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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 1-2, 4, 6, 8, 10, 13-15, 17-18, 20, 32, 35, 39-40, 44, 46 and 49 in the reply filed on 9/12/25 is acknowledged.
Claim 78 is withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 9/12/25.
Claim Rejections - 35 USC § 112
Claims 2, 4, 8, 10, 13-14, 17-18, 32, 40, 46 and 49 are 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c).
In the present instance, claim 2 recites the broad recitation “at most 55oC”, and the claim also recites “preferably at most 50oC, more preferably at most 45oC, still more preferably at most 40oC, yet more preferably at most 37oC” which is the narrower statement of the range/limitation.
In the present instance, claim 4 recites the broad recitation “at least 36oC”, and the claim also recites “preferably at least 38oC, more preferably at least 40oC, still more preferably at least 42oC, yet more preferably at least 44oC, even more preferably at least 46oC, most preferably at least 48oC, and in particular at least 50oC” which is the narrower statement of the range/limitation.
In the present instance, claim 8 recites the broad recitation “at most 500 mbar”, and the claim also recites “preferably at most 200 mbar, more preferably at most 100 mbar, still more preferably at most 80 mbar” which is the narrower statement of the range/limitation.
Claim 8 recites the broad recitation “at least 50 mbar”, and the claim also recites “preferably at least 70 mbar, more preferably at least 90 mbar, still more preferably at least 110 mbar, yet more preferably at least 130 mbar, even more preferably at least 150 mbar, most preferably at least 170 mbar, and in particular at least 190 mbar” which is the narrower statement of the range/limitation.
In the present instance, claim 10 recites the broad recitation “at most 499 mbar”, and the claim also recites “preferably at most 399 mbar, more preferably at most 350 mbar, still more preferably at most 300 mbar, yet more preferably at most 250 mbar, even more preferably at most 200 mbar, most preferably at most 150 mbar, and in particular at most 100 mbar” which is the narrower statement of the range/limitation.
Claim 10 recites the broad recitation “at least 50 mbar”, and the claim also recites “preferably at least 70 mbar, more preferably at least 90 mbar, still more preferably at least 110 mbar, yet more preferably at least 130 mbar, even more preferably at least 150 mbar, most preferably at least 170 mbar, and in particular at least 190 mbar” which is the narrower statement of the range/limitation.
In the present instance, claim 13 recites the broad recitation “at least 50 wt%”, and the claim also recites “preferably at least 52.5 wt%, more preferably at least 55 wt%, still more preferably at least 57.5, yet more preferably at least 60 wt%, even more preferably at least 62.5 wt%, most preferably at least 65 wt%” which is the narrower statement of the range/limitation.
In the present instance, claim 14 recites the broad recitation “at most 67.5 wt%”, and the claim also recites “preferably at most 65 wt%, more preferably at most 62.5 wt%, still more preferably at most 60 wt%” which is the narrower statement of the range/limitation.
In the present instance, claim 17 recites “at most 15” and the claim also recites “more preferably at most 12, still more preferably at most 9, yet more preferably at most 7, even more preferably at most 5, most preferably at most 2, and in particular at most 1.5” which is the narrower statement of the range/limitation.
In the present instance, claim 18 recites “at least 75 wt%” and the claim also recites “preferably at least 77.5 wt%, more preferably at least 80 wt%, still more preferably at least 82.5 wt%, yet more preferably at least 85 wt%” which is the narrower statement of the range/limitation.
In the present instance, claim 32 recites “at least 30 wt%” and the claim also recites “preferably at least 35 wt%, more preferably at least 40 wt%, still more preferably at least 42 wt%, yet more preferably at least 44 wt%, even more preferably at leat 46 wt%, most preferably at least 48 wt%, and in particular at least 50 wt%” which is the narrower statement of the range/limitation.
