FLIPN'SWEET, LLCDownload PDFPatent Trials and Appeals BoardMar 2, 20212020006721 (P.T.A.B. Mar. 2, 2021) Copy Citation 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. Appeal 2020-006721 Application 15/683,751 2 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”). Appeal 2020-006721 Application 15/683,751 3 (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”). Appeal 2020-006721 Application 15/683,751 4 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”). Appeal 2020-006721 Application 15/683,751 5 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. Appeal 2020-006721 Application 15/683,751 6 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. Appeal 2020-006721 Application 15/683,751 7 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 Appeal 2020-006721 Application 15/683,751 8 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 Appeal 2020-006721 Application 15/683,751 9 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 Appeal 2020-006721 Application 15/683,751 10 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. Appeal 2020-006721 Application 15/683,751 11 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.”). Appeal 2020-006721 Application 15/683,751 12 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) Appeal 2020-006721 Application 15/683,751 13 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. Appeal 2020-006721 Application 15/683,751 14 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”). Appeal 2020-006721 Application 15/683,751 15 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 Copy with citationCopy as parenthetical citation