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 .
This office action is in response to the application filed on February 28, 2023. The earliest effective filing date of the application is December 7, 2020.
Priority
The present application is a 371 National Stage Application of PCT/CN2021/134591 which has a filing date of November 30, 2021.
Status of Application
The amendment filed December 30, 2025 with the Remarks has been entered. The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1 – 10 and 13 – 17
Withdrawn claims: 2 – 9
Previously cancelled claims: 11
Newly cancelled claims: 12
Amended claims: 1
Claims currently under examination: 1, 10 and 13 – 17
The status of the objections and rejections regarding the disclosure upon entry of the present amendment stands as follows:
Objections: None.
Withdrawn Rejections: The rejections of claim 12 are withdrawn due to the cancellation of claim 12. The previous rejections over 35 U.S.C. § 112(b) of claims 1, 10 and 13 – 17 are withdrawn in light of applicant’s amendments. The previous rejections over 35 U.S.C. § 103 over Liu of claims 1, 10 and 13 – 17 are withdrawn in light of applicant’s amendments.
35 U.S.C. § 112 Rejections: New rejections over 35 U.S.C. § 112(d) of claims 13 – 17 are presented below.
35 U.S.C. § 103 Rejections: New rejections over 35 U.S.C. § 103 of claims 1, 10 and 13 – 17 over Liu are presented below.
Claim Interpretation
Claim 1 recites “A sweetener liquid for preventing and relieving intestinal sugar alcohol intolerance” in the preamble of the claim. MPEP § 2111.02.II teaches, “[i]f the body of a claim fully and intrinsically sets forth all of the limitations of the claimed invention, and the preamble merely states, for example, the purpose or intended use of the invention, rather than any distinct definition of any of the claimed invention’s limitations, then the preamble is not considered a limitation and is of no significance to claim construction.” In the instant case, the noted preamble merely states the purpose or intended use of the claimed composition. Therefore, the preamble does not limit the claim.
Claim 1 recites the term “low-molecular weight pectin” which is interpreted broadly to encompass any pectin absent an objective metric by which to determine what makes a pectin “low-molecular weight”.
Claim 1 recites the term “low-sugar fruit juice” which is interpreted broadly to encompass any fruit juice absent an objective metric by which to determine what makes a fruit juice “low-sugar”. As stated in the instant specification, low-sugar fruit include pomelo, cherry and guava ([0025]). Therefore fruit juices of pomelo, cherry and guava are considered to be “low-sugar” fruit juices.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(d):
(d) REFERENCE IN DEPENDENT FORMS.—Subject to subsection (e), a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
The following is a quotation of pre-AIA 35 U.S.C. 112, fourth paragraph:
Subject to the following paragraph [i.e., the fifth paragraph of pre-AIA 35 U.S.C. 112], a claim in dependent form shall contain a reference to a claim previously set forth and then specify a further limitation of the subject matter claimed. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
Claims 13 – 17 are rejected under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends.
Claims 13 – 17 recite component amounts that change the composition of claim 1, as opposed to further limiting claim 1. Prior to the present amendment, claim 1 recited ranges of component amounts which claims 13 – 17 narrowed. Applicant may cancel the claim(s), amend the claim(s) to place the claim(s) in proper dependent form, rewrite the claim(s) in independent form, or present a sufficient showing that the dependent claim(s) complies with the statutory requirements.
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 (i.e., changing from AIA to pre-AIA ) 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, 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, 10, and 13 – 17 are rejected under 35 U.S.C. 103 as being unpatentable over Liu et al. (CN 111602804 A – IDS Filed February 28, 2023 – Clarivate Machine Translation Filed with Restriction Requirement on June 4, 2025) in view of Saraiva et al. (Maltitol: Analytical Determination Methods, Applications in the Food Industry, Metabolism and Health Impacts. Int. J. Environ. Res. Public Health. Vol. 17. 28 pages. (July 20, 2020) – Filed with Restriction Requirement on June 4, 2025), Takeda et al. (Sugar Alcohol-Induced Diarrhea and Antidiarrhea Effect of Polysaccharides. In: Chocolate, Fast Foods, and Sweeteners: Consumption and Health. Pp. 105 – 127. (2010)), Yang (CN 110357986 A – IDS Filed on February 28, 2023 – Clarivate Machine Translation), Dunstan et al. (Structure and rheology of the κ-carrageenan/locust bean gum gels. Food Hydrocolloids. Vol 15. Pp. 475 – 484. (2001)), and Brandenstein et al. (Sweetness and other sensory properties of model fruit drinks: does viscosity have an impact? J Sci Food Agric. Vol 95. Pp. 809 – 818. (2015)) as evidenced by Wan et al. ("Calcium-induced-gel properties for low methoxyl pectin in the presence of different sugar alcohols," Food Hydrocolloids, August 2020, 112(2021):106252, 11 pages – IDS Filed February 28, 2023).
