DETAILED ACTION
Amendments made July 15, 2026, have been entered.
Claims 1-8 and 11-22 are pending.
Claims 4-5 and 12-22 have been withdrawn.
Election of the full-strength beverage product and Reb B and/or Reb F is noted.
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.
Election/Restrictions
Applicant’s election without traverse of Group I and Species of the full-strength beverage product comprising Reb B and/or Reb F in the reply filed on July 15, 2026, is acknowledged. Claims 4-5 and 12-22 have been withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention and/or species, there being no allowable generic or linking claim.
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.
Claim 11 is 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.
A broad range or limitation together with a narrow range or limitation that falls within the broad range or limitation (in the same claim) may be considered indefinite if the resulting claim does not clearly set forth the metes and bounds of the patent protection desired. See MPEP § 2173.05(c). In the present instance, claim 11 recites the broad recitation “flavors”, and the claim also recites “flavors with modifying properties” which is the narrower statement of the range/limitation. Claim 11 also recites “preferably” and “more preferably” limitations which are even narrower limitations. The claim(s) are considered indefinite because there is a question or doubt as to whether the feature introduced by such narrower language is (a) merely exemplary of the remainder of the claim, and therefore not required, or (b) a required feature of the claims.
Claim Rejections - 35 USC § 103
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.
Claims 1-3, 6-8, and 11 are rejected under 35 U.S.C. 103 as obvious over Schafer et al (US 2016/0295892).
Regarding claims 1-3 and 6-8, Schafer et al (Schafer) teaches a mixture of matter which are aroma substances having an improved sweetening activity and solubility (abstract and paragraph 1). Schafer teaches that the composition comprises about 1-99%, preferably 5-55% steviol glycosides which preferably include by weight of the steviol glycosides: about 1-50% reb A; about 1-25% stevioside; 1-50% reb C; and one or more further steviol glycosides including 0.1-30% reb B and/or 1-15% reb F (paragraphs 9-13 and 17-21, 23, 27, 29, and paragraphs 61-62). Schafer teaches that the mixtures are used in oral compositions in an amount of about 0.00001-2%, preferably 0.0001-1.5%, and very particularly preferably from about 0.05-0.1% (about 500-1,000ppm). Schafer teaches that particular preference is for use in foods, i.e. oral compositions, including beverages (paragraph 85).
Thus, the use of about 500-1,000ppm of the mixture in a beverage, wherein the mixture comprises 5-55% steviol glycosides which preferably include by weight of the steviol glycosides: about 1-50% reb A; about 1-25% stevioside; 1-50% reb C; and one or more further steviol glycosides including 0.1-30% reb B and 1-15% reb F would have been encompassed or alternatively an obvious suggestion of Schafer. The beverage of Schafer would therefore comprise 0.5 to 550ppm steviol glycosides which is considered to encompass or at least make obvious the steviol glysocides as present in an amount below the sweetening threshold (see at least claims 7 and 8), and the steviol glycosides within the claimed ranges.
Regarding claim 11, Schafer teaches that the food or beverage comprises flavor additives, such as acids and sweeteners (paragraphs 85-89).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. WO 2009/085762 teaches that Reb A was known to be used in beverages below its sweetness threshold in order to improve taste.
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.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
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
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