Ex Parte Campbell et alDownload PDFPatent Trial and Appeal BoardJul 7, 201610442765 (P.T.A.B. Jul. 7, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 10/442,765 05/21/2003 Iain James Campbell 201 7590 07111/2016 UNILEVER PATENT GROUP 800 SYLVAN A VENUE AG West S. Wing ENGLEWOOD CLIFFS, NJ 07632-3100 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 ATTORNEY DOCKET NO. CONFIRMATION NO. F3308US 3512 EXAMINER THAKUR, VIREN A ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 07/11/2016 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 BOARD OF PATENT APPEALS AND INTERFERENCES Ex parte IAIN JAMES CAMPBELL, SARAH JANE GRAY, and ROBERT DANIEL KEENAN Appeal2014-007112 Application 10/442,765 Technology Center 1700 Before BRADLEY R. GARRIS, TERRY J. OWENS, and RAEL YNN P. GUEST, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's rejection of claims 1-3 and 13. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim a frozen aerated product in a container. Claim 1 is illustrative: 1. Frozen aerated product in a container said frozen product having an overrun of more than 150%, the container having at least two compartments (A) and (B), said Appeal2014-007112 Application 10/442,765 compartments being gastightly separated from each other by an at least partially movable wall, compartment (A) containing a propellant and compartment (B) containing the frozen aerated product, compartment (B) being provided with a valve, wherein the frozen aerated product contains freezing point depressants in an amount of between 20% and 40% w/w, and between 0% and 15% fat, the freezing point depressants having a number average molecular weight n following the following condition: n =< (330- 8 FAT) g mo1-1 Wherein FAT is the fat level in percent by weight of the product, said frozen aerated product having less than 10 wt% fructose wherein the valve has a N value (ratio of the flow rate of a Newtonian fluid and the viscosity to the pressure drop across the valve) greater than 100 x IOA(-12) m3 and less than 1QA(-7) m3. Kahn Cole Desia Parekh Cockings Sugimoto (as translated) Riviere (as translated) The References us 4,244,977 us 4,374,154 us 4,434, 186 us 5,361,941 US 7,455,199 B2 JP 3-61450 A WO 97/30600 Al Jan. 13, 1981 ~Feb. 15, 1983 Feb. 28, 1984 Nov. 8, 1994 Nov. 25, 2008 Mar. 18, 1991 Aug. 28, 1997 M. Rio, Les Aerosols Alimentaires, EMBALLAGES 299-300, 303-305 (1971). Pressurized Containers, WILEY ENCYCLOPEDIA OF PACKAGING TECHNOLOGY 544-52 (John Wiley & Sons 1986) (hereafter "Packaging Technology"). The Rejections Claims 1-3 and 13 stand rejected 1) under 35 U.S.C. § 103 over a) Riviere in view of Packaging Technology, Rio, Sugimoto, Kahn, Cole and Parekh, b) Desia in view of Cole, Kahn, Riviere, Packaging Technology, 2 Appeal2014-007112 Application 10/442,765 Rio, Sugimoto and Parekh, and c) Kahn in view of Cole, Riviere, Packaging Technology, Rio, Sugimoto and Parekh, and 2) on the ground of nonstatutory obviousness-type double patenting over claims 3-5 of Cockings in view of Riviere, Packaging Technology and either Kahn or Cole. OPINION We affirm the rejections. Rejections under 35 U.S.C. § 103 With respect to each rejection the Appellants rely upon similar arguments and argue the claims as a group (Br. 6-19). We therefore limit our discussion to one rejection, i.e., the first rejection, and to one claim, i.e., claim 1, which is the sole independent claim. Our discussion regarding the first rejection applies to the other two rejections, and claims 2, 3 and 13 stand or fall with claim 1 as to each rejection. See 37 C.F.R. § 41.37(c)(l)(iv) (2012). Cole discloses "a storage-stable frozen dessert product which is sufficiently soft from a home freezer (OQ F. to 1 OQ F) to be extrudable" (col. 1, 11. 46-48) and "can be dispensed by hand from a collapsible package having an extrusion orifice and, preferably, a mechanism to assist in applying pressure to the product" (col. 1, 11. 49-51 ). "[S]ufficient low molecular weight saccharides are present to depress the freezing point of the formulation several degrees but not sufficient to preclude the formation of ice crystals during product preparation" (col. 2, 11. 5-8). The freezing point depression provides the desired extrudability and softness (col. 6, 11. 4--7). The product's total carbohydrate level from all sources including the saccharides is 24--34 wt% (col. 6, 11. 14--16). "The product can be whipped 3 Appeal2014-007112 Application 10/442,765 to any desired overrun but usually will be within the range of l 00-200%, preferably about 110-150%" (col. 4, 11. 52-54). "The amount of fat in the product is generally in the range of 3% to 15% by weight of the product" (col. 5, 11. 10-12). Riviere discloses a frozen dessert which is scoopable at freezing temperatures (pp. 5---6), has the organoleptic properties of ice cream (p. 8), can be packaged in an aerosol pressurized container (pp. 6-8, 16, 21 ), contains sweeteners having a lower molecular weight than saccharose to lower the freezing point (p. 9), has flexibility and malleability which increases as the dextrose percentage increases (p. 11 ), and can contain fructose as a partial or total substitute for dextrose to obtain a product which has satisfactory texture but tastes sweeter (id.). Packaging Technology discloses that an aerosol pressurized container "consists of a combination of concentrate and propellant, contained in a pressure-resistant dispenser fitted with a valve" (pp. 544--45), aerosol- metering systems can provide creams (p. 545), and "[b ]y using special bag-in-can or piston-operated aerosols, fitted with large-orifice valves, liquids with viscosities up to several million (106) cP (several thousand Pa· s) can be dispensed" (id.). The Appellants assert that Cole would not have suggested "what the level of overrun should be for a specific level and type of sweetener and level of fat" (Br. 9). Cole indicates that the overrun can be 100-200%, preferably about 110-150% (col. 4, 11. 