Regarding claim 1, Liu teaches a low-ester pectin sugar alcohol gel suitable for low-calorie foods (p. 2, paragraph 4). Liu teaches the gel comprises 5 – 30 wt% erythritol and 0.3 – 2% low-ester pectin (p. 2, paragraphs 9 and 11). Liu teaches the erythritol and low-ester pectin are mixed with a buffer solution to control the gel pH to be within 2 – 8 (p. 2, paragraph 7).
The range of low-ester pectin sugar alcohol gel (i.e., sweetener liquid) pH, 2 – 8, as disclosed by Liu, overlaps with the claimed range of 5 – 6.5. MPEP § 2114.05 teaches that it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have selected the overlapping portion of the ranges disclosed by the reference because selection of overlapping portion of ranges has been held to be a prima facie case of obviousness.
With respect to the total amount of sugar alcohols in the sweetener liquid of claim 1, Liu teaches the gel comprises 5 – 30 wt% erythritol, as stated above (p. 2, paragraphs 9 and 11). While Liu does not disclose the content of erythritol in g/100 mL, absent evidence to the contrary, one of ordinary skill in the art would reasonably assume 100 mL of the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) of Liu has about the density of water (i.e., 1g/mL). Therefore, Liu teaches the gel comprises about 5 – 30g/ 100mL erythritol. Liu teaches the invention uses sugar alcohol as sweetening agent and texture modifying agent is added to the low ester pectin gel (Abstract). Liu teaches the invention can ensure the sweetening of low ester pectin gel by controlling the dosage of erythritol and low ester pectin, at the same time, ensuring the property of pectin is not influenced, realizing low heat of pectin gel (p. 4, paragraph 1).
While Liu does not teach the total amount of sugar alcohols in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) is 45 g/100 mL, one of ordinary skill in the art would have adjusted the amount of sugar alcohols in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) during routine optimization to find the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) with the desired sweetness and texture. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed total sugar alcohol amount, 45 g/100 mL, would thus be obvious.
With respect to the precisely claimed amounts of xylitol, maltitol, and sorbitol in the sweetener liquid of claim 1, Liu contemplates using xylitol and sorbitol in place of erythritol, and while xylitol and sorbitol do not offer the same elasticity and strength to the gel as erythritol, all three sugar alcohols reduce the gel strength and elasticity of pectin, as evidenced by Wan (p. 3, Figure 1).
Furthermore, while Liu does not teach the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) comprises maltitol, Saraiva teaches maltitol syrup is an excellent polyol for pectin jellies (p. 16, paragraph 1). Saraiva teaches while producing pectin jellies, their final moisture content can slightly increase (0.3 ± 0.5%) to obtain a similar texture and shelf life to traditional glucose sucrose jellies (p. 16, paragraph 1). Saraiva teaches of all sugar alcohols, maltitol most resembles sugar flavor (p. 19, paragraph 1). Saraiva teaches maltitol does not facilitate tooth decay because it cannot be fermented by oral bacteria (p. 19, paragraph 2).
Liu and Saraiva are combinable because they are concerned with the same field of endeavor, namely, sugar alcohols. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced some of the erythritol in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) of Liu with maltitol, as taught by Saraiva because, when added to a pectin jelly, maltitol provides a similar texture compared to glucose and sucrose. Additionally, of all sugar alcohols, maltitol most resembles sugar flavor without facilitating tooth decay.
While Liu does not teach the low-ester pectin sugar alcohol gel comprises 30g xylitol, 10g of maltitol, and 5g of sorbitol per 100 mL, one of ordinary skill in the art would have adjusted the sugar alcohol content of the composition to comprise xylitol, sorbitol, and maltitol during routine optimization to achieve a low-ester pectin gel with the desired gel sweetness, elasticity and strength. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed xylitol, maltitol, and sorbitol, content in the sweetener liquid, 30g of xylitol, 10g of maltitol, and 5g of sorbitol per 100 mL, would thus be obvious.
