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 Response and Amendment after Non-Final Office Action filed 12/11/2025 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. 102(a)(1) rejections of claims 1-14, 16, and 18-21 over Hewins et al. have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-14 and 16-21
Withdrawn claims: None
Previously canceled claims: 15
Newly canceled claims: 3-7, and 17
Amended claims: 1, 18, and 19
New claims: None
Claims currently under consideration: 1, 2, 8-14, 16, and 18-21
Currently rejected claims: 1, 2, 8-14, 16, and 18-21
Allowed claims: None
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, 8-14, 16, and 18-21 are rejected under 35 U.S.C. 103 as being unpatentable over Hewins et al. (WO 2020/152201 A1) in view of Zeller et al. (U.S. 2013/0040036 A1).
Regarding claim 1, Hewins et al. discloses a composition comprising a (i) “surfactant system” comprising lecithin and a diterpene glycoside (p. 2, ll. 8-16; p. 3, l. 31 – p. 4, l. 8; p. 8, ll. 11-12) that is a steviol glycoside (p. 8, ll. 11-13), (ii) a non-polar phase (p. 2, l. 9; p. 12, ll. 4-12) comprising a flavor oil (p. 3, ll. 15-17; p. 5, ll. 15-17, ll. 22-32; p. 1, ll. 29-30), and (iii) a polar phase (p. 2, l. 16; p. 13, ll. 6-12), wherein the diterpene glycoside is in an amount from 1-40 wt.% (specifically, 0-6 wt.%) (p. 8, ll. 5-20), and wherein the mass ratio of diterpene glycoside to lecithin is from 20:1 to 1:20 (p. 8, 11. 5-20; p. 3, l. 31 – p. 4, l. 8, where overlapping concentration ranges includes at least a ratio of 1:1).
Hewins et al. does not disclose the lecithin as being in an amount of 2.5-7.5 wt.%.
However, Zeller et al. disclose a similar stabilized beverage composition (Abstract) that may comprise lecithin in an amount of 1-4% ([0045], Table 1, [0047]).
It would have been obvious to one having ordinary skill in the art to produce the composition of Hewins et al. with lecithin in an amount as high as 4%. First, Hewins et al. discloses only that in a preferred embodiment, the composition comprises the surfactant (i.e., lecithin) in an amount of 0.15-1.5% (p. 4, ll. 7-9). Since Hewins et al. teaches such a range as merely applying to a preferred embodiment, a skilled practitioner would be motivated to consult an additional reference, such as Zeller et al. (which is cited in the Background section of Hewins et al., p. 1, ll. 27-28), for instruction regarding potentially suitable ranges of surfactants. Since Zeller et al. teaches that lecithin may be present in amounts ranging from 1-4% ([0045], Table 1, [0047]), a skilled practitioner would find the inclusion of lecithin in such amounts in the composition of Hewins et al. to be obvious. The claimed range of 2.5-7.5 wt.% lecithin is thus obvious to a skilled practitioner. Such a concentration considered together with the disclosed concentration range of the diterpene glycoside would cause the ratio of the two to still fall within the claimed range of ratios.
As for claim 2, Hewins et al. discloses the composition is an emulsion (p. 2, l. 31).
As for claim 8, Hewins et al. discloses the composition comprises the flavor oil in an amount of 1-50 wt.% (specifically, about 0.01-10 wt.%) (p. 6, ll. 27-29).
As for claim 9, Hewins et al. discloses the polar phase comprises water (p. 8, ll. 23-24).
As for claim 10, Hewins et al. discloses the polar phase comprises glycerol or propylene glycol (p. 3, ll. 17-19).
As for claim 11, Hewins et al. discloses the composition comprises the polar non-aqueous solvent in an amount of 5-40 wt.% (specifically, about 40-90 wt.%) (p. 3, ll. 21-22).
As for claim 12, Hewins et al. discloses a method for preparing the composition of claim 1 comprising mixing a non-polar phase comprising a flavor oil and a polar phase in the presence of a surfactant system comprising lecithin and a diterpene glycoside (p. 8, l. 33 – p. 9, l. 6; lecithin and diterpene glycoside: p. 2, ll. 8-16; p. 8, ll. 11-12; flavor oil: p. 3, ll. 15-17; p. 5, ll. 15-17, ll. 22-32; p. 1, ll. 29-30).
As for claim 13, Hewins et al. discloses a method for preparing a flavored beverage comprising adding the composition of claim 1 to a beverage (p. 11, ll. 1-6).
As for claim 14, Hewins et al. discloses a beverage comprising a composition according to claim 1 (p. 10, ll. 17-19).
As for claim 16, Hewins et al. discloses the composition is a microemulsion (p. 2, ll. 31-32).
As for claim 18, Hewins et al. discloses the steviol glycoside is rebaudioside A (p. 8, ll. 11-13)
As for claim 19, Hewins et al. discloses the glucosylated steviol glycoside is glucosylated rebaudioside A (p. 8, ll. 11-13).
As for claim 20, Hewins et al. discloses the polar phase is water in an amount of 10-90 wt.% (specifically, 15 wt.% or less) (p. 8, ll. 23-24).
As for claim 21, Hewins et al. discloses the polar non-aqueous solvent is glycerol or propylene glycol (p. 3, ll. 17-19).
Response to Arguments
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 1-14, 16, and 18-21 over Hewins et al.: Applicant has overcome the 35 § 102(a)(1) rejections of claims 1-14, 16, and 18-21 based on amendment to the claims and/or cancellation. Accordingly, the claim rejections have been withdrawn. However, upon further consideration, new grounds of rejection are made under 35 U.S.C. §103 for the claims that remain pending as detailed above.
Claim Rejections - 35 U.S.C. § 103 of claim 17 over Hewins et al. and Zeller et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant first argued that Hewins et al. does not suggest any lecithin concentration range broader than the preferred range (Applicant’s Remarks, p. 7, ¶3). Applicant further asserted that Zeller et al. does not suggest any particular benefit for increasing the amount of lecithin beyond the range disclosed in Hewins et al. Id.
Examiner maintains that the disclosure of a preferred amount at least provides some motivation to consider concentrations that are suitable yet outside the disclosed preferred range, particularly from a prior art reference cited specifically within the primary reference. The effect of the increase in lecithin concentration would be expected to be observable/measurable, such that the benefit or detriment of concentrations that fell outside the preferred range would be evident. At the least, a lecithin concentration that falls outside the disclosed preferred range but within a concentration known in the prior art cannot be said to be non-obvious.
Applicant then asserted that lecithin combined with a diterpene glycoside forms a surfactant system, yet Hewins et al. discloses the diterpene glycosides as acting only as sweeteners (Applicant’s Remarks, p. 7, ¶4).
However, MPEP 2145 II states: “Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” That Hewins et al. discloses the diterpene glycoside as performing a different function than as presently asserted does not cause the claimed composition to be nonobvious. Applicant’s assertion of the functionality of the diterpene glycoside as a surfactant is insufficient patentably distinguish the claimed composition from the prior art. Applicant’s arguments are thus unpersuasive.
The rejection of claim 17 is withdrawn due to its cancellation. However, claims 1, 2, 8-14, 16, and 18-21 are newly rejected under 35 U.S.C. §103 according to similar rationale as was applied to claim 17 previously.
Conclusion
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.
Claims 1, 2, 8-14, 16, and 18-21 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793