Ex Parte Beltman et al

Patent Trial and Appeal BoardMar 30, 2017

13697607 (P.T.A.B. Mar. 30, 2017)

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. 13/697,607 01/30/2013 Robert Beltman F8090USw 3679 201 7590 04/03/2017 UNILEVER PATENT GROUP 800 SYLVAN AVENUE ENGLEWOOD CLIFFS, NJ 07632-3100 EXAMINER TRAN, LIEN THUY ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 04/03/2017 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): patentgroupus @ unilever. com pair_unilever@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ROBERT BELTMAN, HENK HUSKEN, RENATE GEMMA JACOBINE MARIA JACOBS, IRENE ERICA SMIT-KINGMA, and KRASSIMIR PETKOV VELIKOV Appeal 2016-005687 Application 13/697,607 Technology Center 1700 Before BEVERLY A. FRANKLIN, MICHAEL P. COLAIANNI, and JEFFREY R. SNAY, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 the Final Rejection of claims 1—11 and 15—22. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants’ invention is directed to edible fat continuous spreads comprising plant sterol (Spec. 1:4—5). Claim 1 is illustrative: 1. An edible fat continuous spread being a water in oil emulsion comprising a water phase and a fat phase, wherein the fat phase comprises liquid oil and a structuring fat, said spread comprising a first emulsifier and a second emulsifier, 5 to 85 Appeal 2016-005687 Application 13/697,607 wt% fat and 0.1 to 20 wt% plant sterol particles wherein the first emulsifier is a water soluble biopolymer based emulsifier with a molecular weight of at least 500, the second emulsifier is an oil soluble emulsifier and at least 70 vol% of the plant sterol particles is smaller than 10 micrometer. Appellants appeal the following rejections: 1. Claim 1 is rejected under 35 U.S.C. § 112,12, as failing to particularly point out and distinctly claim the subject matter which Appellant regards as the invention. 2. Claims 1—11 and 15—22 are rejected under 35 U.S.C. § 103(a) as unpatentable over Vulfson (WO 00/41491; publ. July 20, 2000) in view of Auweter (US 2006/0035871 Al; publ. Feb. 16, 2006). Appellants’ argument focus on the subject matter of claim 1 only (Br. 4— 6). Claims 2—11 and 15—22 will stand or fall with our analysis of the rejection of claim 1. FINDINGS OF FACT & ANALYSIS The Examiner finds that Vulfson teaches using a suspension of plant sterols in an oil and water emulsion to form a spread (Final Act. 2). Vulfson teaches to use plant sterol particles coated with milk protein in an oil and water emulsion (26:4—6). Vulfson does not teach the plant sterol particle size to use. The Examiner finds that Auweter teaches plant sterol particles having a size from 0.1 to 100 microns, which overlaps with the claimed particle size range (Final Act. 3). The Examiner concludes that it would have been obvious to use plant sterol having small particle sizes as taught by Auweter to improve its dispersibility in the aqueous and fat phases of the spread product. Id. 2 Appeal 2016-005687 Application 13/697,607 Appellants argue that one ordinary skill in the art would not have been led to combine the plant sterol particles of Auweter with the product of Vulfson to arrive at spreads having at least 70 vol% of plant sterol particles smaller than 10 micrometers (Br. 5). Appellants contend that Vulfson’s reference to Tianen in the background section of the patent with regard to using 30 micron sized plant sterol particles and the expensive grinding process associated with obtaining those sized particles would not have led one of ordinary skill to use Auweter’s particles (Br. 6). Appellants argue that Vulfson discloses that Tianen’s product with the 30 micron sized plant sterol particles had poor organoleptic properties because of the particles in the oil and water phases (Br. 5). Appellants contend that this teaching would have led one of skill in the art away from using particles of the size recited in the claim. Id. Appellants’ argument regarding Tianen is not persuasive because, as the Examiner notes, Tianen is not criticizing the 30 micron particle size, but rather is concerned with the dispersibility of the particles in the aqueous and fat phases (Ans. 5). Vulfson recognizes that plant sterol particles are used in fat spreads and provides a milk protein coating to address the dispersibility issues (22:17—23; 26:4—13). In other words, the particle size is not the problem but rather the hydrophobic nature of the plant sterol particles is the problem, which is addressed by the coating. We are unpersuaded by Appellants’ argument that Tianen discloses an expensive grinding process to produce 30 micron plant sterol particles and thus would have not taught to use smaller sized plant sterol particles. The Examiner correctly finds that Auweter teaches a grinding process to produce even smaller particles that are dispersible flflf 48, 53). Auweter’s teaching 3 Appeal 2016-005687 Application 13/697,607 addresses Vulfson’s concerns as to the expense of the grinding process by offering an alternative. Regarding the 35 U.S.C. § 112,12, rejection, the Examiner concludes that claim 1 is indefinite because there are no units after “molecular weight of at least 500” (Final Act. 2). The Examiner indicates that the recited molecular weight lacks a unit of measurement. Appellants argue that molecular weight is dimensionless and does not require a dimension (Br. 5). Appellants’ argument does not address the Examiner’s conclusion that the molecular weight lacks a unit of measurement. As such, Appellants have not shown reversible error in the Examiner’s conclusion. On this record, we affirm the Examiner’s 35 U.S.C. § 112,12, rejection and the 35 U.S.C. § 103(a) rejection. DECISION The Examiner’s decision is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 4