DETAILED ACTION
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
The status of the claims stands as follows:
Pending claims: 1-21
Withdrawn claims: 11-21
Claims currently under consideration: 1-10
Currently rejected claims: 1-10
Allowed claims: None
Election/Restrictions
Applicant's election with traverse of Group I (claims 1-10) in the reply filed on 02/19/2026 is acknowledged. The traversal is on the ground(s) that Galindo Cuspinera (US 2013/0183427; IDS citation), hereinafter referred to as “Galindo”, does not teach or render obvious the special feature of a composition comprising thaumatin in an amount of about 5 wt.% to about 20 wt.%; and brazzein in an amount of 80 wt.% to about 95 wt.% relative to the combined weight of the brazzein and thaumatin portion as now recited by the amended independent claims.
This is not found persuasive because Galindo does render obvious this claimed special feature. Galindo teaches a sweetener composition comprising gymnemic acid, thaumatin, and brazzein [0009], [0017]-[0018], wherein the concentration of gymnemic acid is 0.5-500 ppm [0015] and the ratio of gymnemic acid to thaumatin is 6-8 parts gymnemic acid to 1 part thaumatin [0012]. From these disclosures, Galindo at least suggests that the concentration of thaumatin in the composition may be from 0.06 ppm to 83 ppm. The combined weight of thaumatin and gymnemic acid comprises up to 583 ppm of the composition so that the composition may comprise 999,917 ppm of other ingredients such as brazzein. Therefore, the composition of Galindo may comprise brazzein in an amount from greater than 0 ppm to an amount of 999,917 ppm, thereby providing amounts of thaumatin and brazzein in the thaumatin and brazzein portion of the composition that encompass the claimed amounts. The selection of a value within the encompassing ranges renders the amounts obvious. MPEP 2144.05.I. As such, Galindo renders the special technical feature obvious.
The requirement is still deemed proper and is therefore made FINAL.
Claims 11-21 are withdrawn from further consideration pursuant to 37 CFR 1.142(b) as being drawn to a nonelected Groups II-VII, there being no allowable generic or linking claim.
Applicant is reminded that upon the cancelation of claims to a non-elected invention, the inventorship must be corrected in compliance with 37 CFR 1.48(a) if one or more of the currently named inventors is no longer an inventor of at least one claim remaining in the application. A request to correct inventorship under 37 CFR 1.48(a) must be accompanied by an application data sheet in accordance with 37 CFR 1.76 that identifies each inventor by his or her legal name and by the processing fee required under 37 CFR 1.17(i).
Priority
It is noted that claims 1-10 have an effective filing date of 08/22/2022 due to the claims encompassing at least Thaumatin I, Thaumatin A, and/or Thaumatin B in addition to Thaumatin II. Thaumatin I, Thaumatin A, and Thaumatin B were not mentioned in provisional application 63/235,262 which is an application to which Applicant claims priority.
Drawings
The drawings are objected to because the numbers on the Y-axis of the graph in Fig. 2 contain commas instead of decimal points (e.g., “0,5” should be written as “0.5”). Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Objections
Claims 2-4, 7-8, and 10 are objected to because of the following informalities:
In claims 2 and 3, “The composition according to claim 1” should be read as “The sweetener or flavor modifying composition according to claim 1”.
In claim 4, “Thamautococcus Daniellii” should be read as “Thaumatococcus daniellii”.
In claims 7 and 8, “about 88 to 92%” should be read as “about 88% to 92%”.
In claim 10, “Thamatococcus” should be read as “Thaumatococcus”.
Appropriate correction is required.
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.
Claims 3 and 6-9 are rejected under 35 U.S.C. 112(b) 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.
Claims 6, 8, and 9 recite the limitation "the Thaumatin II" in line 2. There is insufficient antecedent basis for this limitation in the claim.
For the purpose of this examination, “the Thaumatin II” will be interpreted as “the Thaumatin”.
Regarding claims 3, 7, and 8, the phrases "preferably" and “more preferably” render the claims indefinite because it is unclear whether the limitation(s) following the phrases are part of the claimed invention. See MPEP § 2173.05(d).
For the purpose of this examination, claim 3 will be interpreted as meaning that the thaumatin is selected from thaumatin I and thaumatin II; and the brazzein is selected from type 1 brazzein and type 3 brazzein.
For the purpose of this examination, claims 7 and 8 will be interpreted as meaning that thaumatin is present in an amount of about 8 wt.% to about 12 wt.%; and brazzein is present in an amount of about 88 wt.% to 92 wt.% relative to the combined weight of the thaumatin and brazzein in the composition.
Claim Rejections - 35 USC § 103
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.
Claims 1-2 and 4-10 are rejected under 35 U.S.C. 103 as being unpatentable over Galindo (US 2013/0183427; IDS citation).
