FLIPN'SWEET, LLC

Patent Trials and Appeals Board

Mar 2, 2021

2020006721 (P.T.A.B. Mar. 2, 2021)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
15/683,751 08/22/2017 Ori Hofmekler P-588551-US1 1023
49443 7590 03/02/2021
Pearl Cohen Zedek Latzer Baratz LLP
7 Times Square, 19th Floor
New York, NY 10036
EXAMINER
GEORGE, PATRICIA ANN
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
03/02/2021 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
Arch-USPTO@PearlCohen.com
USPTO@PearlCohen.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ORI HOFMEKLER
__________

Appeal 2020-006721
Application 15/683,751
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, DONNA M. PRAISS, and
N. WHITNEY WILSON, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
The Appellant1 filed an appeal under 35 U.S.C. § 134(a) from an Examiner’s
decision finally rejecting claims 1–3 and 20–24. A hearing was held on February
4, 2021. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
FLIPN’SWEET LLC. Appeal Brief dated March 12, 2020 (“App. Br.”), at 1.
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The claims on appeal are directed to a low calorie sugar substitute
baking/confection composition comprising a digestion resistant soluble fiber, a
flavor masking agent, and at least one fruit extract.
Claim 1, the sole independent claim on appeal, is reproduced below from the
Claims Appendix to the Appeal Brief.
1. A low calorie sugar substitute baking/confection composition
comprising:
a digestion resistant soluble fiber having glucosyl moieties
and/or fructosyl moieties, and present in an amount of about 90% to
99.5% by weight of the composition;
a flavor masking agent comprising a rice bran extract; a vanilla
extract; and a Luo Han Guo extract, wherein the Luo Han Guo extract
comprises between 40% and 99% mogrosides, and the flavor masking
agent is present in an amount of about 0.1% to 7% by weight of the
composition; and
at least one fruit extract.
Supp. App. Br. 3.2
The Examiner maintains the following grounds of rejection on appeal:
(1) claims 1, 2, and 20–22 under 35 U.S.C. § 103 as unpatentable over
Prakash et al.3 in view of Naeye et al.,4 Oku et al.,5 Dharmananda,6 Stier,7 and
Bartnick et al.;8

2 Supplemental Appeal Brief dated April 23, 2020.
3 US 2007/0116829 A1, published May 24, 2007 (“Prakash”).
4 US 8,816,067 B2, issued August 26, 2014 (“Naeye”).
5 US 2004/0254367 A1, published December 16, 2004 (“Oku”).
6 Subhuti Dharmananda, Luo Han Guo Sweet Fruit Used as Sugar Substitute and
Medicinal Herb,
http://web.archive.org/web/20040624081731/http://www.itmonline.org/arts/luohan
guo.htm (last visited Feb. 2, 2021) (“Dharmananda”).
7 WO 2006/013416 A1, published February 9, 2006 (“Stier”).
8 US 2005/0074521 A1, published April 7, 2005 (“Bartnick”).
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(2) claim 3 under 35 U.S.C. § 103 as unpatentable over Prakash in view
of Naeye, Oku, Dharmananda, Stier, and Bartnick, further in view of Gao et al.;9
(3) claim 20 under 35 U.S.C. § 103 as unpatentable over Prakash in view
of Naeye, Oku, Dharmananda, Stier, and Bartnick, further in view of SSG;10 and
(4) claims 23 and 24 under 35 U.S.C. § 103 as unpatentable over Prakash
in view of Naeye, Oku, Dharmananda, Stier, and Bartnick, further in view of
Zhou.11
B. DISCUSSION
1. Rejection (1)
According to Prakash,
there is a need in the market to provide alternative non-caloric or low-
caloric sweeteners with sugar-like taste for consumers with sedentary
lifestyles or those who are calorie conscious. However, in general,
non-caloric or low caloric sweeteners have associated undesirable
tastes to consumers such as delayed sweetness onset; lingering sweet
aftertaste; bitter taste; metallic taste; astringent taste; cooling taste;
licorice-like taste; and/or the like.
For example, the sweet tastes of natural and/or synthetic high-
potency sweeteners are slower in onset and longer in duration than the
sweet taste produced by sugar and thus change the taste balance of a
food composition. Because of these differences, use of a natural high-
potency sweetener to replace a bulk sweetener, such as sugar, in a
food or beverage, causes an unbalanced temporal profile and/or flavor
profile. . . . If the taste profile of natural and synthetic high-potency
sweeteners could be modified to impart specific desired taste
characteristics to be more sugar-like, the type and variety of
compositions that may be prepared with that sweetener would be

