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 .
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and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 May 6, 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, 4, 7-11, and 13-15 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 pre-AIA the applicant regards as the invention.
Claim 1 recites the limitation “allulose syrup” in line 2 as well as “an allulose syrup” in line 2 afterwards. It is unclear if these refer to the same allulose syrup or to entirely different allulose syrups. For purposes of examination Examiner interprets the claim to refer to the same allulose syrup.
Claim 1 recites the limitation “for increasing storage stability of allulose syrup” in line 2. The term “increasing” is a relative term which renders the claim indefinite. The term “increasing” requires a standard basis for comparison. There is no comparative basis for which the “increasing” term is compared to. It is unclear what “increasing” storage stability refers to since no basis of standard comparison for a “regular” storage stability is recited.
Claim 4 recites the limitation “the nitrogen gas” in line 2. There is insufficient antecedent basis for this limitation in the claim.
Claim 10 recites the limitation “for increasing storage stability of allulose syrup” in lines 3-4. The term “increasing” is a relative term which renders the claim indefinite. The term “increasing” requires a standard basis for comparison. There is no comparative basis for which the “increasing” term is compared to. It is unclear what “increasing” storage stability refers to since no basis of standard comparison for a “regular” storage stability is recited.
Claim 10 recites the limitation “allulose syrup” in line 5. It is unclear if this refers to “allulose syrup” recited in Claim 10, line 2 or to an entirely different allulose syrup. For purposes of examination Examiner interprets the claim to refer to the same allulose syrup.
Clarification is required.
Claims 2, 7-9, 11, and 13-15 are rejected as being dependent on a rejected base claim.
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 1-2, 4, and 7-9 are rejected under 35 U.S.C. 103 as being unpatentable over Sahai et al. US 2013/0266713 in view of Woodyer et al. US 2018/0049458, Ozawa et al. US 2012/0067763, and Bonelli et al. US 2021/0000738.
Regarding Claim 1, Sahai et al. discloses a syrup storage package comprising a container (airtight pressurized containers such as PET bottles, aluminum cans, glass bottles or the like) (‘713, Paragraphs [0048]-[0049]) and a syrup (‘713, Paragraph [0050]) wherein the syrup is filled so as for the volume of empty space excluding the syrup to be based on 100% volumetric capacity of the container, i.e. the headspace of the container, is 5 to 15% by volume of the container (‘713, Paragraph [0048]), which overlaps the claimed volume of empty space excluding syrup of 10% or less based on 100% of volumetric capacity of the container. Where the claimed container headspace volume ranges encompasses container headspace volume 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 container headspace volume will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such container headspace volume ranges 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.).
Sahai et al. discloses the juice product being distributed as a syrup concentrate (‘713, Paragraph [0050]). However, Sahai et al. is silent regarding the syrup being an allulose syrup.
Woodyer et al. discloses an allulose storage package comprising a plastic container and an allulose syrup (‘458, Paragraph [0127]) and that allulose is a rare sugar that provides around 70% of the sweetness of sucrose but only around 5% of the calories and is therefore essentially considered to be a zero calorie sweetener (‘458, Paragraph [0003]).
Both Sahai et al. and Woodyer et al. are directed towards the same field of endeavor of syrups stored in food and beverage packages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the package of Sahai et al. that already teaches disposing syrup in a container and store allulose syrup within the container as taught by Woodyer et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Woodyer et al. teaches that there was known utility in the food and beverage packaging art to package allulose syrups in containers. Furthermore, one of ordinary skill in the art at the time of the invention would modify the syrup container of modified Sahai et al. and store allulose syrup since Woodyer et al. teaches that allulose syrup is a zero calorie container. One of ordinary skill in the art would adjust the particular type of syrup stored in the container of Sahai et al. based upon a particular consumer’s caloric requirements as suggested by Woodyer et al.
Further regarding Claim 1, Sahai et al. discloses the container to be made of metal (aluminum) (‘713, Paragraph [0049]). However, Sahai et al. modified with Woodyer et al. is silent regarding the container being made of polyethylene or tin or tin alloy and including a coating layer of epoxyphenol based resin formed on the entire inner surface of the container.
Ozawa et al. discloses a metal can or beverage container including BPA containing coatings (‘763, Paragraph [0003]) wherein the metal can is a metal container, enclosure, receptacle, or portion thereof used to hold or store a food or beverage (‘763, Paragraphs [0010] and [0016]) wherein the can comprises a first coating on an interior surface of the can which coating is made of mixtures or copolymers of epoxy phenolic resins (‘763, Paragraph [0017]) wherein the metal of the can is tin (‘763, Paragraph [0016]).
Both modified Sahai et al. and Ozawa et al. are directed towards the same field of endeavor of food or beverage containers. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food and beverage storage package of the metal container of modified Sahai et al. and construct the container of Sahai et al. out of tin or tin alloy and include a coating layer of epoxyphenol based resin formed on an inner surface of the container as taught by Ozawa et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ozawa et al. teaches that there was known utility in the food and beverage container art to incorporate the claimed tin metal or tin metal alloy as the container material and incorporate the claimed epoxy phenol based resin as the coating layer formed on an inner surface of the food or beverage container.
Further regarding Claim 1, Sahai et al. modified with Woodyer et al., and Ozawa et al. is silent regarding the coating layer of epoxyphenol based resin being formed on the entire inner surface of the container.
Bonelli et al. discloses a canister of a plastic can or metal canister having part or all of the internal surfaces lined with an inert organic coating of epoxyphenol resins (‘738, Paragraphs [0035]-[0036]).
Both modified Sahai et al. (via Ozawa et al.) and Bonelli et al. are directed towards the same field of endeavor of containers comprising an internal surface lined with epoxyphenol resins coatings. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the container of modified Sahai et al. and form the coating layer of epoxyphenol based resin on the entire inner surface of the container since Bonelli et al. teaches that it was known and conventional in the metal container art to line the coating layer on the entire inner surface of the container.