52-54), for any fat level within the disclosed 3- 15 wt% range (col. 5, 11. 10-12), any low molecular weight saccharide or saccharide combination which does not make the product too sweet, and any 4 Appeal2014-007112 Application 10/442,765 saccharide level within the 24--34 wt% total carbohydrate range which is effective for achieving the desired reduction in the product's freezing point (col. 2, 11. 4--8; col. 6, 11. 1-18). The Appellants assert that "Cole is primarily concerned with dispensing products by hand from a collapsible package" (Br. 9). Riviere discloses that ice cream which is soft at freezer temperatures can be dispensed from pressurized can containers (pp. 6-8, 16, 21) and Packaging Technology discloses that bag-in-can or piston-operated aerosol dispensers fitted with large-orifice valves can meter high viscosity liquids and aerosol metering systems can provide creams (p. 545). Those disclosures would have led one of ordinary skill in the art, through no more than ordinary creativity, to use as the dispenser for Cole's frozen dessert, which is soft at freezer temperatures and can be ice cream (col. 10, 1. 4 7), a pressurized bag-in-can container, see KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (in making an obviousness determination one "can take account of the inferences and creative steps that a person of ordinary skill in the art would employ"), and to determine, through no more than routine experimentation, the large-orifice sizes which provide suitable flow rates. See In re Aller, 220 F .2d 454, 456 (CCP A 1955) ("where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation"). Regarding the Newtonian fluid used to determine the N value of the Appellants' valve, the Appellants state that "Newtonian fluid" "refers to the behavior of a fluid in the valve to characterize the valve" (Br. 10) and "does not indicate whether the frozen aerated product behaves as a Newtonian fluid" (id.). 5 Appeal2014-007112 Application 10/442,765 A valve, therefore, meets the Appellants' claim l's N value requirement if at least one Newtonian fluid exists which, at some temperature and pressure drop, has a viscosity such that the fluid's flow rate through the valve multiplied by the fluid's viscosity at that temperature and divided by the pressure drop across the valve falls within claim 1 's recited range. Claim 1 's N value limitation, therefore, is extremely broad. The Appellants point out that of three tested valves (valve i, a standard aerosol whipped cream valve, valve ii, a standard tilt valve for highly viscous materials such as caulking compounds and aerosol cheese spreads, and valve iii, a high-discharge fire extinguisher aerosol valve (Spec. 3: 17-32)), only the fire extinguisher valve met claim 1 's N value limitation (Spec. 5:25-27) (Br. 10-11). The Appellants' test is limited to the particular Newtonian fluid composition and temperature, valve orifice size and valve pressure drop used in the test. The test does not establish that selectable combinations of Newtonian fluid composition and temperature, valve orifice size and valve pressure drop do not exist which enable valves generally to meet claim 1 's N value limitation. The Appellants assert that "[t]he mere fact that various valves may be available does not suggest that one of ordinary skill would believe it reasonably likely that a fire extinguisher aerosol valve could be used in containers for frozen aerated compositions having the characteristics recited herein with the attendant flow rates as set forth in the table [on page 13 of the Appellants' Specification]" (Br. 11 ). That assertion is not well taken because it is directed toward limitations which are not in the claims. See In re Self, 671 F.2d 1344, 1348 6 Appeal2014-007112 Application 10/442,765 (CCP A 1982) ("[A ]ppellant's arguments fail from the outset because ... they are not based on limitations appearing in the claims."). For the above reasons we are not persuaded of reversible error in the rejections under 35 U.S.C. § 103. Obviousness-type double patenting rejection The Appellants do not challenge the obviousness-type double patenting rejection (Br. 19). Accordingly, we affirm that rejection. DECISION/ORDER The rejections of claims 1-3 and 13, 1) under 35 U.S.C. § 103 over a) Riviere in view of Packaging Technology, Rio, Sugimoto, Kahn, Cole and Parekh, b) Desia in view of Cole, Kahn, Riviere, Packaging Technology, Rio, Sugimoto and Parekh, and c) Kahn in view of Cole, Riviere, Packaging Technology, Rio, Sugimoto and Parekh, and 2) on the ground of nonstatutory obviousness-type double patenting over claims 3-5 of Cockings in view of Riviere, Packaging Technology and either Kahn or Cole are affirmed. It is ordered that 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). AFFIRMED 7 Copy with citationCopy as parenthetical citation