Ex Parte Cavallini et al

Patent Trial and Appeal Board

Mar 17, 2016

13054653 (P.T.A.B. Mar. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/054,653 04/07/2011 Vincent M. Cavallini
38550 7590 03/17/2016
CARGILL, IN CORPORA TED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
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.
07/0198US01 8540
EXAMINER
DICUS, TAMRA
ART UNIT PAPER NUMBER
1791
MAILDATE DELIVERY MODE
03/17/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte VINCENT M. CA VALLIN!, JOSEPH L. KLEMASZEWSKI,
KARLA JEAN NELSON, and JOHN F. SWEENEY
Appeal2014-007597
Application 13/054,653
Technology Center 1700
Before KAREN M. HASTINGS, JAMES C. HOUSEL, and
MONTE T. SQUIRE, Administrative Patent Judges.
SQUIRE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal the Examiner's rejection of claims 1-3, 5, 6, 9-12,
and 16-22. 35 U.S.C. § 134(a). We have jurisdiction under
35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.
1 Appellants identify Cargill, Incorporated as the Real Party in Interest.
App. Br. 4.
Appeal2014-007597
Application 13/054,653
The Claimed Invention
Appellants' disclosure relates to a frozen food product comprising
frozen juice pellets and a multipart stabilizer that acts as a gelling agent and
a viscosifying agent. App. Br. 8; Spec. i-f 4; Abstract. Independent claims 1
and 12 are representative of the claims on appeal and are reproduced below
from the Claims Appendix to the Appeal Brief (App. Br. 16, 17):
1. A frozen food product in pellet form, wherein the food
product is formed from a composition comprising:
at least about 50 weight equivalents of juice comprising
soluble juice solids; and
a multipart stabilizer that acts as a gelling agent and a
viscosifying agent that controls water migration in the pellets,
wherein a viscosity of the composition is at least
250 centipoise.
12. A frozen food product comprising:
a plurality of substantially, free flowing pellets formed from a
composition comprising:
at least about 50 weight equivalents of juice comprising
soluble juice solids;
milk solids comprising at least about 2.0 weight percent of
the composition; and
a multipart stabilizer that acts as a gelling agent and a
viscosifying agent that
controls water migration to in the pellets and increases a
thickness of the composition used to form the pellets as
compared with a comparable composition not containing
the multipart stabilizer.
The References
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Jones us 5,126,156 June 30, 1992
Hynes et al., US 2002/0192350 Al Dec. 19, 2002
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(hereinafter "Hynes")
Bartkowska et al., US 2004/0071835 Al Apr. 15, 2004
(hereinafter "Bartkowska")
Ladd et al., US 2006/0134274 Al June 22, 2006
(hereinafter "Ladd")
Mattson et al., US 200710042090 Al Feb. 22, 2007
(hereinafter "Mattson")
The Rejections
On appeal, the Examiner maintains the following rejections:
1. Claims 1, 2, 6, 9, and 11 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Mattson.
2. Claim 10 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Mattson in view of Bartkowska.
3. Claims 12, 16, and 21 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Mattson in view of Bartkowska.
4. Claims 3 and 5 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Mattson in view of Hynes.
5. Claims 17 and 18 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Mattson in view of Bartkowska and in further view of
Hynes.
6. Claims 19 and 22 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Mattson in view of Bartkowska and in further view of
Jones.
7. Claim 20 stands rejected under 35 U.S.C. § 103(a) as
unpatentable over Mattson in view of Bartkowska and in further view of
Ladd.
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OPINION2
1. Rejection of Claims 1, 2, 6, 9, and 11 under
35 U.S.C. § 103(a) over Mattson
Appellants argue claims 1, 2, 6, 9, and 11 as a group. We, therefore,
select claim 1 as representative of this group, and the remaining claims stand
or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv) (2013). The Examiner
finds that Mattson teaches all the limitations of claim 1. Ans. 2-3.
The Examiner finds Mattson teaches a frozen food product in pellet
form, wherein the food product is formed from a composition comprising
juice. Id. at 2 (citing Mattson i-fi-121, 29, 39, 42, 53). The Examiner further
finds Mattson teaches that the frozen pieces are comprised of water and
flavor enhancers, that juice is added for flavor enhancing, and that the
amount of liquid in the composition is not limited. Id. at 2-3 (citing Mattson
i-fi-f 16, 24, 29, 42; Fig. 3). The Examiner also finds Mattson teaches a
multipart stabilizer that acts as a gelling agent and viscosifying agent,
including thickeners, emulsifiers, stabilizers, and xanthan gum, id. at 3
(citing Mattson i-fi-1 30, 42; Tables I, II), and that Mattson discloses a
composition having all the same ingredients as the claimed invention, id.