Further regarding Claim 1, the limitations “for increasing storage stability of allulose syrup” are rejected as being indefinite as enumerated in the rejections under 35 USC 112(b) above. Insofar as these limitations could be understood, these limitations recite the properties of the claimed container. Woodyer et al. teaches the allulose syrup containing a stability enhancing additive (‘458, Paragraph [0023]) and a buffer to maintain the pH of the allulose syrup within the desired range for a longer period of time such that storage stability is further enhanced (‘458, Paragraph [0101]) and the stability enhancing ingredient being incorporated into the allulose syrup to impart a shelf life of at least 3 months (‘458, Paragraph [0107]) wherein the allulose content of the syrup does not change substantially after 6 months (‘458, Paragraph [0179]). Additionally, Woodyer et al. teaches incorporating a stability enhancing additive (‘458, Paragraph [0023]). Furthermore, Sahai et al. teaches a container having overlapping ranges of the headspace/volume of empty space excluding syrup. 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.). Furthermore, 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.I.). Since the prior art combination of Sahai et al. modified with Woodyer et al., Ozawa et al., and Bonelli et al. teaches the claimed allulose syrup container made of tin (via Ozawa et al.) having the claimed headspace/volume of empty space excluding syrup (via Sahai et al.), one of ordinary skill in the art would expect the allulose storage package of modified Sahai et al. to behave in the same manner as claimed, i.e. the container having increased storage stability of allulose syrup. It is also noted that the storage conditions of the allulose syrup disposed in the container are not specified. Several factors including the storage conditions of the container including temperature, humidity, light exposure, and/or oxygen presence influence the storage stability of the allulose syrup disposed in the container.
Regarding Claim 2, the limitations “wherein the allulose content of the allulose syrup stored under the condition of a total 10 week storage period at storage 25°C for 3 weeks followed by storage at 35°C for 7 weeks is at least 90% by weight based on 100% by weight of allulose content at zero week of storage” are limitations with respect to the properties of the claimed allulose storage package. Sahai et al. teaches the syrup being stored in a package having the claimed headspace volume of volume of empty space excluding syrup based on 100% of volumetric capacity of the container (‘713, Paragraph [0048]). Ozawa et al. teaches the can or beverage container including BPA containing coatings (‘763, Paragraph [0003]) wherein the can is a metal container, enclosure, receptacle, or portion thereof used to hold or store a food or beverage (‘763, Paragraphs [0010] and [0016]) wherein the can comprises a first coating on an interior surface of the can which coating is made of mixtures or copolymers of epoxy phenolic resins (‘763, Paragraph [0017]) wherein the metal of the can is tin (‘763, Paragraph [0016]). Bonelli et al. teaches the coating being disposed on all of the internal surfaces of the container (‘738, Paragraph [0036]). Where the claimed and prior art products are 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 at the time of the invention would expect the allulose storage package of Sahai et al. modified with Woodyer et al., Ozawa et al., and Bonelli et al. to behave in the same manner as claimed by having the same properties as claimed, i.e. the allulose content of the allulose syrup stored under the condition of a total 10 week storage period at storage 25°C for 3 weeks followed by storage at 35°C for 7 weeks is at least 90% by weight based on 100% by weight of allulose content at zero week of storage, since modified with Sahai et al. teaches an allulose storage package comprising an allulose syrup filled into a container having the claimed headspace volume. Furthermore, Woodyer et al. teaches the allulose syrup containing a stability enhancing additive (‘458, Paragraph [0023]) and a buffer to maintain the pH of the allulose syrup within the desired range for a longer period of time such that storage stability is further enhanced (‘458, Paragraph [0101]) and the stability enhancing ingredient being incorporated into the allulose syrup to impart a shelf life of at least 3 months (‘458, Paragraph [0107]) wherein the allulose content of the syrup does not change substantially after 6 months (‘458, Paragraph [0179]). Additionally, Woodyer et al. teaches incorporating a stability enhancing additive (‘458, Paragraph [0023]). One of ordinary skill in the art would adjust the amount of stability enhancing additive added to the allulose syrup to arrive at the claimed allulose content of the allulose syrup when stored under the claimed conditions and durations based upon the desired storage stability of the allulose syrup.
Further regarding Claim 2, several factors including the storage conditions of the container including humidity, light exposure, and/or oxygen presence influence the storage stability of the allulose syrup disposed in the container over an extended period of time. Given that none of the humidity, light exposure, and/or oxygen presence of the storage conditions of the container are specified in the claims, one of ordinary skill in the art can adjust the parameters of humidity, light exposure, and/or oxygen presence of the storage conditions of the container to maintain a majority of its organoleptic properties over an extended period of time.
Regarding Claim 4, Sahai et al. discloses nitrogen gas being injected into the empty space of the container (‘713, Paragraphs [0048]-[0049]).
Regarding Claim 7, Woodyer et al. discloses the allulose syrup having an allulose content of 93.8% (‘458, Paragraph [0154]) based on 100% by weight of the total solid content of the syrup, which falls within the claimed allulose syrup having an allulose content of 5% by weight or more based on 100% by weight of the total solid content of the syrup. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the syrup contained within the container of modified Sahai et al. and incorporate allulose syrup having the claimed allulose content since where the claimed allulose content of the allulose syrup encompasses allulose content of the allulose syrup of an example of 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.).
Regarding Claim 8, Woodyer et al. discloses the allulose syrup having a pH of 4.0 immediately after preparation (‘458, Paragraph [0135]), which falls within the claimed pH immediately after preparation of pH of 3.8. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the syrup contained within the container of modified Sahai et al. and incorporate allulose syrup having the claimed pH levels since where the claimed pH ranges immediately after preparation encompasses pH ranges immediately after preparation 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 pH levels immediately after preparation will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such pH levels immediately after preparation 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 pH levels of the allulose syrup of modified Sahai et al. based upon the desired acidity for a particular consumer.
Regarding Claim 9, the limitations “wherein the allulose syrup is an allulose syrup obtained by performing a decolorization process using activated carbon for a product of an allulose conversion reaction using a fructose substrate, a high purity separation process using chromatograph column filled with calcium type ion exchange resin, and ion purification process for an allulose fraction obtained in the high purity separation process” are product by process limitations. Even though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product by process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process in view of In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985) (MPEP § 2113.I.).
Claims 10-11 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Sahai et al. US 2013/0266713 in view of Woodyer et al. US 2018/0049458, Ozawa et al. US 2012/0067763, and Bonelli et al. US 2021/0000738.
Regarding Claim 10, Woodyer et al. discloses a method of preventing decomposition of allulose (improving storage stability of allulose syrups by careful control of certain parameters) (‘458, Paragraph [0081]). The method comprises filling allulose syrup into a container in an allulose storage package including the container and allulose syrup (‘458, Paragraph [0127]) for increasing the storage stability of allulose syrup (‘458, Paragraphs [0081] and [0101]).
Woodyer et al. is silent regarding the allulose syrup being filled into a container of 10% or less of empty space volume excluding syrup based on 100% of volume of the container. Woodyer et al. is also silent regarding the plastic container being made of polyethylene, tin or tin alloy and including a coating layer of epoxyphenol based resin formed on the entire inner surface of the container.
