DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Status of the Application
Receipt of the Request for Continued Examination (RCE under 37 CFR 1.114), the Response and Amendment filed 03/19/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: the 35 U.S.C. 112(b) rejection of claim 4 has been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-8
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1 and 4
New claims: None
Claims currently under consideration: 1-8
Currently rejected claims: 1-8
Allowed claims: None
Continued Examination Under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e), was filed in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114. Applicant's submission filed on 03/19/2026 has been entered.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claims 1, 2, and 5-7 are rejected under 35 U.S.C. 103 as being unpatentable over Bak et al. (KR 20170105450) in view of Mysore et al. (U.S. 2005/069627 A1).
Regarding claim 1, Bak et al. discloses a method of preparing a saccharide syrup composition comprising adding 0.01-5% by weight pectin ([0021], [0026], [0027]) in powdered form ([0022]) and 0.01-0.2% by weight sweetener that may be an oligosaccharide ([0025], [0037]) to a raw saccharide syrup including 10-99% by weight allulose ([0001], [0018]).
Bak et al. does not specifically disclose (i) the oligosaccharide as being obtained via preparation of a powdery FOS, (ii) the method as being for dispersing a viscosity regulator in saccharide syrup, (iii) the mixing sequence of initially mixing the FOS and pectin, where FOS is intended to act as a dispersant for the pectin, before addition of the mixture to the allulose syrup, or (iv) an amount of the dispersant that it 10-3,000 parts by weight based on 100 parts by weight of the viscosity regulator.
However, Mysore et al. discloses FOS ([0013]) that may be in powdered form ([0056]) that is useful as a sweetener in combination with steviol glycosides ([0014], [0018]).
It would have been obvious to one having ordinary skill in the art to incorporate powdered FOS as a sweetener into the composition of Bak et al. Since Bak et al. indicates that the composition may comprise various sweeteners, including oligosaccharides ([0025]), a skilled practitioner would be motivated to consult Mysore et al. for additional instruction. Since Mysore et al. indicates that FOS may be combined with steviol glycosides in order to impart health benefits of FOS while increasing the sweetness of the FOS component ([0013], [0017]-[0018]), a skilled practitioner would find the incorporation of powdered FOS as an oligosaccharide into the composition of Bak et al. to be obvious.
As for the claimed limitations requiring initial mixing of the pectin and FOS and the method as being for dispersing the viscosity regulator, where FOS is intended to act as a dispersant for the pectin, Bak et al. discloses that a salt ingredient that is added to the allulose syrup may be added “before, after, or simultaneously with the step of applying the gum, pectin or a combination thereof” ([0028]), which suggests to a skilled practitioner that all of the added components may be added in a similar manner. That is, a skilled practitioner would find the addition of powdered FOS simultaneously with pectin to be obvious. Such an addition step would implicitly render the initial mixing of those two ingredients to facilitate simultaneous addition obvious, since adding a single mixed ingredient would better ensure simultaneous mixing upon addition to the allulose than separately adding two different ingredients at the same time. The present specification indicates that preemptively mixing the dispersing agent (i.e., FOS) with the viscosity regulator (i.e., pectin) facilitates improved dispersibility of the viscosity regulator (p. 6, ¶3; p. 7, ¶5). Since the preemptive mixing of powdered FOS and pectin was shown to be obvious, the result of such a process step would consequently be obvious as well. Notably, MPEP 2144 IV states: “It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” Thus, it is not necessary that Bak et al. specifically recognizes the claimed aim of dispersing a viscosity regulator in saccharide syrup, where the FOS act as a dispersant for the viscosity regulator, in order for such features to nonetheless be deemed obvious.
As for the relative concentrations of the dispersant and the viscosity regulator, the disclosed ranges of 0.05-1% by weight pectin ([0021]) and 0.01-0.2% by weight sweetener that may be an oligosaccharide ([0025], [0037]) encompass a range of ratios that overlaps the claimed range, thus rendering the claimed range obvious. For example, 0.1% by weight of both components falls within each of the disclosed ranges and results in a ratio of 100 parts by weight dispersant (oligosaccharide) based on 100 parts by weight of the viscosity regulator (pectin).