9 US 2015/0098978 A1, published April 9, 2015 (“Gao”).
10 Sugar-and-Sweetener-Guide, Glycemic Index for Sweeteners,
https://web.archive.org/web/20140630100657/http://www.sugar-and-sweetener-
guide.com/glucemic-index-for-sweeteners.html (last visited Feb. 2, 2021) (“SSG”).
11 US 6,461,659 B1, issued October 8, 2002 (“Zhou”).
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significantly expanded. Accordingly, it would be desirable to
selectively modify the taste characteristics of natural and synthetic
high-potency sweeteners.
Prakash ¶¶ 3–4.
The Examiner finds Prakash discloses a low calorie sweetener composition
comprising at least one high-potency sweetener and at least one sweet taste
improving composition. Final Act. 3–4;12 Prakash ¶ 35. Prakash discloses that the
sweetener composition is used in pharmaceutical compositions. Prakash ¶ 35.
Prakash discloses that high-potency sweeteners include Luo Han Guo
sweetener and sweet taste improving compositions include carbohydrates, such as
oligosaccharides. Prakash ¶¶ 37, 82, 83; see also Final Act. 3–4, 7. The Examiner
finds that the carbohydrates disclosed in Prakash encompass digestion resistant
soluble fibers. Final Act. 3. The Examiner, however, finds Prakash does not
disclose that the carbohydrates have glucosyl and/or fructosyl moieties as recited in
claim 1. Final Act. 4. Nonetheless, the Examiner relies on Naeye to show that
digestion resistant carbohydrates having glucosyl moieties were known to be used
in sweeteners at the time of the Appellant’s invention.13 Final Act. 4. The
Examiner finds Naeye discloses that the carbohydrates have numerous benefits
including decreased blood triglyceride levels, decreased low density lipoprotein
levels, decreased gas formation in the gastrointestinal tract, and stimulated growth

12 Final Office Action dated October 10, 2019.
13 There appears to be no dispute on this record that Naeye discloses digestion
resistant soluble fiber having glucosyl moieties as recited in claim 1. See Naeye,
col. 4, ll. 48–58 (disclosing alpha-(1,2)-branched alpha-(1,6) oligodextran which
comprises a linear or substantially linear backbone of alpha-D-glucopyranosyl
units substantially linked by alpha-(1,6)-linkages and having alpha-(1,2)-osidic
side chains); Naeye, col. 4, ll. 9–11 (disclosing that “the terms ‘glucosyl’ and
‘glucopyranosyl’ units are used . . . interchangeably”).
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or activity of beneficial gut bacteria. Final Act. 5. The Examiner concludes that it
would have been obvious to one of ordinary skill in the art to add Naeye’s
carbohydrates to Prakash’s sweetener composition based on the benefits disclosed
in Naeye. Final Act. 6.
Prakash discloses that the sweetener composition may also include other
sweet taste improving compositions such as vanilla extract, vanillin, soluble rice
protein, and various fruit extracts. Prakash ¶¶ 95, 97; see also Final Act. 6, 9. The
Examiner finds that the soluble rice protein disclosed in Prakash is a rice extract as
recited in claim 1. Ans. 29.14 In the alternative, the Examiner relies on Oku to
show that rice bran extract was known to be used as a flavoring agent in sweetener
compositions at the time of the Appellant’s invention. Final Act. 6; Ans. 29.
Finally, as for the claimed amounts, the Examiner finds Prakash discloses
that the weight ratio of the high-potency sweetener to the sweet taste improving
composition may range from 0.0001 to 100 wt%, which encompasses the ranges
recited in claim 1. Final Act. 4, 8. The Examiner also relies on Stier and Bartnick
to show that the claimed amount of a flavor masking agent would have been
obvious to one of ordinary skill in the art. Final Act. 8–9.
The Appellant argues that the Examiner, in the rejection on appeal, “merely
identifies individual ingredients from a broad generic disclosure without
identifying a reason that would have prompted a person of ordinary skill in the
relevant field to make the numerous selections and to combine the individual
elements in the manner claimed.” App. Br. 5.
More specifically, the Appellant argues that Prakash never mentions the
term “digestion resistant soluble fibers” and only lists numerous carbohydrates that

