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 .
Status of the Application
Receipt of the Response and Amendment after Non-Final Office Action filed 08/06/2026 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: the 35 U.S.C. 103 rejection of claims 1-4 over Giovanetto, admitted prior art, and Payzant et al. have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-4
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1 and 3
New claims: None
Claims currently under consideration: 1-4
Currently rejected claims: 1-4
Allowed claims: None
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.
Claims 1-4 are rejected under 35 U.S.C. 103 as being unpatentable over Giovanetto (U.S. 4,892,938) and Brower et al. (WO 2014/146084 A1), as evidenced by Payzant et al. (U.S. 5,962,678).
Regarding claim 1, Giovanetto discloses a process for preparing a steviol glycoside composition (C1, L6-L9), the process comprising the steps of (i) providing Stevia rebaudiana leaves (C2, L33-L36) (where Payzant et al. confirms the plant material of Giovanetto is leaves, C1, L40; C3, L42-L46, L52-L53; C4, L50-L51), (ii) providing a solvent comprising water (C1, L47-L48), (iii) contacting the Stevia rebaudiana leaves with the solvent to extract the steviol glycoside from the leaves (C1, L52-L55; C2, L33-L36); and (iv) separating the Stevia rebaudiana leaves to obtain a Stevia extract solution (C1, L56-L57; C2, L36-L41) comprising at least one steviol glycoside (where Payzant et al. confirms the “sweet glycosides obtained from Giovanetto process are always a mixture”, C1, L64-L65).
Giovanetto does not explicitly disclose the leaves or the extract solution as comprising at least two steviol glycoside that are from the group of RebD, RebE, RebN or RebO, wherein such steviol glycosides are present in the extract solution above their common relative concentration of 2.4% (RebD), 1.0% (RebE), 1.6% (RebN) or 0.8% (RebO).
However, Brower et al. discloses that plants may be high RebD and high RebN (p. 2, ¶7). Brower et al. discloses a Stevia rebaudiana plant that has been enriched to contain RebD in an amount as high as 3% (pp. 3-4, bridging paragraph). Brower et al. discloses a Stevia rebaudiana plant that has been enriched to contain RebN in an amount as high as 2% (p. 5, ¶4).
It would have been obvious to one having ordinary skill in the art to perform the extraction method of Giovanetto on a Stevia rebaudiana plant as disclosed in Brower et al. that is both high RebD and high RebN, such that the starting leaves would comprise RebD in an amount of as high as 3% and RebN in an amount of as high as 2% and the extract solution would likewise comprise RebD and RebN in comparable amounts. First, Giovanetto discloses simply that the method is useful for “recovery of steviosides from dried plant raw material of Stevia rebaudiana Bertoni by extraction and purification” (C1, L6-L9). A skilled practitioner would recognize that the method would be suitable for the extraction of steviol glycosides from any known variety of Stevia rebaudiana plant containing such components. Since Brower et al. discloses the concentration of RebD in Stevia rebaudiana plants may be as high as 3% (pp. 3-4, bridging paragraph) and the concentration of RebN in Stevia rebaudiana plants may be as high as 2% (pp. 5, ¶4), extracting a plant having a common relative concentration of RebD of at least 2.4% and of RebN of at least 1.6% according to the method of Giovanetto would be obvious. Further, since no fractionation or separation of the glycosides occurs in the extraction method of Giovanetto (Payzant et al., C1, 64-L65; C2, L15-L17, “the resulting materials contain a mixture of all of the sweet glycosides”), the relative concentration of any particular steviol glycoside would be above its common relative concentration. Thus, providing Stevia rebaudiana leaves that comprise RebD and RebN that are above their common relative concentration and performing a water extraction to obtain a stevia extract solution comprising at least 2.4% RebD and at least 1.6% RebN would be obvious to a skilled practitioner.
As for claim 2, Giovanetto discloses the process as further comprising purification of the stevia extract solution and drying to obtain a stevia extract (C2, L36-L53) with total steviol glycoside content of at least 6.9% w/w (specifically, about 75% steviosides) (C2, L54).
As for claim 3, Giovanetto discloses the stevia extract as being an “untreated aqueous Stevia extract” (which the present specification defines as being “an extract or extracts from Stevia rebaudiana plants that has or have not been subjected to techniques used to purify, isolate or further concentrate a certain steviol glycoside, or a group of steviol glycosides, from the extract”, P3, L22-L25), since the stevia extract is not subject to any method that would further purify, isolate of concentrate a specific steviol glycoside or select group of steviol glycosides (C2, L33-L54; Payzant et al., C1, L64-L65; C2, L15-L17). Since no fractionation or separation of the glycosides occurs in the extraction method of Giovanetto, the relative concentration of any particular steviol glycoside, including all of RebD, RebE, RebN and RebO, in the stevia extract would be above its common relative concentration.
As for claim 4, Giovanetto discloses a food comprising the stevia extract (C1, L12-L14).
Double Patenting
Claims 1, 3, and 4 are rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1 of U.S. Patent No. 11,230,567 B2. Although the claims at issue are not identical, they are not patentably distinct from each other because the present claim is simply broader than that of the ‘567 patent due to lacking specific cultivars.
Claim 3 would be obvious in view of claim 1 of the ‘567 patent due to being the product produced by the patented process.
Claim 4 would be obvious in view of claim 1 of the ‘567 patent due to being the product produced by the patented process, where being a “consumable comprising the Stevia extract” does not impart any additional appreciable limitation beyond what is claimed in claim 3.
Response to Arguments
Claim Rejections - 35 U.S.C. § 103 of claims 1-4 over Giovanetto, admitted prior art, and Payzant et al.: Applicant has overcome the 35 U.S.C. § 103 rejections of claims 1-4 based on amendment to the claims. Accordingly, the 35 U.S.C. § 103 rejections have been withdrawn.
Claim Rejections - 35 U.S.C. § 103 of claims 1-4 over Giovanetto, Brower et al., and Payzant et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argued that the prior art does not disclose “a plant or extract in which two of these minor glycosides are simultaneously above their common relative concentrations” (Applicant’s Remarks, p. 4, ¶3). Applicant asserted that Brower et al. does not disclose relative concentrations or simultaneous elevation of two steviol glycosides—e.g., rebD above 2.4% and rebN above 1.6% (Applicant’s Remarks, p. 4, ¶4).
However, Brower et al. states: “a high rebD plant may also be a high rebM and/or a high rebN plant” (p. 2, ¶7), which directly contradicts Applicant’s assertion. Brower et al. further discloses RebD in an amount as high as 3% (pp. 3-4, bridging paragraph) and RebN in an amount as high as 2% (p. 5, ¶4), which exceed the claimed concentrations. The combined disclosure renders obvious a single plant that has high rebD and rebN concentrations in amounts as high as 3% and 2%, respectively. Applicant’s arguments are thus unpersuasive.
The rejections of claims 1-4 have been maintained herein.
Double patenting: Applicant requested the double patenting rejections be held in abeyance (Applicant’s Remarks, p. 5, ¶3).
The double patenting rejections have been maintained herein.
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.
Claims 1-4 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