Sahai et al. discloses a syrup storage package comprising a container (airtight pressurized containers such as PET bottles, aluminum cans, glass bottles or the like) (‘713, Paragraphs [0048]-[0049]) and a syrup (‘713, Paragraph [0050]) wherein the syrup is filled so as for the volume of empty space excluding the syrup to be based on 100% volumetric capacity of the container, i.e. the headspace of the container, is 5 to 15% by volume of the container (‘713, Paragraph [0048]), which overlaps the claimed volume of empty space excluding syrup of 10% or less based on 100% of volumetric capacity of the container.
Both Woodyer et al. and Sahai et al. are directed towards the same field of endeavor of containers storing syrup. It would have been obvious to one of ordinary skill in the art to adjust the headspace/empty space volume excluding the syrup of the container of Woodyer et al. to the claimed level of headspace/empty space volume excluding syrup as taught by Sahai et al. since where the claimed container headspace volume ranges encompasses container headspace volume 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 container headspace volume will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such container headspace volume ranges 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.).
Further regarding Claim 10, Woodyer et al. modified with Sahai et al. is silent regarding the plastic container being made of polyethylene, tin or tin alloy and including a coating layer of epoxyphenol based resin formed on the entire inner surface of the container.
Ozawa et al. discloses a metal can or beverage container including BPA containing coatings (‘763, Paragraph [0003]) wherein the metal can is a metal container, enclosure, receptacle, or portion thereof used to hold or store a food or beverage (‘763, Paragraphs [0010] and [0016]) wherein the can comprises a first coating on an interior surface of the can which coating is made of mixtures or copolymers of epoxy phenolic resins (‘763, Paragraph [0017]) wherein the metal of the can is tin (‘763, Paragraph [0016]).
Both modified Woodyer et al. and Ozawa et al. are directed towards the same field of endeavor of food or beverage containers. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food and beverage storage package of the container of modified Woodyer et al. and construct the container of Sahai et al. out of tin or tin alloy and include a coating layer of epoxyphenol based resin formed on an inner surface of the container as taught by Ozawa et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ozawa et al. teaches that there was known utility in the food and beverage container art to incorporate the claimed tin metal or tin metal alloy as the container material and incorporate the claimed epoxy phenol based resin as the coating layer formed on an inner surface of the food or beverage container.
Further regarding Claim 10, Woodyer et al. modified with Sahai et al. and Ozawa et al. is silent regarding the coating layer of epoxyphenol based resin being formed on the entire inner surface of the container.
Bonelli et al. discloses a canister of a plastic can or metal canister having part or all of the internal surfaces lined with an inert organic coating of epoxyphenol resins (‘738, Paragraphs [0035]-[0036]).
Both modified Sahai Woodyer al. (via Ozawa et al.) and Bonelli et al. are directed towards the same field of endeavor of containers comprising an internal surface lined with epoxyphenol resins coatings. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the container of modified Woodyer et al. and form the coating layer of epoxyphenol based resin on the entire inner surface of the container since Bonelli et al. teaches that it was known and conventional in the metal container art to line the coating layer on the entire inner surface of the container.
Further regarding Claim 10, the limitations “for increasing storage stability of allulose syrup” are rejected as being indefinite as enumerated in the rejections under 35 USC 112(b) above. Insofar as these limitations could be understood, these limitations recite the properties of the claimed container. Woodyer et al. teaches the allulose syrup containing a stability enhancing additive (‘458, Paragraph [0023]) and a buffer to maintain the pH of the allulose syrup within the desired range for a longer period of time such that storage stability is further enhanced (‘458, Paragraph [0101]) and the stability enhancing ingredient being incorporated into the allulose syrup to impart a shelf life of at least 3 months (‘458, Paragraph [0107]) wherein the allulose content of the syrup does not change substantially after 6 months (‘458, Paragraph [0179]). Additionally, Woodyer et al. teaches incorporating a stability enhancing additive (‘458, Paragraph [0023]). Furthermore, Sahai et al. teaches a container having overlapping ranges of the headspace/volume of empty space excluding syrup. 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.). Furthermore, 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.I.). Since the prior art combination of Woodyer et al. modified with Sahai et al., Ozawa et al., and Bonelli et al. teaches the claimed allulose syrup container made of tin (via Ozawa et al.) having the claimed headspace/volume of empty space excluding syrup (via Sahai et al.), one of ordinary skill in the art would expect the allulose storage package of modified Woodyer et al. to behave in the same manner as claimed, i.e. the container having increased storage stability of allulose syrup. It is also noted that the storage conditions of the allulose syrup disposed in the container are not specified. Several factors including the storage conditions of the container including temperature, humidity, light exposure, and/or oxygen presence influence the storage stability of the allulose syrup disposed in the container.
Regarding Claim 11, the limitations “wherein the allulose content of the allulose syrup stored under the condition of a total 10 week storage period at storage 25°C for 3 weeks followed by storage at 35°C for 7 weeks is at least 90% by weight based on 100% by weight of allulose content at zero week of storage” are limitations with respect to the properties of the claimed allulose storage package. Sahai et al. teaches the syrup being stored in a package having the claimed headspace volume of volume of empty space excluding syrup based on 100% of volumetric capacity of the container (‘713, Paragraph [0048]). Ozawa et al. teaches the can or beverage container including BPA containing coatings (‘763, Paragraph [0003]) wherein the can is a metal container, enclosure, receptacle, or portion thereof used to hold or store a food or beverage (‘763, Paragraphs [0010] and [0016]) wherein the can comprises a first coating on an interior surface of the can which coating is made of mixtures or copolymers of epoxy phenolic resins (‘763, Paragraph [0017]) wherein the metal of the can is tin (‘763, Paragraph [0016]). Bonelli et al. teaches the coating being disposed on all of the internal surfaces of the container (‘738, Paragraph [0036]). Where the claimed and prior art products are 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 at the time of the invention would expect the allulose storage package of Sahai et al. modified with Woodyer et al., Ozawa et al., and Bonelli et al. to behave in the same manner as claimed by having the same properties as claimed, i.e. the allulose content of the allulose syrup stored under the condition of a total 10 week storage period at storage 25°C for 3 weeks followed by storage at 35°C for 7 weeks is at least 90% by weight based on 100% by weight of allulose content at zero week of storage, since modified with Sahai et al. teaches an allulose storage package comprising an allulose syrup filled into a container having the claimed headspace volume. Furthermore, Woodyer et al. teaches the allulose syrup containing a stability enhancing additive (‘458, Paragraph [0023]) and a buffer to maintain the pH of the allulose syrup within the desired range for a longer period of time such that storage stability is further enhanced (‘458, Paragraph [0101]) and the stability enhancing ingredient being incorporated into the allulose syrup to impart a shelf life of at least 3 months (‘458, Paragraph [0107]) wherein the allulose content of the syrup does not change substantially after 6 months (‘458, Paragraph [0179]). Additionally, Woodyer et al. teaches incorporating a stability enhancing additive (‘458, Paragraph [0023]). One of ordinary skill in the art would adjust the amount of stability enhancing additive added to the allulose syrup to arrive at the claimed allulose content of the allulose syrup when stored under the claimed conditions and durations based upon the desired storage stability of the allulose syrup.
