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 .
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
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, 3, 5, 6, 7, 8, 9, 10, 11, 13-16 are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al. (USPA 2014/0087038) in view of Markosyan et al. (USPA 2013/0084317).
Regarding Claims 1, 3, 5, 6, 7, Kim teaches a powder composition comprising particles of sweetener material powder are coated with dietary fiber, where the sweetener material includes a combination of sugar and xylose and where the composition inhibits excessive sugar absorption into the human body and also replaces some of the harmfulness of sugar with xylose (Paragraphs 8-14 and 44), where the sugar includes white or brown sugar (Paragraph 15), therefore reading on sucrose, and where the dietary fiber includes water soluble dietary fiber including polydextrose or indigestible maltodextrin (Paragraph 18). Since Kim teaches the other sweetener is xylose, and xylose is recited as a sugar alcohol, Kim teaches or renders obvious to one of ordinary skill in the art the combination of sucrose and a sugar alcohol coated with a soluble dietary fiber. Kim is silent to the coating also comprising a high intensity sweetener, where the high intensity sweetener is one of the claimed group as recited in Claim 6.
Markosyan teaches that sugar-high intensity sweetener blends have been formulated to produce low calorie composition sweeteners, being used as sugar alternatives with reduced calorific values (Paragraph 3) and teaches a commercially viable process for producing a low calorie composite sweetener comprising sugar and high intensity sweetener, particularly using steviol glycosides for use in various foods and beverages (Paragraph 14). Markosyan teaches dispersion a solution of the high intensity sweetener on the sugar granule’s surface which promotes a stronger attachment between the high intensity sweetener and the sugar granule (Paragraph 31). Therefore, since Kim teaches sugar combinations coated with a water soluble fiber to provide a sweetener composition that contains less sugar by virtue of the addition of xylose and also inhibits excessive sugar absorption into the body, and Markosyan is also directed to a sugar-replacement composition by combining sugar and high intensity sweeteners, where the high intensity sweetener is coated on the sugar granules, it would have been obvious to one of ordinary skill in the art before the effective filing date of the invention to have combined the teachings of the two prior art references to arrive at Applicant’s claimed composition, where both the high intensity sweetener and soluble dietary fiber coat a mixture of sugar and sugar alcohol, for all of the art recognized benefits of such compositions. “It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art.” See MPEP 2144.06 I. Therefore, based on the teachings of the prior art, one of ordinary skill in the art would have been motivated by prior art to arrive at Applicant’s claimed composition for the art recognized benefits of a lower-sugar containing sweetener which can inhibit excessive sugar absorption by the body.
Regarding the preamble of the composition for preparing an ice cream, it is noted that Applicant’s preamble is intended use, and as long as the composition would be suitable for use in the claimed intended use, the prior art is deemed to meet or render obvious Applicant’s claimed preamble. In addition, while Kim does not specifically teach uses for the disclosed sweetener composition, Markosyan teaches the sugar-high intensity sweetener composition can be used in a variety of foods and beverages including ice cream (Example 9), therefore rendering obvious the use of a sugar-high intensity sweetener composition in foods such as ice cream.
Regarding Claim 2, as set forth above, Kim in view of Markosyan render obvious the composition as recited in Claim 1. Regarding the claimed parts by weight of each of the claimed components in the composition, Kim teaches a general guideline of 95-99.9 wt % sweetener and 0.1-5% by weight dietary fiber, by weight of the composition (Paragraph 22) and also teaches that excessive introduction of xylose in the composition can affect the functionality of the sweetener material composition and preferred ratios include a weight ratio of sugar to xylose of preferably about 1:0.05 to 1:0.5 (Paragraph 24) and teaches in Example 1 using 80% sugar, 9.5% xylose and 15g maltodextrin, which is equivalent to 80% by weight sugar/sucrose, 9.5% by weight xylose and 1.5% by weight fiber, where the claimed parts by weight out of 100parts is equivalent to a % component out of 100%. The disclosed amounts of sugar/sucrose is slightly higher than the claimed range, the amount of xylose is slightly lower than the claimed range, with the amount of dietary fiber being squarely within the range. However, it is still submitted that it would have been well within the skill of one of ordinary skill in the art to have optimized the amounts of sugar and sugar alcohol in the sweetener composition depending on particular functional requirements, sweetness, and degree of sugar absorption desired in the final sweetener composition. Absent teachings of the criticality of the claimed ranges, it would have been the result of routine experimentation for one of ordinary skill in the sweetener art to have arrived at the claimed ranges.
