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 .
Election/Restrictions
Applicant's election with traverse of Group I, claims 1-15 and Species A, beverage precursor in the reply filed on July 30, 2025 is acknowledged. The traversal is on the ground(s) that a prior art rejection has not been made over the cited art Prakash and that there was no reason for the species restriction. This is not found persuasive because the species and groups of invention do not have a special technical feature, as shown by the teachings of Prakash. It is noted that a prior art rejection of the claims need not be made for the restriction to be proper, only a showing that the linking feature is not a special technical feature, or that there is no linking feature.
The requirement is still deemed proper and is therefore made FINAL. Claims 4, 9, 15, and 16 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b), as being drawn to a nonelected invention (method of suppressing foam- claim 16) or species (beverage, i.e. diluted precursor- claims 4, 9, and 15), there being no allowable generic or linking claim.
Claim Rejections - 35 USC § 102/103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
(a)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Notes
“Approximately” means that an identity exists within the range of plus or minus 10% of the numeric value (instant specification paragraph 11)
“D-allulose” is also known as “D-psicose” (instant specification paragraph 12)
Claims 10-14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Bell et al (US 2014/0342044).
Regarding claims 10 and 12-14, Bell et al (Bell) teaches a beverage concentrate or syrup for making beverages, i.e. a beverage precursor, comprising: not more than, i.e. up to 2.1% D-allulose (D-psicose) and 300-3600ppm rebaudioside (reb) M (abstract and claim 17). Bell further teaches that a purity of the reb, including the reb M is 93% or greater (paragraph 26). Bell additionally teaches that the products disclosed can contain 0.1-6.0% D-allulose (paragraph 21).
Regarding claim 13, as Bell teaches the composition comprising not more than 2.1% D-allulose and 300-3600ppm reb M (claim 17), wherein a disclosed lower end of the range of D-allulose is 0.1% (paragraph 21), the ratio of D-allulose to the steviol glycoside taught by Bell is about 0.28 (0.1/.36) to 70 (2.1/0.03).
Claims 1-3, 5, 7, 8, 10-12, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by or alternatively, under 35 U.S.C. 103 as being unpatentable over Nattress et al (US 2019/0124953).
Nattress et al (Nattress) teaches a beverage concentrate or syrup for making beverages, i.e. a beverage precursor and drink product, wherein the concentrate contains: water, i.e. a solvent, to which rebaudiosides (reb) A, D, and M (steviol glycosides) and up to 18% D-allulose and/or erythritol are added (paragraphs 137, 138, 141, and 158). Also see claim 17. Nattress further teaches that the beverage precursor can to be diluted with 1 part concentrate to about 3-7 parts water, such that, working backwards a full-strength beverage with 200ppm reb A, 100ppm reb D, and 100ppm reb M when prepared with a 5:1 throw would comprise about 1200ppm reb A, about 600ppm reb D, and 600ppm reb M (paragraphs 139 and 140).
Nattress is not specific to the D-allulose as added at 0.5-25 parts per 100 grams of solvent by weight as recited in claim 1, or the steviol glycoside as from 100-5000ppm in the solution as recite in claims 2 and 10, or to the weight ratio of D-allulose to steviol glycoside as 1-2500 as recited in claims 3 and 11, or to the steviol glycoside as reb M from 100-5000ppm as recited in claims 7 and 14.
However, as Nattress teaches that the beverage product contains: D-allulose and/or erythritol (paragraphs 137, 138, 141, and 158), 100-360ppm reb A (paragraph 109), 50-180ppm reb D (paragraph 111), and 50-180ppm reb M (paragraph 113), wherein other compositional components, while optional, are not required (all- see specifically paragraphs 99, 141, and 142), the beverage precursor composition and the amount of D-allulose per weight of solvent can be calculated.
For example, wherein the concentrate contains 3-18% D-allulose, no erythritol, and the beverage is produced with a ratio of 1 part concentrate to 3 parts water to arrive at 100ppm reb A, 50ppm reb D and 50ppm reb M, the concentrate would consist by weight of: 3-18% D-allulose; about 400ppm reb A; about 200ppm reb D; about 200ppm reb M; and thus about 82-97% water, i.e. a solvent.
For example, wherein the concentrate contains 3-18% D-allulose, no erythritol, and the beverage is produced with a ratio of 1 part concentrate to 7 parts water to arrive at 360ppm reb A, 180ppm reb D and 180ppm reb M, the concentrate would consist by weight of: 3-18% D-allulose; about 2,880ppm reb A; about 1,440ppm reb D; about 1,440ppm reb M; and thus about 82-97% water, i.e. a solvent.
Therefore, the teachings of Nattress encompass or alternatively make obvious a beverage concentrate formed by adding by weight about 3-22 parts D-allulose per 100 parts water, which is a solvent; wherein a steviol glycoside is from 400-2880ppm when the steviol glycoside is reb A, or 200-1440ppm when the steviol glycoside is reb M, and the ratio of the D-allulose to steviol glycoside is about 10-450 when the glycoside is reb A, or about 20.8-900 when the glycoside is reb M. Nattress discloses overlapping ranges which encompass or alternatively make obvious the claimed ranges. In the alternative position, it would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.
Claims 6 and 13 are rejected under 35 U.S.C. 103 as being unpatentable over Nattress et al (US 2019/0124953) in view of Bell et al (US 2014/0342044).
As discussed above, Nattress teaches a beverage concentrate or syrup for making beverages, i.e. a beverage precursor and drink product, comprising reb M.
Nattress is silent to the purity of the reb M as from 50-99.9% as recited in claims 6 and 13.
Bell et al (Bell) teaches a beverage concentrate or syrup for making beverages, i.e. a beverage precursor and drink product, comprising: D-allulose (D-psicose) and reb M (abstract, paragraphs 4, 9, 10, 12, 13, 21, 22, 24, 25, 28, and 29). Bell teaches that the stevia extract is purified to selectively isolate one or more rebaudiosides to increase the weight percentage of the reb in the extract for use, wherein a desired purity level can be achieved (paragraph 26). Bell further teaches that a purity of 93% or greater can be used (paragraph 26).
Regarding the purity of the reb M as from 50-99.9% as recited in claims 6 and 13, it would have been obvious for the reb M in the beverage precursor of Nattress to have a desired purity in view of Bell, wherein a purity of 93% or greater would have been particularly obvious as it was a known and successful purity level when using reb M within a beverage composition. Furthermore, it is noted to use a known form of a disclosed component would have been obvious and well within the purview of one ordinary skill in the art.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to KELLY BEKKER whose telephone number is (571)272-2739. The examiner can normally be reached Monday-Friday 8am-3:30pm.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792