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 .
Continued examination under 37 CFR 1.114
A request for continued examination under 37 CFR 1.114, including the fee set forth in 37 CFR 1.17(e) was filed after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.114 has been timely paid, the finality of the previous Office Action has been withdrawn pursuant to 37 CFR 1.114. Applicant’s submission filed on 12/12/2025 has been entered.
Claim status
The examiner acknowledged the amendment made to the claims on 12/12/2025.
Claims 1-4, 6-10, 14-18, 21, and 24-28 are pending in the application. All the claims are previously presented except for claim 26, which is currently amended. Claims 1-4, 6-10, 14-18, 21, and 24-28 are hereby examined on the merits.
Examiner Note
Any objections and/or rejections that are made in the previous actions and are not repeated below, are hereby withdrawn.
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.
Claims 1-4, 8-10, 14-18, 21 and 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Debon US Patent Application Publication No. 2011/0212246 A1 (hereinafter referred to as Debon) in view of Zhang US Patent Application Publication No. 2014/0212564 A1 (cited in IDS, hereinafter referred to as Zhang) and Steinbach, “Normal force-controlled tribological measurement of soft drinks and lubrication additives”, Food Measure, 2014, 8, pages 142-148 (hereinafter referred to as Steinbach), and evidenced by Lachke, "Xanthan- a versatile gum", Resonance, 2004, pages 25-33 (hereinafter referred to as Lachke) and Steinbach.
Regarding claims 1-4, 15-16 and 27, Debon teaches a beverage (e.g., a calorie-reduced beverage such as a carbonated and non-carbonated beverage, fruit or juice derived drink, sport drink, caffeine beverage, tea, etc., 0008; 0016, Example 2 and 4), comprising, inter alia, 10-1500 ppm a pectin such as apple pectin for lubricating the beverage (0019; 0021), 10-500 ppm xanthan gum for modifying the viscosity of the beverage (0024; 0022), a non-nutritive sweetener (e.g., acesulfame K, sucralose, and aspartame; Example 2 and 4), and water (0016; example 2 and 4). As evidenced by Lachke, Xanthan gum has a MW of 2-62 million (Da) (page 26, first para.), which encompasses those ranges as recited in claims 1 and 4. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Debon teaches a pectin such as apple pectin but is silent regarding the MW of the pectin.
Zhang teaches that a pectin of 10-1000 kDa can be used in a carbonated beverage (0008; 0041; 0043).
Both Debon and Zhang are directed to carbonated beverages comprising pectin. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Debon by using apple pectin having a MW of 10-1000 kDa in the carbonated beverage of Debon with reasonable expectation of success, for the reason prior art has established that pectin of aforementioned MW is suitable for use in a carbonated beverage. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.07.
The MW of pectin as disclosed by Zhang encompasses the ranges as recited in claims 1, 15 and 16. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding the viscosity of the beverage, Debon teaches that the viscosity of the calorie-reduced beverage is about equal (e.g., a difference within 1%) to its equivalent full calorie beverage (0033), for example, a Fanta-type carbonated beverage as disclosed by Debon has a viscosity of 1.009 cp (e.g., 1.009 mPa.s) (0066). Further, the viscosity of a carbonated beverage such cola and lemon-lime (e.g. LL) is about ~1.40 cp (see Steinbach, Table 1 as the evidence), therefore, Debon in view of Zhang meets the viscosity as recited in claim 1.
Debon as modified by Zhang does not teach the coefficient of friction of the beverage, which is known to characterize the lubricating property of the beverage. To this end, Debon teaches that pectin serves as a lubricant in the beverage, and the lubricating effect of the pectin results in a fluid-like cushion that can sustain pressure created inside the mouth cavity during swallowing thus the friction forces between the tongue, the gums teeth and the palate are reduced (0019), further, the example of Debon shows that the higher concentration the pectin in the beverage is, the more the friction factor of the beverage is decreased (Table 4). Further, Debon teaches that the lubricity of the calorie-reduced beverage is preferably about equal or higher than its equivalent full calories beverage (0033).