Regarding Claim 8, while Kim does not specifically teach uses for the disclosed sweetener composition, Markosyan teaches the sugar-high intensity sweetener composition can be used in a variety of foods and beverages including ice cream (Example 9), therefore rendering obvious the use of a sugar-high intensity sweetener composition in foods such as ice cream.
Regarding Claims 9 and 10, since Kim in view of Markosyan teach and render obvious the claimed sweetener composition comprising a combination of sugar and sugar alcohol coated by high intensity sweetener and a water soluble dietary fiber, and Markosyan renders obvious the use of the claimed sweetener composition in ice cream, one of ordinary skill, one of ordinary skill in the art would have reasonably expected that the resulting ice cream would possess the claimed parameters and therefore have improved harness and preference, compared to ice cream including sugar and sugar alcohol not coated with the high intensity sweetener and soluble dietary fiber, absent teachings to the contrary.
Regarding Claim 11, Kim in view of Markosyan are taken as cited above and teach or render obvious the claimed composition and teach a method of making, comprising the steps of preparing a mixture of sucrose and sugar alcohol (Kim, Paragraph 21), making a solution of the high intensity sweetener and soluble dietary fiber in water, as Kim teaches using liquid indigestible maltodextrin, understood to contain water, and Markosyan also teaches preparing a solution of the high intensity sweetener by dissolving the rebaudioside in water for the coating (Markosyan, Paragraph 51), and then coating the mixture by spraying the solution and drying the coated mixture with hot air, as Kim teaches coating the mixed powder with dietary fiber by scattering and mixing and then drying the coated sweetener material powder mixture composition in a dryer (Paragraph 21) and Markosyan teaches dispersing the solution on the granulated sugar by mean of an air powder pneumatic method and then drying the coated mixture (Paragraph 51). Therefore, the claimed method would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in light of the teachings of the prior art.
Regarding Claim 13, as set forth above, Kim in view of Markosyan render obvious the method of making the composition as recited in Claim 11. Regarding the claimed parts by weight of each of the claimed components in the composition, Kim teaches a general guideline of 95-99.9 wt % sweetener and 0.1-5% by weight dietary fiber, by weight of the composition (Paragraph 22) and also teaches that excessive introduction of xylose in the composition can affect the functionality of the sweetener material composition and preferred ratios include a weight ratio of sugar to xylose of preferably about 1:0.05 to 1:0.5 (Paragraph 24) and teaches in Example 1 using 80% sugar, 9.5% xylose and 15g maltodextrin, which is equivalent to 80% by weight sugar/sucrose, 9.5% by weight xylose and 1.5% by weight fiber, where the claimed parts by weight out of 100parts is equivalent to a % component out of 100%. The disclosed amounts of sugar/sucrose is slightly higher than the claimed range, the amount of xylose is slightly lower than the claimed range, with the amount of dietary fiber being squarely within the range. However, it is still submitted that it would have been well within the skill of one of ordinary skill in the art to have optimized the amounts of sugar and sugar alcohol in the sweetener composition depending on particular functional requirements, sweetness, and degree of sugar absorption desired in the final sweetener composition. Absent teachings of the criticality of the claimed ranges, it would have been the result of routine experimentation for one of ordinary skill in the sweetener art to have arrived at the claimed ranges.
