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 .
This office action is written in response to the Applicants Remarks filed 12/18/25. Claims 1-9, 11-20 are pending and have been examined on the merits. Claims 6-20 are new. Claim 10 is withdrawn.
Withdrawn Rejections
The 102(a)(1) rejections of claims 2, 4 as being anticipated by Abraham et al. (US 2005/0106305) have been withdrawn.
The 102(a)(1) rejection of claim 5 as being anticipated by Woodyer et al. (US 2016/0302463) has been withdrawn.
Election/Restrictions
Newly submitted claim 10 directed to an invention that is independent or distinct from the invention originally claimed for the following reasons: Claim 10 recites a method claim that is distinct from the product claims and the inventions require a different field of search (e.g., searching different classes /subclasses or electronic resources, or employing different search strategies or search queries).
Since applicant has received an action on the merits for the originally presented invention, this invention has been constructively elected by original presentation for prosecution on the merits. Accordingly, claim 10 withdrawn from consideration as being directed to a non-elected invention. See 37 CFR 1.142(b) and MPEP § 821.03.
To preserve a right to petition, the reply to this action must distinctly and specifically point out supposed errors in the restriction requirement. Otherwise, the election shall be treated as a final election without traverse. Traversal must be timely. Failure to timely traverse the requirement will result in the loss of right to petition under 37 CFR 1.144. If claims are subsequently added, applicant must indicate which of the subsequently added claims are readable upon the elected invention.
Should applicant traverse on the ground that the inventions are not patentably distinct, applicant should submit evidence or identify such evidence now of record showing the inventions to be obvious variants or clearly admit on the record that this is the case. In either instance, if the examiner finds one of the inventions unpatentable over the prior art, the evidence or admission may be used in a rejection under 35 U.S.C. 103 or pre-AIA 35 U.S.C. 103(a) of the other invention.
Claim Rejections - 35 USC § 102
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.
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.
Claims 1, 2, 3, 4, 6, 7, 8, 9, 11, 12, 13 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Praka et al. AU 2014236555 (WO 2014/152791).
Regarding Claim 1: Praka discloses a composition which is a beverage containing rare sugars [abstract] including allulose/psicose [pg. 2, lines 16-18].
Regarding Claim 2: Praka discloses a beverage containing allulose/psicose as discussed above. Praka discloses that the beverage further contains amino acids including arginine, methionine, ornithine [pg. 42, lines 3-9]. Praka discloses that the forms of the amino acids can be in D- or L- configuration [pg. 42, lines 8-10].
Regarding Claim 3: Praka discloses a beverage formulation comprising a sweetener comprising allulose, oligosaccharide and salt [abstract]. Praka discloses oligosaccharides [pg. 40, lines 9-17; pg. 51, lines 13-18]. Praka discloses salts [pg. 59, lines 18-27].
Praka does not disclose that the sweetener has an increase in acid resistance. However, since Praka discloses the same composition as recited it can be said to inherently have the claimed properties. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 6: Praka as discussed above in claim 2. Praka discloses that the rare sugar allulose/psicose is present from 0.5% to 12% ( 0.5 parts to 12 parts based on 100 parts) or 2% (2 parts based on 100 parts) of the beverage [claims 2; 6].
Regarding Claim 7: Praka as discussed above in claim 2. Praka discloses that the rare sugar allulose/psicose is present from 0.5% to 12% (0.5 parts to 12 parts based on 100 parts) or 2% (2 parts based on 100 parts) of the beverage [claims 2; 6]. Praka discloses amino acids present at 10 ppm to 50,000 ppm, and also 250 ppm to 7,500 (0.001% to 5%; also 0.001 parts based on 100 parts beverage to 5 parts based on 100 parts beverage; .025% to .75%) [pg. 43, lines 6-9]. By calculation, Praka discloses a ratio of 1:80 when the amino acid is present at .025% and the allulose/psicose is present at 2%.
Regarding Claim 8: Praka discloses as discussed above in claim 2. Praka discloses that an additional sweetener can be a carbohydrate sweetener that is fructose [pg. 40, lines 18 and 19]. Praka does not explicitly require fructose and does not explicitly disclose an amount. Therefore the absence of an amount is considered to be synonymous with 0 parts by weight of fructose where the claims recites 0.6 parts by weight or less.
Regarding Claim 9: Praka discloses a beverage composition containing allulose/psicose as discussed above in claim 2. Praka discloses the beverage has a pH of 2 to 5, or 3.3 [pg. 30, lines 19-21].
