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 .
Claim Objections
Claim 24 is objected to because of the following informalities:
Claim 24 recites the limitation “wherein the beverage is s fruit flavored soft drink” in line 1. It appears the letter “s” should be replaced with the letter “a” for grammatical purposes.
Appropriate correction is required.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102 of this title, 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 set forth in Graham v. John Deere Co., 383 U.S. 1, 148 USPQ 459 (1966), that are applied 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.
Claims 1, 5, 10-11, and 15-30 are rejected under 35 U.S.C. 103 as being unpatentable over Markosyan et al. WO 2019/177634 (cited on Information Disclosure Statement filed November 3, 2022) in view of Prakash et al. US 2014/0271996 (herein referred to as “Praksash et al. ‘996”), Baier et al. US 2017/0280751, and Prakash et al. US 2019/0116835 (herein referred to as “Prakash et al. ‘835”).
Regarding Claim 1, Markosyan et al. discloses a beverage (‘634, Page 34, lines 28-31) (‘634, Page 35, lines 1-3) comprising a combination of sweeteners of rebaudioside AM and rebaudioside M (‘634, Page 35, lines 4-27) in a sweetening amount (‘634, Page 42, lines 15-26). The beverage has a sweetness recognition threshold containing a sweetener that increases the detected sucrose equivalence of from about 1.0% to about 5.0% (‘634, Page 45, lines 23-27), which is close to but does not overlap the claimed beverage sucrose equivalence of from about 7 to about 10%. A prima facie case of obviousness exists where the claimed sucrose equivalence of the beverage does not overlap with the prior art but are merely close in view of Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (MPEP § 2144.05.I.). Furthermore, differences in the beverage sucrose equivalence will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such beverage sucrose equivalence is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). One of ordinary skill in the art would adjust the sucrose equivalence of the beverage of Markosyan et al. based upon the desired sweetness level of the beverage imparted by a sweetness enhancer that enhances or potentiating the sweet taste of the sweeteners without providing any noticeable sweet taste by themselves when present at or below the sweetness recognition threshold concentration of a given sweetness enhancer (‘634, Page 43, lines 1-13).
Markosyan et al. discloses the beverage being a carbonated soft drink beverage or a zero calorie beverage (‘634, Page 40, lines 21-28). However, Markosyan et al. is silent regarding the concentration of rebaudioside M in the beverage to be about 100 ppm to about 300 ppm of rebaudioside M.
Prakash et al. ‘996 discloses a zero calorie carbonated beverage comprising various beverage matrices and one or more additional sweeteners (‘996, Paragraph [0026]) wherein the carbonated beverage is a cola beverage soft drink (‘996, Paragraph [0175]) comprising a natural high potency sweetener of rebaudioside M in a concentration of from about 1 ppm to about 300 ppm (‘996, Paragraph [0232]), which encompasses the claimed concentration of rebaudioside M in the beverage to be about 100 ppm to about 300 ppm of rebaudioside M in the beverage.
Both Markosyan et al. and Prakash et al. ‘996 are directed towards the same field of endeavor of carbonated soft drink beverages or zero calorie beverages comprising rebaudioside M sweetener in combination with at least one other sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Markosyan et al. and incorporate rebaudioside M in the claimed concentration as taught by Prakash et al. ‘996 since where the claimed concentration of rebaudioside M in the beverage ranges overlaps concentration of rebaudioside M in the beverage ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of rebaudioside M in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of rebaudioside M in the beverage is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Baier et al. discloses a zero calorie carbonated cola beverage (‘751, Paragraph [0048]) or a carbonated soft drink (‘751, Paragraph [0023]) comprising Reb M (‘751, Paragraph [0045]) wherein the amount of sweeteners of Reb M is adjusted based on the desired level of sweetness of the beverage (‘751, Paragraph [0049]) wherein a beverage concentrate includes rebaudioside M in an amount such that upon dilution the final beverage contains about 20 ppm to about 600 ppm (‘751, Paragraph [0061]), which also overlaps the claimed concentration of rebaudioside M of about 100 ppm to about 300 ppm of the beverage. One of ordinary skill in the art would adjust the concentration of rebaudioside M in the beverage of Markosyan et al. based upon the desired level of sweetness of the beverage as taught by Baier et al. (‘751, Paragraph [0049]).