Further regarding Claim 11, several factors including the storage conditions of the container including humidity, light exposure, and/or oxygen presence influence the storage stability of the allulose syrup disposed in the container over an extended period of time. Given that none of the humidity, light exposure, and/or oxygen presence of the storage conditions of the container are specified in the claims, one of ordinary skill in the art can adjust the parameters of humidity, light exposure, and/or oxygen presence of the storage conditions of the container to maintain a majority of its organoleptic properties over an extended period of time.
Regarding Claim 13, Sahai et al. discloses nitrogen gas being injected into the empty space of the container (‘713, Paragraphs [0048]-[0049]).
Claim 14 is rejected under 35 U.S.C. 103 as being unpatentable over Sahai et al. US 2013/0266713 in view of Woodyer et al. US 2018/0049458, Ozawa et al. US 2012/0067763, and Bonelli et al. US 2021/0000738 as applied to claim 1 above in further view of Schopf et al. US 4,443,482, Maas et al. US 2014/0299565, Sevcik US 2020/0207603, and Ethington Jr. et al. US 2002/0150665.
Regarding Claim 14, Sahai et al. discloses the container being an airtight pressurized container such as aluminum cans, PET bottles, glass bottles, and the like (‘713, Paragraph [0049]). Woodyer et al. discloses the allulose syrup container being a plastic container (‘458, Paragraph [0127]) such as a plastic HDPE container (‘458, Paragraph [0173]). Bonelli et al. discloses the container being a metal canister or a plastic can or a plastic coated glass bottle (‘738, Paragraph [0035]). However, Sahai et al. modified with Woodyer et al., Ozawa et al., and Bonelli et al. is silent regarding the airtight pressurized container being made of polyethylene.
Schopf et al. discloses a pourable, stable table syrup bottled in a polyolefin bottle which does not develop an objectionable off flavor (‘482, Column 2, lines 1-4) wherein the container is a polypropylene container (‘482, Column 5, lines 47-51) wherein the syrup comprises a blend of sugar syrups (‘482, Column 4, liens 29-52). Maas et al. discloses a beverage container (composite container 1) (‘565, Paragraph [0034]) that is airtight and pressurized (‘565, Paragraph [0048]) wherein the beverage container is made of polyethylene terephthalate (PET) or polypropylene or using other polyolefins (‘565, Paragraph [0038]).
Both modified Sahai et al. and Schopf et al. are directed towards the same field of endeavor of containers for storing syrup. Both syrup containers of modified Sahai et al. and Schopf et al. are plastic bottles. Maas et al. teaches that beverage containers made of polypropylene can be airtight and pressurized. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the airtight pressurized container of modified Sahai et al. that contains syrup to be made of an airtight, pressurized material of polypropylene disclosed by Maas et al. since Schopft et al. teaches that there was known utility in the food and beverage container art to dispose syrup into plastic containers made of polypropylene. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07).
Further regarding Claim 14, Sahai et al. discloses the adding liquefied gas by mixing liquid nitrogen with metal cans filled with a liquid juice composition (‘713, Paragraph [0048]) wherein the juice products includes a syrup and/or liquid and the juice product includes nitrogen (‘713, Paragraphs [0011]-[0012]), which necessarily entails a step of nitrogen gas being injected into the syrup. Additionally, Sevcik discloses a syrup concentration system made by injecting nitrogen gas into syrup (‘603, Paragraph [0048]). Ethington Jr. et al. teaches that adding nitrogen to a syrup composition whips the syrup composition and adds air to the syrup composition product to make it fluffier and easier to spread and adding nitrogen gas provides additional air volume in the product to make the product appear to have more volume and fill a larger container (‘665, Paragraph [0030]). It would have been obvious to one of ordinary skill in the art to inject nitrogen gas into the syrup of Sahai et al. as explicitly taught by Sevcik to make the syrup have more air volume to make the syrup product appear to have more volume as taught by Ethington Jr. et al. (‘665, Paragraph [0030]).
Further regarding Claim 14, the limitations “to prevent the decomposition of allulose or its conversion into other substances” are limitations with respect to the properties of allulose mixed with nitrogen gas. 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.). Furthermore, 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.I.). Since the prior art combination of Sahai et al. modified with Woodyer et al., Ozawa et al., Bonelli et al., Schopf et al., Maas et al., Sevcik, and Ethington Jr. et al. teaches the claimed allulose syrup container having nitrogen gas injected into the syrup (via Sevcik), one of ordinary skill in the art would expect the allulose storage package of modified Sahai et al. to behave in the same manner as claimed, i.e. the nitrogen gas is filled in the allulose syrup to prevent the decomposition of allulose or its conversion into other substances. It is noted that the claim does not specify any particular amount of nitrogen gas that is filled into the allulose syrup. Any amount of nitrogen gas that is filled into the allulose syrup reads on the claimed properties of preventing the decomposition of allulose or its conversion into other substances.
Claim 15 is rejected under 35 U.S.C. 103 as being unpatentable over Sahai et al. US 2013/0266713 in view of Woodyer et al. US 2018/0049458, Ozawa et al. US 2012/0067763, and Bonelli et al. US 2021/0000738 as applied to claim 10 above in further view of Schopf et al. US 4,443,482, Sevcik US 2020/0207603, and Ethington Jr. et al. US 2002/0150665.
Regarding Claim 15, Woodyer et al. discloses the allulose syrup container being a plastic container (‘458, Paragraph [0127]) such as a plastic HDPE container (‘458, Paragraph [0173]). Sahai et al. discloses the container being an airtight pressurized container such as aluminum cans, PET bottles, glass bottles, and the like (‘713, Paragraph [0049]). Bonelli et al. discloses the container being a metal canister or a plastic can or a plastic coated glass bottle (‘738, Paragraph [0035]). However, Woodyer et al. modified with Sahai et al., Ozawa et al., and Bonelli et al. is silent regarding the plastic container being made of polyethylene.