In the present instance, claim 32 recites “at most 69 wt%” and the claim also recites “preferably at most 67 wt%, more preferably at most 64 wt%, still more preferably at most 62 wt%, yet more preferably at most 59 wt%, even more preferably at most 57 wt%, most preferably at most 54 wt%, and in particular at most 52 wt%” which is the narrower statement of the range/limitation.
In the present instance, claims 40 and 46 recites “not more than 5%” and the claim also recites “preferably not more than 2%” which is the narrower statement of the range/limitation.
In the present instance, claims 40 and 46 recites “at least 5oC” and the claim also recites “at least 10oC, or at least 15oC, or at least 20oC, or at least 25oC, or at least 30oC, or at least 35oC, or at least 40oC” which is the narrower statement of the range/limitation.
The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
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.
Claims 1-2, 6, 8, 10, 13-15 and 17-18 are rejected under 35 U.S.C. 103 as being unpatentable over Baniel et al (US20180249744) in view of Koch et al (WO2018087261).
Baniel, paragraph 5 of the PGPUB, teaches a sweetener composition, comprising mixing one or more sweetener carbohydrates wherein one or more sweetener carbohydrates can be allulose.
Baniel, paragraph 26 of the PGPUB, teaches a sweetener composition can be formulated as a syrup.
Baniel, paragraph 70 of the PGPUB, teaches the concentration of one or more sweetener carbohydrates and/or sweetener polyols mixed or dissolved in a solvent is between about 15-65%.
Baniel, paragraph 78 of the PGPUB, teaches a method of making and/or formulating a sweetener composition may comprise drying and/or concentrating. Some non-limiting examples of drying methods include vacuum drying. The sweetener composition can be dried until the sweetener composition comprises up to 25% solvent (e.g., water) by weight.
An allulose syrup having a concentration of 15-65% as taught by Baniel reads on an aqueous solution containing allulose at a concentration of at most 70wt% as claimed in claim 1.
An allulose syrup having a concentration of 75% as taught by Baniel reads on an allulose syrup having a concentration of more than 70wt% as claimed in claim 1.
Although this reference teaches vacuum drying, this reference does not teach a temperature of vacuum drying.
Koch, paragraph 157, teaches concentration of the crude product composition provided in step (c) or of the pre-purified product composition provided in step (d) may be achieved by means of an evaporator, preferably at a temperature below 60 °C.
Koch, paragraph 158, teaches it has been surprisingly found that at product temperatures of 60 °C and above, the product undesirably becomes colored, likely due to caramelization reactions. Preferably, evaporation is performed at reduced pressure, preferably at a vacuum within the range of from 1 mbar to 300 mbar.
It 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 to have a drying/concentrating temperature of below 60oC so the final product does not become discolored.
Regarding claim 2, it 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 to have the sweetener composition at room temperature (25oC) to reduce any heating element needed.
Regarding claims 6, 8 and 10, Koch, paragraph 158, teaches it has been surprisingly found that at product temperatures of 60 °C and above, the product undesirably becomes colored, likely due to caramelization reactions. Preferably, evaporation is performed at reduced pressure, preferably at a vacuum within the range of from 1 mbar to 300 mbar.
Regarding claims 13-14, Baniel, paragraph 70 of the PGPUB, teaches the concentration of one or more sweetener carbohydrates and/or sweetener polyols mixed or dissolved in a solvent is between about 15-65%.
Regarding claim 18, Baniel, paragraph 78 of the PGPUB, teaches a method of making and/or formulating a sweetener composition may comprise drying and/or concentrating. Some non-limiting examples of drying methods include vacuum drying. The sweetener composition can be dried until the sweetener composition comprises up to 25% solvent (e.g., water) by weight.
Regarding claim 15, the process as taught by the references is the same process as claimed in claim 1 and therefore it would be expected that the process as taught by the references would result in a final product with the L* and/or a* and/or b* values as claimed in claim 15.