Further regarding Claim 1, Markosyan et al. modified with Prakash et al. ‘996 and Baier et al. is silent regarding the beverage comprising about 200 ppm to about 600 ppm rebaudioside AM. However, Markosyan et al. discloses the beverage comprising a sweetness enhancer of rebaudioside AM (‘634, Page 45, lines 13-22) wherein the sweetness enhancer enhances or potentiates the sweet taste of sweeteners without providing any noticeable sweet taste by themselves when present at or below the sweetness recognition threshold concentration of a given sweetness enhancer which sweetness recognition threshold concentration is specific for a particular enhancer and varies based on the beverage matrix (‘634, Page 43, lines 1-13). It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the concentration of rebaudioside AM of the beverage of Markosyan et al. to fall within the claimed rebaudioside AM concentration since differences in the concentration of rebaudioside AM in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of rebaudioside AM in the beverage is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Baier et al. discloses a zero calorie carbonated cola beverage (‘751, Paragraph [0048]) or a carbonated soft drink (‘751, Paragraph [0023]) comprising Reb M (‘751, Paragraph [0045]) wherein the amount of sweeteners is adjusted based on the desired level of sweetness of the beverage (‘751, Paragraph [0041]) and that a skilled person can adjust the types and amounts of other ingredients for creating beverages to achieve the desired taste effects (‘751, Paragraph [0110]). One of ordinary skill in the art would adjust the concentration of rebaudioside AM in the beverage of Markosyan et al. based upon the desired level of sweetness of the beverage as taught by Baier et al. (‘751, Paragraph [0041]).
Further regarding Claim 1, Markosyan et al. discloses the beverage comprising a beverage matrix (‘634, Page 43, lines 8-13) containing D-psicose sweetener (‘634, Page 44, lines 1-3). However, Markosyan et al. is silent regarding the beverage matrix comprising citric acid and/or phosphoric acid.
Prakash et al. ‘996 discloses the carbonated beverage (‘996, Paragraphs [0174]-[0175]) comprising citric acid buffer and one or more additional sweeteners and/or functional ingredients (‘996, Paragraph [0026]) wherein the one or more additional sweeteners of the beverage is D-psicose and rebaudioside M (‘996, Paragraph [0024]). The beverage comprises a liquid matrix containing phosphoric acid buffer and citric acid buffer (‘996, Paragraph [0177]). Baier et al. also discloses the carbonated beverage (‘996, Paragraph [0048]) comprising D-psicose and rebaudioside M (‘751, Paragraphs [0080]-[0081]) and food grade acids including citric acid and phosphoric acid for adjusting the pH of the beverage (‘751, Paragraph [0103]).
Markosyan et al., Prakash et al. ‘996, and Baier et al. are all directed towards the same field of endeavor of carbonated soft drink beverages or zero calorie beverages comprising rebaudioside M sweetener in combination with at least one other sweetener such as D-psicose. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Markosyan et al. and incorporate a beverage matrix into the beverage comprising citric acid and/or phosphoric acid as taught by Prakash et al. and Baier et al. in order to adjust the pH of the beverage to the desired pH levels using known buffers such as citric acid and/or phosphoric acid.
Further regarding Claim 1, Markosyan et al. discloses the beverage containing a steviol glycoside including rebaudioside AM in combination with one or more additives such as flavonoids (‘634, Page 37, lines 1-11) wherein the beverage has a sweetness recognition threshold containing a sweetener that increases the detected sucrose equivalence of from about 1.0% to about 5.0% (‘634, Page 45, lines 23-27), which is close to but does not overlap the claimed beverage sucrose equivalence of from about 7 to about 10%. In the event that it can be shown with objective evidence that the claimed sucrose equivalence of the beverage is critical, Prakash et al. ‘835 discloses a steviol glycoside blend sweetener comprising rebaudioside M in a sweetening amount (‘835, Paragraph [0025]) for a carbonated beverage (‘835, Paragraph [0232]) and at least one flavonoid compound in the consumable in an amount effective to enhance the sweetness of the consumable wherein the at least one flavonoid enhances the sucrose equivalence of the consumable by at least 1.2 fold to at least about 2.0 fold to at least about 5.0 fold when compared to the sucrose equivalence of the consumable in the absence of the at least one flavonoid (‘835, Paragraphs [0175]-[0176]). Using the disclosure of the embodiment of a beverage containing at least one flavonoid of Markosyan et al. having a sucrose equivalence with from about 1.0% to about 5.0% with the flavonoid of Prakash et al. ‘835 that teaches incorporating a particular flavonoid into a beverage that increases the sucrose equivalence of the beverage by at least 2.0 fold, the combination of Markosyan et al. modified with the flavonoid of Prakash et al. ‘835 yields a particular carbonated beverage having a sucrose equivalence of about 2.0% to about 10.0%, which overlaps the claimed sucrose equivalence of the beverage of from about 7% to about 10%.
