Ex Parte Boer et al

Patent Trial and Appeal Board

May 11, 2017

11883220 (P.T.A.B. May. 11, 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.
11/883,220 07/27/2007 Brigitta Boer F7810USw 9959
201 7590 05/15/2017
UNILEVER PATENT GROUP
800 SYLVAN AVENUE
ENGLEWOOD CLIFFS, NJ 07632-3100
EXAMINER
KASHNIKOW, ERIK
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
05/15/2017 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 BRIGITTA BOER, ECKHARD FLOTER, and
GIJSBERT MICHIEL PETER VAN KEMPEN1
Appeal 2015-006771
Application 11/883,220
Technology Center 1700
Before CHUNG K. PAK, CHRISTOPHER M. KAISER, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
KENNEDY, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision to reject claims 1—3, 5—8, 10-15, and 20-22. An oral hearing was
held on May 4, 2017. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellants, the real party in interest is Conopco, Inc.,
d/b/a Unilever. App. Br. 3. According to the Appellants, “Conopco, Inc. is
owned by Unilever United States, which is a member of the Unilever Group
of companies. The parent companies are Unilever N.V. and Unilever PLC.”
Id.
Appeal 2015-006771
Application 11/883,220
BACKGROUND
The subject matter on appeal relates to edible dispersions comprising
oil and a structuring agent. E.g., Spec. 1:6—7; Claim 1. Claim 1 is
reproduced below from page 14 (Claims Appendix) of the Appeal Brief
(some formatting added):
1. Edible pourable dispersion, comprising a fat phase, the edible
pourable dispersion having a Bostwick value of at least 4 at
15°C, wherein the fat phase contains at least 90 wt% of liquid oil
and:
a) 1 wt.% < H3 < 6 wt.%;
b) 1 wt.% < H2U < 20 wt.%; characterised in that
c) the H3 triglycerides comprising at least 30 wt.% of monoacid
triglycerides;
H representing long-chain saturated fatty acids containing at
least 16 carbon atoms and
U representing cis-unsaturated fatty acids
wherein the triglycerides in the phase are from a triglyceride
source which is not hydrogenated and
wherein fractionated palm oil stearin represents at least 90 wt.%
of all hardstock present in the edible dispersion,
said edible dispersion being pourable and having a Bostwick
value of at least 4 at 15°C.
REJECTIONS ON APPEAL
1. Claims 1—3, 5—8, 10-15, 21, and 22 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Besselink (US 2004/0071857 Al, published
Apr. 15, 2004) in view of Bauer-Plank (US 6,517,884 Bl, issued Feb. 11,
2003), further in view of Holemans (US 4,791,000, issued Dec. 13, 1988).
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2. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Besselink, Bauer-Plank, and Holemans, further in view of Floeter (WO
03/084337 Al, published Oct. 16, 2003).
ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellants and the Examiner, we determine that
the Appellants have not identified reversible error in the Examiner’s
rejections. Accordingly, we affirm the rejections for reasons set forth below,
in the Final Action, and in the Examiner’s Answer. See generally Final
Act. 2—10; Ans. 2—10.
Rejection 1
The Appellants argue the claims subject to Rejection 1 as a group.
We select claim 1 as representative of the rejected claims. The remaining
claims subject to Rejection 1 will stand or fall with claim 1.
The Examiner finds, inter alia, that Besselink teaches fat-phase
dispersions comprising oil and non-hydrogenated structuring fats
(hardstock), which are suitable for plastic or pourable water-in-oil emulsions
and shortening. Ans. 3. The Examiner finds that Besselink teaches
embodiments that are liquid (i.e., pourable), and that it teaches embodiments
having structuring fats comprising 58.6, 64, and 77 wt% monoacid
triglycerides.2 Id. The Examiner further finds that Besselink teaches or
suggests a structuring fat (hardstock) comprising dry fractionated palm
2 The Examiner and some references use the term “TAG,” which stands for
triacylglycerol or triacylglyceride and is used interchangeably with the term
triglyceride. E.g., Ans. 3.
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stearin, including an embodiment in which the palm stearin is at least
90 wt% of the hardstock. Id. Specifically, the Examiner finds that where
“fat C” of Table I is palm oil stearin, at least 90 wt% of the hardstock is
palm oil stearin, as required by claim 1. See id. at 3, 7; see also Besselink
124 (“Suitable fat C fats are palm oil fractions or interesterified fats . . . .”),
1 66 & Table I, H 73-74.