With respect to the total amount of low-esterification pectin in the sweetener liquid of claim 1, Liu teaches the gel comprises 0.3 – 2% low-ester pectin (p. 2, paragraphs 9 and 11). While Liu does not disclose the content of low-ester pectin in g/100 mL, absent evidence to the contrary, one of ordinary skill in the art would reasonably assume 100 mL of the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) of Liu has about the density of water (i.e., 1g/mL). Therefore, Liu teaches the gel comprises about 0.3 – 2g/ 100mL low-ester pectin.
Liu teaches a greater concentration of low-ester pectin in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid), than what is recited in claim 1 (0.02 g/100/ mL), claim 1 of the instant invention also claims 0.05g/ 100 mL of κ-carrageenan and 0.2g/100 mL of locust bean gum, totaling 0.27g/100 mL of thickeners (i.e., polysaccharides) in the sweetener liquid.
Liu does not teach the low-ester pectin sugar alcohol gel comprises 0.27g/100 mL of thickeners (i.e., polysaccharides).
Takeda investigates the antidiarrheal effect of polysaccharides in food containing sugar alcohols. Takeda teaches as the amount of polysaccharide in the food increases, the greater the amount of relief (p. 109, Table 2; p. 111, Table 4). Takeda also teaches that increasing the amount of certain polysaccharides such as xanthan gum may cause gastrointestinal distress due to distension (p. 112, paragraph 1).
Liu and Takeda are combinable because they are concerned with the same field of endeavor, namely, foods comprising sugar alcohols and pectin. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have adjusted the amount of total thickeners (i.e., polysaccharides) in the composition of Liu to be 0.27g/100 mL, as taught by Takeda because one of ordinary skill in the art would have balanced the degree of diarrheal relief with gastrointestinal distress from distention.
Liu does not teach the low-ester pectin sugar alcohol gel comprises 0.05g/100 mL κ-carrageenan.
Saraiva teaches while producing pectin jellies a small amount (0.4 ± 0.5%, which is about 0.01 – 0.9 g/100 mL) of carrageenan (i.e., κ-carrageenan) can be added to increase the firmness of products stored at high temperature and humidity (p. 16, paragraph 1).
It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced some of the low-ester pectin with carrageenan (i.e., κ-carrageenan) such that the carrageenan comprises 0.05g/ 100mL, as taught by Saraiva in the composition of Liu because carrageenan (i.e., κ-carrageenan) increases the firmness of products stored at high temperature and humidity, and carrageenan (i.e., κ-carrageenan) is a thickener and stabilizer like low-ester pectin. MPEP § 2144.06.II states an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
Liu does not teach the low-ester pectin sugar alcohol gel comprises 0.2g/ 100mL locust bean gum.
Dunstan teaches the κ-carrageenan/locust bean gum system has been studied extensively since LBG was found to be effective in improving the apparent gel strength (p. 475, paragraph 3). Dunstan teaches such ‘synergistic’ effects were first found when κ-carrageenan solution was diluted to a concentration too low to gel by itself, but formed a gel upon LBG addition (p. 475, paragraph 3). Dunstan teaches gel set temperature with increasing locust bean gum ratio corresponds to the effective reduction in κ-carrageenan concentration (p. 484, paragraph 4). Therefore, the ratio of locust bean gum to carrageenan is a result-effective variable.
Liu and Dunstan are combinable because they are concerned with the same field of endeavor, namely, thickeners. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced some of the low-ester pectin with locust bean gum, as taught by Dunstan in the composition of Liu because locust bean gum, when combined with carrageenan, enhances the apparent gel strength of a composition, and locust bean gum is a thickener and stabilizer like low-ester pectin. MPEP § 2144.06.II states an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
One of ordinary skill in the art would have adjusted the concentration of locus bean gum relative to the carrageenan in the low-ester pectin sugar alcohol gel during routine optimization to find the low-ester pectin sugar alcohol gel with the desired gel set temperature. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed concentration of locust bean gum in the low-ester pectin sugar alcohol gel, 0.2g/ 100mL, would thus be obvious.
While Liu does not teach the low-ester pectin sugar alcohol gel comprises 0.02g/ 100mL low-ester pectin, one of ordinary skill in the art would have adjusted the concentration of low-ester pectin, carrageenan, and locust bean gum during routine optimization to find the low-ester pectin sugar alcohol gel with the desired gel strength, elasticity, and set temperature. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed concentration of low-ester pectin in the low-ester pectin sugar alcohol gel, 0.02g/ 100mL, would thus be obvious.