Regarding Claim 14, Kim in view of Markosyan teach and render obvious the drying step as set forth above. Kim does not teach particulars of the drying except for teaching a hot air drying method. However, Markosyan teaches drying performed in a temperature in a range of 50-85C for 2-30 minutes (Paragraph 43), where the disclosed ranges of temperature and time overlap with the claimed ranges. Therefore, the claimed drying parameters would have been obvious to one of ordinary skill in the art before the effective filing date of the invention, in light of the teachings of Markosyan.
Regarding Claims 15 and 16, Kim in view of Markosyan are taken as cited above in the rejection of Claims 1 and 11 and teach or render obvious the clamed composition for preparing ice cream prepared by the claimed method and also teach the ice cream comprising the claimed composition, as set forth above.
Claims 4 and 12 are rejected under 35 U.S.C. 103 as being unpatentable over Kim et al. (USPA 2014/0087038) in view of Markosyan et al. (USPA 2013/0084317), and further in view of Duffett (USPN 6,703,057).
Regarding Claims 4 and 12, Kim in view of Markosyan is taken as cited above in the rejection of Claims 1 and 11.
Regarding Claim 4, as set forth above, Kim in view of Markosyan teach non-digestible maltodextrin or other fibers including cellulose as a soluble dietary fiber source (Kim, Paragraph 18), but fail to also teach inulin, and where the two fibers are in the claimed ratio.
Duffett teaches a granulated sugar product comprising a core material substantially of a granulated first sugar material and a surface material substantially of a second sugar material less dense than the first sugar material, where the first sugar material is sucrose, and the surface material includes dextrins including maltodextrins, inulin, cellulose, etc. (Column 1, lines 30-45 and Column 2, lines 15-25). Duffett also teaches drying the coated Therefore, it would have been obvious to one of ordinary skill in the art to have used a combination of maltodextrin and inulin as the coating on a sugar granule, in light of the teachings of Duffett. Regarding the claimed ratio of inulin to non-digestible maltodextrin, Duffett does not specifically teach such a ratio. However, given the teachings of the prior art to use both maltodextrin and inulin as sugar materials for a sucrose core, it would have been well within the skill of one of ordinary skill in the art to have optimized the amount of each fiber as the coating on the sucrose core in order to provide a sweetener composition having the desired functionality benefits.
Regarding Claim 12, Kim in view of Markosyan teach or render obvious the method of Claim 11 and Duffett is taken as cited above for the obviousness of adding inulin as a sugar material for a sucrose core. While Duffett does not specifically teach mixing the dry mixture with inulin, Kim teaches the method steps involve coating the mixed sweetener powder with dietary fiber, as set forth above, therefore rendering obvious the method step of mixing the dry mixture with another type of fiber, inulin, in order to provide the powder sweetener composition.
Claims 15 and 16 are rejected under 35 U.S.C. 103 as being unpatentable over Deis (WO 2008/019107).
Regarding Claims 15 and 16, Deis teaches a composition comprising sucrose, sugar alcohol, high intensity sweetener used in an ice cream composition (Page 11, lines 1-15, Page 12, lines 10-15), along with polydextrose (Page 14, lines 15-25), which is one of the claimed soluble dietary fibers.
Applicants' Claims 15 and 16 are written in a product-by-process format and as such, it is the novelty of the instantly claimed product that needs to be established and not that of the recited process steps. In re Brown, 173 USPQ 685 (CCPA 1972); In re Wertheim, 191 USPQ (CCPA 1976). Regarding Claims 15 and 16, since the product shown by this reference is a composition used to prepare ice cream and an ice cream comprising the claimed composition, the product is met.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure. Nehmer teaches agglomerated particles including sucrose, high intensity sweetener and binders including inulin, polydextrose (Paragraphs 4-6, 19, 23 and 24).
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JENNA A. WATTS
Primary Examiner
Art Unit 1791
/JENNA A WATTS/Primary Examiner, Art Unit 1791 7/17/2026
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