DETAILED ACTION
Amendments made March 2, 2026 have been entered.
Claims 1, 3-9, 11-1, and 17-19 remain pending;
Claims 3 and 17-19 have been withdrawn.
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 .
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.
Claim Rejections - 35 USC § 112
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
The rejection of claim 14 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made March 2, 2026.
The rejection of claim 11 under 35 U.S.C. 112(d) or pre-AIA 35 U.S.C. 112, 4th paragraph, as being of improper dependent form for failing to further limit the subject matter of the claim upon which it depends, or for failing to include all the limitations of the claim upon which it depends has been withdrawn in light of applicant’s amendments made March 2, 2026.
Claim Rejections - 35 USC § 102
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.
Notes:
“Reb A control beverage” is a beverage that consists of water and Reb A, wherein the concentration of Reb A in the control beverage is equal to the concentration of Reb A in the comparator beverage comprising Reb A and one or more foam suppressing agents (instant specification paragraph 25).
“Reb A control carbonated beverage” is a beverage that consists of water, Reb A, and carbon dioxide, wherein the concentration of Reb A and carbon dioxide in the control beverage is equal to the concentration of Reb A in the comparator beverage comprising Reb A and one or more foam suppressing agents (instant specification paragraph 27).
Carbonated beverages containing Reb E compared to beverages with only Reb A resulted in lesser foam height and stability (instant specification paragraphs 119 and 122).
The rejection of claims 1, 5-8, and 11 under 35 U.S.C. 102(a)(1) as being anticipated by Abelyan et al (US 8,568,818), as evidenced by Aqua Calc (“beverages, carbonated, club soda – Food Volume to Weight Conversion Calculator Online” https://www.aqua-calc.com/calculate/food-volume-to-weight pages 1-4 printed September 2025) has been withdrawn in light of applicant’s amendments made March 2, 2026 which limit the ratio of Reb A to E to about 1:3 to 3:1. The 103 rejections of the dependent claims over Abelyan as the primary reference have been withdrawn for the same reasons.
The rejection of claims 12-14 under 35 U.S.C. 102(a)(1) as being anticipated by Abelyan et al (US 8,568,818), as evidenced by Aqua Calc (“beverages, carbonated, club soda – Food Volume to Weight Conversion Calculator Online” https://www.aqua-calc.com/calculate/food-volume-to-weight pages 1-4 printed September 2025) has been withdrawn in light of applicant’s amendments made March 2, 2026 which limit the Reb E and not “the at least one foam suppressing agent” to a concentration of about 25-300ppm. It is noted that although the action contained a typographical error regarding the ppm of Reb E, the claim previously encompassed the one or more foam suppressing agents, such as stevioside, Reb C, and Reb E in combination to be within a range of about 25-300ppm which was encompassed by the cited teachings of Abelyan (claims 1 and 3). The 103 rejections of the dependent claims over Abelyan as the primary reference have been withdrawn for the same reasons.
Claims 1, 4-8, and 11-14 are rejected under 35 U.S.C. 102(a)(1) or alternatively 102(a)(2) as being anticipated by Farhat et al (WO2020/126688).
Regarding claims 1, 5-8, and 12-14, Farhat et al (Farhat) teaches flavored articles comprising a sweetener composition comprising reb A and reb E in a ratio of 2:5 (1:2.5) to 6:1 (claims 1 and 13, page 2 paragraph 4, page 7 paragraphs 5 and 6, and page 10 paragraph 7). As Farhat teaches that the flavored articles are selected from the group including carbonated beverages, beers, soft drinks, and carbonated waters (page 79 paragraphs 3 and 5), the teachings of Farhat encompass the flavored article comprising reb A and reb E in a ratio of 2:5 to 6:1 as a carbonated beverage. Farhat teaches that the Reb A is added to the flavored article from 40-400ppm (page 49 paragraph 4 through page 50 paragraph 1, and page 56 paragraph 2). Farhat teaches the Reb E is added to the flavored article from 10-250ppm (page 11, last paragraph through page 14 paragraph 2 and page 56 paragraph 4).
Regarding the beverage as comprising one or more of the following characteristics: foam height that is less than a foam height of a Reb A control beverage by at least 1% and a foam stability that is less than a foam stability of the Reb A control beverage by at least 1% as recited in claim 1, the foam height as about 1-50% less than the control beverage as recited in claims 5 and 13, or the foam stability as about 1-70% less than the control beverage as recited in claims 6 and 14, Applicant has chosen to use parameters that cannot be measured by the Office, for the purpose of prior art comparison, because the office is not equipped to manufacture prior art products and compare them for patentability. Where the claimed and prior art products are identical or substantially identical in structure or composition, or are produced by identical or substantially identical processes, a prima facie case of either anticipation or obviousness has been established. In re Best, 562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977). "When the PTO shows a sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not." In re Spada, 911F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990). Therefore, as a prima facie case of obviousness has been properly established, the burden is shifted to the applicant to show that the prior art product is different. In the instant case as the prior art teaches of an overlapping composition to that as claimed and disclosed, including a beverage with Reb E, a product as claimed, including a product with the claimed foaming properties would be encompassed.
Regarding claim 4, Farhat teaches the Brix of the flavored article is 1-10 degrees Brix sucrose (page 10 paragraph 3).
Regarding the foam suppressing agent as consisting of Reb E as recited in claim 11, as the claims are directed to a carbonated beverage comprising a foam suppressing agent, the claimed limitation is seen as a product by process limitation wherein the foam suppressing component added to the beverage consists of one element, Reb E, but other elements may be added to the beverage which comprises it. Thus, as Farhat teaches of a beverage comprising Reb E (claims 1 and 13, page 2 paragraph 4, page 7 paragraphs 5 and 6, page 10 paragraph 7), the beverage of the prior art encompasses the product as claimed. It is further noted that as Farhat does not disclose any other foam suppressing agents as required (all), the position of the office is further supported.
Claim Rejections - 35 USC § 103
The text of those sections of Title 35, U.S. Code not included in this action can be found in a prior Office action.
Claim 9 is rejected under 35 U.S.C. 103 as being obvious over Farhat et al (WO2020/126688), as evidenced by Aqua Calc (“beverages, carbonated, club soda – Food Volume to Weight Conversion Calculator Online” https://www.aqua-calc.com/calculate/food-volume-to-weight pages 1-4 printed September 2025).
As discussed above, Farhat teaches flavored articles, selected from the group including carbonated beverages comprising: from 10-250ppm Reb E (which is 0.001-0.025% by weight; 10-250ppm/10,000 = 0.001-0.025/100). Farhat is not specific to the v/v amount of Reb E within the beverage, however using an estimated density for carbonated beverages of about 100ml/100grams (Aqua Calc pages 1-2) and about 1.59g/cm3 for reb, the value can be calculated. The result is a v/v amount of Reb E, a foam suppressing agent, in the composition of Farhat of about 0.0006-0.0157% which overlaps the claimed range. Thus, the claimed range is considered at least obvious over the teachings of the prior art.
Response to Arguments
Applicant’s arguments have been considered but are moot because the new ground of rejection does not rely on any reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Conclusion
Applicant's amendment necessitated the new ground(s) of rejection presented in this Office action. Accordingly, THIS ACTION IS MADE FINAL. See MPEP § 706.07(a). Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Erik Kashnikow can be reached at 571-270-3475. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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KELLY BEKKER
Primary Patent Examiner
Art Unit 1792
/KELLY J BEKKER/Primary Patent Examiner, Art Unit 1792