Both Markosyan et al. and Prakash et al. ‘835 are directed towards the same field of endeavor of carbonated beverages. The carbonated beverages of Markosyan et al. both contain rebaudioside M and at least one flavonoid. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the carbonated beverage of Markosyan et al. that contains a generic flavonoid and incorporate the flavonoid that increases beverage sucrose equivalence by at least 2.0 fold as taught by Prakash et al. since where the claimed beverage sucrose equivalence overlaps beverage sucrose equivalence ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). One of ordinary skill in the art would adjust the beverage sucrose equivalence of the beverage of Markosyan et al. by adding the particular flavonoid that increases beverage sucrose equivalence disclosed by Prakash et al. ‘835 based upon the desired sweetness intensity of the beverage while maintaining the low calories of the beverage.
Regarding Claim 5, Prakash et al. ‘996 discloses a natural high potency sweetener of rebaudioside M in a concentration of from about 1 ppm to about 300 ppm (‘996, Paragraph [0232]), which overlaps the claimed concentration of rebaudioside M in the beverage to be about 100 ppm to about 250 ppm of rebaudioside M in the beverage. Both Markosyan et al. and Prakash et al. ’996 are directed towards the same field of endeavor of carbonated soft drink beverages or zero calorie beverages comprising rebaudioside M sweetener in combination with at least one other sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Markosyan et al. and incorporate rebaudioside M in the claimed concentration as taught by Prakash et al. ‘996 since where the claimed concentration of rebaudioside M in the beverage ranges overlaps concentration of rebaudioside M in the beverage ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of rebaudioside M in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of rebaudioside M in the beverage is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Baier et al. discloses a zero calorie carbonated cola beverage (‘751, Paragraph [0048]) or a carbonated soft drink (‘751, Paragraph [0023]) comprising Reb M (‘751, Paragraph [0045]) wherein the amount of sweeteners of Reb M is adjusted based on the desired level of sweetness of the beverage (‘751, Paragraph [0049]) wherein a beverage concentrate includes rebaudioside M in an amount such that upon dilution the final beverage contains about 20 ppm to about 600 ppm (‘751, Paragraph [0061]), which also overlaps the claimed concentration of rebaudioside M of about 100 ppm to about 250 ppm of the beverage. One of ordinary skill in the art would adjust the concentration of rebaudioside M in the beverage of Markosyan et al. based upon the desired level of sweetness of the beverage as taught by Baier et al. (‘751, Paragraph [0049]).
Regarding Claims 10-11, Markosyan et al. discloses the beverage being a carbonated soft drink beverage or a zero calorie beverage (‘634, Page 40, lines 21-28), which reads on the claimed beverage having less than about 5 calories per 8 ounce serving.