(citing Mattson, Abstract).
The Examiner concludes it would have been obvious to one of
ordinary skill in the art at the time of the invention to have modified
Mattson's frozen food product composition to include 50 weight equivalents
2 We affirm the Examiner's rejections for the reasons set forth in the
Answer, which we adopt as our own. Nevertheless, we highlight and
address specific findings and arguments for emphasis as follows.
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Application 13/054,653
of juice to "balance out the composition to the desired consistency and for
flavor." Ans. 3.
Appellants argue that the Examiner's rejection of claim 1 should be
reversed because the claimed frozen food product "may be consumed
without adding any liquid or the use of a blender." App. Br. 11.
We do not find Appellants' argument persuasive because it is not
based on limitations that appear in the claim. Cf In re Hiniker Co., 150 F.3d
1362, 1369 (Fed. Cir. 1998) (The "name of the game is the claim" and
unclaimed features cannot impart patentability to claims). In fact, as noted
by the Examiner (Ans. 12), none of the claims preclude either adding a
liquid to the composition or using a blender, as Appellants' argument
suggests. Moreover, Appellants do not argue that the addition of a liquid or
use of a blender teaches away from the claimed invention.
Appellants argue that "Mattson does not teach a frozen juice pellet
wherein the juice comprises soluble juice solids" and that "Mattson fails to
teach a frozen juice pellet composition, wherein the juice may comprise two
different types of juices." App. Br. 12.
We are not persuaded by these arguments. First, a naked assertion
that a reference fails to teach or suggest a claim limitation is not an argument
in support of separate patentability. Cf In re Lovin, 652 F.3d 1349, 1356-57
(Fed. Cir. 2011); 37 C.F.R. § 41.37(c)(l)(iv) (2013). Second, Appellants'
arguments are unsupported by the record. As the Examiner found (Ans. 12)
and contrary to Appellants' argument, Mattson does teach frozen solid
"pieces 24," which, based on the Examiner's findings, discloses claim 1 's
"juice comprising soluble juice solids" limitation. Mattson i-fi-1 42--44; Fig. 3.
As the Examiner further found (Ans. 12), Mattson also teaches a frozen juice
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composition comprising at least two juices. 3 See, e.g., Mattson i-f 39
(disclosing "frozen cubes 34 of macerated fruits or fruit juices [plural]")
(emphasis added).
Appellants' arguments are insufficient to establish reversible error in
the Examiner's findings in this regard. Ex parte Frye, 2010 WL 889747, *4
(BP AI 2010) ("Filing a Board appeal does not, unto itself, entitle an
appellant to de nova review of all aspects of a rejection. If an appellant fails
to present arguments on a particular issue - or, more broadly, on a
particular rejection-the Board will not, as a general matter, unilaterally
review those uncontested aspects of the rejection.") (cited with approval in
In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("even assuming that the
examiner had failed to make a prima facie case, the Board would not have
erred in framing the issue as one of 'reversible error.' ... it has long been
the Board's practice to require an applicant to identify the alleged error in the
examiner's rejections")). See also In re Baxter Travenol Labs., 952 F.2d
3 8 8, 3 91 (Fed. Cir. 19 91) ("It is not the function of this court to examine the
claims in greater detail than argued by an appellant, looking for nonobvious
distinctions over the prior art.").
3 Additionally, as noted by the Examiner (Ans. 12), "two different juices"
are not claim terms or limitations recited in claim 1. Thus, Appellants'
argument regarding "two different juices" is insufficient to rebut the
Examiner's finding that Mattson teaches all the limitations of claim 1.
Moreover, as the Examiner found (Ans. 12) and Appellants do not dispute,
in addition to Mattson's teachings regarding at least two juices, Hynes
specifically teaches a variety of juices such as cranberry, apple, and pear
juices for varying the level of sweetness. See Hynes i-fi-143, 56-57.
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Accordingly, we affirm the Examiner's rejection of claims 1, 2, 6, 9,
and 11under35 U.S.C. § 103(a) as unpatentable over Mattson.
2. Rejection of Claim 10 under 35 U.S.C. § 103(a) over Mattson
in view of Bartkowska
Claim 10 depends from claim 1 and adds the limitation: "further
comprising at least about two weight percent of milk solids." App. Br. 17.