The Examiner finds that Besselink does not explicitly teach a
Bostwick value for its compositions. Ans. 3. The Examiner finds that
Bauer-Plank teaches similar compositions and teaches that “[t]he pourability
or squeezability is evidenced by a Bostwick value of at least 7 at 15°C and
preferred at least 9 for pourable products.” Id. The Examiner concludes that
“it would have been obvious to one having ordinary skill in the art... to
have achieved the Bostwick value of at least 4 and at least 9 taught by
Bauer-Plank, which would result in desirable liquid properties as pourability
in the liquid margarine of Besselink.” Id. at 3^4. The Examiner also finds
Besselink’s description of its margarines as “liquid” indicates that
Besselink’s margarines are pourable and that the claimed Bostwick values
would have been present in Besselink’s liquid margarines. See id. at 8.
The Examiner finds that Besselink does not “specifically teach H3 or
H2U triglycerides.” Id. at 4. The Examiner finds that Holemans teaches:
The preferred fat blends for diet margarines and spreads ... are
characterized by: a content of H3 triglycerides, in which H
represents Cl6—24 saturated fatty acids, of at most 6% and
preferably 1—3%; a content of H2U triglycerides, in which H is
as defined above and U is a mono- or polyunsaturated Cl6—24
fatty acid, of at least 2% and preferably 3—10%.
Id. (citing Holemans at 7:23—30). The Examiner concludes that because
“Besselink and Holemans teach margarines using sunflower oil, it would
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Application 11/883,220
have been obvious to one having ordinary skill in the art... to have
achieved the triglyceride characterization of the H3 and H2U taught by
Holemans in the liquid margarine of Besselink.” Id. at 4—5.
In view of those and other teachings, the Examiner concludes that the
subject matter of claim 1 would have been obvious to a person of ordinary
skill in the art. Id. at 2—5, 7—10.
The Appellants raise several arguments in opposition to the
Examiner’s rejection, which we address below:
1. Focusing on Besselink’s teachings concerning “fat A,” the
Appellants argue that the prior art does not teach or suggest a composition in
which fractionated palm oil stearin represents at least 90 wt% of the
hardstock in the composition. App. Br. 8. Although the Appellants
acknowledge that Besselink also teaches a “fat C,” they do not meaningfully
address the Examiner’s findings concerning fat C, arguing only that
Besselink’s “criteria for fat C seem fairly loose,” and that “it is difficult to
see how these teachings would lead one of ordinary skill to the present
invention.” Id.
That argument is not persuasive because it does not meaningfully
address the Examiner’s reliance on Besselink’s “fat C.” Besselink teaches
that “fat C” may be palm oil fractions. See Besselink 124. A known palm
oil fraction is palm oil stearin. See Besselink 174 Table II. If palm oil
stearin were used as “fat C” in embodiment C of Table I, as proposed by the
Examiner, see Ans. 7, palm oil stearin would represent 90 wt% of the
hardstock of the composition, as required by claim 1. The Appellants have
not shown reversible error in the Examiner’s findings on that point. See In
re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that, even if the
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examiner had failed to make a prima facie case, the Board would not have
erred in framing the issue as one of reversible error because “it has long
been the Board’s practice to require an applicant to identify the alleged error
in the examiner’s rejections”).
In the Reply Brief, the Appellants argue for the first time that “fat C”
in Besselink’s embodiment C would be “a chemically esterified mixture of
40 wt % wet fractionated sheanut oil and 60 wt % of a dry fractionated palm
stearin,” and thus “does not represent the present invention of claims 1 and
22 which explicitly recite that fractionated palm oil stearin represents at least
90 wt % of all hard stock present in the edible dispersion.” Reply Br. 6—7.
That argument is untimely, and the Appellants have not established
good cause for failing to present that argument in the opening Appeal Brief.
See 37 C.F.R. § 41.41(b)(2). Even if that argument were timely, however,
the Appellants fail to address 124 of Besselink, which explicitly teaches that
“fat C” may be “palm oil fractions or interesterified fats” (emphasis added).
Thus, the argument fails to show reversible error in the Examiner’s
determination that the 90 wt% palm oil stearin limitation of claim 1 would
be met if “fat C” of Besselink’s embodiment C were replaced with palm
stearin, as Besselink H 24 and 74 suggest is permissible. See Besselink
1124, 66, 73-74; see also In re Mills, 470 F.2d 649, 651 (CCPA 1972) (“[A]
reference is not limited to the disclosure of specific working examples.”).
