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 Request for Continued Examination (RCE under 37 CFR 1.114), the Response and Amendment filed 07/10/2023 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 rejections of claims 1-6 over Morita et al. have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-6
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1 and 3-5
New claims: None
Claims currently under consideration: 1-6
Currently rejected claims: 1-6
Allowed claims: None
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 in this application after final rejection. Since this application is eligible for continued examination under 37 CFR 1.114, and the fee set forth in 37 CFR 1.17(e) has been timely paid, the finality of the previous Office action has been withdrawn pursuant to 37 CFR 1.114.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 07/10/2026 has been entered.
Claim Objections
Claim 4 is objected to because of the following informalities: “5.” erroneously appears at the end of the claim. Appropriate correction is required.
Applicant is advised that should claim 3 be found allowable, claim 4 will be objected to under 37 CFR 1.75 as being a substantial duplicate thereof. When two claims in an application are duplicates or else are so close in content that they both cover the same thing, despite a slight difference in wording, it is proper after allowing one claim to object to the other as being a substantial duplicate of the allowed claim. See MPEP § 608.01(m).
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 1-6 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 as being from a cultivar or the leaves or the extract solution as comprising RebD, which is present in the extract solution above its common relative concentration of 2.4%.
However, Brower et al. discloses a Stevia rebaudiana cultivar that has been enriched to contain RebD in an amount as high as 3% (pp. 3-4, bridging paragraph).
It would have been obvious to one having ordinary skill in the art to perform the extraction method of Giovanetto on a Stevia rebaudiana cultivar as disclosed in Brower et al. that has a high RebD content, such that the starting leaves would comprise RebD in an amount of as high as 3% and the extract solution would likewise comprise RebD in a comparable amount. 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 cultivars may be as high as 3% (pp. 3-4, bridging paragraph), extracting a plant having a common relative concentration of RebD of at least 2.4% 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 at or above its common relative concentration. Thus, providing Stevia rebaudiana leaves that comprise RebD above its common relative concentration and performing a water extraction to obtain a stevia extract solution comprising at least 2.4% RebD 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 claims 3 and 4, the disclosure of Giovanetto (C2, L33-L36), as clarified by Payzant et al. (C1, L40; C3, L42-L46, L52-L53; C4, L50-L51), regarding providing Stevia rebaudiana plant raw material in general renders the use of any particular cultivar of Stevia rebaudiana obvious for extracting steviol glycoside compositions. The use of the three claimed cultivars (807086, 814011, and 817096) is thus considered obvious.
As for claim 5, 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, L15-L18), 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 RebD, in the stevia extract would be at or above its common relative concentration.
As for claim 6, Giovanetto discloses a food comprising the Stevia extract (C1, L12-L14).
Double Patenting
Claims 1 and 3-6 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 claim 1 is simply broader than that of the ‘567 patent due to lacking specific cultivars and requiring fewer steviol glycosides.
Claims 3 and 4 recited cultivars that correspond to those of claim 1 of the ‘567 patent.
Claim 5 would be obvious in view of claim 1 of the ‘567 patent due to being the product produced by the patented process.
Claim 6 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 5.
Claims 1, 2, 5, and 6 are provisionally rejected on the ground of nonstatutory double patenting as being unpatentable over claim 1-4 of copending Application No. 18/413,708. Although the claims at issue are not identical, they are not patentably distinct from each other because the present claims are merely directed to broader embodiments requiring one less steviol glycoside than those of the co-pending application.
This is a provisional nonstatutory double patenting rejection because the patentably indistinct claims have not in fact been patented.
Response to Arguments
Claim Rejections - 35 U.S.C. § 103 of claims 1-6 over Morita et al.: Applicant’s arguments with respect to claims 1-6 (Applicant’s Remarks, p. 1, ¶2 – p. 4, ¶5) have been considered but are moot because the new grounds of rejection do not rely on the reference applied in the prior rejection of record for any teaching or matter specifically challenged in the argument.
Double patenting: Applicant acknowledged the provisional double patenting rejections (Applicant’s Remarks, p. 4, ¶6 – p. 5, ¶2).
The double patenting rejections have been updated herein.
Conclusion
Claims 1-6 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
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