Conopco, Inc., d/b/a UNILEVER

Patent Trials and Appeals Board

Feb 24, 2022

2021001635 (P.T.A.B. Feb. 24, 2022)

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. 15/533,700 06/07/2017 Robert BELTMAN P6083740PCT/US 8796 132452 7590 02/24/2022 N.V. Nederlandsch Octrooibureau New Babylon City Offices Anna van Buerenplein 21a The Hague, 2595 DA NETHERLANDS EXAMINER COX, STEPHANIE A ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 02/24/2022 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): USPTO@nlo.eu shultz@nlo.eu uspractice@nlo.eu PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROBERT BELTMAN, SURESH KUMAR NEDIYEDATH, ALEKSANDER ARIE RESZKA, and PIETER ZWART ____________ Appeal 2021-001635 Application 15/533,700 Technology Center 1700 ____________ Before KAREN M. HASTINGS, CHRISTOPHER C. KENNEDY, and DEBRA L. DENNETT, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1-5, 7, 8, and 10-18. See Final Act. 1. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42(a) (2012). Appellant identifies Conopco Inc., D/B/A Unilever as the real party in interest (Appeal Br. 1). Appeal 2021-001635 Application 15/533,700 2 CLAIMED SUBJECT MATTER Claim 1 illustrates the subject matter on appeal: 1. A container comprising an outlet and walls having an inner surface defining a chamber, wherein at least part of the inner surface of the container is coated with oil containing an emulsifier having a HLB-value ranging from 1 to 12 at a concentration ranging from 0.1% to 5% by weight, and wherein the emulsifier comprises one or more compounds selected from the group consisting of monoglycerides of a fatty acid, sucrose fatty acid esters, and sorbitan fatty acid esters, and wherein the emulsifier further comprises lecithin, and wherein at least 25% of the phospholipids in the lecithin has been hydrolysed in a process using phospholipase A2 and wherein the chamber comprises a condiment comprising from 0.5% to 10% by weight of egg yolk wherein at least 25% by weight of the egg yolk has been modified by treatment with a phospholipase. Independent claim 17 is directed to a container similar to that of claim 1, and independent claim 15 is directed to a method of improving the evacuation of a viscous liquid from a container (Appeal Br. 17-18, Claims Appendix). REFERENCES The Examiner relied upon the following prior art: Name Reference Date Van Dam US 4,034,124 July 5, 1977 Knightly US 5,662,956 Sept 2, 1997 Sas US 6,068,997 May 30, 2000 Kim US 2008/0286480 A1 Nov. 20, 2008 Almeida Rivera US 2010/0233342 A1 Sept 16, 2010 Tsuchiya US 2013/0087954 A1 Apr. 11, 2013 Appeal 2021-001635 Application 15/533,700 3 REJECTIONS ON APPEAL Claims Rejected 35 U.S.C. § Reference(s)/Basis 1-5, 7, 10-17 103 Kim, Knightly, Sas, Van Dam 8 103 Kim, Knightly, Sas, Van Dam, Tsuchiya 18 103 Kim, Knightly, Sas, Van Dam, Almeida Rivera OPINION Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions as set forth in the Appeal Brief, we determine that Appellant has not identified reversible error in the Examiner’s rejections (See generally Ans.). In re Jung, 637 F.3d 1356, 1365-66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of requiring Appellant(s) to identify the alleged error in the Examiner’s rejection). We sustain the rejections for the reasons expressed by the Examiner in the Final Office Action and the Answer. We add the following primarily for emphasis. It has been established that “the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972 F.2d 1260, 1264- 65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings Appeal 2021-001635 Application 15/533,700 4 thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom). Appellant argues the claims as a group (Appeal Br. 5-12), and does not present any further arguments for any specific claim, even those separately rejected (Appeal Br. 13). Appellant’s main argument is that the Examiner is using impermissible hindsight in combining each one of Knightly, Sas, and Van Dam with Kim (Appeal Br. 5-12). Specifically, Appellant argues that since Kim is releasing a viscous fluid from a container whereas Knightly is releasing a solid food from a pan, the Examiner is using impermissible hindsight to modify Kim’s release coating with teachings from Knightly (Appeal Br. 8-9). Appellant’s arguments are not persuasive of reversible error as they fail to consider the applied prior art as a whole and the inferences that one of ordinary skill would have made, as aptly