As for claim 2, Bak et al. discloses the allulose may constitute 5-99% by weight of the syrup ([0018]) and that the syrup may comprise oligosaccharides ([0025]). Though the reference does not specifically disclose a suitable amount of oligosaccharides, a skilled practitioner would recognize that a syrup containing a relatively small amount of allulose within the disclosed range would be otherwise comprised of relatively large amounts of other components. As such, the addition of other components in amounts as high as 95% by weight would be obvious. The claimed oligosaccharide content of 20-90% by weight is thus considered obvious to a skilled practitioner.
As for claim 5, Bak et al. discloses the syrup as comprising sucralose, rebaudioside, and stevia (i.e., steviol glycosides) ([0025]).
As for claim 6, Bak et al. indicates that colorants may be added to the syrup ([0038]), which implicitly indicates that the degree of coloration is a result-effective variable depending on the amount/type of colorants added to the syrup. MPEP 2144.05 II B. The reference further suggests that the syrup is essentially colorless initially ([0005], where heating results in coloration). As such, achieving any particular coloration of the syrup via the addition of colorants is considered obvious to a skilled practitioner, which renders the claimed chromaticity of 100-500 IU obvious.
As for claim 7, Bak et al. discloses the syrup as comprising colorants ([0038]), which is considered to be equivalent to artificial coloring agents.
Claims 3 and 4 are rejected under 35 U.S.C. 103 as being unpatentable over Bak et al. (KR 20170105450) in view of Mysore et al. (U.S. 2005/069627 A1) as applied to claim 1 above, and further in view of admitted prior art and Kim et al. (KR 10-1318422).
Regarding claims 3 and 4, Bak et al. and Mysore et al. disclose the method of claim 1.
The cited prior art does not disclose the allulose as being an allulose-containing mixed saccharide that is prepared by reacting a fructose-containing raw material with a composition for producing allulose comprising an allulose epimerase (claim 3) or the syrup as being obtained by separation and concentration of a mixed saccharide syrup comprising 2-55 parts allulose, 30-80 parts fructose, 2-60 parts glucose, and 0-15 parts oligosaccharides, all by weight (claim 4).
However, the present specification admits that the allulose is produced according to Kim et al. and is an allulose-containing mixed saccharide, the syrup comprising ratios of glucose:fructose:allulose:oligosaccharide of 6:67:25:2 (p. 8, ¶2). The specification further admits that the allulose syrup produced according to Kim et al. is obtained by separation and concentration of a mixed saccharide syrup (p. 8, ¶3). Kim et al. further discloses that the reaction mixture comprises D-psicose epimerase (i.e., allulose epimerase) and fructose (Abstract).
It would have been obvious to one having ordinary skill in the art to prepare the syrup of Bak et al. with an allulose syrup as taught in Kim et al. First, Bak et al. does not indicate any limitation as to the source of allulose ([0016]-[0017]), which indicates that the use of any allulose material falls within the scope of the disclosure of Bak et al. Kim et al. further indicates that the use of the allulose epimerase fosters mass production of psicose/allulose from fructose (Abstract), which suggests obtaining allulose via such a method is relatively efficient. In light of such efficiency, a skilled practitioner would find the use of allulose produced according to Kim et al. in the product of Bak et al. to be obvious. The admission in the present specification that allulose produced according to Kim et al. exhibits the properties of claims 3 and 4, renders obvious the allulose as being an allulose-containing mixed saccharide that is prepared by reacting a fructose-containing raw material with a composition for producing allulose comprising an allulose epimerase (claim 3) and the syrup as being obtained by separation and concentration of a mixed saccharide syrup comprising 2-55 parts allulose, 30-80 parts fructose, 2-60 parts glucose, and 0-15 parts oligosaccharides, all by weight (claim 4).
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Bak et al. (KR 20170105450) in view of Mysore et al. (U.S. 2005/069627 A1) as applied to claim 1 above, and further in view of Baniel et al. (WO2017072569).
Regarding claim 8, Bak et al. and Mysore et al. disclose the method of claim 1.
The cited prior art does not specifically disclose the raw sugar syrup as being at a temperature of 70-85°C before addition of the additional ingredients.
However, Baniel et al. discloses a sweetener composition ([0033]) that may comprise allulose ([0034]) and a sugar alcohol ([0035]), where each component may be dissolved in a solvent at temperatures including 70-85°C ([0064]-[0067]).
