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 .
Claims 1-15 of 6/27/2023 are examined in this application.
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 5 and 11 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 5 recites “a content of the high-intensity sweetener is 1 to 1,000 ppm” without defining ppm of what? Clarification and/or correction is required.
For the purposes of this office action, it will be assumed that the above limitation is equivalent of “a content of the high-intensity sweetener is a first predetermined ppm by volume”
Claim 11 recites “a content of the low-intensity sweetener is an amount corresponding to a sweetness intensity of 0.1 to 5.9 in terms of sucrose”. The above statement is based on the sweetness of low intensity sweetener relative to sucrose, but it is not clear what “0.1 to 5.9 in terms of sucrose” means in this context regarding the weight or amount of “low intensity sweetener”. Clarification and/or correction is required.
For the purposes of this office action, it will be assumed that the above limitation is equivalent of “a content of the low-intensity sweetener is an amount corresponding to a sweetness intensity of 0.1 to 5.9 times the sweetness intensity of sucrose”
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 (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 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.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
Claim(s) 1-5, 9-12 and 14 are rejected under 35 U.S.C. 103 as being unpatentable over Riedel (EP 3915397 A1), hereinafter Riedel, in view of IDS reference to Kanai (JP2019062785A, provided with machine translation), hereinafter Kanai.
Note: Paragraph numbers of Kanai as cited in the office action are the paragraph numbers of machine translation, which was provided by the applicant.
Regarding claims 1-5 and 9-12, Riedel teaches that D-arabinose is one of the known sweeteners (para 13), and that it may be used in beverages (para 21), and the D-arabinose [see para 21, especially see (b)(i) sub-section] may be present in combination with high-intensity sweeteners (as required by claim 3), wherein the high-intensity sweetener may (as required by claim 4) be brazzein [disclosed in para 21, especially see subsection a; also see para 22]; still further comprising a low-intensity sweetener (as required by claim 9), wherein the low-intensity sweetener (as required by claim 10) may be sucrose (disclosed in para 21, especially see (b)(i) subsection).
Riedel does not teach that the beverage comprises “0.1 to 25 w/v %” of D-arabinose (as required by claim 1) or alternately, “wherein a content of D-arabinose is “0.5 to 20 w/v %.” (as recited in claim 2); also see 35 USC 112, 2nd paragraph rejections above). Riedel also does not teach that a content of the high-intensity sweetener is “1 to 1,000 ppm” (as recited in claim 5, also see 35 USC 112, 2nd paragraph rejections above); or a content of the low-intensity sweetener is an amount corresponding to a sweetness intensity of 0.1 to 5.9 in terms of sucrose (as recited in claim 11, also see 35 USC 112, 2nd paragraph rejections above); “an energy is 50 Kcal/100 ml or less” (as recited in claim 12).
However, Riedel teaches that the goal of adding an artificial sweetener is to reduce the content of high calorie sweeteners like sucrose by a target percentage, such as “3 to 50%” but that is dependent on the specific sweeteners used (para 22), with the goal being that the artificial sweetener should be in a quantity that is “sufficient to impart the same or an enhanced sweet impression” (para 23) and that this goal is accomplished by mixing various types of sweeteners (para 23). Further, Kanai teaches that D-arabinose is a known sweetener (para 14 of Kanai), and that it is capable of suppressing the proliferation of cancer cells while also not providing energy to normal cells (para 15, also see para 1 of Kanai), and provides the additional advantage of inhibiting the proliferation of cancer cells because it is not involved in energy metabolism of cancer cells while still provides sweet taste (para 10-11, also see para 15 of Kanai).
Thus, the amount of artificial sweetener(s) and amount of other sweetener(s) blended with it in a sweetened product (e.g. a beverage) is a known results effective variable and its relationship to resulting combination of sweetness or sweetness intensity, calorific value, or relative effectiveness in inhabiting proliferation of cancer cells (by selecting specific sweetener type, such as D-arabinose) is also known (as explained above). Accordingly, it would have been obvious to optimize the above explained results effective variable, because it has been held that where the general conditions of the claims are discloses in the prior art, it is not inventive to discover the optimum or workable range by routine experimentation. See In re Aller, 220 F.2d 454, 105 USPQ 233, 235 (CCPA 1955). Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Riedel so that the beverage comprises the recited amounts of D-arabinose (as required by claim 1 or 2), modify a content of the high-intensity sweetener to as recited in claim 5, and also modify a content of the low-intensity sweetener is an amount corresponding to a sweetness intensity claimed in claim 11, while limiting the amount of calories to a given maximum target, such as “50 Kcal/100 ml or less” of claim 12. The ordinary artisan would have been motivated to modify Catania at least for the purpose of using an artificial sweetener like D-arabinose in an amount sufficient to limit proliferation of cancer cells (para 10-11, also see para 15 of Kanai).while combining with other sweeteners (as explained above) to achieve a target maximum allowed calorific value and a target sweetness intensity. because it is not involved in energy metabolism of cancer cells while still provides sweet taste (para 22-23 of Riedel).
