Ex Parte Boer et alDownload PDFPatent Trial and Appeal BoardMay 11, 201711883220 (P.T.A.B. May. 11, 2017) 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. 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). 2 Appeal 2015-006771 Application 11/883,220 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. 3 Appeal 2015-006771 Application 11/883,220 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 4 Appeal 2015-006771 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 5 Appeal 2015-006771 Application 11/883,220 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 6 Appeal 2015-006771 Application 11/883,220 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 7 Appeal 2015-006771 Application 11/883,220 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. 8 Appeal 2015-006771 Application 11/883,220 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 9 Appeal 2015-006771 Application 11/883,220 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. 10 Appeal 2015-006771 Application 11/883,220 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. 11 Appeal 2015-006771 Application 11/883,220 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 12 Copy with citationCopy as parenthetical citation