Regarding claim 17, the process as taught by the references is the same process as claimed in claim 1 and therefore it would be expected that the process as taught by the references would result in a ΔE as claimed in claim 17.
Claims 1-2, 4, 6, 8, 10, 13-15, 17-18, 20, 32, 35, 40, 44, 46 and 49 are rejected under 35 U.S.C. 103 as being unpatentable over Koch et al (WO2018087261).
Koch, paragraph 14, teaches
The process according to the invention preferably involves the following steps:
(a) providing a starting material comprising educt saccharide, preferably fructose;
(b) optionally, mixing the starting material with water or with an aqueous liquid and adjusting the concentration of dissolved educt saccharide, preferably fructose thereby providing a starting composition;
(c) converting educt saccharide, preferably fructose to product saccharide, preferably allulose under heterogeneous or homogeneous catalysis
(e) optionally, concentrating the crude or the pre-purified product composition thereby providing a concentrated product composition; (f) optionally, purifying the concentrated product composition by chromatography thereby providing a purified product saccharide composition;
(g) optionally, concentrating the purified product saccharide composition thereby providing a concentrated product saccharide composition;
(h) providing a liquid product saccharide product or a solid product saccharide product;
Koch, paragraph 26, teaches the process comprises steps (a)-(b)-(c)-(e)-(f)-(g)-(h).
Koch, paragraph 157, teaches concentration may be achieved by means of an evaporator.
Koch, paragraph 158, teaches evaporation is performed at reduced pressure, preferably at a vacuum within the range of from 1 mbar to 300 mbar.
Koch, paragraph 176, teaches when a liquid product saccharide product is provided, preferably an aqueous product saccharide, preferably allulose syrup, the liquid product saccharide product may essentially correspond to the purified product saccharide composition provided in step (f) or to the concentrated product saccharide composition provided in step (g).
Koch, paragraph 177, teaches preferably, the concentration of product saccharide (syrup) is within the range of from 90 to 100 wt.-%, relative to the total content of dry matter.
Koch, paragraph 227, the thus provided composition in step (c ) is concentrated by means of an evaporator at a temperature of below 60 °C and the concentration of dry matter is adjusted to a concentration within the range of from 40 wt.-% to 70 wt- %, relative to the total weight of the composition.
Examiner interprets the step of adjusting the concentration 40 wt.-% to 70 wt- %, relative to the total weight of the composition in step (e ) as taught by Koch as step (a) in claim 1.
Koch, paragraph 228, teaches the thus provided composition in step (f) is again concentrated by means of an evaporator at a temperature of below 60 °C and the concentration of dry matter is adjusted to a concentration within the range of from 70 wt.-% to 95 wt.-%, relative to the total weight of the composition.
Examiner interprets the step of adjusting the concentration 70 wt.-% to 95 wt- % relative to the total weight of the composition in step (g) as taught by Koch as step (b) in claim 1.
It 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 for the process to comprise steps (a)-(b)-(c)-(e)-(f)-(g)-(h) as taught by Koch as this is one possible combination of steps as taught by Koch.
The weight ranges taught in the references including the claimed range 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 as suitable based on the teaching of the references above.
Regarding claims 2, 4, 6, Koch, paragraph 171, teaches the product temperature in evaporators is preferably within the range of from 30 °C to 59 °C.
Regarding claims 8 and 10, Koch, paragraph 158, teaches evaporation is performed at reduced pressure, preferably at a vacuum within the range of from 1 mbar to 300 mbar.
Regarding claims 13-14, examiner interprets the step of adjusting the concentration 40 wt.-% to 70 wt- %, relative to the total weight of the composition as step (a) in claim 13.
Regarding claim 15, the process as taught by the reference is the same process as claimed in claim 1 and therefore it would be expected that the process as taught by the reference would result in a final product with the L* and/or a* and/or b* values as claimed in claim 15.