The Examiner finds that the combination of Mattson and Bartkowska
teaches all the limitations of claim 10. Ans. 4--5. The Examiner finds that
Mattson teaches a product comprising skim milk, but that it does not
specifically teach a product "further comprising at least about two weight
percent of milk solids." Id. at 4. The Examiner relies on Bartkowska for
teaching that limitation. Id. In particular, the Examiner finds that
Bartkowska teaches frozen products including milk solids at 0.2 wt.% or
more. Id. (citing Bartkowska, Abstract; i-fi-f 13, 31-32).
The Examiner concludes it would have been obvious to one of
ordinary skill in the art at the time of the invention to "to have modified
Mattson's product for the reason Bartkowska teaches it provides a frozen
product having a dairy source." Ans. 5.
Appellants argue that "Bartkowska does not overcome the
shortcomings of Mattson because Bartkowska does not teach frozen food
product in pellet form comprising soluble juice solids." App. Br. 12
(emphasis in original). Appellants further argue that "there is no basis to
combine Mattson with Bartkowska because Bartkowska leads one of skill
away from the present invention" and because "Bartkowska reports that no
additional stabilizers and no additional emulsifiers are used in the reported
product." Id.
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We do not find these arguments persuasive because Appellants fail to
identify sufficient evidence or provide an adequate technical explanation to
support them, and attorney argument cannot take the place of evidence. See
In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Appellants' argument
that "there is no basis to combine Mattson with Bartkowska because
Bartkowska leads one of skill away from the present invention" (App. Br.
12), without more, is insufficient to establish that Bartkowska teaches away
from the claimed invention. See DyStar Textilfarben GmbH v. C.H. Patrick
Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006) ("We will not read into a
reference a teaching away ... where no such language exists.").
Moreover, the Examiner provides a reasonable basis (Ans. 4--5) and
identifies sufficient supporting evidence for why one of ordinary skill would
combine the teachings of the references to arrive at Appellants' claimed
invention. Mattson i-f 56; Bartkowska Abstract; i-fi-1 13, 31-32. That the
Examiner's reason for combining these references is not the same as
Appellants' reason for combining them is insufficient to establish reversible
error. KSR Int'! Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007) (explaining
that any need or problem known in the art can provide a reason for
combining the elements in the manner claimed). See also In re Kemps,
97 F.3d 1427, 1430 (Fed. Cir. 1996) (the motivation or reason to combine
the prior art references need not be the same as that of applicants).
Additionally, Appellants' argument regarding Bartkowska's teachings
is misplaced because the Examiner does not rely on Bartkowska for teaching
a "frozen food product in pellet form comprising soluble juice solids" or for
teaching "that no additional stabilizers and no additional emulsifiers are
used," as Appellants allege. Ans. 12. Contrary to Appellants' argument, the
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Examiner relies on Bartkowska for teaching claim lO's "comprising at least
about two weight percent of milk solids" limitation-and not for teaching
the limitations of claim 1 Appellants argue in the Appeal Brief.
Accordingly, we affirm the Examiner's rejection of claim 10 under
35 U.S.C. § 103(a) as unpatentable over Mattson in view of Bartkowska.
3. Rejection of Claims 12, 16, and 21 under
35 U.S.C. § 103(a) over Mattson in view of Bartkowska
Appellants argue claims 12, 16, and 21 as a group. We, therefore,
select claim 12 as representative of this group, and the remaining claims
stand or fall with claim 12. 37 C.F.R. § 41.37(c)(l)(iv) (2013). The
Examiner finds that the combination of Mattson and Bartkowska teaches all
the limitations ofclaim 12. Ans. 5-7.
For the patentability of claim 12, Appellants repeat and incorporate by
reference the same argument present above for Rejection 2. App. Br. 13.
Based on the findings and technical reasoning provided by the Examiner;
and for the reasons discussed above for Rejection 2, we find that Appellants
fail to show reversible error in the Examiner's factual findings and legal
conclusions with respect to claim 12.
Accordingly, we affirm the Examiner's rejection of claims 12, 16, and
21under35 U.S.C. § 103(a) as unpatentable over Mattson in view of
Bartkowska.
4. Rejection of Claims 3 and 5 under
35 U.S.C. § 103(a) over Mattson in view of Hynes
Appellants argue claims 3 and 5 as a group. We, therefore, select
claim 3 as representative of this group. Claim 5 stands or falls with claim 3.
37 C.F.R. § 41.37(c)(l)(iv) (2013). Claim 3 depends from claim 2, which
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depends from claim 1, and adds the limitation: "wherein the second juice has
a single strength Brix value less than 13." App. Br. 16.