14 Examiner’s Answer dated June 1, 2020.
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are said to be “equally interchangeable.” App. Br. 5–6. The Appellant argues that
“a skilled artisan cannot, absent the guidance of Applicant’s claims, distill from the
extensive list the recited digestion resistant soluble fiber.” App. Br. 6. Similarly,
the Appellant argues that a skilled artisan would not have selected vanillin15 and
Luo Han Guo from the extensive lists of sweet taste improving compositions and
high-potency sweeteners, respectively, disclosed in Prakash. App. Br. 10, 11.
The Appellant’s arguments are not persuasive of reversible error. There
appears to be no dispute on this record that the carbohydrates disclosed in Prakash
necessarily include digestion resistant soluble fibers. In that regard, Prakash
discloses that carbohydrates include oligosaccharides, and Naeye discloses that
oligosaccharides are non-digestible dietary compounds. Prakash ¶¶ 82, 83; Naeye,
col. 1, ll. 23–25. As for the numerous sweet taste improving compositions and
high-potency sweeteners listed in Prakash, the disclosure in Prakash of a multitude
of sweetener ingredients and a corresponding multitude of effective combinations
of those ingredients does not render any particular sweetener formulation less
obvious, including the formulation selected by the Examiner. See Merck & Co.,
Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (the prior art
disclosure of a multitude of effective combinations does not render any particular
formulation less obvious, especially when the claimed composition is used for the
same purpose taught by the prior art). Notably, the formulation recited in claim 1
corresponds to the combination of “at least one natural and/or synthetic high-
potency sweetener, at least one carbohydrate, and at least one other sweet taste
improving additive” disclosed in Prakash. Prakash ¶ 115.

