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 .
Election/Restrictions
Applicant’s election without traverse of Group I, claims 77-90 in the reply filed on 11/12/2025 is acknowledged.
Claims 91-98 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected invention, there being no allowable generic or linking claim. Election was made without traverse in the reply filed on 11/12/2025.
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.
Claims 84 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.
Claim 84 recites the limitation "the another soluble oligosaccharide" in line 3. There is insufficient antecedent basis for this limitation in the claim.
Claim Rejections - 35 USC § 102
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)(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was effectively filed before the effective filing date of the claimed invention.
Claims 77-80, 82, 88 and 90 are rejected under 35 U.S.C. 102(a)(2) as being anticipated by US 2022/0007702 (Mukherjee).
Regarding claim 77, 78, 79 and 82, Mukherjee discloses a sugar and fat replacement comprising bulking agent particles created by combining soluble dietary fiber with insoluble dietary fiber particles to at least partially coat the insoluble dietary fiber particles with the soluble dietary fiber by spray drying [0038]. Mukherjee discloses that the insoluble fiber maybe be cellulose or microcrystalline cellulose (MCC) [0023, examples]. The soluble fiber may be fructo-oligosaccharides, galacto-oligosaccharides, manno-oligosaaccharides, xylo-oligosaccharides, and cello-oligosaccharides [0030]. Claim 1 requires the weight ratio of insoluble to soluble saccharides to be from 1:99 to 50:50 (0.01-1). Example 7 (Table 3) gives an example of a bulking agent with MCC and SF in a ratio of 1:1 which is within the claimed range [0050].
Regarding claim 80, the coating material is disclosed as the soluble saccharide and no other materials are disclosed as being present. Thus, the coating material is considered to include 100% by weight of the soluble oligosaccharide.
Regarding claim 88, several examples include 1:1 weight ratios of MCC and SF which is seen to disclose 50wt% multicrystalline cellulose as the wt% of the bulking agent.
Regarding claim 90, Mukherjee discloses that the bulking agent is used to replace all of the sugar in a fat confection, thus, the material is seen to act as a sweetener.
Claim Rejections - 35 USC § 103
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 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.
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.
Claim 85 and 87 are rejected under 35 U.S.C. 103 as being unpatentable over US 2022/0007702 (Mukherjee).
Regarding claim 85, Mukherjee discloses the insoluble dietary fiber may be from a source including at least one of: brans, celluloses, hemicelluloses, lignins, resistant starches, flours, insoluble chicory root fiber, isolated plant fibers, cocoa powder, pecan shell fiber, maple fiber, cocoa pod husk fiber, and agave pina fiber (claim 3). It would have been obvious to use more than one of these insoluble fibers as Mukherjee discloses that the fiber may be from at least one of these sources, thereby implying that these materials may be combined. Thus, one of ordinary skill would have reasonably understood that more than one of these materials may be used and would have found it obvious to do so.
Regarding claim 87, lignin is disclosed above as one of the insoluble dietary fibers that may be used and it would have been obvious to select lignin in combination with other fibers as discussed above.
Claim 83, 84, 86, and 89 are rejected under 35 U.S.C. 103 as being unpatentable over US 2022/0007702 (Mukherjee) in view of WO 2020/035599 (Simmons) (cited on IDS filed 03/25/2024).
Regarding claims 83, 84 and 86, Mukherjee does not disclose a mixture of second and third particles with the composite particles. Simmons discloses a composition useful as a sugar substitute comprising one or more oligosaccharides and one or more polysaccharides. The oligosaccharides encompass soluble oligosaccharides and the polysaccharides encompass the insoluble oligosaccharides. For instance, the oligosaccharides include xylo, cello, manno, and galacto-oligosaccharides and the polysaccharides include cellulose, chitin, chitosan, xylan, xyloglucan, mixed-linkage glucan, mannan, lignocellulose (a complex of cellulose and hemicellulose), or a combination thereof [006-0011]. It would have been obvious to add additional oligosaccharides as suggested by Simmons to the composite bulking agent of Mukherjee with a reasonable expectation of providing a bulking agent that is useful as a sugar substitute. Both materials of Mukherjee and Simmons are used as sugar substitutes and one of ordinary skill would have reasonable understood from Simmons that mixtures of these materials may be used to form a sugar substitute.
Regarding claim 89, Mukherjee does not disclose the degree of polymerization of the soluble oligosaccharides. Simmons discloses mixture of soluble oligosaccharides with a DP of 2-12 [006-0014] useful as sugar substitutes. It would have been obvious to use the particular oligosaccharides disclosed by Simmons as the oligosaccharides in Mukherjee as the same types of soluble oligosaccharides are used (xylo, cello, manno, and galacto) and Simmons discloses DP values that are also useful for use as sugar substitutes in the same manner as that of Mukherjee. One of ordinary skill would reasonably expect the same type of oligosaccharides further having the degree of polymerization to be useful in a sugar substitute based upon the express teaching of such a use by Simmons. Moreover, Simmons discloses spray drying a dried powder of oligosaccharides with dried polysaccharide powder [0400], thus one of ordinary skill would reasonably expect the oligosaccharides to be capable of being used in Mukherjee with similar effect.
Claim 81 is rejected under 35 U.S.C. 103 as being unpatentable over US 2022/0007702 (Mukherjee) in view of GB 2536302 (Shen) OR US 2015/0024092 (Strehlow) (both cited on IDS filed 03/25/2024).
Mukherjee discloses composite particles as discussed above and further teaches a D90 of 10-85 microns but does not disclose a D10 of 25-100 microns and/or D90 of 100-500 microns. Shen discloses a free-flowing edible composition having a core that may comprise cellulose (page 14) and an outer coating of a flavor, colorant or preservative (abstract). Shen discloses that at least about 85% or 90% or 95% (D85, D90, D95) particle size of the composite particles may be in the range of 35-2000 microns [0031]. It would have been obvious to one of ordinary skill to form a particle size of the edible sugar substitute of Mukherjee in a similar range as taught by Shen with a reasonable expectation of successfully forming a sugar substitute having a size that is appropriate for various uses [0033].
Alternatively, Strehlow discloses sweetener particles that can be used as a replacement or substitute for sugar and have a core-shell structure with sizes generally less than 1000 microns [0055, 0057] and that the core-shell sweetener particles can exhibit the typical properties of standard powdered sugar including particle size. It would have been obvious to one of ordinary skill to provide the sugar substitute particles of Mukherjee with a size within the range of Strehlow to exhibit similar properties of standard powdered sugar, thus providing a sugar substitute closer to standard sugar.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to JENNIFER C MCNEIL whose telephone number is (571)272-1540. The examiner can normally be reached M-F 9-5.
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JENNIFER C. MCNEIL
Primary Examiner
Art Unit 1793
/Jennifer McNeil/ Primary Examiner, Art Unit 1793