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 .
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 77-80, 82, and 84-90 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 claim 77, 78, 79, 82, and 84, 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].
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 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 claims 85 and 86, 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.
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 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.
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 81 is 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) and further 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.
Response to Arguments
Applicant's arguments filed 04/09/2026 have been fully considered but they are not persuasive.
Applicant’s amendments have overcome the 102 rejection over Mukherjee.
Claim 77 was amended to incorporate the limitations of claim 83, which was cancelled. Applicant argues that the rejection of claim 83 fails to make a prima facie case. Specifically, applicant argues that Mukherjee proposes solutions for fat-replacement and fiber reductions and that combining soluble and insoluble fibers of the bulking agent led to a surface reduction and decreases the oil binding capacity. Applicant argues that Mukherjee does not suggest the embodiments of fiber are sugar substitutes for food, thus one of ordinary skill would not have considered Mukherjee to be an effective sugar substitute and would have expected the particle of Mukherjee to lack sweetness entirely.
This argument is not persuasive. Mukherjee in [0038] describes replacement of sugar in fat in a control formulation with a bulking agent. As noted by applicant, the soluble and insoluble fibers are in the bulking agent. Here, Mukherjee does not describe the bulking agent as a sweetener but does describe the bulking agent as replacing the sugar. Thus, the phrase “substitute” wasn’t intended as substituting for sweetening but the sugar is “replaced” (i.e. substituted) with the bulking agent. Paragraph [0007] of Mukherjee refers to soluble fibers and insoluble fibers as “sugar replacers/bulking agents” which is also seen as a substitution/replacement. Mukherjee states in [0007] that the ability of a bulking agent to effectively replace sugar in fat continuous confection depends on its ability to be suspended in the fat-continuous matrix without absorbing too much of the available liquid fat (which would result in a dry dough-like, discontinuous (heterogeneous), granular or powder-like mass, not a desired smooth, continuous (homogeneous) crème- or chocolate-like mass). Thus, some of the sugar in Mukherjee is replaced, i.e. substituted, with a bulking agent and must be able to achieve the desired texture. In [0011] Mukherjee further states that they found and demonstrated that sugar (e.g., sucrose) can be replaced up to 100% in fat continuous confections (e.g., fat-based crème formulations) using several different food ingredients as sugar replacers, such that these sugar replacer ingredients serve to occupy the volume occupied by sugar crystals in the original full-sugar fat continuous confection. By doing so, these sugar replacer food ingredients effectively act as “bulking agents” in fat continuous confections, providing a level of insoluble dairy. The present inventors also discovered that in addition to being able to replace all of the sugar in a fat continuous confection, the bulking agents can be advantageously used to replace a portion of the fat as well, resulting in some fat continuous confections that have very low fat (e.g., as low as 14 wt. %). In other words, substitution for sugar in a composition is not limited to using a material for a sweetening effect.
Simmons discloses that the same oligosaccharides disclosed by Mukherjee can be used in combination to produce desired properties and can also be useful as ingredients such as sugar substitutes. Simmons discloses that while many bulking sweeteners that are able to mimic the sweetness of sugar in food and drinks, few are able to mimic the broad range of roles that sugar plays in food, such as adding bulk, modulating texture, providing structure, acting as a preservative and modulating color and flavor [0003]. Simmons also discloses the use of the oligosaccharide mixture as a fiber content enhancer [0102] and can be used as a bulking agent [0331] and as a sugar substitute [0331]. Simmons also discloses the compositions or ingredients may be used to alter one or more properties of the finished product. Such properties include, but are not limited to, sweetness, texture, mouthfeel, binding, glazing, smoothness, moistness, viscosity, color, hygroscopicity, flavor, bulking, water-retention, caramelization, surface texture, crystallization, structural properties and dissolution [0333]. Still further, Simmons discloses using the composition to replace (i.e. substitute) the control composition (sweetener) in a finished product [0335]. Thus, both Mukherjee and Simmons disclose using oligosaccharides to replace sugar. Therefore, one of ordinary skill would have found it obvious to use a combination of oligosaccharides to replace part of the sugar in the composition of Mukherjee based upon the disclosure of Simmons that combinations of oligosaccharides can be useful for a variety of purposes. See also [0396] of Simmons which discloses that the ingredients can be useful in applications in which oligosaccharides, sugar, bulking sweeteners, low-intensity sweeteners, or other related food ingredients are conventionally used. This disclosure is considered analogous to the composition of Mukherjee which describes oligosaccharides as bulking agents to replace sugar in a composition.
Applicant argues that even if the two references could have been combined, sufficient motivation was lacking and Mukherjee does not disclose specific embodiments that use an oligosaccharide and instead use SF (soluble corn fiber) cited in [0036]. This argument is not persuasive. Paragraph [0036] of Mukherjee is directed to specific examples. However, [0030] of Mukherjee states that soluble fibers including galacto-oligosaccharides, manno-oligosaccharides, soy bean oligosaccharides, xylo-oligosaccharides, arabinoxylan-oligosaccharides, human milk oligosaccharides, glucan oligosaccharides, isomalto oligosaccharides, cello-oligosaccharides, nigero-oligosaccharides as well as dextrins such as soluble corn fiber may be used. The disclosure of Mukherjee is not limited to the examples only and the reference clearly discloses that several types of oligosaccharides may be used as the soluble fibers.
Conclusion
THIS ACTION IS MADE FINAL. 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.
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 1723
/Jennifer McNeil/Primary Examiner, Art Unit 1723
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