Ex Parte Campbell et al

Patent Trial and Appeal Board

Jul 7, 2016

10442765 (P.T.A.B. Jul. 7, 2016)

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,
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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
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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
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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.).
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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
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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
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