The Examiner finds that Mattson teaches all the limitations of claim 3,
except that it does not teach "a single strength Brix value less than 13." Id.
at 2, 3, 7. The Examiner relies on Hynes for teaching that limitation. Id. at
8. In particular, the Examiner finds Hynes teaches cranberry, apple and pear
juices and juices having Brix values of 13 down to 8 or less. Id. at 7 (citing
Hynes i-fi-143, 56, 66). The Examiner concludes "it would have been obvious
to one having ordinary skill in the art to have modified the Mattson product
for the reason Hynes teaches having the claimed juice at low values of
sweetness providing a low calorie, healthier juice." Id. at 8.
Appellants argue that because "Mattson does not teach or suggest a
frozen food product as claimed" and because "Hynes does not teach a frozen
food product, the combination of Mattson with Hynes does not make the
claims obvious." App. Br. 13. We do not find Appellants' argument
persuasive. Appellants' argument regarding Hynes' teachings is misplaced
because, as previously discussed above for Rejections 1 and 2, the Examiner
relies on Mattson for teaching the "frozen food product" limitation-and not
on the teachings of Hynes. Moreover, Appellants' argument is conclusory
and, without more, insufficient to establish reversible error in the
Examiner's conclusion and findings regarding Hynes' teachings and the
combined teachings of Mattson and Hynes.
Accordingly, we affirm the Examiner's rejection of claims 3 and 5
under 35 U.S.C. § 103(a) as unpatentable over Mattson in view of Hynes.
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5. Rejection of Claims 17 and 18 under
35 U.S.C. § 103(a) over Mattson in view of Bartkowska and
in further view of Hynes
Appellants argue claims 17 and 18 as a group. We select claim 17 as
representative of this group, and claim 18 stands or falls with claim 17.
37 C.F.R. § 41.37(c) (l)(iv) (2013). Claim 17 depends from claim 16, which
depends from claim 12, and adds the limitation: "wherein the second juice
has a single strength Brix value less than 13." App. Br. 17.
The Examiner finds that the combination of Mattson, Bartkowska, and
Hynes teaches all the limitations of claim 17. Ans. 8. The Examiner
concludes "it would have been obvious to one having ordinary skill in the art
to have modified the Mattson product for the reason Hynes teaches having
the claimed juice at low values of sweetness providing a low calorie,
healthier juice." Id.
Appellants argue that "Bartkowska and Hynes do not overcome the
shortcomings of ~y1attson because neither Bartko\~1ska nor Hynes teaches a
frozen food product in pellet form comprising soluble juice solids." App.
Br. 13.
We are not persuaded by Appellants' argument because Appellants
argue the references individually, rather than addressing the combined
teachings of the prior art as a whole. One cannot show nonobviousness by
attacking references individually where the rejections are based on
combinations of references. See In re Keller, 642 F.2d 413, 425 (CCPA
1981) ("[T]he test [for obviousness] is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.").
Thus, Appellants' arguments as to what Bartkowska and Hynes each fail to
teach individually is not persuasive.
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Moreover, Appellants' argument is, again, misplaced and does not
sufficiently address the Examiner's rejection. As noted by the Examiner
(Ans. 12) and previously discussed above, the Examiner relies on Mattson
for teaching "a frozen food product in pellet form comprising soluble juice
solids," and not on the individual teachings of either Bartkowska or Hynes,
as Appellants argue.
Accordingly, we affirm the Examiner's rejection of claims 17 and 18
under 35 U.S.C. § 103(a) as unpatentable over Mattson in view of
Bartkowska and in further view of Hynes.
6. Rejection of Claims 19 and 22 under
35 U.S.C. § 103(a) over Mattson in view of Bartkowska and
in further view of Jones
Appellants argue claims 19 and 22 as a group. We select claim 19 as
representative of this group. Claim 22 stands or falls with claim 19.
37 C.F.R. § 41.37(c)(l)(iv) (2013). Claim 19 depends from claim 12 and
adds the limitation: "wherein the substantially free flowing pellets do not
exhibit any appreciable clumping at a temperature less than about -20
degrees Celsius." App. Br. 18.
The Examiner finds that the combination of Mattson, Bartkowska, and
Jones teaches all the limitations of claim 19. Ans. 9-10. The Examiner
finds that Mattson does not teach that "the substantially free flowing pellets
do not exhibit any appreciable clumping at a temperature less than about -20
degrees Celsius (68 degrees F)," as recited in claim 19. Id. at 9. The
Examiner relies on Jones for teaching that limitation. Id. In particular, the
Examiner finds that Jones teaches substantially free flowing pellets do not
exhibit any appreciable clumping at a temperature less than about -20
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degrees F. Id. (citing Jones, 3:1-20; 5:60-68; 6:5-10). The Examiner
further finds Jones teaches this temperature range is a result effective
variable, and that temperature affects sticking together, i.e., clumping, of
pellets. Id.
The Examiner concludes it would have been obvious to one having
ordinary skill in the art to have modified the composition of Mattson to
include the composition of Jones to substantially free flowing pellets do not
exhibit any appreciable clumping at a temperature less than about -20
degrees C because Jones teaches this is a result effective variable and
because the temperature affects the sticking together of pellets. Ans. 9.
Appellants argue that "Jones reports a method of freezing a dairy
product ... , but fails to teach or suggest a composition including soluble
juice solids, milk solids, and a multipart stabilizer." App. Br. 14.
Appellants further argue that "Bartkowska and Jones do not teach a frozen
food product in pellet form comprising soluble juice solids and a multipart
stabilizer." Id.
We are not persuaded by Appellants' arguments because Appellants,
again, argue the references individually, rather than addressing the teachings
of the prior art combination as a whole. In re Keller, 642 F.2d at 425.
Moreover, considering the combined teachings of the cited prior art
references as a whole, the Examiner's obviousness conclusion and finding
that the combination of Mattson, Bartkowska, and Jones teaches all the
limitations of claim 19 (Ans. 9-10, 13) are well-supported by the record and
based on sound technical reasoning. Mattson i-fi-121, 29, 30, 39, 42, 53, 56;
Tables I, II; Bartkowska Abstract; i-fi-f 13, 31-32; Jones, 3: 1-20; 5:60-68;
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6:5-10. Appellants' argument is insufficient to establish reversible error in
the Examiner's legal conclusions and factual findings in this regard.
Appellants' argument regarding Jones' teachings is also unpersuasive
because it is misplaced and does not sufficiently address the Examiner's
rejection. As noted by the Examiner (Ans. 13) and contrary to Appellants'
argument, the Examiner does not rely on Jones for teaching or suggesting a
"composition including soluble juice solids, milk solids, and a multipart
stabilizer" or teaching "a frozen food product in pellet form comprising
soluble juice solids and a multipart stabilizer."
Accordingly, we affirm the Examiner's rejection of claims 19 and 22
under 35 U.S.C. § 103(a) as unpatentable over Mattson in view of
Bartkowska and in further view of Jones.
7. Rejection of Claim 20 under 35U.S.C.§103(a) over Mattson
in view of Bartkowska and in further view of Ladd
Claim 20 depends from claim 12 and adds the limitation: "wherein the
multipart stabilizer comprises sodium alginate." App. Br. 18. The Examiner
finds that the combination of Mattson and Bartkowska, teaches all the
limitations of claim 20, except "wherein the multipart stabilizer comprises
sodium alginate." Ans. 10-11. The Examiner relies on Ladd for teaching
that limitation. Id. at 11. In particular, the Examiner finds that "Ladd
teaches [that the] equivalent stabilizer sodium alginate with gums of Mattson
i[s] used in similar food pellets." Id. (citing Ladd i-f 145).
The Examiner concludes it would have been obvious to one having
ordinary skill in the art at the time of the invention "to have modified the
composition of Mattson to include sodium alginate because Ladd teaches it
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is an equivalence used for the same purpose in similar food pellets."
Ans. 11.
Appellants argue that the Examiner's rejection of claim 20 should be
reversed because "Ladd teaches a frozen dessert type product comprising
milk fat, non-fat milk solids, and sweeteners ... , but does not teach a
composition comprising soluble juice solids." App. Br. 14--15
We are not persuaded by Appellants' argument because the Examiner
does not rely on Ladd for teaching "a frozen dessert type product comprising
milk fat, non-fat milk solids, and sweeteners" or "a composition comprising
soluble juice solids," as Appellants allege. Instead, as found by the
Examiner (Ans. 13), Ladd is relied upon for teaching claim 20's "sodium
alginate" limitation. Ladd i-f 145. Thus, we agree with the Examiner's
obviousness determination (Ans. 11) because such a substitution is nothing
more than the predictable use of a prior art element (i.e., sodium alginate)
according to its established function (i.e., as a stabilizer). KSR, 550 U.S. at
417 (stating that when assessing whether a claimed invention would have
been obvious, a court must ask "whether the improvement is more than the
predictable use of prior art elements according to their established
functions").
Accordingly, we affirm the Examiner's rejection of claim 20 under
35 U.S.C. § 103(a) as unpatentable over Mattson in view of Bartkowska and
in further view of Ladd.
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DECISION/ORDER
The Examiner's rejections of claims 1-3, 5, 6, 9-12, and 16-22 under
35 U.S.C. § 103(a) 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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