Steinbach teaches that lubrication ability (e.g., lubricity) of a food product relates to mouthfeel sensation such as “slipperiness” and “smoothness”, and the lubrication behaviour of food products can be measured by tribological techniques to determine parameters of interacting surfaces in relative motion, such as the frictional resistance to motion arising from the shearing of a fluid between two surfaces (page 142, right hand column, bottom para.; the para. that bridges pages 145 and 146). Additionally, Steinbach teaches that a gum or hydrocolloid is able to modify the lubrication (page 146-147, “lubrication-modifying hydrocolloid”).
Both Debon and Steinbach are directed to beverages the lubricity of which can be modified by a gum. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to vary the amount of pectin in the calories-reduced beverage such that the lubricity of the beverage is comparable to a full calories counterpart, or has a desired mouthfeel sensation (e.g., slipperiness or smoothness). As such, the coefficient of friction value as recited in claim 1 is merely an obvious variant of the prior art.
Regarding claims 8-10 and 17, Debon teaches a pectin concentration of 10-1500 ppm by weight of the beverage, and a xanthan concentration of 10-500 ppm by weight of the beverage (0019; 0021; 0024). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding claim 14, where Debon teaches the suitability of xanthan gum in a beverage and Lachke evidenced that xanthan gum has a MW of 2-62 million Da, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have added another xanthan gum the MW of which is different from the first one such as those having a MW of 30 or 40 million to the beverage of Debon because "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Regarding claim 18, Debon teaches a pectin concentration of 10-1500 ppm by weight of the beverage (0019; 0021). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Further, where Debon teaches a xanthan concentration of 10-500 ppm by weight of the beverage (0024), it would have been obvious for one of ordinary skill in the art to manipulate the individual xanthan gums in the beverage provided that the total amount of xanthan gum in the beverage is 10-500 ppm which is recognized to be suitable for modifying the viscosity the beverage. As such, the amounts of the first and the second xanthan gums as recited in the claim are merely obvious variants of the prior art.
Regarding claim 21, Debon teaches a second pectin such as sugar beet pectin in the beverage (0027). Given that Zhang teaches that pectin having a MW of 10-1000 kDa is suitable for use in a carbonated beverage, one of ordinary skill in the art would have been motivated to use a sugar beet pectin having a MW of 10-1000 kDa in the beverage of Debon and have a reasonable expectation of success.
Regarding claim 28, Debon in view of Zhang and Steinbach as recited above teaches a beverage in connection to claim 1, therefore, the method of adding pectin having a MW of 50-400 kDa, a xanthan gum having a MW of 3-6 million Da and a non-nutritional sweetener would have been obvious over the teaching of Debon in view of Zhang and Steinbach. Further, since prior art arrives at the limitation of adding pectin to modulate the lubricity and xanthan gum to modify the viscosity which is the same as claim 28, the purpose of “increasing viscosity and coefficient of friction” is met.
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Debon in view of Zhang and Steinbach as applied to claim 1 above, and further in view of Jiang “Properties of high-methoxyl pectin extracted from “Fuji” apple pomace in China”, Journal of Food Processing Engineering”, 2016, 40(3), e12497 (Abstract relied upon for reference, hereinafter referred to as Jiang).
Regarding claims 6-7 Debon in view of Zhang and Steinbach teaches adding apple pectin to beverage but is silent regarding the degree of esterification (DE) of the pectin being 50-99% (or 80-99%).
Jiang teaches that high methoxyl apple pectin having a DE of 82.76% has great potential for use as a stabilizer in food (Abstract).
Both Debon and Jiang are directed to apple pectins for food use. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Debon by using high methoxyl apple pectin having a DE of 82.76% in the beverage of Debon with reasonable expectation of success, for the reason that prior art has established that high methoxyl apple pectin having a DE of 82.76% is suitable for use in food. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.07.
Claims 24-26 are rejected under 35 U.S.C. 103 as being unpatentable over Debon in view of Zhang and Steinbach as applied to claim 1 above, and further in view of Prakash US Patent Application Publication No. 2008/0107775 A1 (hereinafter referred to as Prakash).
Regarding claims 24-26, Debon as recited above teaches a carbonated beverage comprising a non-nutritive sweetener such as acesulfame K, sucralose and aspartame, but is silent regarding that the non-nutritive sweetener is selected from those recited in claims 24-26.