2. The Appellants argue that Bauer-Plank’s teachings of Bostwick
values are “of little or no relevance” because Bauer-Plank does not teach a
composition that falls within the scope of claim 1. See App. Br. 9—10.
That argument is not persuasive. “[0]ne cannot show non­
obviousness by attacking references individually where, as here, the
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rejections are based on combinations of references.” See In re Keller, 642
F.2d 413, 426 (CCPA 1981). As the Examiner explains, Besselink teaches
pourable liquid margarines and expresses a preference for nonhydrogenated
fats. Ans. 3. The Appellants do not persuasively contest the Examiner’s
finding that a person of ordinary skill in the art would have been motivated
to optimize Besselink’s pourable liquid compositions to have Bostwick
values known to be suitable for pourable compositions, i.e., “at least 4 and at
least 9 [as] taught by Bauer-Plank.” See Ans. 4.
Additionally, the Appellants do not persuasively contest the
Examiner’s finding that, because Besselink teaches “liquid” compositions
but does not explicitly provide a Bostwick value, Bauer-Plank simply
provides evidence that those liquid compositions necessarily would have
possessed Bostwick values typical of liquids, i.e., “[f]or pourable products, a
Bostwick value of at least 9 . . . .” Bauer-Plank at 1:21—24; Ans. 8. Nor do
the Appellants persuasively argue that the composition of Besselink as
modified by Holemans (i.e., including known preferred concentrations of H3
and H2U triglycerides) would not have possessed a Bostwick value falling
within the scope of claim 1, or that it would have been beyond the ordinary
level of skill in the art to achieve a Bostwick value within the scope of claim
1 in the liquid pourable composition of Besselink as modified by Holemans.
3. In the Reply Brief, the Appellants argue for the first time that
“Bauer-Plank is not relevant” because it teaches the use of “hydrogenated
products.” Reply Br. 6.
That argument is untimely, and the Appellants have not established
good cause for failing to present that argument in the opening Appeal Brief.
See 37 C.F.R. § 41.41(b)(2). Even if it were timely, the Examiner does not
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propose the use of Bauer-Plank’s hydrogenated products; the Examiner
relies on Bauer-Plank to show that the claimed Bostwick values are known
desirable values for pourable liquid compositions such as that of Besselink.
4. The Appellants argue that “[t]he Office points to no teaching by
Holemans et al. of the Eb triglycerides comprising at least 30 wt% of mono
acid triglycerides.” App. Br. 10.
That argument is not persuasive because it does not address the
Examiner’s apparent reliance on Besselink, not Holemans, as teaching or
suggesting a composition comprising the claimed concentration of monoacid
triglycerides. See Ans. 3 (finding that Besselink teaches compositions
comprising 58.6 and 64 wt% monoacid triglycerides), 9—10 (citing Keller,
642 F.2d 413); see also Jung, 637 F.3d at 1365.
In the Reply Brief, the Appellants argue for the first time that
Besselink’s teaching of “64% mono acid TAGs is for the palm stearin
starting fat,” rather than the final structuring fat. Reply Br. 7.
That argument is untimely, and the Appellants have not established
good cause for failing to present that argument in the opening Appeal Brief.
See 37 C.F.R. § 41.41(b)(2). Even if it were timely, however, it does not
address Besselink’s teaching that “fat C” may be a palm oil fraction alone
and does not necessarily need to be interesterified with another fat. See
Besselink 124. Thus, the argument fails to show reversible error in the
Examiner’s findings concerning monoacid triglycerides.
5. The Appellants argue that “the Office points to no teaching by
Holemans et al. of preparation of a pourable dispersion or a liquid,” and that
Holemans teaches the use of hydrogenated oils. App. Br. 10-11.
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Those arguments are not persuasive. See Keller, 642 F.2d at 426;
Jung, 637 F.3d at 1365. The Appellants do not meaningfully dispute the
Examiner’s finding that Holemans teaches that H3 and H2U triglyceride
concentrations that fall within the scope of claim 1 are preferred fat blend
concentrations “for diet margarines and spreads.” Ans. 4 (citing Holemans
at 7:23—30). The Appellants do not argue that incorporation of Holemans’
known preferred concentrations of H3 and H2U triglycerides into the
compositions of Besselink, which teaches that “the use of hydrogenation
preferably is avoided,” Besselink 17, would have been beyond the ordinary
level of skill in the art, or that doing so would have caused Besselink’s
compositions to lose their liquid, pourable character. The Examiner’s
rejection proposes the use of known desirable concentrations of H3 and H2U
triglycerides according to their established function (i.e., as a fat source in
margarines and spreads). See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416—21 (2007) (use of a known element according to its established function
typically does not result in nonobvious subject matter).