Regarding claim 17, the process as taught by the reference is the same process as claimed in claim 1 and therefore it would be expected that the process as taught by the reference would result in a ΔE as claimed in claim 17.
Regarding claim 18, examiner interprets the step of adjusting the concentration 70 wt.-% to 95 wt- %, relative to the total weight of the composition as step (b) in claim 1.
Regarding claim 20, Koch, paragraph 227, the thus provided composition is concentrated by means of an evaporator at a temperature of below 60 °C and the concentration of dry matter is adjusted to a concentration within the range of from 40 wt.-% to 70 wt- %, relative to the total weight of the composition.
Examiner interprets the step of adjusting the concentration 40 wt.-% to 70 wt- %, relative to the total weight of the composition as step (a) in claim 1.
It 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 that the composition before concentration is less than 40wt%.
Regarding claim 32, Koch, paragraph 227, the thus provided composition is concentrated by means of an evaporator at a temperature of below 60 °C and the concentration of dry matter is adjusted to a concentration within the range of from 40 wt.-% to 70 wt- %, relative to the total weight of the composition.
Examiner interprets the step of adjusting the concentration 40 wt.-% to 70 wt- %, relative to the total weight of the composition as step (a) in claim 1.
It 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 that the composition before concentration is less than 40wt%.
Regarding claim 35, Examiner interprets the step of adjusting the concentration 40 wt.-% to 70 wt- %, relative to the total weight of the composition as step (a) in claim 1.
Examiner interprets the concentration of 40 wt.-% to 70 wt- % as taught by Koch to be the starting material concentration as claimed in claim 35.
Koch, paragraph 228, teaches the thus provided composition is again concentrated by means of an evaporator at a temperature of below 60 °C and the concentration of dry matter is adjusted to a concentration within the range of from 70 wt.-% to 95 wt.-%, relative to the total weight of the composition.
Examiner interprets the concentration of 70 wt.-% to 95 wt- % as taught by Koch to be the aqueous solution concentration as claimed in claim 35.
Regarding claim 40, step (e ) is identical to step (g).
Regarding claim 44, Koch, paragraph 227, the thus provided composition is concentrated by means of an evaporator at a temperature of below 60 °C and the concentration of dry matter is adjusted to a concentration within the range of from 40 wt.-% to 70 wt- %, relative to the total weight of the composition.
Examiner interprets the step of adjusting the concentration 40 wt.-% to 70 wt- %, relative to the total weight of the composition as step (a) in claim 1.
Koch, paragraph 228, teaches the thus provided composition is again concentrated by means of an evaporator at a temperature of below 60 °C and the concentration of dry matter is adjusted to a concentration within the range of from 70 wt.-% to 95 wt.-%, relative to the total weight of the composition.
Examiner interprets the step of adjusting the concentration 70 wt.-% to 95 wt- %, relative to the total weight of the composition as step (b) in claim 1.
It 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 that the concentrating steps in step (e ) and step (g) can operate at different temperatures due to temperature fluctuations as long as it is operating below 60oC.
Regarding claim 46, Koch, paragraph 158, teaches evaporation is performed at reduced pressure, preferably at a vacuum within the range of from 1 mbar to 300 mbar in step (e ) and step (g).
Regarding claim 49, it 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 that the concentrating steps in step (e ) and step (g) can operate at different temperatures due to temperature fluctuations.
Allowable Subject Matter
Claim 39 is objected to as being dependent upon a rejected base claim, but would be allowable if rewritten in independent form including all of the limitations of the base claim and any intervening claims.
Although Koch teaches operating evaporators at a temperature of below 60 °C, Koch does not teach a step of evaporating water at a temperature of the starting material of at least 62oC.
There is no motivation in Koch to have a step of evaporating water at a temperature of the starting material of at least 62oC as claimed in claim 39.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
US20190330253 teaches producing allulose crystals.
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/STEFANIE J COHEN/Examiner, Art Unit 1732 11/20/25