Regarding Claim 15, Markosyan et al. modified with Prakash et al. ‘996, Baier et al., and Prakash et al. ‘835 is silent regarding the concentration of rebaudioside AM in the beverage to be from about 100 ppm to about 500 ppm rebaudioside AM or from about 200 ppm to about 500 ppm rebaudioside AM. However, Markosyan et al. discloses the beverage comprising a sweetness enhancer of rebaudioside AM (‘634, Page 45, lines 13-22) wherein the sweetness enhancer enhances or potentiates the sweet taste of sweeteners without providing any noticeable sweet taste by themselves when present at or below the sweetness recognition threshold concentration of a given sweetness enhancer which sweetness recognition threshold concentration is specific for a particular enhancer and varies based on the beverage matrix (‘634, Page 43, lines 1-13). It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the concentration of rebaudioside AM to fall within the claimed rebaudioside AM concentration since differences in the concentration of rebaudioside AM in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of rebaudioside AM in the beverage is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Baier et al. discloses a zero calorie carbonated cola beverage (‘751, Paragraph [0048]) or a carbonated soft drink (‘751, Paragraph [0023]) comprising Reb M (‘751, Paragraph [0045]) wherein the amount of sweeteners is adjusted based on the desired level of sweetness of the beverage (‘751, Paragraph [0041]) and that a skilled person can adjust the types and amounts of other ingredients for creating beverages to achieve the desired taste effects (‘751, Paragraph [0110]). One of ordinary skill in the art would adjust the concentration of rebaudioside AM in the beverage of Markosyan et al. based upon the desired level of sweetness of the beverage as taught by Baier et al. (‘751, Paragraph [0041]).
Regarding Claims 16-20, Prakash et al. ‘996 discloses a zero calorie carbonated beverage comprising various beverage matrices and one or more additional sweeteners (‘996, Paragraph [0026]) wherein the carbonated beverage is a cola beverage soft drink (‘996, Paragraph [0175]) comprising a natural high potency sweetener of rebaudioside M in a concentration of from about 1 ppm to about 300 ppm (‘996, Paragraph [0232]), which encompasses the claimed concentration of rebaudioside M in the beverage to be about 100 ppm to about 250 ppm (Claim 16), about 100 ppm to about 200 ppm (Claim 17), about 175 ppm to about 225 ppm (Claim 18), about 200 ppm to about 300 ppm (Claim 19), and about 200 ppm to about 300 ppm (Claim 20) of rebaudioside M in the beverage.
Both Markosyan et al. and Prakash et al. ‘996 are directed towards the same field of endeavor of carbonated soft drink beverages or zero calorie beverages comprising rebaudioside M sweetener in combination with at least one other sweetener. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Markosyan et al. and incorporate rebaudioside M in the claimed concentration as taught by Prakash et al. ‘996 since where the claimed concentration of rebaudioside M in the beverage ranges overlaps concentration of rebaudioside M in the beverage ranges disclosed by the prior art, a prima facie case of obviousness exists in view of 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) (MPEP § 2144.05.I.). Furthermore, differences in the concentration of rebaudioside M in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of rebaudioside M in the beverage is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Baier et al. discloses a zero calorie carbonated cola beverage (‘751, Paragraph [0048]) or a carbonated soft drink (‘751, Paragraph [0023]) comprising Reb M (‘751, Paragraph [0045]) wherein the amount of sweeteners of Reb M is adjusted based on the desired level of sweetness of the beverage (‘751, Paragraph [0049]) wherein a beverage concentrate includes rebaudioside M in an amount such that upon dilution the final beverage contains about 20 ppm to about 600 ppm (‘751, Paragraph [0061]), which also overlaps the claimed concentration of rebaudioside M of about 100 ppm to about 250 ppm (Claim 16), about 100 ppm to about 200 ppm (Claim 17), about 175 ppm to about 225 ppm (Claim 18), about 200 ppm to about 300 ppm (Claim 19), and about 200 ppm to about 300 ppm (Claim 20) of the beverage. One of ordinary skill in the art would adjust the concentration of rebaudioside M in the beverage of Markosyan et al. based upon the desired level of sweetness of the beverage as taught by Baier et al. (‘751, Paragraph [0049]).