Schopf et al. discloses a pourable, stable table syrup bottled in a polyolefin bottle which does not develop an objectionable off flavor (‘482, Column 2, lines 1-4) wherein the container is a polypropylene container (‘482, Column 5, lines 47-51) wherein the syrup comprises a blend of sugar syrups (‘482, Column 4, liens 29-52).
Both modified Sahai et al. and Schopf et al. are directed towards the same field of endeavor of containers for storing syrup. Both syrup containers of modified Sahai et al. and Schopf et al. are plastic bottles. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the plastic container of modified Woodyer et al. that contains syrup to be made polypropylene since Schopft et al. teaches that there was known utility in the food and beverage container art to dispose syrup into plastic containers made of polypropylene. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07).
Further regarding Claim 15, Sahai et al. discloses the adding liquefied gas by mixing liquid nitrogen with metal cans filled with a liquid juice composition (‘713, Paragraph [0048]) wherein the juice products includes a syrup and/or liquid and the juice product includes nitrogen (‘713, Paragraphs [0011]-[0012]), which necessarily entails a step of nitrogen gas being injected into the syrup. Additionally, Sevcik discloses a syrup concentration system made by injecting nitrogen gas into syrup (‘603, Paragraph [0048]). Ethington Jr. et al. teaches that adding nitrogen to a syrup composition whips the syrup composition and adds air to the syrup composition product to make it fluffier and easier to spread and adding nitrogen gas provides additional air volume in the product to make the product appear to have more volume and fill a larger container (‘665, Paragraph [0030]). It would have been obvious to one of ordinary skill in the art to inject nitrogen gas into the syrup of modified Woodyer et al. as explicitly taught by Sevcik to make the syrup have more air volume to make the syrup product appear to have more volume as taught by Ethington Jr. et al. (‘665, Paragraph [0030]).
Response to Amendment
The affidavit under 37 CFR 1.132 filed May 6, 2026 is insufficient to overcome the obviousness rejection of Claim 1 under 35 USC 103(a) to Sahai et al. in view of Woodyer et al., Ozawa et al., and Bonelli et al. as set forth in the last Office action because of the following:
Applicant provides on Paragraph 7 on Pages 2-3 of the affidavit Supplemental Experimental Data 1 of allulose vs. glucose in uncoated tin at 45C that allulose syrup and glucose syrup were each placed in uncoated tin containers and stored at 45C and samples were taken periodically and analyzed for sugar content and the results show that allulose is substantially less stable than glucose under identical conditions in which glucose content decreased from about 96.5% to about 91.5% after 6 weeks whereas allulose content decreased from about 96.4% to about 86.5% after 6 weeks to demonstrate that allulose cannot be treated as a routine syrup substrate for which stability behavior would have been predictable form conventional sugars.
Examiner argues that the prior art combination of Sahai et al. in view of Woodyer et al., Ozawa et al., and Bonelli et al. teaches a coated tin container containing allulose syrup. Evidence of unexpected results may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims in view of In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980) (MPEP§ 716.02(b).III.). The prior art combination already teaches a coated tin container containing allulose syrup. Furthermore, Claim 1 encompasses an embodiment of the container being made of polypropylene. However, Supplemental Data 1 does not provide any experiments with respect to a polypropylene container. Applicant does not provide experimental data that is commensurate in scope with all embodiments of container materials claimed in Claim 1.
Applicant provides on Paragraph 8 on Pages 3-5 of the affidavit Supplemental Experimental Data 2 of allulose syrup stored at 45C in four different containers of stainless steel, polyethylene, epoxy coated tin, and uncoated tin and during storage pH, yellowness/browning, and allulose content were measured. Applicant contends that uncoated tin induced rapid degradation behavior that was not observed in the other containers wherein polyethylene, stainless steel, and epoxy coated tin containers maintained yellowness at 0.1 or less even after 6 weeks and exhibited improved allulose retention. Applicant concludes that direct contact between allulose syrup and reactive metal surfaces such as uncoated tin can trigger a chain reaction of metal ion elution, pH decrease, accelerated browning, and allulose loss and that the claimed selection of polyethylene containers or epoxyphenol coated tin containers purposefully blocks this contact to improve storage stability.
Examiner argues the prior art combination of Sahai et al. in view of Woodyer et al., Ozawa et al., and Bonelli et al. teaches a coated tin container containing allulose syrup. Evidence of unexpected results may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims in view of In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980) (MPEP§ 716.02(b).III.). The prior art combination already teaches a coated tin container containing allulose syrup. Furthermore, Woodyer et al. teaches incorporating a stability enhancing additive (‘458, Paragraph [0023]). One of ordinary skill in the art would adjust the amount of stability enhancing additive added to the allulose syrup to arrive at the claimed allulose content of the allulose syrup when stored under the claimed conditions and durations based upon the desired storage stability of the allulose syrup. The prior art already recognizes improving the storage stability of allulose syrups.
Applicant argues on Paragraph 9 on Page 5 of the affidavit that Example 3/Table 3 shows a tin container double coated on the entire inner surface with an epoxyphenol based resin exhibited less allulose loss than a corresponding single coated container and outperformed a container coated only on the sidewall to show reducing the effective contact between the allulose syrup and the tin substrate improves stability and that double coating provides a benefit over single coating.
Examiner argues Claim 1 does not recite a double coating layer. Additionally, Claim 1 encompasses an embodiment wherein the container is made of polyethylene. Applicant points to data that is not commensurate in scope with the claimed invention. Furthermore, Bonelli et al. teaches coating an entirety of the inner surface. Therefore, this data is not sufficient to overcome the obviousness rejection.
Examiner notes that applicant’s storage conditions discussed on Paragraph 11 on Page 6 of the affidavit are not specified. Several factors including the storage conditions of the container including humidity, light exposure, and/or oxygen presence influence the storage stability of the allulose syrup disposed in the container over an extended period of time. Given that none of the humidity, light exposure, and/or oxygen presence of the storage conditions of the container are specified in the claims, one of ordinary skill in the art can adjust the parameters of humidity, light exposure, and/or oxygen presence of the storage conditions of the container to maintain a majority of its organoleptic properties over an extended period of time.
Response to Arguments
Examiner notes that new indefiniteness rejections under 35 USC 112(b) have been made in view of the amendments.
Applicant’s arguments with respect to the obviousness rejections of Claims 10-11, 13, and 15 under 35 USC 103(a) 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. Independent Claim 10 is currently rejected over Woodyer et al. in view of Sahai et al., Ozawa et al., and Bonelli et al.