Regarding claims 1, 5, 6, 7, 8, and 9, Galindo teaches a sweetener composition comprising gymnemic acid, thaumatin, and brazzein [0009], [0017]-[0018], wherein the concentration of gymnemic acid is 0.5-500 ppm [0015] and the ratio of gymnemic acid to thaumatin is 6-8 parts gymnemic acid to 1 part thaumatin [0012]. From these disclosures, Galindo at least suggests that the concentration of thaumatin in the composition may be from 0.06 ppm to 83 ppm. The combined weight of thaumatin and gymnemic acid comprises up to 583 ppm of the composition so that the composition may comprise 999,917 ppm of other ingredients such as brazzein. Therefore, the composition of Galindo may comprise brazzein in an amount from greater than 0 ppm to an amount of 999,917 ppm, thereby providing amounts of thaumatin and brazzein in the thaumatin and brazzein portion of the composition that encompass the ranges recited in present claims 1, 5, 6, 7, 8, and 9.
It would have been obvious to one of ordinary skill in the art to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references, particularly in view of the fact that; "The normal desire of scientists or artisans to improve upon what is already generally known provides the motivation to determine where in a disclosed set percentage ranges is the optimum combination of percentages" In re Peterson 65 USPQ2d 1379 (CAFC 2003). Also In re Malagari, 182 USPQ 549,533 (CCPA 1974) and MPEP 2144.05.I.
Regarding claim 2, Galindo teaches the invention as described above in claim 1, including the thaumatin may be selected from thaumatin I, thaumatin II, thaumatin A, and thaumatin B [0005].
Regarding claim 4, Galindo teaches the invention as described above in claim 1. Galindo does not teach that the thaumatin is not isolated from Thaumatococcus daniellii. However, it is noted that claim 4 is a product-by-process claim and “even though product-by-process claims are limited by and defined by the process, determination of patentability is based upon 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." In re Thorpe, 777 F.2d 695, 698, 227 USPQ 964, 966 (Fed. Cir. 1985). MPEP 2113.I. Since the structure and functionality of naturally-occurring thaumatin isolated from Thaumatococcus daniellii is the same as the structure and functionality of thaumatin not isolated Thaumatococcus daniellii, the thaumatin of Galindo renders the claimed thaumatin obvious.
Regarding claim 10, Galindo teaches the invention as described above in claim 1, including the composition may contain thaumatin, gymnemic acid, and brazzein [0009], [0018]. Gymnemic acid is not a protein at all and thus, is not a protein originating from organisms belonging to either the Thaumatococcus or Pentadiplandra genus. Therefore, the composition contains 0 wt.% of any proteins originating from organisms belonging to either the Thaumatococcus or Pentadiplandra genus excluding thaumatin or brazzein as presently claimed.
Claim 3 is rejected under 35 U.S.C. 103 as being unpatentable over Galindo (US 2013/0183427; IDS citation) as applied to claim 1 above, in view of Prakash (WO 2020/205978).
Regarding claim 3, Galindo teaches the invention as described above in claim 1, including that the sweetener composition comprises thaumatin and brazzein [0009], [0017]-[0018]. Galindo also teaches that the thaumatin may be thaumatin I or thaumatin II [0005] as recited in present claim 3.
Galindo does not teach that the brazzein is type I brazzein or type 3 brazzein.
However, Prakash teaches a sweetener composition comprising brazzein (page 2, lines 1-3). Prakash teaches that the composition may further comprise thaumatin (page 20, lines 28-29; page 21, lines 14-19). Prakash teaches that the brazzein may be type 3 brazzein (corresponding to the minor form of wild-type brazzein) or type 1 brazzein (corresponding to a naturally-occurring variant of the minor form brazzein being the major form of brazzein) (page 11, line 26- page 12, line 3).
It would have been obvious for a person of ordinary skill in the art to have modified the brazzein of Galindo to be type 3 brazzein or type 1 brazzein as taught by Prakash. Since Galindo teaches that the sweetener composition comprises thaumatin and brazzein [0009], [0017]-[0018], but does not disclose a type of brazzein to include in a sweetener composition comprising thaumatin and brazzein, a skilled practitioner would have been motivated to consult an additional reference such as Prakash in order to determine a suitable type of brazzein, thereby rendering the claimed brazzein obvious.
Conclusion
Any inquiry concerning this communication or earlier communications from the examiner should be directed to Kelly Kershaw whose telephone number is (571)272-2847. The examiner can normally be reached Monday - Thursday 9:00 am - 4:00 pm.
Examiner interviews are available via telephone, in-person, and video conferencing using a USPTO supplied web-based collaboration tool. To schedule an interview, applicant is encouraged to use the USPTO Automated Interview Request (AIR) at http://www.uspto.gov/interviewpractice.
If attempts to reach the examiner by telephone are unsuccessful, the examiner’s supervisor, Nikki Dees can be reached at (571) 270-3435. The fax phone number for the organization where this application or proceeding is assigned is 571-273-8300.
Information regarding the status of published or unpublished applications may be obtained from Patent Center. Unpublished application information in Patent Center is available to registered users. To file and manage patent submissions in Patent Center, visit: https://patentcenter.uspto.gov. Visit https://www.uspto.gov/patents/apply/patent-center for more information about Patent Center and https://www.uspto.gov/patents/docx for information about filing in DOCX format. For additional questions, contact the Electronic Business Center (EBC) at 866-217-9197 (toll-free). If you would like assistance from a USPTO Customer Service Representative, call 800-786-9199 (IN USA OR CANADA) or 571-272-1000.
/KELLY P KERSHAW/Examiner, Art Unit 1791