Further regarding Claims 16-20, Markosyan et al. modified with Prakash et al. ‘996, Baier et al., and Prakash et al. ‘835 is silent regarding the beverage comprising from about 200 ppm to about 350 ppm (Claim 16), about 200 to about 300 ppm (Claim 17), about 275 ppm to about 325 ppm (Claim 18), about 400 ppm to about 600 ppm (Claim 19), or about 450 ppm to about 550 ppm (Claim 20) rebaudioside AM. However, Markosyan et al. discloses the beverage comprising a sweetness enhancer of rebaudioside AM (‘634, Page 45, lines 13-22) wherein the sweetness enhancer enhances or potentiates the sweet taste of sweeteners without providing any noticeable sweet taste by themselves when present at or below the sweetness recognition threshold concentration of a given sweetness enhancer which sweetness recognition threshold concentration is specific for a particular enhancer and varies based on the beverage matrix (‘634, Page 43, lines 1-13). It would have been obvious to one of ordinary skill in the art at the time of the invention to adjust the concentration of rebaudioside AM to fall within the claimed rebaudioside AM concentration since differences in the concentration of rebaudioside AM in the beverage will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration of rebaudioside AM in the beverage is critical. Where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation in view of In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955) (MPEP § 2144.05.II.A.). Baier et al. discloses a zero calorie carbonated cola beverage (‘751, Paragraph [0048]) or a carbonated soft drink (‘751, Paragraph [0023]) comprising Reb M (‘751, Paragraph [0045]) wherein the amount of sweeteners is adjusted based on the desired level of sweetness of the beverage (‘751, Paragraph [0041]) and that a skilled person can adjust the types and amounts of other ingredients for creating beverages to achieve the desired taste effects (‘751, Paragraph [0110]). One of ordinary skill in the art would adjust the concentration of rebaudioside AM in the beverage of Markosyan et al. based upon the desired level of sweetness of the beverage as taught by Baier et al. (‘751, Paragraph [0041]).
Regarding Claims 21-23, Prakash et al. ‘996 discloses the beverage matrix comprising citric acid and phosphoric acid (‘996, Paragraphs [0177]). Baier et al. also discloses the beverage matrix comprising citric acid and phosphoric acid for adjusting the pH of the beverage (‘751, Paragraph [0103]). Prakash et al. ‘835 also discloses the beverage matrix comprising citric acid and phosphoric acid (‘835, Paragraph [0234]). Markosyan et al., Prakash et al. ‘996, and Baier et al. are all directed towards the same field of endeavor of carbonated soft drink beverages or zero calorie beverages comprising rebaudioside M sweetener in combination with at least one other sweetener such as D-psicose. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the beverage of Markosyan et al. and incorporate a beverage matrix into the beverage comprising citric acid and/or phosphoric acid as taught by Prakash et al. and Baier et al. in order to adjust the pH of the beverage to the desired pH levels using known buffers such as citric acid and/or phosphoric acid.
Regarding Claim 24, Markosyan et al. discloses the beverage being a fruit flavored soft drink (‘634, Page 40, lines 21-32) and the consumable product containing the steviol glycosides having unlimited applications (‘634, Page 41, lines 5-6). Baier et al. also discloses the beverage being a carbonated fruit juice (‘751, Paragraph [0007]). One of ordinary skill in the art would apply the steviol glycoside composition of modified Markosyan et al. to the desired type of beverage while imparting the desired sweetness.
Regarding Claim 25, Markosyan et al. discloses the beverage being a lemon-lime soft drink (‘634, Page 34, lines 9-17) (‘634, Page 40, lines 21-27).
Regarding Claim 26, Markosyan et al. discloses the beverage being a cola (‘634, Page 34, lines 15-17). Prakash et al. ‘996 also discloses the beverage being a cola (‘996, Paragraph [0175]).
Regarding Claims 27-28, Markosyan et al. discloses the beverage being a zero calorie beverage (‘634, Page 39, lines 26-32) (‘634, Page 41, lines 7-12), which reads on the claimed beverage having up to about 120 calories per 8 ounce serving or the beverage having up to about 60 calories per 8 ounce serving, i.e. the beverage has zero calories per 8 ounce serving.
Regarding Claim 29, Markosyan et al. discloses the beverage comprising rebaudioside D (‘634, Page 35, lines 4-11).
