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 12/10/2025 is acknowledged.
Applicant has overcome the following rejections by virtue of the amendment or cancellation of the claims and/or persuasive remarks: (1) the 35 U.S.C. 102(a)(1) rejections of claims 1, 3, 5, and 8-10 over Browne et al. have been withdrawn; and (2) the 35 U.S.C. 103 rejections of claims 2, 4, 6, and 7 over Browne et al. and Catani have been withdrawn.
The status of the claims upon entry of the present amendment stands as follows:
Pending claims: 1-10
Withdrawn claims: None
Previously canceled claims: None
Newly canceled claims: None
Amended claims: 1
New claims: 11-14
Claims currently under consideration: 1-14
Currently rejected claims: 1-14
Allowed claims: None
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 1-14 are rejected under 35 U.S.C. 103 as being unpatentable over Shi et al. (U.S. 2019/0343155 A1) in view of Yoshinaka et al. (U.S. 2010/0267847 A1), Wonschik et al. (U.S. 2016/0183579 A1), and Mimoun et al. (U.S. 6,177,400 B1).
Regarding claim 1, Shi et al. discloses a sweetener composition comprising a steviol glycoside and a flavor component ([0009], [0005], [0698]), wherein the total content of rebaudiosides A, D, and M is 15-80 wt.% by weight of the total steviol glycoside content ([0506], [0733]-[0734], where rebaudioside B may comprise at least 20% of the total steviol glycosides, while rebaudiosides A, D, and M make up the remainder), and the flavor component comprises furaneol ([0411]), hydroxymethylfurfural (specifically, 5-Hydroxymethylfurfural) (p. 337, Table 151.2), furfural (p. 337, Table 151.2), and vanillin ([0710], [0715]).
Shi et al. does not disclose the sweetener composition as comprising cyclotene, and damascenone.
However, Yoshinaka et al. discloses cyclotene as being a component useful for modifying the sweet taste of high-intensity sweeteners, where the cyclotene has brown sugar/maple syrup taste attributes ([0011]). Wonschik et al. discloses damascenone as being used in a taste modifier composition ([0137]) for a stevia-based sweetener product ([0007]). Mimoun et al. discloses the odor of damascenone as being “floral-rose” (C4, L64-L66).
It would have been obvious to one having ordinary skill in the art to incorporate vanillin and damascenone into a composition produced according to Shi et al. First, Shi et al. indicates that other additives may be included to enhance flavor characteristics that are floral and maple ([0944]). Since Shi et al. does not explicitly disclose such suitable flavors, a skilled practitioner would be motivated to consult Yoshinaka et al., Wonschik et al., and Mimoun et al. The disclosure in Yoshinaka et al. that cyclotene has a maple taste and is useful in high-intensity sweeteners ([0011]) and the indication in Shi et al. regarding the addition of a maple flavor renders the inclusion of cyclotene in the composition of Shi et al. obvious. The disclosure in Mimoun et al. that damascenone has a floral-rose odor (C4, L64-L66) and the teaching in Wonschik et al. that damascenone is suited for use as a taste modifier in an edible composition ([0137]), combined with the indication in Shi et al. regarding the addition of a floral flavor, renders the inclusion of damascenone in the composition of Shi et al. obvious.
As for claim 2, Shi et al. discloses the flavoring component as comprising furaneol ([0411], [0710]) and as being present in the composition at a concentration within the range of 0.00005-0.035 wt% (i.e., 0.5- 350 ppm) with respect to the solid content of the sweetener composition ([0717]).
As for claim 3, Shi et al. discloses the total steviol glycoside content as being from 5-50 wt% with respect to the solid content of the sweetener composition ([0558]).
As for claim 4, Shi et al. discloses the steviol glycoside concentration may range from 1-100% wt/wt ([0558]) and the furaneol concentration may range from 0.1-15,000 ppm ([0717]). Such ranges encompass a relative ratio of 0.001 to 0.8, or 1 to 800 (e.g., 100 ppm furaneol and 80,000 ppm, or 8% wt/wt, steviol glycoside).
As for claim 5, Shi et al. discloses the sweetener composition as comprising rebaudioside B at a ratio of 1-85 wt% to the total steviol glycoside content ([0733]-[0735]).