Applicant's arguments filed May 5, 2026 with respect to the obviousness rejections of Claim 1 under 35 USC 103(a) to Sahai et al. in view of Woodyer et al., Ozawa et al., and Bonelli et al. have been fully considered but they are not persuasive.
Applicant argues on Pages 5-6 of the Remarks that the cited art treats syrups generically and does not recognize the allulose specific degradation mechanism or the need to control packaging parameters of headspace, container material, and inner surface coating extent and multiplicity to suppress decomposition during storage. Applicant contends that Sahai et al. does not disclose or suggest storing allulose syrup, does not address allulose decomposition or HMF formation and does not teach the headspace as a critical parameter for long term chemical stability of a rare sugar syrup. Applicant admits that Sahai et al. mentions a headspace range of 5-15% during a gas dissolving process which headspace range applicant alleges is tied to foaming behavior and package pressure and not suppression of allulose degradation whereas the instantly claimed invention is directed to increasing storage stability of allulose syrup and allegedly supported by experimental evidence showing that the headspace is a functional and critical conditions for maintaining allulose content at or above a 90% threshold.
Examiner argues the primary reference of Sahai et al. teaches the container having a headspace of 5 to 15% by volume (‘713, Paragraph [0048]), which overlaps the claimed range of volume of empty space excluding syrup to be 10% or less based on 100% of volumetric capacity of the container. Applicant contends that this headspace range tied to foaming behavior instead of suppression of allulose degradation. 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). Where the claimed container headspace volume ranges encompasses container headspace volume 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 container headspace volume will not support the patentability of subject matter encompassed by the prior art unless there is evidence indicating such container headspace volume ranges 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.). The secondary reference of Woodyer et al. is being relied upon to teach the syrup that is stored in the container to be allulose syrup. Both Sahai et al. and Woodyer et al. are directed towards the same field of endeavor of syrups stored in food and beverage packages. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the package of Sahai et al. that already teaches disposing syrup in a container and store allulose syrup within the container as taught by Woodyer et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Woodyer et al. teaches that there was known utility in the food and beverage packaging art to package allulose syrups in containers. Furthermore, one of ordinary skill in the art at the time of the invention would modify the syrup container of modified Sahai et al. and store allulose syrup since Woodyer et al. teaches that allulose syrup is a zero calorie container. One of ordinary skill in the art would adjust the particular type of syrup stored in the container of Sahai et al. based upon a particular consumer’s caloric requirements as suggested by Woodyer et al. 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). Furthermore, Claim 1 does not recite “suppress decomposition during storage.” Insofar as it can be understood that applicant attempts to argue the limitations “for increasing storage stability of allulose syrup” recited in Claim 1, these limitations recite the properties of the claimed container. Woodyer et al. teaches the allulose syrup containing a stability enhancing additive (‘458, Paragraph [0023]) and a buffer to maintain the pH of the allulose syrup within the desired range for a longer period of time such that storage stability is further enhanced (‘458, Paragraph [0101]) and the stability enhancing ingredient being incorporated into the allulose syrup to impart a shelf life of at least 3 months (‘458, Paragraph [0107]) wherein the allulose content of the syrup does not change substantially after 6 months (‘458, Paragraph [0179]). Additionally, Woodyer et al. teaches incorporating a stability enhancing additive (‘458, Paragraph [0023]). Furthermore, Sahai et al. teaches a container having overlapping ranges of the headspace/volume of empty space excluding syrup. 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.). Furthermore, 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.I.). Since the prior art combination of Sahai et al. modified with Woodyer et al., Ozawa et al., and Bonelli et al. teaches the claimed allulose syrup container made of tin (via Ozawa et al.) having the claimed headspace/volume of empty space excluding syrup (via Sahai et al.), one of ordinary skill in the art would expect the allulose storage package of modified Sahai et al. to behave in the same manner as claimed, i.e. the container having increased storage stability of allulose syrup. It is also noted that the storage conditions of the allulose syrup disposed in the container are not specified. Several factors including the storage conditions of the container including temperature, humidity, light exposure, and/or oxygen presence influence the storage stability of the allulose syrup disposed in the container. Therefore, these arguments are not found persuasive.
Applicant argues on Page 6 of the Remarks that Woodyer et al. recognizes the stability problems of allulose syrup but addresses it through compositional measures, e.g. controlling solids, pH, and optional additives and does not teach or suggest that packaging parameters such as headspace to control to 10% or less, selection of polyethylene as an inert container material or selection of a tin or tin alloy container that is double coated on the entire inner surface with an epoxyphenol based resin would solve the stability problem. Applicant concludes Woodyer et al. does not provide a teaching or motivation to combine with Sahai et al.’s foaming beverage package parameters to arrive at the claimed invention and that Woodyer et al. teaches away from packaging based solutions toward compositional optimization.
Examiner argues Claim 1 recites the transitional phrase “comprising,” which is inclusive or open ended and does not exclude additional, unrecited elements or method steps in view of Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837, 1843 (Fed. Cir. 2004) (MPEP § 2111.03.I.). Claim 1 does not preclude the presence of unrecited solids content, pH levels, and/or additives disclosed by Woodyer et al. Claim 1 also does not specify any particular foaming levels and generically reads on any syrup having any foaming properties. The secondary reference of Woodyer et al. is being relied upon to modify the generic syrup disposed in the container of the primary reference of Sahai et al. to be allulose syrup. The secondary reference of Woodyer et al. is not being relied upon for its disclosure of the claimed headspace volume, which headspace volume is already taught by the primary reference of Sahai et al. Additionally, it is noted that Claim 1 does not require the coating layer to be double coated. Applicant argues limitations that are not commensurate in scope with the claimed invention. The secondary reference of Ozawa et al. is being relied upon to teach the limitations regarding the coating layer of epoxyphenol based resin. The secondary reference of Bonelli et al. is being relied upon to teach the limitations regarding the coating layer being disposed on the entire inner surface of the container. 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 6 regarding Ethington Jr. et al. are moot since Ethington Jr. et al. is not currently being relied upon to reject Claim 1 or Claim 10. It is noted that the Schopf et al. and Maas et al. is being relied upon to render obvious the limitations of the polypropylene container recited in Claim 14 and Schopf et al. is being relied upon to render obvious the limitations of the polypropylene container recited in Claim 15.
Applicant argues on Pages 6-7 of the Remarks that Ozawa et al. does not recognize that direct contact between allulose syrup and certain reactive metals, e.g. uncoated tin, can catalyze a chain reaction of metal ion elution, pH decrease, accelerated browning, and allulose loss and Ozawa et al. does not suggest that a container material/coating configuration should be selected or fully coated and double coated for the purposes of suppressing allulose decomposition. Applicant continues on Page 7 of the Remarks that Bonelli et al. does not disclose double coating on the entire inner surface, does not disclose allulose and does not suggest that coating extent or multiplicity materially affects sugar retention.