15 Claim 1 recites “a vanilla extract,” not vanillin. Supp. App. Br. 3. Nonetheless,
as pointed out above, Prakash discloses that suitable sweet taste improving
compositions include vanillin and vanilla extract. Prakash ¶ 95.
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The Appellant also argues that Prakash is directed to pharmaceutical
compositions, not sugar substitutes. App. Br. 5. The Appellant argues that
“[r]emoval of the pharmaceutical active substance to achieve the recited subject
matter not only renders Prakash’s [sic] unsuitable for its intended purpose but also
requires the skilled artisan to ignore an explicit instruction without any guidance.”
App. Br. 15.
We recognize that Prakash discloses sweetener compositions in combination
with pharmaceutical compositions. Nonetheless, we find that one of ordinary skill
in the art would have understood that Prakash’s sweeteners also would be useful in
other edible compositions, such as food. In that regard, the evidence of record
shows that, at the time of the Appellant’s invention, it was known to use a
particular sweetener in both pharmaceuticals and food. See, e.g., Naeye, col. 15, ll.
46–50 (disclosing that the inventive compounds “can be used to replace sugar”);
Naeye, col. 11, ll. 18–32 (disclosing that the inventive compound may be
formulated into a suitable composition, such as a food composition or a
pharmaceutical composition); Oku ¶ 45 (disclosing that the inventive compounds
“can be used as sweeteners”); Oku ¶ 46 (disclosing that the inventive compounds
can be incorporated into foods and pharmaceuticals). Notably, the Appellant does
not contend that Prakash’s sweetener compositions would not be suitable for use as
a baking/confection composition as claimed. See Final Act. 10 (finding that the
chewable tablets disclosed in Prakash paragraph 884 are confection compositions).
The Appellant also argues that the range disclosed in Prakash “represents a
percentage range of 99.99% to 0.0099%” and is “essentially limitless.” App. Br. 7.
The Appellant’s argument is not persuasive of reversible error. Although
the range is broad, the Appellant, in the Appeal Brief, does not dispute that the
range disclosed in Prakash encompasses the claimed ranges. As stated by the
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Court in In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003), “A prima facie case
of obviousness typically exists when the ranges of a claimed composition overlap
the ranges disclosed in the prior art.” Moreover, “when . . . the claimed ranges are
completely encompassed by the prior art, the conclusion [of obviousness] is even
more compelling than in cases of mere overlap.” Id. at 1330.
The Appellant also argues that the soluble rice protein disclosed in Prakash
is not a “rice extract” within the scope of claim 1. App. Br. 10. The Appellant
recognizes that Oku discloses rice bran extract, as found by the Examiner.
However, the Appellant argues that rice bran extract is one of fifty-three possible
choices in paragraph 57 of Oku and is used in combination with a derivative of
cyclic tetrasaccharide. App. Br. 10. The Appellant argues that “Oku does not
suggest using any of the fifty-three (53) possible choices without the cyclic
tetrasaccharide of the invention.” App. Br. 10.
Significantly, claim 1 does not exclude some amount of the cyclic
tetrasaccharides disclosed in Oku which “can be used as water-soluble dietary
fibers having an extremely low calorie” and “can be used as sweeteners.” Oku
¶ 45; see also In re Baxter, 656 F.2d 679, 686 (CCPA 1981) (“the term ‘comprises’
permits the inclusion of other steps, elements, or materials”). Moreover, on this
record, it is reasonable to find that rice bran extract would be useful as a flavoring
agent in not only the cyclic tetrasaccharides disclosed in Oku but also other
sweeteners containing water-soluble dietary fiber, such as Prakash’s sweetener
composition, as modified by Naeye. The Appellant does not contend otherwise.
To the extent the Appellant is arguing that the selection of rice bran extract would
not have been obvious based on the number of flavoring agents disclosed in Oku,
that argument is not persuasive of reversible error. See Merck, 874 F.2d at 807
(the prior art disclosure of a multitude of effective combinations does not render
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any particular formulation less obvious, especially when the claimed composition
is used for the same purpose taught by the prior art).
Next, the Appellant argues that the Examiner “uses Stier for a single
proposition, namely that taste masking agents exist and nothing more.” App. Br.
12. Similarly, the Appellant argues that the Examiner relies on Bartnick as
teaching flavorings, such as vanilla. App. Br. 12.
To the contrary, the Examiner relies on Stier to show that flavor masking
agents were known to be used in an amount from 0.5 to 15 wt% in pharmaceuticals
comprising a sweetener. Final Act. 8. The Examiner concludes that it would have
been obvious to one of ordinary skill in the art to use Prakash’s sweet taste
improving compositions in an amount within the range disclosed in Stier to mask
undesirable flavors or impart a desirable flavor. Final Act. 9. Alternatively, the
Examiner relies on Bartnick to show that the amount of flavoring agent used
depends “on the nature of the food product, the nature of the botanical extract and
the desired degree of flavoring.” Bartnick ¶ 78; Final Act. 9 (citing Bartnick ¶ 78).
In other words, Bartnick teaches that the amount of flavoring agent used is a result
effective variable. In re Boesch, 617 F.2d 272, 276 (CCPA 1980) (“discovery of
an optimum value of a result effective variable in a known process is ordinarily
within the skill of the art”).
Finally, the Appellant argues that the Examiner “does not set forth why a
skilled artisan would have any reasonable expectation of success in making the
numerous combinations and selections to obtain a low calorie sugar substitute.”
App. Br. 16. We disagree. The information disclosed in Prakash, when combined
with Naeye, Oku, Stier, and Bartnick, as proposed by the Examiner, provides a
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reasonable expectation of success.16 See In re O’Farrell, 853 F.2d 894, 904 (Fed.
Cir. 1988) (“The information in the Polisky reference, when combined with the
Bahl reference provided such a reasonable expectation of success.”).
To rebut the prima facie case of obviousness, the Appellant argues that the
claimed composition exhibits unexpected results. App. Br. 17. Comparisons are
said to have been made with muffins and chocolate, each made with either sugar or
a low calorie sugar substitute composition comprising 98.3% fiber, 1% Lou Han
Guo, 0.5% rice bran extract, and 0.2% vanillin. App. Br. 17 (citing Exhibit 2
attached to the Appeal Brief). A panel of ten candidates is said to have evaluated
the organoleptic properties of a product made with the sugar substitute identified
above (version X) compared to the same product made with sugar (version S).
App. Br. 17. According to the Appellant, “out of the 10 panel testers, 50–70%
found the products using the [sugar substitute] composition to be similar or better
than the equivalent product made with sugar in most organoleptic categories.”
App. Br. 18 (emphasis added); see also App. Br. 17–18 (explaining that the
organoleptic properties evaluated “included appearance, color, aroma, flavor, and
overall impression”).
The composition is also said to have been tested to determine the glycemic
level. App. Br. 18. According to the Appellant, lemonade made with the sugar
substitute had no impact on blood glucose but lemonade made with sugar increased
the blood glucose content. App. Br. 18. Moreover, the Appellant explains that
four out of five subjects (80%) were unable to taste a difference between lemonade