As for claim 6, the present specification (as filed) indicates that furaneol is a flavor component that may be derived from a stevia extract ([0072], [0079]). Claim 6 is a product-by- process claim. MPEP 2113 I states: “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” A sweetener composition according to claim 1 comprising furaneol (which may be derived from a stevia extract) would render the claimed composition obvious, regardless of whether the furaneol was actually derived from a stevia extract. Such a composition is claimed in claim 2 and was shown to be obvious previously herein. Thus, a sweetener composition that comprised a flavor component that may be derived from a stevia extract (i.e., furaneol) would be obvious to a skilled practitioner.
As for claim 7, the present specification (as filed) indicates that furaneol is a flavor component that may be obtained through the claimed hydrothermal treatment process ([0072]- [0075], [0079]). Claim 7 is a product-by-process claim. MPEP 2113 I states: “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. If the product in the product-by-process claim is the same as or obvious from a product of the prior art, the claim is unpatentable even though the prior product was made by a different process.” A sweetener composition according to claim 1 comprising furaneol (which may be obtained via the claimed process) would render the claimed composition obvious, regardless of whether the furaneol and rebaudioside components were actually obtained in the claimed manner. Such a composition is claimed in claim 2 and was shown to be obvious previously herein. Thus, a sweetener composition that comprised furaneol as the flavor component would be obvious to a skilled practitioner, regardless of the manner of production.
As for claim 8, Shi et al. discloses total steviol glycosides as consist of rebaudiosides A, B, C, D, E, F, I, M, N, and stevioside ([0509]).
As for claims 9 and 10, Shi et al. discloses a beverage comprising the sweetener composition ([0965]).
As for claim 11, Shi et al. discloses the flavor component as being a Maillard reaction product ([0452]).
As for claim 12, Shi et al. discloses the flavoring component as comprising furaneol ([0411], [0710]) and as being present in the composition at a concentration within the range of 0.00005-0.035 wt% (i.e., 0.5- 350 ppm) with respect to the solid content of the sweetener composition ([0717]). Shi et al. also discloses the flavoring component as comprising hydroxymethylfurfural (p. 337, Table 151.2) and as being present in the composition at a concentration within the range of 0.01-0.25 wt% (i.e., 100- 2,500 ppm) with respect to the solid content of the sweetener composition ([0717]).
As for claim 13, Shi et al. discloses the flavoring component as comprising furaneol ([0411], [0710]) and as being present in the composition at a concentration within the range of 0.1-30 ppm with respect to the solid content of the sweetener composition ([0717]). Shi et al. also discloses the flavoring component as comprising hydroxymethylfurfural (p. 337, Table 151.2) and as being present in the composition at a concentration within the range of 0.1-200 ppm with respect to the solid content of the sweetener composition ([0717]).
As for claim 14, Shi et al. discloses the steviol glycoside concentration may range from 1-100% wt/wt ([0558]) and the furaneol concentration may range from 0.1-15,000 ppm ([0717]). Such ranges encompass a relative ratio of 0.001 to 0.8, or 1 to 800 (e.g., 100 ppm furaneol and 80,000 ppm, or 8% wt/wt, steviol glycoside). Similarly, Shi et al. discloses the steviol glycoside concentration may range from 1-100% wt/wt ([0558]) and the hydroxymethylfurfural concentration may range from 0.1-15,000 ppm ([0717]). Such ranges encompass a relative ratio of 0.002 to 6.0, or 1 to 3,000 (e.g., 10 ppm hydroxymethylfurfural and 30,000 ppm, or 3% wt/wt, steviol glycoside).
Response to Arguments
Claim Rejections - 35 U.S.C. § 102(a)(1) of claims 1, 3, 5, and 8-10 over Browne et al.: Applicant has overcome the 35 U.S.C. § 102(a)(1) rejections of claims 1, 3, 5, and 8-10 based on amendment to the claims. Accordingly, the 35 U.S.C. § 102(a)(1) rejections have been withdrawn.
Claim Rejections - 35 U.S.C. § 103 of claims 2, 4, 6, and 7 over Browne et al. and Catani: Applicant’s arguments have been fully considered and are persuasive to the extent that the claims as presently amended are not anticipated/obvious in view of Browne et al. as a primary reference. However, upon further consideration, new grounds of rejection are made in view of Shi et al. and the additionally-cited references as 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 1-14 are rejected.
No claims are allowed at this time.
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/JEFFREY P MORNHINWEG/Primary Examiner, Art Unit 1793