explained by the Examiner (Ans. 13-16). One of ordinary skill in the art would have readily appreciated that since Kim and Knightly are both directed to oil based compositions for releasing food from a container, the use of a monoglyceride of a fatty acid having an HLB value in the recited range as exemplified in Knightly’s emulsifier containing lecithin with the lecithin emulsifier of Kim would have been no more than the predictable use of a known emulsifier.2 Cf. In re Susi, 2 Appellant is arguing that Kim teaches away from the use of any other materials for its emulsifier/coating. However, whether the prior art teaches away from the claimed invention is a question of fact. In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005). It is well established that a prior art reference must be considered in its entirety, i.e., as a whole, when determining if it would have led one of ordinary skill in the art away from Appeal 2021-001635 Application 15/533,700 5 440 F.2d 442, 446 n.3 (CCPA 1971) (disclosed examples and preferred embodiments do not constitute a teaching away from a broader disclosure or non-preferred embodiments.); Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1379-80 (Fed. Cir. 2005) (even a “statement that a particular combination is not a preferred embodiment does not teach away absent clear discouragement of that combination.”). One of ordinary skill would have also expected the known improved emulsifier of Sas wherein up to 80% of its lecithin containing phospholids are hydrolyzed using phospholase A2 to be a useful alternative for Kim/Knightly’s lecithin so as to result in the claimed lecithin as recited in claim 1 (e.g., Ans. 15). Appellant has not explained sufficiently why the claimed subject matter is any more than the predictable use of a known lecithin. Cf. Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010) (“The Supreme Court’s decision in KSR . . . directs us to construe the scope of analogous art broadly, stating that ‘familiar items may have obvious uses beyond their primary purposes, and a person of ordinary skill often will be able to fit the teachings of multiple patents together like pieces of a puzzle.’” (quoting KSR, 550 U.S. at 420)). Likewise, one of ordinary skill would have expected the known, mayonnaise as exemplified in Van Dam, to be a useful alternative for the mayonnaise of Kim so as to result in the claimed condiment material recited in claim 1.3 Appellant has not explained sufficiently why the claimed the claimed invention. W.L. Gore & Assocs. v. Garlock, Inc., 721 F.2d 1540, 1550 (Fed. Cir. 1983). 3 Note independent claim 14 does not recite a specific viscous liquid (condiment); thus, Van Dam is not even needed in the rejection of claim 14. Appeal 2021-001635 Application 15/533,700 6 subject matter is “more than the predictable use of prior art elements according to their established functions.” KSR, 550 U.S. at 417; see also Ans. 10, 16. Under the flexible inquiry set forth by the Supreme Court, the PTO must take account of the “inferences and creative steps,” or even routine steps, that an ordinary artisan would employ. Ball Aerosol & Specialty Container, Inc. v. Limited. Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009). One of ordinary skill would have readily inferred and appreciated from the applied prior art as a whole that known release agents included other materials/modified as exemplified in Knightly and Sas such that the use of these materials in Kim’s lecithin containing emulsifier would have been within the skill and creativity of one of ordinary skill in the art. Likewise, the use of any known mayonnaise as exemplified in Van Dam in Kim would have been within the skill and creativity of one of ordinary skill in the art, noting that Kim teaches that any viscous condiment may be used (Kim ¶ 32). Appellant does not present any additional arguments to any of the dependent claims, including those separately rejected. Accordingly, we sustain all of the Examiner’s rejections on appeal. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-5, 7, 10-17 103 Kim, Knightly, Sas, Van Dam 1-5, 7, 10- 17 8 103 Kim, Knightly, Sas, Van Dam, Tsuchiya 8 Appeal 2021-001635 Application 15/533,700 7 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 18 103 Kim, Knightly, Sas, Van Dam, Almeida Rivera 18 Overall Outcome 1-5, 7, 8, 10-18 TIME PERIOD FOR RESPONSE 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) (2013). AFFIRMED