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 .
Application Status
Claim 1, 5-20, 26-27 and 29 are under examination.
Claim 2-4, 21-25, 28, 30 and 31 are cancelled.
Claim 1, 5-20, 26-27 and 29 are rejected.
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.
The following is a quotation of 35 U.S.C. 112 (pre-AIA ), second paragraph:
The specification shall conclude with one or more claims particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.
Claim 8-10 are rejected under 35 U.S.C. 112(b) or 35 U.S.C. 112 (pre-AIA ), second paragraph, 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.
Claim 8 recites the limitation "the Brix" in line 1. There is insufficient antecedent basis for this limitation in the claim. Claim 9 and 10 are also rejected, since the claims are depended upon rejected claim 8.
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claim(s) 1, 5-16, 18, 20, 26, 27 and 29 are rejected under 35 U.S.C. 102(a)(1) as being anticipated by Prakash et al. (US 2014/0271996 A1).
Regarding claim 1 and 11, Prakash et al. (Prakash) discloses a reduced calorie beverage (‘996, claim 1, 12) (diet beverage) comprising natural high potency sweeteners including brazzein and thaumatin, and combination thereof (‘996, claim 1); wherein brazzein and thaumatin are known protein sweeteners. With respect to the recitation of claim 1 “…wherein the at least one protein sweetener modulates one or more taste attributes of the diet beverage to make the beverage taste more like a sucrose-sweetened beverage and/or to enhance mouthfeel of the diet beverage…”, as Prakash uses like materials in a like manner as claimed, it would therefore be expected that Prakash’s natural high potency sweeteners including brazzein and thaumatin, and combination thereof (‘996, claim 1) will have the same characteristics claimed, particularly the modulates one or more taste attributes of the diet beverage to make the beverage taste more like a sucrose-sweetened beverage and/or to enhance mouthfeel, absence a showing of unexpected results.
Regarding claim 5 and 6, Prakash the beverage comprising additional sweeteners including synthetic high potency sweeteners (‘996, claim 5).
Regarding claim 7, 9 and 10, Prakash the beverage comprising sucrose (‘996, claim 11). With respect to claim 9, Prakash the beverage comprising additional sweeteners including synthetic high potency sweeteners (‘996, claim 5). With respect to claim 10, the recitation is based upon alternative selection, hence the limitation is not limiting since Prakash teaches the additional sweeteners including the synthetic high potency sweeteners (‘996, claim 5).
Regarding claim 8, Prakash’s beverage comprising a Brix of 10° Bx (‘996, Example 4, [0433])., which is in range with the cited range.
Regarding claim 12 and 13, Prakash’s beverage comprising fruit juices (‘996, [0213]).
Regarding claim 14 and 16, Prakash’s beverage comprising orange juices (‘996, [0303]), the sucrose (‘996, claim 11) and the thaumatin (‘996, claim 1).
Regarding claim 15, Prakash’s beverage comprising a Brix of 10° Bx (‘996, Example 4, [0433]), which is in range with the cited range.
Regarding claim 18, Prakash’s beverage comprising sparkling beverage (‘996, [0213]) with the natural high potency sweeteners including the brazzein (‘996, claim 1).
Regarding claim 20, Prakash’s beverage comprising steviol glycoside (‘996, [0010], [0051], [0204]).
Regarding claim 26 and 27, Prakash’s beverage comprising the synthetic high potency sweeteners (‘996, claim 5) including potassium acesulfame (‘996, [0254]).
Regarding claim 29, Prakash’s beverage comprising electrolytes including calcium, citrates (‘996, [0358]).
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.
Claim(s) 17 and 19 are rejected under 35 U.S.C. 103 as being unpatentable over Prakash et al. (US 2014/0271996 A1).
Regarding claim 17 and 19, Prakash’s beverage comprising a Brix of 10° Bx (‘996, Example 4, [0433]). Prakash does not disclose the Brix as recited in claim 17 and 19. Brix is known value of measurement of dissolved sugar content in a solution. It would have been obvious to one of ordinary skill in the art to adjust an amount of dissolved sugar content in Prakash’s beverage to provide a desired Brix amount for desired reduced calorie beverage (‘996, claim 1, 12).
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Lee et al. (US 2002/0187232 A1) discloses a low caloric beverage comprising thaumatin and brazzein ([0012], [0016], claim 26, claim 27, claim 28).
Any inquiry concerning this communication or earlier communications from the examiner should be directed to HONG THI YOO whose telephone number is (571)270-7093. The examiner can normally be reached M-F, 7AM to 3PM.
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/HONG T YOO/Primary Examiner, Art Unit 1792
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