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 Response and Amendment after Non-Final Office Action filed 02/05/2026 is acknowledged.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-13
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1 and 6
New claims: 14-20
Claims currently under consideration: 1-20
Currently rejected claims: 1-20
Allowed claims: None
Claim Rejections - 35 USC § 102
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 1-4, 6-10, and 14 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Xu et al. (U.S. 2011/0151059 A1).
Regarding claim 1, Xu et al. discloses a beverage comprising 5 mass% or more of collagen (specifically, about 2-15% by weight) ([0016]), 0.0003-0.15 mass% stevia extract (specifically, about 0.1-10.0%) ([0049]), and 0.1-16 mass% of sucrose (specifically, 0.1-20% by weight) ([0046]), where the stevia extract and sucrose are in a mass ratio of from 1:40,000 to 1:0.6 (e.g., 1:1 as determined from the disclosed ranges), wherein a Brix of the beverage is 10 or more (specifically, up to 20% by weight sucrose, which would result in a Brix value within the claimed range) ([0046]). The disclosed ranges are considered to be sufficiently specific to anticipate the claimed ranges at least because the claimed beverage does not require the exclusion of any other ingredients that could alter the taste/sweetness of the composition, such that the taste of the collagen, stevia extract, and sucrose components could not be deemed critical. MPEP 2131.03 II.
As for claim 2, Xu et al. discloses the stevia extract as comprising rebaudioside A and/or stevioside ([0049]).
As for claim 3, Xu et al. discloses the collagen content in the beverage is 40 mass% or less (specifically, about 2-15% by weight) ([0016]).
As for claim 4, Xu et al. discloses the beverage as further comprising a Rakanka extract (i.e., Luo Han Guo) ([0045], [0050]).
As for claim 6, Xu et al. discloses a method for producing the beverage of claim 1, which is a collagen-rich beverage ([0036]) having an improved taste ([0015]), the method comprising a step of adjusting 5 mass% or more of collagen (specifically, about 2-15% by weight) ([0016]), 0.0003-0.15 mass% stevia extract (specifically, about 0.1-10.0%) ([0049]), and 0.1-16 mass% of sucrose (specifically, 0.1-20% by weight) ([0046]), so that the stevia extract and sucrose are in a mass ratio of from 1:40,000 to 1:0.6 (e.g., 1:1 as determined from the disclosed ranges). The disclosed ranges are considered to be sufficiently specific to anticipate the claimed ranges at least because the claimed beverage does not require the exclusion of any other ingredients that could alter the taste/sweetness of the composition, such that the taste of the collagen, stevia extract, and sucrose components could not be deemed critical. MPEP 2131.03 II.
As for claim 7, Xu et al. discloses the collagen content in the beverage is 40 mass% or less (specifically, about 2-15% by weight) ([0016]).
As for claims 8-10, Xu et al. discloses the beverage as further comprising a Rakanka extract (i.e., Luo Han Guo) ([0045], [0050]).
As for claim 14, Xu et al. discloses the Brix of the beverage may be 15 or more (specifically, up to 20% by weight sucrose, which would result in a Brix value within the claimed range) ([0046]).
Claim Rejections - 35 USC § 103
Claims 5, 11-13, and 15-20 are rejected under 35 U.S.C. 103 as being unpatentable over Xu et al. (U.S. 2011/0151059 A1).
As for claim 5, Xu et al. discloses the beverage of claim 4.
Xu et al. does not explicitly disclose the content mass ratio of the stevia extract to the Rakanka extract as being from 1:0.05 to 1:0.2.
However, Xu et al. does disclose that the inclusion of Luo Han Guo is optional ([0045]), as well as that mogroside V (the sweetening component of Luo Han Guo extract, [0050]) has a potency roughly equivalent to stevioside and rebaudioside A ([0042], table). MPEP 2144.06 II indicates that substituting known equivalents is prima facie obvious. Since Xu et al. discloses Luo Han Guo is optional and that its sweetness potency is roughly equivalent to that of the stevia extract, a skilled practitioner would find the inclusion of Luo Han Guo in amounts ranging from 0 to at least an amount that was equivalent to the stevia extract to be obvious. A range of ratios of stevia extract to the Rakanka extract of from 1:0 to 1:1 would thus be obvious, which renders the claimed range of 1:0.05 to 1:0.2 obvious.
As for claims 11-13, the previous rationale detailed in relation to claim 5 likewise applies, such that the claimed range of ratios would be obvious in view of Xu et al.
Regarding claim 15, Xu et al. discloses a beverage comprising 5 mass% or more of collagen (specifically, about 2-15% by weight) ([0016]), 0.0003-0.15 mass% stevia extract (specifically, about 0.1-10.0%) ([0049]), 0.1-16 mass% of sucrose (specifically, 0.1-20% by weight) ([0046]), where the stevia extract and sucrose are in a mass ratio of from 1:40,000 to 1:0.6 (e.g., 1:1 as determined from the disclosed ranges), and a Rakanka extract (i.e., Luo Han Guo) ([0045], [0050]).
Xu et al. does not explicitly disclose the content mass ratio of the stevia extract to the Rakanka extract as being from 1:0.05 to 1:0.2 or that the beverage exhibits reduced collagen-specific taste compared to a beverage lacking the Rakanka extract.