Regarding Claim 11: Praka discloses as discussed above in claim 3. Praka discloses including oligosaccharides at 100 ppm to about 250 ppm of a beverage (0.01% to 0.025%; 0.01 parts to 0.025 parts [pg. 41, lines 23-30]. Praka discloses that the rare sugar allulose/psicose is present from 0.5% to 12% (0.5 parts to 12 parts based on 100 parts) or 2% (2 parts based on 100 parts) of the beverage [claims 2; 6]. Where .025 parts of oligosaccharides are present 2 parts allulose can be present where the allulose represents 80 parts more than the oligosaccharide.
Regarding Claim 12: Praka discloses as discussed above in claim 3. Praka discloses wherein the oligosaccharide is fructooligosaccharide [pg. 40, lines 10-15; pg. 51, lines 13-18; pg. 62, lines 17-26].
Regarding Claim 13: Praka discloses as discussed above in claim 3. Praka discloses salts which are citrates, carbonates and phosphates [pg. 59, lines 18-27].
Claims 1, 3, 12, 13, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Abraham et al. (US 2005/0106305).
Regarding Claim 1: Abraham discloses a beverage composition containing allulose/psicose [abstract; 0040; 0133].
Regarding Claims 3 and 13: Abraham discloses a beverage composition containing allulose/psicose as discussed above in claim 1. Abraham discloses the composition containing a sweetening composition of oligosaccharides and psicose/allulose [0040; 0132]. Abraham discloses including alkali metal salts specifically phosphate salts and sodium citrate [0139; 0119; 0120].
Abraham does not disclose that the sweetener has an increase in acid resistance. However, since Abraham discloses the same composition as recited it can be said to inherently have the claimed properties. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
Regarding Claim 12: Abraham discloses as discussed above in claim 3. Abraham discloses wherein the oligosaccharide is fructooligosaccharide [0040; 0132].
Regarding Claim 14: Abraham discloses as discussed above in claim 3. Abraham discloses sodium citrate at 0.02% or 0.04%, 0.5%, 0.3% of a sweetener solution (.02parts or 0.04 parts, 0.5 parts, .3 parts) [0119, 0289, 0299, 0300].
Claim 1 is rejected under 35 U.S.C. 102(a)(1) as being anticipated by Woodyer et al. (US 2016/0302463).
Regarding Claim 1: Woodyer discloses a beverage composition containing allulose/psicose [abstract; claim 1].
Claim Rejections - 35 USC § 103
11. 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.
12. 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.
13. 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.
14. This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
15. Claims 4, 15 and 17 are rejected under 35 U.S.C. 103 as being unpatentable over Abraham et al. (US 2005/0106305) as applied to claim 1 above and in further view of Ido et al. (US 2011/0217431).
Regarding Claim 4: Abraham discloses a beverage composition containing allulose/psicose [abstract]. Abraham discloses the composition also containing carbonated water (which is an aerated water)[0010; 0031; 0129]. Abraham discloses that carbonated water is water that contains both dispersed and dissolved carbon dioxide. It is known in the art that when carbon dioxide dissolves in water, carbonic acid is formed. The inclusion of carbon dioxide in water in Abraham anticipates the claim limitation including carbonic acid.
Abraham does not disclose the carbon dioxide pressure at 2.5 kg/cm2 to 4.5 kg/cm2 at 20°C.
Ido discloses a carbonated drink having a gas pressure of 2.0 kg/cm2 or greater at 20°C [0023, 0024] and also discloses a gas pressure at 3.0 kg/cm2 [0061]. Ido discloses improved bubble qualities and drinkability [abstract].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Abraham to aerated water at a pressure disclosed in Ido in order to provide the desired level of carbonation in the food product and since Abraham discloses carbonated beverages.
Regarding Claim 15: Abraham as modified discloses as discussed above in claim 4. Abraham does not disclose including an edible pigment and therefore renders obvious the limitation wherein the aerated water is free from at least one selected from the group consisting of saccharides other than allulose, synthetic sweeteners, organic acids, edible pigments, caffeine, and preservatives.
Regarding Claim 17: Abraham as modified discloses as discussed above in claim 4. Abraham does not explicitly disclose improved properties in terms of carbon dioxide solubility or carbon dioxide pressure retention. However, Ido discloses improved bubble qualities and drinkability [abstract]. Since Abraham as modified discloses the same composition as recited it can be said to inherently have the claimed properties. “Products of identical chemical composition cannot have mutually exclusive properties.” A chemical composition and its properties are inseparable. Therefore, if the prior art teaches the identical chemical structure, the properties applicant discloses and/or claims are necessarily present. In re Spada, 911 F.2d 705, 709, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990).
16. Claim 16 is rejected under 35 U.S.C. 103 as being unpatentable over Abraham et al. (US 2005/0106305) in view of Ido et al. (US 2011/0217431) as applied to claim 4 above and in further view of Praka et al. AU 2014236555 (WO 2014/152791).