Concerning the Appellants’ statement that Holemans teaches
hydrogenated palm oil, “whereas present claim 1 recites that the
triglycerides in the fat phase are from a triglyceride source which is not
hydrogenated,” App. Br. 10, the Examiner’s rejection does not propose the
use of Holemans’ hydrogenated oil, see Ans. 5 (“Although Holemans
teach[es] the use of hydrogenated palm oil, it is obvious that non-
hydrogenated forms are suitable based on the teaching of Besselink . . . .”).
As noted above, Besselink explicitly teaches that “the use of hydrogenation
preferably is avoided.” Besselink 17. Thus, we find that a preponderance
of the evidence supports the Examiner’s determination that the applied prior
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art references as a whole would have led one of ordinary skill in the art to
utilize nonhydrogenated oils in making a liquid, pourable margarine
composition. The Appellants do not argue that it would have been beyond
the ordinary level of skill in the art to utilize nonhydrogenated oils in making
the composition of Besselink as modified by Holemans.
Hs
We have carefully considered the Appellants’ arguments, and we are
not persuaded of reversible error in the Examiner’s rejection of claim 1. See
Jung, 637 F.3d at 1365. Accordingly, we affirm the Examiner’s rejection.
Rejection 2
Claim 20 indirectly depends from claim 1 and recites “wherein the
H3 triglycerides contain at least 70 wt% of monoacid triglycerides.” The
Examiner finds that Besselink teaches compositions comprising 64 and
77 wt% monoacid triglycerides. Ans. 5. The Examiner finds that Floeter
“teaches a fat suited as a fat phase for low fat spreads that has HHH
triglycerides, wherein 25 to 65 wt.% are monoacid triglycerides.” Id. at 6.
The Examiner further finds that Floeter indicates that monoacid triglyceride
concentrations of 80 wt% or more result in undesirable oil separation. Id.
The Examiner concludes:
It would have been obvious to one having ordinary skill in the art
at the time of the invention to have incorporated the H3
triglycerides by selecting those that have less than 80 wt.%
monoacid triglycerides as taught by Floeter to make the
margarine of Besselink, one skilled in the art would have
achieved less oil separation. It considered that the 64 wt.%
monoacid triglycerides taught by Besselink and the 65 wt.%
triglycerides taught by Floeter is in close proximity to the
claimed at least 70wt% monoacid triglycerides and would have
been attained by one of ordinary skill in the art.
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Ans. 6.
The Appellants do not specifically contest the Examiner’s finding that
monoacid triglyceride concentrations of at least 70 wt% would have been
obvious in view of Besselink and Floeter. Instead, they argue that Floeter
concerns semi-solid, plastic compositions rather than pourable compositions,
and that “one of ordinary skill would not look to Floter’s [sic] teaching
concerning his specific HHH triglycerides in connection with a pourable
dispersion.” App. Br. 11—12.
That argument is not persuasive. The Appellants provide no evidence
or persuasive argument that Floeter’s teachings concerning semi-solid,
plastic compositions would have discouraged or dissuaded a person of
ordinary skill in the art from combining the references as proposed by the
Examiner, particularly given the Examiner’s finding that Besselink also
teaches compositions comprising concentrations of monoacid triglycerides
that approach or overlap those of Floeter and claim 20. At least some of the
benefits of Floeter’s compositions, such as mouthfeel and heat stability, see
Floeter at 12 (Table II), would appear to be desirable in pourable liquid
compositions as well as semi-solid, plastic compositions.
On this record, we are not persuaded of reversible error in the
Examiner’s rejection. See Jung, 637 F.3d at 1365; see also In re Woodruff,
919 F.2d 1575, 1578 (Fed. Cir. 1990) (“The law is replete with cases in
which the difference between the claimed invention and the prior art is some
range or other variable within the claims . . . [and] in such a situation, the
applicant must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results relative to the
prior art range.” (citations omitted)). We affirm the rejection of claim 20.
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CONCLUSION
We AFFIRM the Examiner’s rejections of claims 1—3, 5—8, 10—15,
and 20-22.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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