Regarding Claim 30, the limitations “wherein the beverage reduces bitterness compared to a corresponding beverage without rebaudioside AM” are limitations pertaining to the properties of a beverage containing rebaudioside AM. Markosyan et al. modified with Prakash et al. ‘996, Baier et al., and Prakash et al. ‘835 renders obvious the claimed beverage comprising rebaudioside AM as discussed above. Where the claimed and prior art products are identical or substantially identical in structure or composition, a prima facie case of obviousness has been established in view of In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977) (MPEP § 2112.01.I.). One of ordinary skill in the art would expect the beverage of modified Markosyan et al. to have the same properties as claimed, i.e. the beverage reduces bitterness compared to a corresponding beverage without rebaudioside AM since products of identical chemical composition can not have mutually exclusive properties in view of In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990) (MPEP § 2112.01.II.). Furthermore, Baier et al. discloses the zero calorie beverage incorporating L-pyroglutamic acid to reduce the bitterness of the zero calorie beverage (‘751, Paragraphs [0118]-[0119]). It would have been obvious to one of ordinary skill in the art to modify the zero calorie beverage of Markosyan et al. and incorporate a bitterness reducing agent such as L-pyroglutamic acid as taught by Baier et al. in order to reduce the bitterness of the beverage to the desired amount.
Response to Arguments
Examiner notes that the previous indefiniteness rejections under 35 USC 112(b) have been withdrawn in view of the amendments.
Examiner notes that a new Claim Objection has been made in view of the amendments.
Applicant’s arguments with respect to the obviousness rejections of Claims 1, 5, 10-11, and 15-30 have been considered but are moot because the new ground of rejection does not rely on the combination of references applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Regarding applicant’s allegations on Page 6 of the Remarks that Examples 2-3 of applicant’s specification allegedly shows the criticality the claimed rebaudioside M and rebaudioside AM ranges, changes in proportions of agents used in combinations…in order to be patentable, must be critical as compared with the proportions of the prior processes in view of In re Lilienfeld, 67 F.2d 920, 924 (CCPA 1933) (MPEP § 2144.05.III.A.). Prakash et al. ‘996 discloses a zero calorie carbonated beverage comprising various beverage matrices and one or more additional sweeteners (‘996, Paragraph [0026]) wherein the carbonated beverage is a cola beverage soft drink (‘996, Paragraph [0175]) comprising a natural high potency sweetener of rebaudioside M in a concentration of from about 1 ppm to about 300 ppm (‘996, Paragraph [0232]), which encompasses the claimed concentration of rebaudioside M in the beverage to be about 100 ppm to about 300 ppm of rebaudioside M in the beverage. Prakash et al. ‘996 already teaches using the claimed concentration of rebaudioside M in beverages. The claimed rebaudioside M concentration is not novel since Prakash et al. ‘996 already explicitly uses these claimed amounts in beverages. With respect to applicant’s data in Examples 2-3 pertaining to the claimed concentration of rebaudioside AM of about 200 ppm to about 600 ppm, it is noted that no data is provided for beverages having a rebaudioside AM concentration above the claimed rebaudioside AM concentration, i.e. no data is provided for beverages having concentration of rebaudioside AM of about 600 ppm. Where the issue of criticality is involved, the applicant has the burden of establishing his position by a proper showing of the facts upon which he relies in view of In re Scherl, 156 F.2d 72, 74-75, 70 USPQ 204, 205 (CCPA 1946) (MPEP § 2144.05.III.A.). To establish unexpected results over a claimed range, applicants should compare a sufficient number of tests both inside and outside the claimed range to show the criticality of the range in view of In re Hill, 284 F.2d 955, 128 USPQ 197 (CCPA 1960) (MPEP § 716.02(d).II.). Since applicant has not provided any data pertaining to beverages having a concentration of rebaudioside of 600 ppm, i.e. above the claimed concentration range of rebaudioside AM, one of ordinary skill in the art cannot deduce how beverages above the claimed concentration range of rebaudioside AM would behave. Therefore, applicant has not satisfied the requirement of providing objective evidence showing the alleged criticality of the claimed rebaudioside AM concentration range of about 200 ppm to about 600 ppm.