Regarding Claim 16: Abraham discloses as discussed above in claim 4. Abraham does not disclose wherein the allulose is present in an amount of 0.1 parts by weight to 5.0 parts by weight relative to 100 parts by weight of the aerated water.
Praka discloses that the rare sugar allulose/psicose is present from 0.5% to 12% ( 0.5 parts to 12 parts based on 100 parts) or 2% (2 parts based on 100 parts) of the beverage [claims 2; 6].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Abraham to include psicose at the amounts as disclosed in Praka in order to provide a rare sugar with more sugar like characteristics in the carbonated beverage.
17. Claims 5, 19, and 20 are rejected under 35 U.S.C. 103 as being unpatentable over Woodyer et al. (US 2016/0302463) as applied to claim 1 above.
Regarding Claim 5: Woodyer discloses as discussed above in claim 1. Woodyer also discloses that the composition can be fermented milk [0141; 0144]. Woodyer discloses a food or beverage containing 2% by weight to about 80% by weight of the food or beverage product [claim 1; claim 3-8]. Woodyer also discloses a sweetener composition containing about 97.5% to about 99.8% (97.5 parts to 99.8 parts) allulose and a natural or synthetic sweetener in the sweetener composition and names fructose as a sweetener [claims 78, 79, 83; 84, 85, 86]. Therefore the fructose would have been present at about 0.2% to about 2.5% (0.2 parts to about 2.5 parts). Woodyer discloses that nutritive sweeteners include both natural and synthetic/artificial sweeteners [0004]. Woodyer also discloses the sweetening composition is solid form [claims 78 and 79]. Woodyer discloses fructose as a part of the sweetener [0002; 0031; 0037]. Woodyer discloses nutritive sweetener used as a bulking agent which can be sucrose, fructose and/or dextrose (glucose) [0260]. Woodyer discloses the bulking agent from about 5% to about 95% [0259]. Woodyer discloses allulose at 5% to 95% of a sweetener system [0254].
Although Woodyer does not explicitly disclose 70 to 98 parts by weight allulose and 1.5 to 18 parts by weight fructose one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by X overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
Regarding Claim 19: Woodyer discloses as discussed above in claim 5. Woodyer does not disclose requiring glucose and therefore is synonymous with glucose in an amount of 15 parts by weight or less where the glucose is 0 parts by weight.
Regarding Claim 20: Woodyer discloses as discussed above in claim 5. Woodyer discloses fermented milk containing allulose (saccharide) at 2% to about 15% (2 parts to about 15 parts) [0140; 0145].
Although Woodyer does not explicitly disclose 5 to 20 parts by weight saccharides in the fermented milk one having ordinary skill in the art at the effective filing date of the invention would have considered the invention to have been obvious because the range taught by Woodyer overlaps the instantly claimed range and therefore is considered to establish a prima facie case of obviousness. In re Malagari 182 USPQ 549,553.
18. Claim 18 is rejected under 35 U.S.C. 103 as being unpatentable over Woodyer et al. (US 2016/0302463) as applied to claim 5 above and in further view of Praka et al. AU 2014236555 (WO 2014/152791).
Regarding Claim 18: Woodyer discloses fermented milk products as discussed above in claim 5. Woodyer does not disclose further comprising at least one kind of microorganisms selected from the group consisting of microorganisms of the genus lactobacillus, microorganisms of the genus bifidobacterium, and microorganisms of the genus streptococcus.
Praka discloses including probiotics in its beverage formulation which are lactobacilli, bifidobacterium, and streptococci [pg. 61, lines 13-31; pg. 62, lines 1-2]. Praka discloses probiotics from Streptococcus as being common in fermented milk products [pg. 61, lines 29-31; pg. 62, lines 1-2].
At the effective filing date of the invention it would have been obvious to one of ordinary skill in the art to modify the composition of Woodyer to include probiotics as in Praka in its fermented milk since these bacteria are commonly used in the production of fermented milk and due to their overall health benefits.
Response to Arguments
19. The 102(a)(1) rejections of claims 2, 4 as being anticipated by Abraham et al. (US 2005/0106305) have been withdrawn.
20. The 102(a)(1) rejection of claim 5 as being anticipated by Woodyer et al. (US 2016/0302463) has been withdrawn.
Conclusion
21. 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.
22. Any inquiry concerning this communication or earlier communications from the examiner should be directed to FELICIA C TURNER whose telephone number is (571)270-3733. The examiner can normally be reached Mon-Thu 8:00-4:00 pm.
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If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Emily Le can be reached at 571-272-0903. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
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/Felicia C Turner/Primary Examiner, Art Unit 1793