DETAILED ACTION
Amendments made May 4, 2026 are entered.
Claims 1-17 are pending.
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 Objections
The objection to claim 10 because of minor informalities has been withdrawn in light of applicant’s amendments made May 4, 2026.
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 10 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joint inventor (or for applications subject to pre-AIA 35 U.S.C. 112, the applicant), regards as the invention has been withdrawn in light of applicant’s amendments made May 4, 2026.
Claim Rejections - 35 USC § 102
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of claims 1, 3, 6, 7, 9-12, and 14 under 35 U.S.C. 102(a)(1) as being anticipated by Givaudan (WO 2009/023975) has been withdrawn in light of applicant’s amendments made May 4, 2026 which require 100-700ppm siamenoside I which provides at least 70% of the perceived sweetness in the beverage.
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.
The rejection of claims 2, 4, 5, 8, 13, 16, and 17 under 35 U.S.C. 103 as being unpatentable over Givaudan (WO 2009/023975) in view of Fischer et al (WO94/18855) has been withdrawn in light of applicant’s amendments made May 4, 2026 which require 100-700ppm siamenoside I which provides at least 70% of the perceived sweetness in the beverage.
The rejection of claim 15 under 35 U.S.C. 103 as being unpatentable over Givaudan (WO 2009/023975) in view of Woodyer et al (US 2014/02748) has been withdrawn in light of applicant’s amendments made May 4, 2026 which require 100-700ppm siamenoside I which provides at least 70% of the perceived sweetness in the beverage.
Claims 1-3 and 6-15 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (US 2007/0082106) in view of Fischer et al (WO 94/18855) and Jia et al (WI 2009/023975 A2).
Regarding claims 1, 14, and 15, Lee et al (Lee) teaches of a beverage (i.e. a composition comprising a liquid matrix) comprising: one or more non-nutritive sweeteners selected from the group including siamenoside I; a sugar alcohol which is preferably erythritol; and D-tagatose (abstract, paragraphs 7 and 35, and claim 16).
Regarding the siamenoside I as at least 80% pure as recited in claim 1, although Lee teaches the use of siamenoside as the non-nutritive sweetener, i.e. one or more sweeteners, in the composition, Lee is not explicit to the form or purity of the siamenoside.
Jia et al (Jia) teaches of a sweetened beverage comprising one or more sweeteners selected from the group including siamenoside I (abstract, page 4 paragraph 11, page 6 last paragraph, page 8 last paragraph, and claims 9-11). Jia teaches that the sweeteners can be pure and isolated in form (page 12 line 1), and thus encompass siamenoside I as at least 80% pure.
It would have been obvious to one of ordinary skill in the art for the siamenoside I as taught by Lee to be in known sweetener forms for addition to beverages, such as and including in a pure and isolated form, as shown by Jia. To use a known form of a disclosed ingredient would have been obvious to one of ordinary skill in the art. Furthermore, as Lee teaches that one of ordinary skill in the art will readily appreciate that non-nutritive sweeteners, i.e. siamenoside I and other sweeteners, may be combined in various ratios to form a blend suitable for use, wherein precise ratios depend on the combination of sweeteners and the desired overall sweetness for a given application (paragraphs 32 and 34), it would have been particularly obvious to use pure forms of the disclosed sweeteners, so that precise blends with each desired sweetener in the desired amount of said sweetener could be formed.
Regarding the siamenoside I as included from 100-700ppm, and as providing at least 70% of the perceived sweetness of the beverage as recited in claim 1, as discussed above, Lee teaches the use of siamenoside I as the non-nutritive sweetener, i.e. one or more sweeteners, in the composition; and that one of ordinary skill in the art will readily appreciate that non-nutritive sweeteners, i.e. siamenoside I and other sweeteners, may be combined in various ratios to form a blend suitable for use, wherein precise ratios depend on the combination of sweeteners and the desired overall sweetness for a given application (paragraphs 32 and 34). Lee is not specific to the siamenoside I as from 100-700ppm or as providing at least 70% of the perceived sweetness of the beverage.