Regarding claim 14, it recites a sweetener composition comprising D-arabinose (which is addressed for claim 1 above) and one or more high-intensity sweeteners (which has been addressed for claim 3, which depends from claim 1).
Claim(s) 6-8 and 15 are rejected under 35 U.S.C. 103 as being unpatentable over Riedel and Kanai as applied to claim 1 above, and further in view of Prakash (US 20070116828), hereinafter Prakash.
Regarding claims 6-8, Riedel teaches the beverage according to claim 1, but is silent about the beverage further comprising sodium (as recited in claim 6), wherein (as recited in claim 7) “a content of the sodium is less than 50 mg/100 ml”; OR that the sodium is included in at least one form of the forms recited in claim 8. Prakash teaches sweeteners (para 2) that may comprise arabinose (para 74) and may be used for beverages (para 864; also see para 3), further teaching that sweet taste improving additives for such sweeteners include at least sodium salts of “aspartic acid” or “glutamic acid” (para 77; also see para 78-79 for more details); i.e. the claimed sodium aspartate and sodium glutamate.
Further, Riedel teaches that the goal of adding a sweetener composition comprising an artificial sweetener provide ingredients in a quantity that is “sufficient to impart the same or an enhanced sweet impression” (para 23) and that this goal is accomplished by mixing various types of sweetener ingredients (para 23).
Thus, the amount of artificial sweetener(s) and other sweet taste improving additives (such as sodium aspartate and sodium glutamate taught by Prakash and explained above) is a known results effective variable and it’s relationship to resulting combination of sweetness or sweetness intensity or improvement in sweet taste, is also known (as explained above). Further, excessive sodium content of a beverage is known to not be healthy. Accordingly, it would have been obvious to optimize the above explained results effective variable, because it has been held that where the general conditions of the claims are discloses in the prior art, it is not inventive to discover the optimum or workable range by routine experimentation. See In re Aller, 220 F.2d 454, 105 USPQ 233, 235 (CCPA 1955). Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Riedel so that it comprises known sweet taste improving additives (such as sodium aspartate and sodium glutamate taught by Prakash) in a specific concentration such as the claimed “a content of the sodium is less than 50 mg/100 ml” to achieve target sweet taste improvement while still creating a relatively healthy drink with as low a sodium content as possible.
Regarding claim 15, Riedel as modified by Kanai for claim 1 also teaches a method for improving a taste quality (i.e. improving “sweet quality” as described in para 1 of Riedel) of a beverage, comprising adding D-arabinose (as explained for claim 1), a high-intensity sweetener (as explained for claim 3), and sodium to the beverage (as explained for claim 6 in view of Prakash).
Claim 13 is rejected under 35 U.S.C. 103 as being unpatentable over Riedel and Kanai as applied to claim 1 above, and further in view of Sherwood (US 20080206415), hereinafter Sherwood.
Regarding claims 13, Riedel teaches the beverage of claim 1, further disclosing that the invention can preparations that are concentrates or syrups (see para 31 of Riedel) but does not teach that the concentrate of the beverage is specifically a “2 to 10-fold” concentrate. Sherwood teaches that a beverage may be converted into a concentrate form to aid transportation to a beverage manufacturing facility where it may be subsequently diluted to produce the beverage (para 51). Therefore, it would have been obvious to one of ordinary skill in the art at the time of the effective filing date of the invention to modify Riedel so that the beverage is concentrated to meet transportation cost goals, such as “2 to 10-fold” concentrate. The ordinary artisan would have been motivated to modify Catania at least for the purpose of at least cutting the volume to be transported by a specific amount to meet target transportation costs.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JYOTI CHAWLA whose telephone number is (571)272-8212. The examiner can normally be reached M-F 9:30- 5:30.
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/JYOTI CHAWLA/Primary Examiner, Art Unit 1791