Liu does not teach the low-ester pectin is a pectin concentrate comprising calcium citrate, low-molecular-weight pectin, ethylene glycol, carboxymethyl cellulose sodium, and sodium citrate, nor does Liu teach the low-molecular-weight pectin comprises low-sugar fruit juice and a lemon juice.
Yang teaches a low-fat pectin colloid additive comprising 5 – 10 parts of calcium citrate, 40 – 50 parts of the low molecular weight pectin, 70 – 80 parts of ethylene glycol, 4 – 5 parts of sodium carboxymethyl cellulose and 18 – 20 parts of sodium citrate (p. 3, paragraphs 3 and 10); and wherein the low molecular weight pectin is derived from a low-sugar fruit such as guava, pawpaw, cherry, grapefruit, and pH balanced with lemon juice (p. 3, paragraphs 4, 12, and 13). Therefore the low molecular weight pectin of Yang comprises low-sugar fruit juice and lemon juice. Yang teaches the low-fat pectin colloid additive has excellent dispersibility (p. 4, paragraph 1). Yang teaches the low-fat pectin colloid additive is able to form a gel across wide concentration ranges (p. 4 paragraph 2).
Liu and Yang are combinable because they are concerned with the same field of endeavor, namely, low-ester pectins. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to use the low-fat pectin colloid additive of Yang as the low-ester pectin in the low-ester pectin sugar alcohol gel of Liu because the low-fat pectin colloid additive of Yang has superior dispersibility and gelation properties across wide concentration ranges.
The table below shows a representative composition of Yang with the relative weight ratios of each component adjusted to be as close to the instant claim 1 proportions as possible, compared to the composition of claim 1 of the instant application. The composition of Yang is similar to that of claim 1, however Yang does not disclose a composition with proportions identical to those of claim 1.
Component
Claim 1 – weight ratios within pectin concentrate
Yang - parts of low-fat pectin colloid additive
Yang – normalized weight ratios within pectin colloid additive
Obviousness Analysis
Calcium citrate
15
10
13
Merely close
Low-molecular-weight pectin
60
46
59.8
Merely close
Ethylene glycol
85
70
91
Merely close
Sodium carboxymethyl cellulose
5
4
5.2
Merely close
Sodium citrate
30
20
26
Merely close
Total
195
150
195
Merely close
Regarding the similar proportions of each component of the pectin concentrate of the instant application and the low-fat pectin colloid additive of Yang, MPEP § 2144.05.I states “a prima facie case of obviousness exists where the claimed ranges or amounts do not overlap with the prior art but are merely close. Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 783, 227 USPQ 773, 779 (Fed. Cir. 1985) (Court held as proper a rejection of a claim directed to an alloy of "having 0.8% nickel, 0.3% molybdenum, up to 0.1% iron, balance titanium" as obvious over a reference disclosing alloys of 0.75% nickel, 0.25% molybdenum, balance titanium and 0.94% nickel, 0.31% molybdenum, balance titanium. "The proportions are so close that prima facie one skilled in the art would have expected them to have the same properties.").” In the instant case, the proportions of the pectin concentrate of the instant application and the low-fat pectin colloid additive of Yang are so close, one skilled in the art would have expected them to have the same properties.
With regards to the “ethylene glycol” as recited in the instant application and the Yang reference, it is noted that ethylene glycol is toxic. The original specification, which was published as WO 2022/121739, refers to
PNG
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36
152
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Greyscale
as ethylene glycol in the English translation. Yang also teaches the same glycol, recited as
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media_image2.png
34
188
media_image2.png
Greyscale
. Both references are teaching the same component.
Liu does not teach the low-ester pectin sugar alcohol gel has a viscosity of 0.1 to 25 mPa s.
Brandenstein teaches different viscosity levels (20, 40, 70 mPa s) were obtained by the use of locust bean gum alone or in combination with either xanthan gum or carrageenan (p. 810, paragraph 3). Brandenstein teaches blends of alternative sweeteners (erythritol, maltitol, and/or steviol glycosides) were used as sucrose substitutes (p. 810, paragraph 3). Brandenstein teaches the ranges of viscosity and sweetness levels were selected to represent typical concentration ranges in commercially available beverages (p. 810, paragraph 3). Brandenstein teaches for samples containing the blend of erythritol and maltitol, those with lower viscosity were significantly perceived as sweeter than samples with high viscosity (p. 811, paragraph 8). Brandenstein teaches this finding confirmed with general opinion given in the literature that an increase in viscosity resulted in a reduction of perceived sweetness (p. 811, paragraph 8). Because increasing the viscosity of a sweetener liquid comprising erythritol and maltitol decreases the perceived sweetness, the viscosity of a sweetener liquid comprising erythritol and maltitol is a result-effective variable.