Regarding applicant’s arguments on Page 7 of the Remarks that there is no motivation to prepare a beverage which specifically includes rebaudioside AM and rebaudioside M from the large list of possible compounds purified by the methods of Markosyan et al. and that Markosyan et al. provides no sensory data at all, Markosyan et al. teaches the glycoside containing a combination of rebaudioside M and rebaudioside AM (‘634, Page 35, lines 4-27). A reference may be relied upon for all that it would have reasonably suggested to one having ordinary skill in the art in view of Merck & Co. v. Biocraft Labs., Inc. 874 F.2d 804, 10 USPQ2d 1843 (Fed. Cir. 1989), cert. denied, 493 U.S. 975 (1989). See also Upsher-Smith Labs. v. Pamlab, LLC, 412 F.3d 1319, 1323, 75 USPQ2d 1213, 1215 (Fed. Cir. 2005) (MPEP § 2123.I.). Markosyan et al. teaches an embodiment including both claimed sweetening compounds of rebaudioside M and rebaudioside AM. Therefore, this argument is not found persuasive.
Examiner notes that applicant’s comments on Page 7 of the Remarks regarding the sucrose equivalence of about 7 to about 10% are moot since the secondary reference of Prakash et al. ‘835 is being relied upon to teach adjusting the sucrose equivalence of a beverage to the claimed sucrose equivalence ranges.
Regarding applicant’s comments on Page 8 of the Remarks that the secondary references do not teach beverages containing rebaudioside AM, the rejection is an obviousness rejection based on a combination of references. The primary reference of Markosyan et al. already teaches the beverage having rebaudioside AM. In response to applicant's arguments against the references individually, one cannot show nonobviousness by attacking references individually where the rejections are based on combinations of references. See In re Keller, 642 F.2d 413, 208 USPQ 871 (CCPA 1981); In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986). Therefore, these arguments are not found persuasive.
Examiner notes that applicant’s comments on Page 8 of the Remarks that Prakash discloses a beverage comprising D-psicose and Baier discloses a beverage comprising PGA, it is noted that the transitional phrase “comprising” is an open ended transitional phrase that does not preclude the presence of unclaimed elements, e.g. D-psicose and/or PGA. Therefore, these arguments are not found persuasive.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Nattress et al. US 2019/0124953 discloses a zero or reduced calorie soft drink beverage (‘953, Paragraph [0026]) exhibiting a statistically significant reduction in bitterness in bitter sensation relative to a comparative beverage comprising 200 ppm rebaudioside M, 100 ppm rebaudioside A, and 100 ppm rebaudioside (‘953, Paragraph [0036]).
Purkayastha et al. US 2018/0317534 discloses a diet carbonated soft drink comprising a highly purified Reb M/Reb D blend (‘534, Paragraph [0016]) wherein adding one or more fructose molecules to rebaudioside A provides flavor and sweetness profile advantages (‘534, Paragraph [0025]) wherein glycosylated steviol glycoside provides reduced bitterness, astringency, off not and bitter aftertaste.
Higiro et al. US 2018/0289051 discloses a soft drink beverage (‘051, Paragraph [0364]) comprising a ternary blend of rebaudiosides M, D, and B containing allulose wherein the allulose improves the sensory characteristics regardless of the blend by reducing the sweet lingering and bitter aftertaste (‘051, Paragraph [0418]).
Te Poele et al. US 2018/0044708 discloses a carbonated soft drink beverage (‘708, Paragraph [0060]) comprising
Carlson et al. US 2018/0289050 discloses a method of determining bitterness of a glycoside composition by measuring caffeine equivalent values (‘050, Paragraph [0011]).
Jackson et al. US 2019/0350242 discloses the phrase “sucrose equivalence” is the amount of non-sucrose sweetener required to provide the sweetness of a given percentage of sucrose in the same food, beverage, or solution, e.g. a non-diet soft drink typically contains 12 grams of sucrose per 100 ml of water, i.e. 12% sucrose and that to be commercially accepted diet soft drinks must have the same sweetness as a 12% sucrose soft drink, i.e. a diet soft drink must have 12% sucrose equivalence (“SE”) (‘242, Paragraph [0038]).
Walton et al. US 2019/0200645 discloses a carbonated beverage (‘645, Paragraph [0017]) that is a reduced calorie beverage including naringenin and rebaudioside M (‘645, Paragraph [0033]) wherein the steviol glycosides are included in combination if naringenin in a beverage and present at levels suitable to provide a sucrose equivalent sweetness level of greater than about 50% or greater than about 80% of that typical of a full calorie beverage (‘645, Paragraph [0042]).
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). 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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/ERICSON M LACHICA/Examiner, Art Unit 1792