Examiner argues Claim 1 does not recite catalyzing a chain reaction of metal ion elution, pH levels, accelerated browning, allulose loss and/or double coating or sugar retention. Applicant argues limitations that are not commensurate in scope with the claimed invention. Ozawa et al. discloses a metal can or beverage container including BPA containing coatings (‘763, Paragraph [0003]) wherein the metal can is a metal container, enclosure, receptacle, or portion thereof used to hold or store a food or beverage (‘763, Paragraphs [0010] and [0016]) wherein the can comprises a first coating on an interior surface of the can which coating is made of mixtures or copolymers of epoxy phenolic resins (‘763, Paragraph [0017]) wherein the metal of the can is tin (‘763, Paragraph [0016]). Both modified Sahai et al. and Ozawa et al. are directed towards the same field of endeavor of food or beverage containers. It would have been obvious to one of ordinary skill in the art at the time of the invention to modify the food and beverage storage package of the metal container of modified Sahai et al. and construct the container of Sahai et al. out of tin or tin alloy and include a coating layer of epoxyphenol based resin formed on an inner surface of the container as taught by Ozawa et al. since the selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination in view of Sinclair & Carroll Co. v. Interchemical Corp., 325 U.S. 327, 65 USPQ 297 (1945) (MPEP § 2144.07). Ozawa et al. teaches that there was known utility in the food and beverage container art to incorporate the claimed tin metal or tin metal alloy as the container material and incorporate the claimed epoxy phenol based resin as the coating layer formed on an inner surface of the food or beverage container. Bonelli et al. is being relied upon to teach the limitations regarding all of the internal surfaces lined with an inert organic coating of epoxyphenol resins (‘738, Paragraphs [0035]-[0036]). 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). Furthermore, 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). Therefore, these arguments are not found persuasive.
Applicant argues on Pages 7-8 of the Remarks that the criticality of the claimed headspace is allegedly proven in Table 1 of the instant specification and that when subjected to 10 week storage testing (3 weeks at 25C then 7 weeks at 35C), Experimental Group 1-1 (restricted to a 10% headspace) successfully retained 92.37 wt% of its original allulose content, whereas Comparative Group 1-2 (with a 90% headspace) suffered a substantial drop falling to 89.59 wt%. Applicant concludes that these results demonstrate that an enlarged headspace introduces more air and destabilizes the allulose. Applicant continues that Example 2 of the present application replaces air with nitrogen whether in the headspace or injected into the syrup consistently reduces allulose loss over here weeks versus the air filled control with nitrogen in syrup performing best by reducing dissolved air in the syrup itself.
Examiner argues the primary reference of Sahai et al. already teaches the claimed headspace volume of the syrup container. The secondary reference of Woodyer et al. teaches the syrup to be allulose syrup. The secondary reference of Ozawa et al. is being relied upon to teach the limitations regarding the container to be made of tin and the container including a coating layer of epoxyphenol based resin formed on the inner surface of the container. The secondary reference of Bonelli et al. is being relied upon to teach the limitations regarding the coating layer of epoxyphenol based resin to be formed on the entire inner surface of the container. Where the claimed and prior art products are 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 at the time of the invention would expect the allulose storage package of Sahai et al. modified with Ethington Jr. et al., Woodyer et al., Ozawa et al., and Bonelli et al. to behave in the same manner as claimed by having the same properties as claimed, i.e. the allulose content of the allulose syrup stored under the condition of a total 10 week storage period at storage 25°C for 3 weeks followed by storage at 35°C for 7 weeks is at least 90% by weight based on 100% by weight of allulose content at zero week of storage, since Woodyer et al. modified with Sahai et al. teaches an allulose storage package comprising an allulose syrup filled into a container having the claimed headspace volume Furthermore, Woodyer et al. teaches the allulose syrup containing a stability enhancing additive (‘458, Paragraph [0023]) and a buffer to maintain the pH of the allulose syrup within the desired range for a longer period of time such that storage stability is further enhanced (‘458, Paragraph [0101]) and the stability enhancing ingredient being incorporated into the allulose syrup to impart a shelf life of at least 3 months (‘458, Paragraph [0107]) wherein the allulose content of the syrup does not change substantially after 6 months (‘458, Paragraph [0179]). Additionally, Woodyer et al. teaches incorporating a stability enhancing additive (‘458, Paragraph [0023]). One of ordinary skill in the art would adjust the amount of stability enhancing additive added to the allulose syrup to arrive at the claimed allulose content of the allulose syrup when stored under the claimed conditions and durations based upon the desired storage stability of the allulose syrup. 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). Furthermore, several factors including the storage conditions of the container including humidity, light exposure, and/or oxygen presence influence the storage stability of the allulose syrup disposed in the container over an extended period of time. Given that none of the humidity, light exposure, and/or oxygen presence of the storage conditions of the container are specified in the claims, one of ordinary skill in the art can adjust the parameters of humidity, light exposure, and/or oxygen presence of the storage conditions of the container to maintain a majority of its organoleptic properties over an extended period of time. It is noted that Claim 1 does not recite the storage conditions. These storage conditions are only recited in Claim 2. Furthermore, the data of Table 1 discloses experiments in which the allulose syrup is stored in a polyethylene container. Claim 1 encompasses embodiments in which the container is made of tin or tin alloy. The data of Table 1 is not commensurate in scope with all embodiments of container materials recited in Claim 1. Applicant argues limitations that are not commensurate in scope with Claim 1.
Applicant argues on Page 8 of the Remarks that neither Ozawa nor Bonelli recognizes that allulose decomposition and browning are catalyzed by direct contact with metal surfaces.
Examiner argues that Claim 1 does not recite any browning properties and/or allulose decomposition. Applicant argues limitations that are not commensurate in scope with the claimed invention. It is noted that the disclosure at the time of filing also never mentions the advantages pertaining to browning.
Applicant argues on Pages 9-10 of the Remarks that the invention emphasizes coating the entire inner surface of the container and utilizing double coatings is effective at preventing metal syrup interactions. Applicant points to comparative data in Example 3 of the instant specification allegedly showing double coated containers provide superior stability over single coated version and that tin containers with full surface coating showed better allulose retention than those coated only on the sides.