Liu and Brandenstein are combinable because they are concerned with the same field of endeavor, namely, thickened sweetener liquids comprising sucrose substitutes. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have adjusted the viscosity of the low-ester pectin sugar alcohol gel of Liu to be between 0.1 to 25 mPa s, as taught by Brandenstein during routine experimentation to arrive at a low-ester pectin sugar alcohol gel with the desired perceived sweetness.
Therefore, the composition of claim 1 is rendered obvious by Liu in view of Saraiva, Takeda, Yang, Dunstan, and Brandenstein.
Regarding claim 10, Liu teaches the application of the low-ester pectin sugar alcohol gel in low-calorie food (Claim 10).
Regarding claims 13 – 17, with respect to the total amount of sugar alcohols in the sweetener liquid of the instant invention, Liu teaches the gel comprises 5 – 30 wt% erythritol, as stated above (p. 2, paragraphs 9 and 11). While Liu does not disclose the content of erythritol in g/100 mL, absent evidence to the contrary, one of ordinary skill in the art would reasonably assume 100 mL of the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) of Liu has about the density of water (i.e., 1g/mL). Therefore, Liu teaches the gel comprises about 5 – 30g/ 100mL erythritol. Liu teaches the invention uses sugar alcohol as sweetening agent and texture modifying agent is added to the low ester pectin gel (Abstract). Liu teaches the invention can ensure the sweetening of low ester pectin gel by controlling the dosage of erythritol and low ester pectin, at the same time, ensuring the property of pectin is not influenced, realizing low heat of pectin gel (p. 4, paragraph 1).
While Liu does not teach the total amount of sugar alcohols in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) is between 36 – 85 g/100 mL, one of ordinary skill in the art would have adjusted the amount of sugar alcohols in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) during routine optimization to find the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) with the desired sweetness and texture. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). A total sugar alcohol amount, 35 – 86 g/100 mL, would thus be obvious.
With respect to the precisely claimed amounts of xylitol, maltitol, and sorbitol in the sweetener liquid of claims 13 – 17, Liu contemplates using xylitol and sorbitol in place of erythritol, and while xylitol and sorbitol do not offer the same elasticity and strength to the gel as erythritol, all three sugar alcohols reduce the gel strength and elasticity of pectin, as evidenced by Wan (p. 3, Figure 1).
Furthermore, while Liu does not teach the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) comprises maltitol, Saraiva teaches maltitol syrup is an excellent polyol for pectin jellies (p. 16, paragraph 1). Saraiva teaches while producing pectin jellies, their final moisture content can slightly increase (0.3 ± 0.5%) to obtain a similar texture and shelf life to traditional glucose sucrose jellies (p. 16, paragraph 1). Saraiva teaches of all sugar alcohols, maltitol most resembles sugar flavor (p. 19, paragraph 1). Saraiva teaches maltitol does not facilitate tooth decay because it cannot be fermented by oral bacteria (p. 19, paragraph 2).
Liu and Saraiva are combinable because they are concerned with the same field of endeavor, namely, sugar alcohols. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced some of the erythritol in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) of Liu with maltitol, as taught by Saraiva because, when added to a pectin jelly, maltitol provides a similar texture compared to glucose and sucrose. Additionally, of all sugar alcohols, maltitol most resembles sugar flavor without facilitating tooth decay.
While Liu does not teach the low-ester pectin sugar alcohol gel comprises the precisely claimed concentrations of xylitol, maltitol, and sorbitol per 100 mL, one of ordinary skill in the art would have adjusted the sugar alcohol content of the composition to comprise xylitol, sorbitol, and maltitol during routine optimization to achieve a low-ester pectin gel with the desired gel sweetness, elasticity and strength. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The claimed xylitol, maltitol, and sorbitol, content in the sweetener liquid would thus be obvious.