16 The Examiner also relies on Dharmananda to show that Luo Han Guo fruit is
known to contain 80% or more mogrosides. Final Act. 7. The Appellant does not
direct us to any evidence to the contrary and states that Dharmananda is “merely
cumulative.” App. Br. 12.
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made with the sugar substitute and lemonade made with sugar. App. Br. 18–19.
Therefore, the Appellant contends that “the sugar substitute composition of the
claims is comparable organoleptically to regular sugar, while simultaneously
having a lower glycemic index.” App. Br. 19.
Significantly, the sugar substitute composition said to have been tested is not
within the scope of claim 1. Claim 1 recites that the composition comprises a
digestion resistant soluble fiber, a rice bran extract, a vanilla extract, a Luo Han
Guo extract, and at least one fruit extract. Supp. App. Br. 3. The composition
identified by the Appellant does not include a fruit extract. Moreover, the
Appellant does not direct us to any evidence establishing that the sugar substitute
identified by the Appellant in the Appeal Brief was in fact the composition tested17
and is representative of the broad range of compositions encompassed by claim 1.
See In re Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) (“Evidence of secondary
considerations must be reasonably commensurate with the scope of the claims.”).
The Appellant also does not explain why sugar, rather than one of the
sweeteners described in Prakash’s Examples, is the closest prior art. See Prakash
¶¶ 874–907. Finally, the Appellant does not direct us to any evidence establishing
that the results obtained with the sugar substitute composition would have been
unexpected by one of ordinary skill in the art. See In re Freeman, 474 F.2d 1318,
1324 (CCPA 1973) (in order for a showing of “unexpected results” to be probative
evidence of non-obviousness, the applicant must establish that the results obtained