Fischer et al (Fischer) teaches of a sweetener for beverages comprising mogroside V and/or siamenoside I (abstract). Fischer teaches that the amount of Luo Han Guo, which are sweeteners including the mogroside V and siamenoside I are adjusted based on the desired degree of sweetness in the beverage (page 6 lines 25-37 and page 17 lines 24-28). Fischer teaches that the sweetening system is preferably selected to provide the beverage with mogroside IV, mogroside V, siamenoside I, or mixtures thereof in an amount of 0.002-0.1% (20-1000ppm) (page 13 lines 14-16 and page 17 lines 21-28), and thus encompasses the beverage as preferably comprising 20-1000ppm siamenoside I.
It would have been obvious to one of ordinary skill in the art for the beverage as taught by Lee to comprise an amount and thus desired sweetness perception value of the disclosed siamenoside I based on the desired overall sweetness and the combination of sweeteners in view of Lee. Furthermore, it would have been particularly obvious for the siamenoside I to be in an amount of 20-1000ppm as Fischer teaches that it was a preferred amount in beverages. Thus, the claimed ranges would be obvious to one of ordinary skill in the art based on the teachings and suggestions of the prior art.
Regarding claim 2, Lee is silent to the sweetness intensity of the beverage in terms of Brix. However, as Lee teaches of adjusting for the desired sweetness of a given application (paragraph 32), it would have been obvious to adjust the sweetness of the beverage, and thus the Brix sweetness intensity to achieve the desired sweetness. As Lee teaches appropriate ratios can be determined by one of ordinary skill in the art (paragraphs 32 and 34), the claimed sweetness is considered obvious.
Regarding claim 3, Lee teaches that the beverage is coffee (paragraph 10) which is an acidic beverage
Regarding claims 6-10, Lee teaches that the beverage is a soft drink, i.e. carbonated drink, such as a lemon lime drink, a non-carbonated drink such as a fruit juice, coffee, tea, or water, or a frozen carbonated beverage (paragraphs 10, 12, 17, and 22).
Regarding claims 11 and 13, Lee teaches that the Lo Han Guo extract which encompasses the Siamenoside I may be used in combination with acesulfame salts, saccharins, steviosides, neohesperidin dihydrochalcone, thaumatin, monellin, and/or brazzein (paragraphs 13 and 24), and thus the claimed combination is considered encompassed, or alternatively obvious over the teachings of the prior art. It is further noted that Lee specifically teaches the use of blends of non-nutritive sweeteners lends qualitatively to synergy to the taste (paragraph 23) and thus a blend of the disclosed sweeteners would have been particularly obvious to one of ordinary skill in the art.
Regarding claim 12, Lee teaches that the Siamenoside I may be used in combination with mogroside V (paragraph 7), and thus the claimed combination is considered encompassed, or alternatively obvious over the teachings of the prior art. It is further noted that Lee specifically teaches the use of blends of non-nutritive sweeteners lends qualitatively to synergy to the taste (paragraph 23) and thus a blend of the disclosed sweeteners would have been particularly obvious to one of ordinary skill in the art.
Claims 4, 5, and 16-17 are rejected under 35 U.S.C. 103 as being unpatentable over Lee et al (US 2007/0082106) in view of Fischer et al (WO 94/18855) and Jia et al (WI 2009/023975 A2), further in view of Igoe et al (Dictionary of Food Ingredients 4th Edition Aspen Publications 2001, pages 18, 35, and 109).
As discussed above, Lee teaches of a beverage comprising a liquid matrix; one or more non-nutritive sweeteners selected from the group including siamenoside I; a sugar alcohol which is preferably erythritol; and D-tagatose. Lee teaches that the beverage comprises any other ingredient typically used in beverage products, including acidulants (paragraph 43). Additionally, Lee exemplifies the beverage as comprising sodium benzoate (a sodium salt of benzoic acid), phosphoric acid, and citric acid (Tables 1-3).
