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 06/01/2026 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. 103 rejections of claims 1, 2, 8-14, 16, and 18-21 over Hewins et al. and Zeller et al. have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1, 2, 8-14, 16, and 18-21
Withdrawn claims: None
Previously canceled claims: 3-7, 15, and 17
Newly canceled claims: None
Amended claims: 1 and 8
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
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 06/01/2026 has been entered.
Claim Rejections - 35 USC § 112
The following is a quotation of 35 U.S.C. 112(b):
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the inventor or a joint inventor regards as the invention.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claims 1, 2, 8-14, 16, and 18-21 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, as being indefinite for failing to particularly point out and distinctly claim the subject matter which the inventor or a joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention.
Claim 1 requires a diterpene glycoside concentration of 20-30 wt%, a lecithin concentration of 5-7 wt.%, and a ratio between the two of 4:1, which is vague and indefinite in that a diterpene glycoside concentration of >28% to 30% cannot be achieved while maintaining a ratio of 4:1. For example, when lecithin is at 7 wt.%, the diterpene glycoside may only be as high as 28% in order to still be at a 4:1 ratio.
Claims 2, 8-14, 16, and 18-21 are indefinite due to their dependence on claim 1.
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 Oglesby (U.S. 2015/0086695 A1).
Regarding claim 1, Oglesby discloses a composition comprising a surfactant system ([0007], [0052], [0058], [0079]) comprising:
lecithin in an amount of 5-7 wt.% of the composition (specifically, an amount of about 0.1 to 30%) ([0094]),
a steviol glycoside ([0087]),
a non-polar phase comprising a flavor oil ([0090]-[0092]), and
a polar phase ([0086], [0249]).
Oglesby does not specifically disclose the steviol glycoside as being in an amount of 20-30 wt.% or the ratio of steviol glycoside to lecithin may be 4:1.
However, Oglesby discloses that the sweetened composition may comprise the high-potency sweetener in a concentration of 1-5,000 ppm (0.0001-0.5%) ([0088]), where the “sweetened composition” may be the final beverage ([0168]). Oglesby further discloses a sweetener composition that may be diluted by a factor of 1000 when added to a beverage ([0121]) and that the sweetener composition may be formulated as a concentrated syrup ([0128]). Such instruction suggests to a skilled practitioner that the concentration of components in a concentrated syrup may be 1000 times greater than the disclosed preferred concentrations for the sweetened composition. Additionally, Oglesby indicates the concentration of the high-potency sweetener may be adjusted depending on the type of sweetened composition and the desired sweetness ([0088]), which suggests broadly that the concentration of steviol glycoside may be optimized as desired via routine manipulation. MPEP 2144.05 II A. The claimed range of steviol glycoside concentrations of from 20 to 30 wt.% is thus considered obvious, at least based on the dilution factor of 1000 and the disclosed range of concentrations in the sweetened composition (i.e. after dilution) of 0.0001-0.5% (e.g., 200 ppm, or 0.02%, diluted 1000-fold from a 20% concentrated solution), considered together with the obviousness of manipulation of the concentration according to the desired sweetness.
As for the ratio, the determination that the steviol glycoside concentration in a concentrated syrup may be within the claimed range of 20-30 wt.%, as well as that the concentration of lecithin may be in the range of 0.1-30%, renders the claimed ratio of steviol glycoside to lecithin of 4:1 obvious.
As for claim 2, Oglesby discloses the composition may be an emulsion ([0085]).
As for claim 8, Oglesby discloses a vegetable oil may be present in an amount of about 1-25% ([0091]) before disclosing that the oil may also be a flavor oil ([0092]). Although the reference does not specifically teach that the flavor oil per se may be at a concentration in the range of 20-40 wt.%, applying the concentration range taught for the vegetable oil to the flavor oil would be obvious, given their similar properties as oils. The claimed concentration range of from 20 to 40 wt.% would thus be obvious to a skilled practitioner. The dilution factor of 1000 disclosed in Oglesby further supports deeming the relatively high flavor oil concentration obvious.
As for claim 9, Oglesby discloses the polar phase as comprising water ([0249]).
As for claim 10, Oglesby discloses the polar phase as comprising a non-aqueous solvent that is glycerol ([0079], [0033]).
As for claim 11, Oglesby does not explicitly disclose the glycerol as being at a concentration of 5 to 40 wt.%. However, the characterization of the component as a “bulking agent” ([0033]) suggests that any amount necessary may be added in order to increase the volume of a sweetener component. The claimed concentration of 5 to 40 wt.% would thus be obvious to a skilled practitioner. MPEP 2144.05 II A (Generally, differences in concentration or temperature will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such concentration or temperature is critical.”)
As for claim 12, Oglesby discloses a method for preparing the composition comprising mixing a non-polar phase comprising a flavor oil and a polar phase in the presence of lecithin and a steviol glycoside ([0085]-[0087], [0090]-[0092], [0094]).
As for claim 13, Oglesby discloses adding the composition to a beverage ([0120]-[0121]).
As for claim 14, Oglesby discloses a beverage comprising the composition ([0168]).
As for claim 16, Oglesby discloses the composition may be a nanoemulsion or a microemulsion ([0085]).
As for claim 18, Oglesby discloses the steviol glycoside as being rebaudioside A ([0087]).
As for claim 19, Oglesby discloses the steviol glycoside as being rebaudioside M ([0087]), which is chemically identical to a compound that may be characterized as “glucosylated rebaudioside D”.
As for claim 20, Oglesby discloses the aqueous continuous phase may comprise largely water ([0086], [0249]) and that the oil component may be present in concentrations ranging from about 1-15% w/w ([0091]), which suggests the water concentration would range from about 85-99% w/w. The claimed concentration of water of from 10-90 wt.% by total weight of the composition would thus be obvious.
As for claim 21, Oglesby discloses the polar non-aqueous solvent as being glycerol ([0079], [0033]).
Response to Arguments
Claim Rejections - 35 U.S.C. § 103 of claims 1, 2, 8-14, 16, and 18-21 over Hewins et al. and Zeller et al.: Applicant’s arguments (Applicant Remarks, p. 5, ¶8 – p. 6, ¶3) have been fully considered and are persuasive to the extent that claim 1 as presently amended to require narrower concentration ranges of lecithin and the diterpene glycoside would not be obvious in view of the previously-cited prior art. However, upon further consideration, new grounds of rejection are made in view of Oglesby.
Conclusion
Claims 1, 2, 8-14, 16, and 18-21 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
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