It would have been obvious to one having ordinary skill in the art to provide the syrup of Bak et al. at a temperature of 70-85°C before addition of the additional ingredients. Since Bak et al. provides limited instruction regarding suitable dissolution parameters ([0026]-[0030]), a skilled practitioner would be motivated to consult Baniel et al. for further instruction regarding dissolution of components. Since Baniel et al. indicates mixing of such types of sweetening components may be performed at elevated temperatures including 70-85°C ([0067]), which a skilled practitioner would recognize as likely being useful for facilitating faster dissolution, the claimed step of providing the sugar syrup at 70-85°C before addition of the additional ingredients would be obvious to a skilled practitioner.
Response to Arguments
Claim Rejections - 35 U.S.C. § 112: Applicant has overcome the 35 U.S.C. § 112(b) rejection of claim 4 based on amendment to the claim. Accordingly, the 35 U.S.C. § 112(b) rejection has been withdrawn.
Claim Rejections - 35 U.S.C. § 103 of claims 1, 2, and 5-7 over Bak et al. and Mysore et al.; claims 3 and 4 over Bak et al., Mysore et al., admitted prior art, and Kim et al.; and claim 8 over Bak et al., Mysore et al., and Baniel et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant first asserted that claim 1 as presently amended more clearly ties the amount of FOS to the viscosity regulator it disperses and “further distinguishes the claimed method from the art of record” (Applicant’s Remarks, p. 4, ¶8 – p. 5, ¶1).
Claim 1 remains rejected in view of Bak et al. and Mysore et al. as detailed in the claim rejection. Merely requiring a relative concentration of the two components is insufficient to distinguish the claimed composition from the disclosure of Bak et al., since the disclosed ranges in Bak et al. encompass component concentrations that meet the claimed relative concentration limitation, regardless of whether Bak et al. specifically requires the two components to be at a certain ratio.
Applicant then argued that Bak et al. and Mysore et al. address different technical problems, where FOS is added for different purposes in each reference, neither of which corresponds with the aim of the presently-claimed invention (Applicant’s Remarks, p. 5, ¶2).
As noted in the previous Office Action, though, it is unnecessary that the prior art recognize the functionality of the FOS as being a dispersant for the viscosity regulator. Examiner maintains that adequate motivation was detailed for combining the prior art references and that adequate rationale was established for deeming the claimed method obvious.
Applicant next alleged that the rejection did not adequately explain “why a skilled artisan would have specifically selected FOS from the many different oligosaccharides encompassed by Bak’s generic ‘oligosaccharide sweetener’ disclosure”, noting a number of known oligosaccharides other than FOS (Applicant’s Remarks, p. 5, ¶3).
To the contrary, the claim rejection states:
Since Bak et al. indicates that the composition may comprise various sweeteners, including oligosaccharides ([0025]), a skilled practitioner would be motivated to consult Mysore et al. for additional instruction. Since Mysore et al. indicates that FOS may be combined with steviol glycosides in order to impart health benefits of FOS while increasing the sweetness of the FOS component ([0013], [0017]-[0018]), a skilled practitioner would find the incorporation of powdered FOS as an oligosaccharide into the composition of Bak et al. to be obvious.
In other words, the breadth of the term “oligosaccharides” in Bak et al. would prompt a practitioner to consult a more specific reference to more specific instruction. Mysore et al. teaches fructooligosaccharides as being combined with steviol glycosides to improve sweetness. Since Bak et al. is using the oligosaccharide at least in part as a sweetening component, the use of an oligosaccharide specifically taught as being used in sweetener combinations provides an adequate basis for selecting FOS in particular over the other oligosaccharides listed by Applicant. Examiner thus maintains that the rejection adequately described by a skilled practitioner would have selected FOS as the oligosaccharide component of Bak et al.
Applicant then further asserted that Bak et al. and Mysore et al. utilize FOS for a different purpose than presently claimed (Applicant’s Remarks, p. 5, ¶4).
Again, it is unnecessary that the prior art recognize the functionality of the FOS as being a dispersant for the viscosity regulator. As such, the combination of Bak et al. and Mysore et al. is adequate for rejecting the claimed method, regardless of whether the FOS component is used for a different purpose.