With respect to the total amount of low-esterification pectin in the sweetener liquid of claim 1, Liu teaches the gel comprises 0.3 – 2% low-ester pectin (p. 2, paragraphs 9 and 11). While Liu does not disclose the content of low-ester pectin in g/100 mL, absent evidence to the contrary, one of ordinary skill in the art would reasonably assume 100 mL of the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) of Liu has about the density of water (i.e., 1g/mL). Therefore, Liu teaches the gel comprises about 0.3 – 2g/ 100mL low-ester pectin.
Liu does not teach the low-ester pectin sugar alcohol gel comprises precisely claimed individually recited (i.e., 0.03, 0.27, and 0.44 g/100mL) total amount of thickeners (i.e., polysaccharides).
Takeda investigates the antidiarrheal effect of polysaccharides in food containing sugar alcohols. Takeda teaches as the amount of polysaccharide in the food increases, the greater the amount of relief (p. 109, Table 2; p. 111, Table 4). Takeda also teaches that increasing the amount of certain polysaccharides such as xanthan gum may cause gastrointestinal distress due to distension (p. 112, paragraph 1).
Liu and Takeda are combinable because they are concerned with the same field of endeavor, namely, foods comprising sugar alcohols and pectin. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have adjusted the amount of total thickeners (i.e., polysaccharides) in the composition of Liu to be 0.03 - 0.44 g/100 mL, as taught by Takeda because one of ordinary skill in the art would have balanced the degree of diarrheal relief with gastrointestinal distress from distention.
Liu does not teach the low-ester pectin sugar alcohol gel comprises the precisely claimed concentrations of κ-carrageenan.
Saraiva teaches while producing pectin jellies a small amount (0.4 ± 0.5%, which is about 0.01 – 0.9 g/100 mL) of carrageenan (i.e., κ-carrageenan) can be added to increase the firmness of products stored at high temperature and humidity (p. 16, paragraph 1).
Liu and Saraiva are combinable because they are concerned with the same field of endeavor, namely, pectin gels containing sugar alcohols. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced some of the low-ester pectin with carrageenan (i.e., κ-carrageenan) such that the carrageenan is within the precisely claimed concentrations, as taught by Saraiva in the composition of Liu because carrageenan (i.e., κ-carrageenan) increases the firmness of products stored at high temperature and humidity, and carrageenan (i.e., κ-carrageenan) is a thickener and stabilizer like low-ester pectin. MPEP § 2144.06.II states an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
Liu does not teach the low-ester pectin sugar alcohol gel comprises 0.01 – 0.3g/ 100mL locust bean gum.
Dunstan teaches the κ-carrageenan/locust bean gum system has been studied extensively since LBG was found to be effective in improving the apparent gel strength (p. 475, paragraph 3). Dunstan teaches such ‘synergistic’ effects were first found when κ-carrageenan solution was diluted to a concentration too low to gel by itself, but formed a gel upon LBG addition (p. 475, paragraph 3). Dunstan teaches gel set temperature with increasing locust bean gum ratio corresponds to the effective reduction in κ-carrageenan concentration (p. 484, paragraph 4). Therefore, the ratio of locust bean gum to carrageenan is a result-effective variable.
Liu and Dunstan are combinable because they are concerned with the same field of endeavor, namely, thickeners. It would have been obvious to a person having ordinary skill in the art before the effective filing date of the claimed invention to have replaced some of the low-ester pectin with locust bean gum, as taught by Dunstan in the composition of Liu because locust bean gum, when combined with carrageenan, enhances the apparent gel strength of a composition, and locust bean gum is a thickener and stabilizer like low-ester pectin. MPEP § 2144.06.II states an express suggestion to substitute one equivalent component or process for another is not necessary to render such substitution obvious. In re Fout, 675 F.2d 297, 213 USPQ 532 (CCPA 1982).
One of ordinary skill in the art would have adjusted the concentration of locus bean gum relative to the carrageenan in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) during routine optimization to find the low-ester pectin sugar alcohol gel (i.e., sweetener liquid) with the desired gel set temperature. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The precisely claimed concentrations of locust bean gum in the low-ester pectin sugar alcohol gel would thus be obvious.
While Liu does not teach the precisely claimed concentrations of low-ester pectin in the low-ester pectin sugar alcohol gel (i.e., sweetener liquid), one of ordinary skill in the art would have adjusted the concentration of low-ester pectin, carrageenan, and locust bean gum during routine optimization to find the low-ester pectin sugar alcohol gel with the desired gel strength, elasticity, and set temperature. MPEP §2144.05(II) states 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 re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). The precisely claimed concentrations of low-ester pectin in the low-ester pectin sugar alcohol gel would thus be obvious.