Examiner argues the secondary reference of Bonelli et al. is being relied upon to teach the limitations regarding a plastic can or metal canister having part or all of the internal surfaces lined with an inert organic coating of epoxyphenol resins (‘738, Paragraphs [0035]-[0036]). Claim 1 does not recite a double coating. Applicant argues limitations that are not commensurate in scope with the claimed invention. With respect to applicant’s comments regarding full surface coating showing better allulose retention than those coated only on the sides, Bonelli et al. already teaches lining all of the internal surfaces with a coating. Therefore, these arguments are not found persuasive.
Applicant argues on Pages 10-11 of the Remarks that Example 2 of the instant specification shows a divergence in allulose retention over three weeks and concludes that these nitrogen filled groups experienced a significantly smaller decrease in content because the injection effectively suppressed the deleterious reactions between allulose and atmospheric gases. Applicant continues that these findings transcend the general theory that oxygen removal somewhat improves stability and that by maintain an allulose content of 90% or more under high heat stress the invention proves that its nitrogen injection protocol is not a generic application of sparging.
Examiner argues it is first noted that Claim 1 does not require the air in the headspace of the container to be replaced with air. Only Claim 4 recites nitrogen gas being injected into the headspace of the container. Applicant shows experimental data that is not commensurate in scope with all of the claims. Furthermore, Sahai et al. already teaches the headspace of the container containing pressurized nitrogen gas (‘713, Paragraphs [0048]-[0049]). Regarding applicant’s assertion that injecting nitrogen into the syrup reduces air in the allulose syrup, Lucas US 2020/0281230 discloses a system and method for deaerating beverages wherein deaerating syrups is incompatible with conventional deaeration process and results in excessive foaming wherein syrups can have up to 20 ppm dissolved nitrogen (‘230, Paragraph [0009]) wherein nitrogen gas is injected into a blended product comprising water and syrup followed by introducing the gas containing product blend into a vented atmospheric vessel such that undesired gasses of oxygen and nitrogen are released from the product blend (‘230, Paragraph [0023]) wherein the product blend is sparged, i.e. gas is injected into the product blend in the form of bubbles (‘230, Paragraph [0026]) wherein the sparging step is conducted by using nitrogen to reduce the amount of dissolved oxygen in the product blend (‘230, Paragraph [0027]) wherein nitrogen sparging is a well known method of removing dissolved air (‘230, Paragraph [0036]) wherein sparging is accomplished by injecting bubbles of any size into an air containing liquid (‘230, Paragraph [0037]). Lucas US 2018/0020700 discloses a method of controlling levels of dissolved gases in a beverage during the beverage production process for carbonated beverages comprising water and syrup wherein the product blend is deaerated prior to packaging wherein oxygen and nitrogen are removed from the beverage by preinjecting into the total blended product of water and syrup the desired gas type of nitrogen followed by introducing the gas containing product blend into a vented atmospheric vessel such that undesired gases of oxygen and nitrogen are released from the product blend (‘700, Paragraph [0023]) and a method of making a carbonated beverage comprising the steps of introducing carbon dioxide bubbles by sparging into a flowing stream of a product blend comprising water and syrup wherein the product blend includes dissolved oxygen and deaerating the carbon dioxide containing product blend by introducing the blend into a vented atmospheric vessel whereby a portion of the dissolved oxygen is released from the product blend and vented from the vessel (‘700, Paragraphs [0029]-[0031]) wherein the amount of carbon dioxide that can be dissolved in a given quantity of liquid depends on the nature of that liquid and also its temperature and the partial pressure of carbon dioxide in the gaseous atmosphere in contact with the liquid, i.e. Henry’s Law (‘700, Paragraph [0010]) wherein sparging is based on Henry’s Law which states that the solubility of a gas in a liquid is proportional to the partial pressure of that gas in the gaseous atmosphere in contact with the liquid wherein the nitrogen sparge gas is introduced into an air containing liquid in the form of bubbles to create a difference in partial pressure between the nitrogen sparge gas and the oxygen gas dissolved in the liquid which difference in partial pressure causes the dissolved undesired oxygen gas to be expelled from the liquid as the sparge gas is absorbed, i.e. dissolved, into the liquid (‘700, Paragraph [0036]). Any differences between the claimed invention and the prior art may be expected to result in some differences in properties. The issue is whether the properties differ to such an extent that the difference is really unexpected in view of In re Merck & Co., 800 F.2d 1091, 231 USPQ 375 (Fed. Cir. 1986) (MPEP § 716.02). Lucas establishes that it was well known in the food art that sparging is a well known method of removing dissolved air wherein sparging is accomplished by injecting bubbles of any size into an air containing liquid. Example 2 does not show anything that was unexpected. In fact, Lucas establishes that applicant’s findings of Example 2 that injecting nitrogen into the syrup reduces air in the allulose syrup was a well known technique known as sparging as disclosed by Lucas. With respect to the data shown in Example 3, none of the claims recite the number of coatings, e.g. single coating or double coating. Applicant provides experimental data that is not commensurate in scope with the claimed invention. Furthermore, evidence of unexpected properties may be in the form of a direct or indirect comparison of the claimed invention with the closest prior art which is commensurate in scope with the claims in view of In re Boesch, 617 F.2d 272, 205 USPQ 215 (CCPA 1980) (MPEP § 716.02(b).III.). The closest prior art of Bonelli et al. already teaches coating the entire inner surface of the container. Applicant has not provided any experimental data that was not already known in the art since Bonelli et al. teaches coating the entire inner surface of a container. Therefore, these arguments are not found persuasive.
Examiner notes that Claim 1 is not directed to a method of increasing storage stability of allulose syrup. Instead, Claim 1 is directed to an allulose storage package. Claim 10 is directed to a method of preventing decomposition of allulose.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure.
Ritter et al. US 2017/0216328 discloses a GOS syrup filled directly into a high density polyethylene bottle (‘328, Paragraph [0124]).
Curry Jr. US 4,282,984 discloses an airtight container storing syrup in atmospheric or pressurized conditions comprising a polypropylene liner.
The prior art made of record, cited on a previous 892-Notice of References Cited form, and not relied upon is considered pertinent to applicant's disclosure.
Magda et al. US 2006/0160784 discloses a composition in the form of a syrup (‘784, Paragraph [0157]) disposed in a container having a headspace containing at least about 90% nitrogen gas and occupying less than about 12% or less of the volume of the sealed container (‘784, Paragraph [0170]).
Moffitt et al. US 2018/0305073 discloses a syrup dispensing cup having a water vapor transmission rate that reduces or minimizes the transfer of moisture through and into the body structure to increase the shelf life of the contents disposed within the syrup dispensing cups (‘073, Paragraph [0046]).
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/ERICSON M LACHICA/Examiner, Art Unit 1792
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