However, Xu et al. does disclose that the inclusion of Luo Han Guo is optional ([0045]), as well as that mogroside V (the sweetening component of Luo Han Guo extract, [0050]) has a potency roughly equivalent to stevioside and rebaudioside A ([0042], table). MPEP 2144.06 II indicates that substituting known equivalents is prima facie obvious. Since Xu et al. discloses Luo Han Guo is optional and that its sweetness potency is roughly equivalent to that of the stevia extract, a skilled practitioner would find the inclusion of Luo Han Guo in amounts ranging from 0 to at least an amount that was equivalent to the stevia extract to be obvious. A range of ratios of stevia extract to the Rakanka extract of from 1:0 to 1:1 would thus be obvious, which renders the claimed range of 1:0.05 to 1:0.2 obvious.
As for the taste, MPEP 2112.01 II states: “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.” MPEP 2144 IV states: “The reason or motivation to modify the reference may often suggest what the inventor has done, but for a different purpose or to solve a different problem. It is not necessary that the prior art suggest the combination to achieve the same advantage or result discovered by applicant.” The effect of a Rakanka extract on the taste of collagen would be an inherent effect of the Rakanka extract. It is not necessary that a practitioner specifically recognize such an effect. The composition disclosed in Xu et al. is thus adequate to deem the limitation regarding the effect of the Rakanka extract on the taste of collagen obvious.
As for claim 16, Xu et al. discloses the stevia extract as comprising rebaudioside A and/or stevioside ([0049]).
As for claim 17, Xu et al. discloses the collagen content in the beverage is 40 mass% or less (specifically, about 2-15% by weight) ([0016]).
As for claim 18, Xu et al. discloses a method for producing the beverage of claim 15, which is a collagen-rich beverage ([0036]) having an improved taste ([0015]), the method comprising a step of adjusting 5 mass% or more of collagen (specifically, about 2-15% by weight) ([0016]), 0.0003-0.15 mass% stevia extract (specifically, about 0.1-10.0%) ([0049]), and 0.1-16 mass% of sucrose (specifically, 0.1-20% by weight) ([0046]), so that the stevia extract and sucrose are in a mass ratio of from 1:40,000 to 1:0.6 (e.g., 1:1 as determined from the disclosed ranges).
As for claim 19, Xu et al. discloses the Brix of the beverage may be 10 or more (specifically, up to 20% by weight sucrose, which would result in a Brix value within the claimed range) ([0046]).
As for claim 20, Xu et al. discloses the Brix of the beverage may be 15 or more (specifically, up to 20% by weight sucrose, which would result in a Brix value within the claimed range) ([0046]).
Response to Arguments
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 1-4 and 6-10 over Xu et al.; and 35 U.S.C. § 103 of claims 5 and 11-13 over Xu et al.: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant first argued that Xu et al. does not teach a Brix value of 10 or more, since the reference is directed toward beverages with a relatively lower solids content and discloses an exemplary beverage having a Brix value of 7.61 (Applicant’s Remarks, p. 6, ¶9 – p. 7, ¶2). Applicant alleged that the higher Brix value of the claimed beverage allows for masking of undesirable collagen taste attributes (Applicant’s Remarks, p. 7, ¶2).
However, Xu et al. discloses that the beverage may comprise up to about 20% by weight sucrose ([0046]), which would cause the beverage to fall within the scope of the claimed Brix value range. That the claimed beverage facilitates masking of undesirable taste attributes of the collagen component does not patentably distinguish the claimed beverage from that of Xu et al. MPEP 2144 IV. Applicant’s arguments are thus unpersuasive.
The rejections of claims 1-13 have been maintained herein.
New claims 14-20: Applicant’s arguments have been fully considered but they are not persuasive.
Applicant argued that the claimed beverage having a particular ratio between high intensity sweeteners yields unexpected results (Applicant’s Remarks, p. 8, ¶1-¶2). Applicant asserted that the claims are commensurate in scope with the data due to the inclusion of a functional limitation (Applicant’s Remarks, p. 8, ¶3).
The asserted data is insufficient to overcome the present prima facie showing of obviousness. MPEP 716.02(b) states: “The evidence relied upon should establish ‘that the differences in results are in fact unexpected and unobvious and of both statistical and practical significance.’” Applicant has not shown that the results are unexpected at least because no control comprising Rakanka extract alone and its effect on collagen taste has been tested. Thus, no expectation can be formulated based on whether the alleged improvement in collagen taste is simply due to the presence of the Rakanka extract, regardless of the effect of the stevia extract. Applicant has also not shown that the results are of statistical significance beyond merely asserting such a premise, as no statistical analysis is apparent. Notably, in each of the final three categories in Table 7 of the specification (p. 46), only one of five evaluators recognized any difference between the two examples for “Cohesion of flavor” and “Overall favorability”, and only two of five evaluators recognized any difference between the two examples for “Collagen masking”. Not only does the data show only the slightest apparent observance between the two examples, but the data does not appear adequately comprehensive to support any assertion that the observed difference is actually statistically significant. Such a limited difference between the two examples also does not support any assertion that the differences are of practical significance either. The data thus does not support the assertion that the claimed ratio is critical.
Further, the alleged functional limitation does not limit the claimed beverage to the extent apparently intended by Applicant, as both the claimed beverage and the comparative beverage may still comprise other sweetening or taste-masking components other than those specifically claimed, and the two beverages are not required to be identical except for the Rakanka extract.
Applicant’s arguments are unpersuasive. New claims 14-20 are rejected for the reasons detailed previously herein.
Conclusion
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.
Claims 1-20 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793