Prakash lists the suitable sweeteners for a carbonated beverages, for example, Reb A- Reb F, Dulcoside A, stevioside, sucralose, aspartame, acesulfame K (e.g., potassium acesulfame), etc. (0875).
Both Debon and Prakash are directed to carbonated beverages comprising a non-nutritive sweeteners such as sucralose, acesulfame K and aspartame. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Debon by substituting one of steviol glycoside (e.g., Reb A- Reb F, Dulcoside A and stevioside) for the sucralose, acesulfame K or aspartame as disclosed by Debon as the non-nutritive sweetener in the beverage of Debon with reasonable expectation of success, for the reason that prior art has established that the aforementioned sweeteners are functional equivalents, and substituting one for another one would have been obvious. Substitution equivalents known for the same purpose is prima facie obviousness. See MPEP 2144.06 II.
Claims 1-4, 8-10, 14-18, 21 and 27-28 are rejected under 35 U.S.C. 103 as being unpatentable over Bunger US Patent No. 5,385,748 (hereinafter referred to as Bunger) in view of Xia CN 101074270 A (Abstract relied upon for reference, hereinafter referred to as Xia), Lachke, “Xanthan- a versatile gum”, Resonance, 2004, pages 25-33 (hereinafter referred to as Lachke), Steinbach, “Normal force-controlled tribological measurement of soft drinks and lubrication additives”, Food Measure, 2014, 8, pages 142-148 (hereinafter referred to as Steinbach) and Debon US Patent Application Publication No. 2011/0212246 A1 (hereinafter referred to as Debon).
Regarding claims 1-4, 15-16 and 27, Bunger teaches a beverage such as carbonated beverage, juice or fruit-flavored drink, caffeinated energy drink (e.g., coffee), tea, etc. (column 5, line 9-11 and 40-42; column 7, line 35), comprising, inter alia, 0.001-0.1% xanthan gum as a pseudoplastic thickener (column 1, line 65-68; Abstract), 0.001-0.1% guar gum as a Newtonian thickener (column 1, line 65-68; Abstract), 0.01-0.2% propylene glycol alginate as a surface active thickener (column 1, line 65-68; Abstract), sweetener such as a non-nutritive sweetener (e.g., noncaloric sweetener such as saccharin, cyclamate, acesulfame (e.g., acetosulfam), and aspartame) (column 2, line 1; column 6, 34-37 and 54-55), and water (column 2, line 4). Bunger further teaches that the beverage has a viscosity of 50 cP or less (column 2, line 5). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I)
Further, Bunger teaches that the guar gum can be used completely replaced by pectin (column 4, line 50-55). As such, Bunger teaches a beverage comprising pectin, xanthan gum, a non-nutritive sweetener and water.
Bunger teaches using pectin as a thickener but is silent regarding the MW of the pectin. Bunger is further silent regarding the pectin is from apple, citrus, grape or carrot as recited in claims 2-3.
Xia teaches that pectin sourced from apple having a MW of 130 kDa is suitable for use as a thickener in a beverage (Abstract).
Both Bunger and Xia are directed to using pectin as a thickener in a beverage. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Bunger by using the apple pectin with a MW of 130 kDa as the thickener in the beverage of Bunger with reasonable expectation of success, for the reason that prior art has established that apple pectin with a MW of 130 kDa is suitable for thickening a beverage. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.07.
Bunger teaches using xanthan gum as a thickener but is silent regarding the MW of the xanthan gum.
Lachke teaches that xanthan gum, synthesized by Xanthomonas campestris bacteria, is soluble in water with a high viscosity even at low concentration, has a molecular weight of 2-62 million (Da), and the mostly used as a thickening agent in food application (page 26, para.1; page 31, 2nd para from the bottom; Table 1 on page 32).
Both Bunger and Lachke are directed to using xanthan gum as a thickener in a food product. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Bunger by using the xanthan gum with a MW of 2-62 million Da as the thickener in the beverage of Bunger with reasonable expectation of success, for the reason that prior art has established that xanthan gum with a MW of 2-62 million Da is suitable for thickening a food product. The selection of a known material based on its suitability for its intended use supports a prima facie obviousness determination. See MPEP 2144.07.