Therefore,
a composition comprising 0.02 g of low-esterification pectin, 0.05 g of K-carrageenan, 0.2 g of locust bean gum, 40 g of xylitol, 10 g of maltitol, and 5 g of sorbitol per 100mL;
a composition comprising 0.02 g of low-esterification pectin, 0.05 g of K-carrageenan, 0.2 g of locust bean gum, 50 g of xylitol, 10 g of maltitol, and 5 g of sorbitol per 100 mL;
a composition comprising 0.02 g of low-esterification pectin, 0.05 g of K-carrageenan, 0.2 g of locust bean gum, 60 g of xylitol, 10 g of maltitol, and 5 g of sorbitol per 100 mL;
a composition comprising 0.01 g of low-esterification pectin, 0.01 g of K-carrageenan, 0.01 g of locust bean gum, 60 g of xylitol, 5 g of maltitol, and 1 g of sorbitol per 100mL; and
a composition comprising 0.04 g of low-esterification pectin, 0.1 g of K-carrageenan, 0.3 g of locust bean gum, 40 g of xylitol, 15 g of maltitol, and 10 g of sorbitol per 100mL
are rendered obvious by Liu in view of Saraiva, Takeda, Yang, Dunstan, and Brandenstein.
Affidavit
The affidavit by applicant Qi-Le Zuo filed on December 30, 2025, has been considered. The Office appreciates Applicant’s education, time, and experience in this matter.
It is asserted that the composition of the presently claimed invention of claim 1 is critical to achieve the unexpected result of low diarrhea and good taste while having a high sugar alcohol content (p. 3, paragraph 1).
In response, Takeda teaches diarrhea caused by the ingestion of sugar alcohols was strongly suppressed by adding polysaccharides such as pectin and locust bean gum (p. 109, Table 2; p. 111, Table 4; p. 122, paragraph 3). Therefore, one of ordinary skill in the art would have reasonably expected the addition of the precisely claimed polysaccharides to the sugar alcohols to result in lessened gastrointestinal distress. Furthermore, the results presented in the instant specification are not commensurate with the claims. The examples in the specification have the following hydrocolloid and sugar alcohol compositions:
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The examples in the specification only adjust the xylitol content. The examples in the specification do not explore the effect of adjusting the maltitol or sorbitol content, the effect of adjusting the individual hydrocolloids content, or the composition of the low-esterification pectin. Because the examples in the specification are not commensurate with the claims, the evidence relied upon has not established that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance. See MPEP 716.02(b).
It is asserted that each of the references, Liu, Saraiva, Yang, and Brandenstein are lacking certain limitations with respect to the presently claimed invention (p. 3 – 6).
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).
With respect to the assertions that the instant invention achieves a result that is optimized by non-conventional experimentation (p. 5, bullets 1 and 3), attention is drawn to [0042] and [0043] (shown above) of the instant specification wherein the xylitol content of the instant examples is adjusted by consistent intervals, indicating a routine experimentation.
With respect to the assertion that the instant invention requires less hydrocolloid content than conventional to reduce diarrhea (p. 5, bullet 2), attention is drawn to [0042] and [0043] (shown above) of the instant specification wherein the hydrocolloid content is not adjusted. Furthermore, In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., reduced diarrhea) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Therefore, the affidavit is not persuasive.
Response to Arguments
Applicant's arguments filed December 20, 2025 have been fully considered but they are not persuasive.
Applicant argues the technical effect of the instant invention, relieving diarrhea, is not discussed by any of the references applied in the previous action (p. 11, paragraph 2; p. 12, paragraph 3).
Applicant’s argument has been carefully considered however the argument is not persuasive. In response to applicant's argument that the references fail to show certain features of the invention, it is noted that the features upon which applicant relies (i.e., relieving diarrhea) are not recited in the rejected claim(s). Although the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. See In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993).
Applicant argues the total colloidal content and the total sugar content are vastly different from the amounts recited in Liu and thus do not achieve the recited technical effect (p. 12, paragraph 2).
Applicant’s argument has been carefully considered however the argument is not persuasive. The fact that the inventor has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious. See Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Conclusion
No claims are allowed.
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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/L.J.M./Examiner, Art Unit 1793
/EMILY M LE/Supervisory Patent Examiner, Art Unit 1793
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