Igoe et al (Igoe) teaches that citric acid was known to be used in fruit drinks and carbonated beverages and provided a strong acid of tart flavor (page 35). Igoe teaches that phosphoric acid was known to be used as flavoring in cola and root beer beverages to provide desirably acidity and sourness (page 109). Igoe teaches that benzoic acid is a food preservative that was used as an acid in foods such as carbonated beverages and fruit juices (page 18). Igoe teaches that it was most often used in the form of sodium benzoate (page 18).
It would have been obvious to one of ordinary skill in the art for the siamenoside I beverage of Lee to comprise acids and forms thereof, including sodium benzoate (the sodium salt of benzoic acid), phosphoric acid, and citric acid, as Lee teaches that the beverage may comprise any other ingredient typically used in beverage products, including acidulants wherein sodium benzoate, phosphoric acid, and citric acid are exemplified. To use an optional ingredient which is exemplified would have been an obvious suggestion of the prior art. Furthermore, one of ordinary skill in the art would have been particularly motivated to use citric acid for its strong acid of tart flavor and/or phosphoric acid for its desirable acidity and sourness and/or benzoic acid or sodium benzoate as a preservative or pH lowering acid as taught by Igoe. To use a known ingredient for its known and intended function would have been obvious to one of ordinary skill in the art.
Further, attention is invited to In re Levin, 84 USPQ 232 and the cases cited therein, which are considered in point in fact situation of the instant case. At page 234, the Court stated as follows: This court has taken the position that new recipes or formulas for cooking food which involve the addition or elimination of common ingredients, or for treating them in ways which differ from the former practice, do not amount to invention, merely because it is not disclosed that, in the constantly developing art of preparing food, no one else ever did the particular thing upon which the applicant asserts his right to a patent. In all such cases, there is nothing patentable unless the applicant by a proper showing further establishes a coaction or cooperative relationship between the selected ingredients, which produces a new, unexpected and useful function. In re Benjamin D. White, 17 C.C.P.A. (Patents) 956, 39 F.2d 974, 5 USPQ 267; In re Mason et al., 33 C.C.P.A. (Patents) 1144, 156 F.2d 189, 70 USPQ 221.
Double Patenting
The text of nonstatutory double patenting rejection basis not included in this action can be found in a prior Office action.
The terminal disclaimer filed on December 10, 2025 disclaiming the terminal portion of any patent granted on this application which would extend beyond the expiration date of US Patent 11,653,680 has been reviewed and is accepted. The terminal disclaimer has been recorded and the previous double patenting rejections over the claims of U.S. Patent No. 11,653,680 have been withdrawn.
The provisionally nonstatutory double patenting rejection over the claims of copending Application No. 17/919,878 (‘878) have been withdrawn in light of applicant’s amendments in the instant application which require the beverage comprise 100-700ppm siamenoside I, and the amendments filed on June 18, 2025 of ‘878 which require the beverage comprise 10-24ppm of siamenoside I.
Response to Arguments
Applicant's arguments filed May 4, 2026 regarding the prior art rejections have been considered but are moot as the rejections have been withdrawn in light of applicant’s amendments.
Applicant's arguments filed May 4, 2026 regarding the restriction requirement have been fully considered but they are not persuasive.
Applicant argues that as mogroside V was one of several sweeteners which could be included in the beverage originally presented in claim 1, and as a restriction requirement was not made the search should not have been limited to one requiring mogroside V, and thus a claim limitation which explicitly excludes mogroside would not render the scope of the claims as drawn to a non-elected invention. This argument is not convincing as a claim directed to a beverage comprising mogroside V or another sweetener is different from a claim which specifically excludes mogroside V, and would require different search terms, and a reference which applied to one may not apply to the other. Thus, if both the inclusive, and exclusive claim limitations had been originally presented, a restriction would have been made. The requirement is still deemed proper and is therefore made FINAL.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Prakash et al US 2011/0160311 teaches that sweetener additives can be added in pure form.
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.
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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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