The MW of xanthan gum as disclosed by Lachke overlaps the ranges as recited in claims 1 and 4. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Bunger as modified by Xia and Lachke does not teach the coefficient of friction of the beverage, which is known to characterize the lubricating property of the beverage.
Steinbach teaches that lubrication ability (e.g., lubricity) of a food product relates to mouthfeel sensation such as “slipperiness” and “smoothness”, and the lubrication behaviour of food products can be measured by tribological techniques to determine parameters of interacting surfaces in relative motion, such as the frictional resistance to motion arising from the shearing of a fluid between two surfaces (page 142, right hand column, bottom para.; the para. that bridges pages 145 and 146). Additionally, Steinbach teaches that a gum or hydrocolloid is able to modify the lubrication (page 146-147, “lubrication-modifying hydrocolloid”).
Debon teaches a beverage (e.g., a calorie-reduced beverage such as a carbonated and non-carbonated beverage, fruit or juice derived drink, sport drink, caffeine beverage, tea, etc., 0008; 0016, Example 2 and 4), comprising, inter alia, a pectin (0019; 0021), xanthan gum (0024; 0022), a non-nutritive sweetener (e.g., acesulfame K, sucralose, and aspartame; Example 2 and 4), and water (0016; example 2 and 4). Debon teaches that pectin serves as a lubricant in the beverage, and the lubricating effect of the pectin results in a fluid-like cushion that can sustain pressure created inside the mouth cavity during swallowing thus the friction forces between the tongue, the gums teeth and the palate are reduced (0019), further, the example of Debon shows that the higher the pectin in the beverage, the more the friction factor of the beverage is decreased (Table 4). Further, Debon teaches that the lubricity of the calorie-reduced beverage is preferably about equal or higher than its equivalent full calories beverage (0033).
Both Bunger and Debon are directed to beverages that comprises a gum (e.g., pectin and xanthan gum). Both Bunger and Steinbach are directed to beverages. Further, where Debon teaches that pectin can act as a lubricant in the beverage, Steinbach teaches that the lubrication ability of a food product is important because it relates to mouthfeel sensation such as “slipperiness” and “smoothness”. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to vary the amount of pectin in the beverage of Bunger such that the beverage has a desired mouthfeel sensation (e.g., slipperiness or smoothness). As such, the coefficient of friction value as recited in claim 1 is merely an obvious variant of the prior art.
Regarding claims 8-9, Bunger as recited above teaches that the beverage comprises 0.001-0.1% guar gum as a Newtonian thickener and that guar gum can be used completely replaced by pectin. As such, Bunger reasonably teaches a pectin concentration of 0.001-0.1% or 10-1000 ppm. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding claim 10, Bunger as recited above teaches a xanthan gum concentration of 10-1000 ppm (column 1, line 66, 0.001-0.1%). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding claim 14, Lachke as recited above teaches that xanthan gum having MW of 2-62 million Da is suitable for thickening food, therefore, it would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have used another xanthan gum having a MW of 2-62 million Da such as those having a MW of 30 or 40 million in the beverage with reasonable expectation of success. As stated in MPEP 2144.06, "it is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Regarding claim 17, Bunger as recited above teaches a xanthan concentration of 10-1000 ppm (column 1, line 66, 0.001-0.1%). In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Further, Bunger as recited above teaches that the beverage comprises 0.001-0.1% guar gum as a Newtonian thickener and that guar gum can be used completely replaced by pectin. As such, Bunger reasonably teaches a pectin concentration of 0.001-0.1% or 10-1000 ppm. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Regarding claim 18, Bunger as recited above teaches that the beverage comprises 0.001-0.1% guar gum as a Newtonian thickener and that guar gum can be used completely replaced by pectin. As such, Bunger reasonably teaches a pectin concentration of 0.001-0.1% or 10-1000 ppm. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. (MPEP 2144.05 I).
Further, where Bunger teaches a xanthan concentration of 10-1000 ppm in the beverage (column 1, line 66, 0.001-0.1%), it would have been obvious for one of ordinary skill in the art to manipulate the individual xanthan gums in the beverage provided that the total amount of xanthan gum in the beverage is 10-1000 ppm which is recognized to be suitable for thickening the beverage. As such, the amounts of the first and the second xanthan gums as recited in the claims are merely obvious variants of the prior art.
