise functional additives such as a potentiate and the sweetener composition has an enhanced taste profile (paragraphs [0007] and [0024]), and said modification would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Claims 12, 20, and 26 are rejected under 35 U.S.C. 103 as being unpatentable over Chaturvedula et al. US 20160192684 (hereinafter “Chaturvedula”) as applied to claims 1, 17, and 23 above and in further view of Priest et al. US 20130324557 (hereinafter “Priest”).
With respect to claims 12, 20, and 26, Chaturvedula is relied upon for the teaching of the sweetening composition as addressed above in claims 1, 17, and 23, respectively.
Regarding the recitation of further comprising a cooling enhancing compound selected from the group consisting of the listed compounds in claim 12, 20, and 26, Chaturvedula does not expressly disclose this limitation.
Priest teaches ingestible compositions. The compositions comprise one or more sweeteners and compounds used as modulators of the TRPM8 receptor, such as N-ethyl-N-(thiophen-2-ylmethyl)-2-(p-tolyloxy)acetamide and 2-((2,3-dihydro-1H-inden-5-yl)oxy)-N-(1H-pyrazol-3-yl)-N-(thiophen-2-ylmethyl)- acetamide (paragraphs [0003], [0012], [0042], [0096], [0099], [0125], [0150], and [0150]).
It would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention, given the teachings of Priest, to select the modulating compounds in the sweetener composition of Chaturvedula based in their suitability for their intended purpose with the expectation of successfully preparing a functional product. One of ordinary skill in the art would have been motivated to do so because Priest and Chaturvedula similarly teach sweetener compositions, Priest teaches the modulating compounds are useful in the flavoring industry because they can induce/generate a cooling or cold sensation (paragraph [0097]), Chaturvedula teaches the sweetener composition may further comprise additives such as flavoring ingredients (flavorant) and/or functional additives to obtain a sweetener composition with desired organoleptic properties (paragraphs [0007]-[0009], [0023], and [0024]), and said modification would amount to the use of a known element for its intended use in a known environment to accomplish entirely expected results. There would have been a reasonable expectation of success with said modification. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. (“Reading a list and selecting a known compound to meet known requirements is no more ingenious than selecting the last piece to put in the last opening in a jig-saw puzzle.” Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) See also In re Leshin, 227 F.2d 197, 125 USPQ 416 (CCPA 1960) (selection of a known plastic to make a container of a type made of plastics prior to the invention was held to be obvious)) (MPEP 2144.07).
Response to Arguments
Applicant’s remarks filed May 14, 2026 are acknowledged.
Due to the amendments to the claims, the 35 USC 112 rejection in the previous Office Action have been withdrawn (P6).
Applicant’s arguments have been fully considered, but they are unpersuasive.
Applicant agues Chaturvedula does not teach or suggest that the selected ranges are to be combined in a single composition in the manner required by the instant claims. The disclosures of Chaturvedula do not identify the claimed weight ratio of Reb A to Reb M, or the claimed weight ratio of Reb A to Reb D as variables to be selected and controlled in the final sweetening composition, or that such ratios have any particular effect. The working example in paragraph [0053] does not cure these deficiencies. Paragraph [0053] does not describe the broader Reb D/Reb M ratio relied upon by the Office Action, nor does it disclose a final sweetening composition having the claimed ratios of Reb A to Reb M and Reb A to Reb D. The Office Action does not identify any teaching, suggestion, or rational in Chaturvedula that would have motivated a person of ordinary skill in the art to select and combine these particular isolated ranges to arrive at the instant claims. The Office Action does not explain why a skilled artisan would have had a reasonable expectation of success in making these selections to arrive at the instant claims (P6-P10).
Examiner disagrees. As previously addressed, the claimed invention is obvious in view of Chaturvedula. In the example of Chaturvedula (paragraph [0053]), stevia leaf extract comprising 50% of Reb A was combined with a mixture of Reb D and Reb M (50:50 mixture). Although the example in paragraph [0053] does not teach the claimed ratios of Reb A to Reb M and Reb A to Reb D, Chaturvedula is not limited to this embodiment since the reference also teaches the sweetener composition comprises approximately 45-84% by weight of stevia leaf extract, which contains greater than about 50% rebaudioside A (reb A), and approximately 8-42% by weight of a mixture of rebaudioside D (reb D) and rebaudioside M (reb M) (1:1 to 98:2) (paragraphs [0029]-[0031]). “Applicant must look to the whole reference for what it teaches. Applicant cannot merely rely on the examples and argue that the reference did not teach others.” In re Courtright, 377 F.2d 647, 153 USPQ 735,739 (CCPA 1967). As addressed above in the rejection, the ranges of Chaturvedula include the weight ratios of about 6-7.5:1 of Reb A to Reb M and about 3-4.5:1 of Reb A to Reb D (claim 1), about 3:1 to about 1:2 of Reb A to Reb M and about 3-22.5:1 of Reb A to Reb D (claim 17), and about 3-1:1 of Reb A to Reb M and about 3-41:1 of Reb A to Reb D (claim 23) and encompass the presently claimed weight ratios. A prima facie case of obviousness typically exists when the ranges of a claimed composition overlap the ranges disclosed in the prior art. e.g., In re Geisler, 116 F.3d 1465, 1469, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (CCPA 1976); In re Malagari, 499 F.2d 1297, 1303, 182 USPQ 549, 553 (CCPA 1974). Further, Chaturvedula teaches each of the ingredients of the mixture may constitute any suitable portion to achieve a desired sweet taste, absence of aftertaste, mouth-feel, and the like (paragraph [0029]). Thus, one of ordinary skill in the art would arrive at the claimed invention from the teachings of Chaturvedula. Applicant is reminded that if a prima facie case of obviousness is established, the burden shifts to the applicant to come forward with arguments and/or evidence to rebut the prima facie case. See, e.g., In re Dillon, 919 F.2d 688, 692, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990) (en banc).
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to TYNESHA L. MCCLAIN whose telephone number is (571)270-1153. The examiner can normally be reached Monday-Friday 10 AM - 6:30 PM ET.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/T.L.M/Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
Prosecution Insights