Applicant additionally alleged that the claim rejections rely on impermissible hindsight (Applicant’s Remarks, p. 5, ¶3-¶4).
However, it must be recognized that any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning. But so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made, and does not include knowledge gleaned only from the Applicant's disclosure, such a reconstruction is proper. See In re McLaughlin, 443 F.2d 1392, 170 USPQ 209 (CCPA 1971). Examiner maintains that the present claim rejections rely only on information that was within the ordinary skill in the art and thus do not improperly rely on hindsight rationale.
Applicant next argued that the claimed premixing step is not adequately described in paragraph [0028] of Bak et al. (Applicant’s Remarks, p. 6, ¶1).
However, Applicant’s argument apparently disregards the additional rationale detailed in the claim rejection supporting the determination that the premixing step would be obvious. Examiner maintains that since Bak et al. discloses that a salt ingredient that is added to the allulose syrup may be added “before, after, or simultaneously with the step of applying the gum, pectin or a combination thereof” ([0028]), a skilled practitioner would reasonably recognize that all of the other added components may be added in a similar manner. Further, such an addition step would implicitly render the initial mixing of those two ingredients to facilitate simultaneous addition obvious, since adding a single mixed ingredient would better ensure simultaneous mixing upon addition to the allulose than separately adding two different ingredients at the same time.
Applicant then highlighted the new limitation to claim 1 that “defines the amount of the dispersant in functional relation to the amount of the viscosity regulator being dispersed” and asserted the claim is now further distinguished from the cited prior art (Applicant’s Remarks, p. 6, ¶2).
As discussed in the updated claim rejection, though, the disclosed ranges encompass a range of ratios that overlaps the claimed range, thus rendering the claimed range obvious. Requiring a relative ratio between the two components does not sufficiently distinguish the claimed method from the prior art, even where no specific relative ratio is disclosed, because the disclosure of the reference nonetheless discloses concentrations that implicitly result in a relative ratio that would fall within the claimed range for certain respective concentrations.
Applicant further argued that the reliance on paragraph [0037] of Bak et al. was improper, since that paragraph was directed toward “optional natural carbohydrates in foods containing the syrup composition, not a powdery fructooligosaccharide dispersant premixed with a viscosity regulator in the syrup composition” (Applicant’s Remarks, p. 6, ¶2).
Paragraph [0037] of Bak et al. refers to the “above-mentioned natural carbohydrates” and lists monosaccharides, disaccharides, polysaccharides, sugar alcohols, natural sweeteners, and synthetic sweeteners. Paragraph [0025] provides a list of sweeteners that include several exemplary compounds that fall within the classes described in paragraph [0037]. The concentration of sweetener/carbohydrates in paragraph [0037] is thus properly interpreted as applying to the list of sweetening components provided in paragraph [0025].
Applicant then asserted data purporting to show that “selection of FOS is not a routine substitution and that the claimed method yields an unexpected technical effect” in the form of improved dispersing effect of FOS relative to isomaltooligosaccharide (Applicant’s Remarks, p. 6, ¶3 - p. 7, ¶2).
Again, the dispersing effect of the FOS is considered to be merely a different advantage recognized by the applicant that materializes from the performance of a method that was determined to be obvious. As MPEP 2144 IV states: “It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” Examiner maintains that it is not necessary that Bak et al. specifically recognizes the claimed aim of dispersing a viscosity regulator in saccharide syrup, where the FOS acts as a dispersant for the viscosity regulator, in order for such features to nonetheless be deemed obvious. The actual method itself is still merely directed to the mixing of two ingredients that are then added to a third ingredient. Such a sequence of steps with the specifically-claimed ingredients was shown to be obvious. That Applicant has identified a benefit of FOS over isomaltooligosaccharide does not alter the obviousness determination, since the effect of FOS remains an ancillary effect of a method that was deemed obvious on the basis of combining the three components in the manner recited.
Applicant’s arguments are unpersuasive.
The rejections of claims 1-8 have been maintained herein.
Conclusion
Claims 1-8 are rejected.
No claims are allowed at this time.
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JEFFREY P MORNHINWEG whose telephone number is (571)270-5272. The examiner can normally be reached 8:30AM-5:00PM.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793