Regarding claim 21, it is noted that the claim requires a second pectin. However, given that the claim is directed to a finished beverage comprising pectin, and the second pectin has the same molecular weight range as the pectin as recited in claim 1, it is not possible to determine whether the beverage is made by combining one batch of pectin having a MW of 50-400 kDa with other ingredients, or by combining two batches of pectin having a MW of 50-400 kDa with other ingredients. In other words, the beverage as disclosed by Bunger in view of Xia, Lachke, Steinbach and Debon is materially indistinguishable from the beverage of instant claim 21. As such, Bunger in view of Xia and Lachke renders obvious claim 21.
Regarding claim 28, Bunger in view of Xia, Lachke, Steinbach and Debon Steinbach as recited above teaches a beverage in connection to claim 1, therefore, the method of adding pectin having a MW of 50-400 kDa, xanthan gum having a MW of 3-6 million Da and a non-nutritional sweetener would have been obvious over the teaching of Bunger in view of Xia, Lachke, Steinbach and Debon. Further, since prior art teaches adding pectin and xanthan gum to the beverage for thickening the beverage, the purpose of “increasing viscosity and coefficient of friction” is met.
Claims 6-7 are rejected under 35 U.S.C. 103 as being unpatentable over Bunger in view of Xia, Lachke, Steinbach and Debon as applied to claim 1 above, and further in view of Jiang “Properties of high-methoxyl pectin extracted from “Fuji” apple pomace in China”, Journal of Food Processing Engineering”, 2016, 40(3), e12497 (Abstract relied upon for reference, hereinafter referred to as Jiang).
Regarding claims 6-7, Bunger in view of Xia, Lachke, Steinbach and Debon teaches adding apple pectin to beverage for thickening purpose but is silent regarding the degree of esterification (DE) of the pectin being 50-99% (or 80-99%).
Jiang teaches that high methoxyl apple pectin having a DE of 82.76% exhibits superior thickening property to commercial pectins, and has great potential for use as a thickener in food (Abstract).
Both Bunger and Jiang are directed to pectins as thickener. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Bunger by using high methoxyl apple pectin having a DE of 82.76% in the beverage of Bunger with reasonable expectation of success, for the reason that prior art has established that high methoxyl apple pectin having a DE of 82.76% exhibits superior thickening property to commercial pectins, and has great potential for use as a thickener in food.
Claims 24-26 are rejected under 35 U.S.C. 103 as being unpatentable over Bunger in view of Xia, Lachke, Steinbach and Debon as applied to claim 1 above, and further in view of Prakash US Patent Application Publication No. 2008/0107775 A1 (hereinafter referred to as Prakash).
Regarding claims 24-26, Bunger as recited above teaches a carbonated beverage comprising a non-nutritive sweetener such as saccharin, cyclamate, acesulfame, and aspartame, but is silent regarding that the non-nutritive sweetener is selected from those recited in claims 24-26.
Prakash lists the suitable sweeteners for a carbonated beverages, for example, Reb A- Reb F, Dulcoside A, stevioside, saccharin, cyclamate, aspartame, acesulfame, etc. (0875).
Both Bunger and Prakash are directed to carbonated beverages comprising a non-nutritive sweeteners such as saccharin, cyclamate, acesulfame and aspartame. It would have been obvious to one of ordinary skill in the art before the effective filling date of the claimed invention to have modified Bunger by substituting one of steviol glycoside (e.g., Reb A- Reb F, Dulcoside A and stevioside) for the saccharin, cyclamate, acesulfame or aspartame as disclosed by Bunger as the non-nutritive sweetener in the beverage of Bunger with reasonable expectation of success, for the reason that prior art has established that the aforementioned sweeteners are functional equivalents, and substituting one for another one would have been obvious. Substitution equivalents known for the same purpose is prima facie obviousness. See MPEP 2144.06 II.
Response to Arguments
Applicant's arguments filed 12/12/2025 regarding the limitation of friction coefficient of the beverage have been fully considered are moot over the new ground of rejection set forth in the instant office action.
Conclusion
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/CHANGQING LI/Primary Examiner, Art Unit 1791