17 Exhibit 2, which is relied on by the Appellant, does not identify the ingredients
and the amounts of ingredients in the composition tested. Exhibit 2 merely
identifies the composition as “sugar substitute FlipnSweet Lot#20190417AG-02
(version X).” See Final Act. 28 (“A description of precisely what was tested was
not included in the Remarks of Exhibit A.”).
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through the claimed invention would not have been expected by one skilled in the
art at the time of invention).
Having considered all of the evidence presented, on balance, the evidence of
record weighs in favor of the Examiner’s conclusion of obviousness as to claim 1.
The Appellant does not present arguments in support of the separate patentability
of any of claims 2 and 20–22. Therefore, the obviousness rejection of claims 1, 2,
and 20–22 is sustained.
2. Rejection (2)
Claim 3 depends from claim 1 and recites that “the digestion resistant
soluble fiber is derived from a food source selected from the group consisting of
tapioca, corn, rice, oats, potatoes, yams, carrots, bananas, plantains, pumpkins,
chicory, Jerusalem artichoke, cassava, wheat, barley, beans, lentils, peas, quinoa,
buckwheat, or combinations thereof.” Supp. App. Br. 3.
The Appellant argues that the Examiner “fails to establish why a skilled
artisan would consult [Gao] when developing a low calorie sugar substitute
baking/confection having a digestion resistant soluble fiber; a flavor masking
agent; and at least one fruit extract.” App. Br. 19.
To the contrary, the Examiner explains that Gao is relied on to show that
sources of digestion resistant soluble fiber were known to include tapioca, rice,
oats, potatoes, wheat, barley, beans, lentils, and peas as recited in claim 3. Final
Act. 11. Thus, one of ordinary skill in the art would have considered Gao to be
instructive when exploring sources of digestion resistant soluble fiber for Prakash’s
modified sweetener composition.
The obviousness rejection of claim 3 is sustained.
3. Rejection (3)
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Claim 20 depends from claim 1 and recites that “the composition has a
glycemic index of about 4 to about 35.” Supp. App. Br. 3.
The Appellant argues that “SSG is a webpage generically discussing
‘Glycemic Index for Sweeteners.’” App. Br. 20. The Appellant argues that the
Examiner “fails to establish why a skilled artisan would consult [SSG] when
developing a low calorie sugar substitute baking/confection having a digestion
resistant soluble fiber; a flavor masking agent; and at least one fruit extract.” App.
Br. 20.
The Examiner relies on SSG to establish that the glycemic index recited in
claim 20 would have been obvious to one of ordinary skill in the art. Final Act. 12.
In the alternative, the Examiner finds that Prakash’s modified sweetener
composition inherently has a glycemic index within the range recited in claim 20.
See Final Act. 12 (finding that “a similar food comprising similar ingredients
would have similar functions, including the glycemic index claimed”); see also In
re Papesch, 315 F.2d 381, 391 (CCPA 1963) (“a compound and all of its
properties are inseparable”). The Appellant does not direct us to any error in the
Examiner’s finding that Prakash’s modified sweetener composition inherently has
a glycemic index within the claimed range. Therefore, it is not necessary to
address the Appellant’s argument directed to SSG.
The obviousness rejection of claim 20 is sustained.
4. Rejection (4)
Claim 23 depends from claim 1 and recites that “the fruit extract is present
in an amount of about 0.1% to 6% by weight for the composition.” Supp. App. Br.
4. Claim 24 depends from claim 1 and recites that “the fruit extract is present in an
amount of about 2.5% by weight for the composition.” Supp. App. Br. 4.
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The Examiner relies on Zhou to establish that the ranges recited in claims 23
and 24 would have been obvious to one of ordinary skill in the art. Final Act. 13.
The Appellant argues that Zhou’s sweetener composition includes a terpene
glycoside and a sugar alcohol, which are not required by the claimed composition.
App. Br. 20–21. Therefore, the Appellant argues that “Zhuo [sic] requires
additional components that either must be removed, thereby rendering Zhuo [sic]
unsuitable for its intended purpose or ignored by the skilled artisan without
guidance.” App. Br. 21.
The Appellant’s argument does not identify a reversible error in the
Examiner’s findings as to Zhou. Zhou discloses a sweetener composition
comprising, inter alia, terpene glycoside. Zhou, col. 1, ll. 55–59. Zhou discloses
that preferred terpene glycosides include rubusoside which is obtained from
blackberry, kiwi, raspberry, and blueberry. Zhou, col. 2, ll. 63–64; id. at col. 3, ll.
1–4. Thus, the terpene glycosides relied on by the Examiner are fruit extracts and
are not removed or ignored in the rejection on appeal.18 See Final Act. 13.
The Examiner finds, and the Appellant does not dispute, that the sweeteners
disclosed in Zhou comprise terpene glycoside in an amount between about 1% wt.
and about 30% wt. Final Act. 13; see also Zhou, col. 3, ll. 59–62. There is no
dispute on this record that that range overlaps the range recited in claim 23 and
encompasses the amount recited in claim 24. See Final Act. 13; see also Peterson,
315 F.3d at 1329 (“A prima facie case of obviousness typically exists when the
ranges of a claimed composition overlap the ranges disclosed in the prior art.”).
The obviousness rejection of claims 23 and 24 is sustained.

18 We note that claims 23 and 24 do not exclude some amount of a sugar alcohol as
disclosed in Zhou. See Baxter, 656 F.2d at 686 (“the term ‘comprises’ permits the
inclusion of other steps, elements, or materials”).
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C. CONCLUSION
The Examiner’s decision is affirmed.
In summary:

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 20-22 103 Prakash, Naeye,
Oku,
Dharmananda,
Stier, Bartnick
1, 2, 20-22
3 103 Prakash, Naeye,
Oku,
Dharmananda,
Stier, Bartnick,
Gao
3
20 103 Prakash, Naeye,
Oku,
Dharmananda,
Stier, Bartnick,
SSG
20
23, 24 103 Prakash, Naeye,
Oku,
Dharmananda,
Stier, Bartnick,
Zhou
23, 24
Overall
Outcome
1-3, 20-24

No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED