Ex Parte HoriuchiDownload PDFPatent Trial and Appeal BoardMay 18, 201712516700 (P.T.A.B. May. 18, 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. 12/516,700 06/05/2009 Hiroshi Horiuchi 17291/022001 1184 22511 7590 05/22/2017 O SH ATT ANfi T I P EXAMINER TWO HOUSTON CENTER DUBOIS, PHILIP A 909 FANNIN, SUITE 3500 HOUSTON, TX 77010 ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 05/22/2017 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): docketing@oshaliang.com hathaway@oshaliang.com escobedo @ oshaliang. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HIROSHI HORIUCHI Appeal 2016-007061 Application 12/516,700 Technology Center 1700 Before MICHAEL P. COLAIANNI, JAMES C. HOUSEL, and AVELYN M. ROSS, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-007061 Application 12/516,700 Appellant appeals under 35 U.S.C. § 134(a) the final rejection of claims 1—5, 7, 8, 10-14, 16, 17, and 19—21. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellant’s invention is directed to a method for producing fermented milk with enough hardness and smoothness, such as set-type yogurt, that includes a step of applying an ultrahigh temperature (UHT) treatment after deoxygenating a yogurt mixture (Spec. 11). Claim 1 is illustrative: 1. A method for producing fermented milk using a yogurt mix, the method comprising: a first deoxygenating step of decreasing an oxygen concentration in a raw milk comprising 9.5 wt% or less of Solids not fat to produce the yogurt mix; an ultra high temperature sterilization step of heating the yogurt mix for a duration longer than 1 second at a temperature higher than 110 degrees Celsius to produce a sterilized raw milk; and a fermentation step of fermenting a starter raw milk that is prepared by adding a starter to the sterilized raw milk to produce the fermented milk, wherein the fermented milk is set type yogurt. Appellant appeals the following rejection:1 1 The Examiner withdrew the 35 U.S.C. § 103(a) rejection of claims 1-5, 7, 8, 10-14, 16, 17, and 19-21 over Kamiya in view of Brabandere and Anon (Ans. 6). 2 Appeal 2016-007061 Application 12/516,700 Claims 1—5, 7, 8, 10-14, 16, 17, and 19—21 are rejected under 35 U.S.C. § 103(a) as unpatentable over Horiuchi (US 2006/0040016 Al, pub. Feb. 23, 2006) in view of Charm (US 4,975,246, pat. Dec. 4, 1990) and Anon (Anon, Yogurt Production, Cornell University, http://www.milkfacts.info/Milk%20Processing/Yogurt%20Production.htm.). Appellant argues independent claim 1 only (App. Br. 9-13). FINDINGS OF FACT & ANALYSIS The Examiner’s findings and conclusions regarding Horiuchi, Charm and Anon are located on pages 2 to 6 of the Answer. Appellant argues that the claims are limited to forming “set-type yogurt” which is a term of art that does not include milk beverages or soft yogurts (App. Br. 10). Appellant argues that the recited steps in claim 1 that include deoxygenating the yogurt mix before the UHT treatment results in the unexpected result of producing yogurt with sufficient hardness to be called set-type yogurt (App. Br. 11). Appellant contends that none of the prior art teaches a deoxygenating step before the sterilization step (i.e., the high temperature short time or UHT step) (App. Br. 11). Appellant argues that the applied prior art teaches applying the sterilization step before the fermentation step, not the deoxygenation step. Id. Appellant contends that one of ordinary skill in the art would not have combined Charm’s UHT step with Horiuchi because Appellant’s Figure 1 shows that applying UHT does not produce yogurt having sufficient hardness (App. Br. 13). Appellant contends that Horiuchi, Charm and Anon fail to teach the beneficial use of a 3 Appeal 2016-007061 Application 12/516,700 deoxygenation step in combination with UHT when the solids-not-fat concentration is 9.5% or lower. Id. Appellant’s arguments fail to address specifically the Examiner’s finding that Horiuchi teaches in 118 that the deoxygenation step may be applied at any period of production up to fermentation (Ans. 10). Horiuchi discloses that deoxygenation may be performed at the stage of blending the raw material mix (| 18). Horiuchi’s disclosure is not limited solely to the examples where the deoxygenation is done prior to fermentation as argued by Appellant. Rather, Horiuchi’s broader disclosure would have included a step of deoxygenating the mixture after blending the raw material mix and before heat treatment. Horiuchi exemplifies using a sterilizing heat treatment prior to inoculating the yogurt mixture for fermentation (| 28). We are unpersuaded by Appellant’s argument that one of ordinary skill in the art would not have combined Charm’s UHT process with Horiuchi because Appellant’s Figure 1 shows that acceptable curd tension (i.e., 30 g) would not be achieved. As found by the Examiner, Figure 1 also shows that when a deoxygenation step is applied to usual UHT treated milk, an acceptable curd tension is achieved (Ans. 8). Appellant’s Figure 1 show two groupings of milk. The grouping on the left-hand side of the Figure shows how a milk treated in the usual way with UHT or HTST or milk treated with UHT after deoxygenating would ferment at 43 °C. The grouping on the right-hand side of Figure 1 shows the results for the same types of milk except that fermentation occurs at low temperature (i.e., 37°C). The right-hand side of Figure 1 shows that when UHT-treated milk is low temperature fermented and deoxygenated an acceptable curd tension is achieved. In other words, Appellant’s alleged criticality of deoxygenating 4 Appeal 2016-007061 Application 12/516,700 prior to UHT treatment and argument that it was surprising/unexpected to be able to produce yogurt with acceptable curd tension using UHT treated milk are undermined by Appellant’s Figure 1. Regarding, Appellant’s argument that Horiuchi, Charm and Anon fail to teach the beneficial use of a deoxygenation step in combination with UHT when the solids-not-fat concentration is 9.5% or lower, the Examiner finds and Appellant does not dispute that Anon teaches that all yogurt must have at least 8.25% solids not fat content (Ans. 12-13). Accordingly, the use of raw mix having less than 9.5 wt% solids not fat would have been obvious if a person desired to make yogurt as in Horiuchi that is suitable for consumption as a yogurt. On this record, we affirm the Examiner’s § 103 rejection. DECISION 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)(l)(iv). ORDER AFFIRMED 5 Copy with citationCopy as parenthetical citation