Ex Parte Judge

Patent Trial and Appeal BoardMar 30, 2017

13699764 (P.T.A.B. Mar. 30, 2017)

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. 13/699,764 11/26/2012 David John Judge F3534USw 8338 201 7590 04/03/2017 UNILEVER PATENT GROUP 800 SYLVAN AVENUE ENGLEWOOD CLIFFS, NJ 07632-3100 EXAMINER CHAWLA, JYOTI ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 04/03/2017 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 DAVID JOHN JUDGE Appeal 2016-005686 Application 13/699,764 Technology Center 1700 Before ADRIENE LEPIANE HANLON, MICHAEL P. COLAIANNI, and MONTE T. SQUIRE, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2016-005686 Application 13/699,764 Appellant appeals under 35 U.S.C. § 134 the final rejection of claims 1—9. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellant’s invention is directed to ice confections that do not suffer from unwanted foaming during production (Spec 1:4—5). Claim 1 is illustrative: 1. An ice confection comprising at least 0.025 wt % gelatin, and further comprising locust bean gum and xanthan gum wherein the total amount of locust bean gum in combination with xanthan gum is at least 0.05 wt% of the ice confection and wherein the weight ratio of locust bean gum to xanthan gum is from 4:1 to 1:4. Appellant appeals the following rejection: Claims 1-9 are rejected under 35 U.S.C. § 103(a) as unpatentable over Griffin (US 4,832,976 pat. May 23, 1989) in view of Lawrence (US 5,387,427 pat. Feb. 7, 1995). Appellant’s argument focuses on the subject matter of claim 1 only (App. Br. 5—8). Claims 2—9 will stand or fall with our analysis of the rejection of claim 1. FINDINGS OF FACT & ANALYSIS Appellant argues that there is no reason to combine Lawrence’s ratio of locust bean gum (LBG) to xanthan gum with Griffin’s ice confection because Lawrence teaches that the LBG:xanthan gum ratio is used as a substitute for gelatin (App. Br. 6). Appellant contends that Lawrence’s gum 2 Appeal 2016-005686 Application 13/699,764 combination is meant to simulate gelatin, so it is unclear why one of ordinary skill in the art would have used such a gelatin substitute in Griffin’s composition that includes gelatin. Id. Contrary to Appellant’s argument, the Examiner finds that one of ordinary skill would have combined Lawrence’s LBG:xanthan gum ratio with Griffin as a partial substitute for gelatin (Ans. 4). Appellant does not contest or otherwise show reversible error in the Examiner’s finding. Indeed, Griffin teaches using a combination of LBG and xanthan gum (col. 2,11. 58— 62). Based on the teachings of Griffin and Lawrence, we agree with the Examiner that proposed combination of the teachings of Griffin and Lawrence would have been obvious. Appellant alleges that the evidence in the Specification evinces an unexpected decrease in foaming by using the LBG:xathan gum ratio (App. Br. 7). Appellant contends that the Examiner cites no authority for requiring that the unexpected result needs to be recited in the claim. Id. Although Appellant refers to data concerning experiments in the Specification that allegedly show reduced foaming, Appellant has not explained how the data shows unexpected results as it is Appellant’s burden to do. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (“burden of showing unexpected results rests on he who asserts them”). Moreover, the Examiner finds that once the substitution of Lawrence’s LBG:xanthan gum ratio is used as the LBG/xanthan gum combination in Griffin’s ice confection, the decrease in foaming would have 3 Appeal 2016-005686 Application 13/699,764 flowed naturally therefrom (Ans. 6). Appellant does not contest this finding by the Examiner. On this record, we affirm the Examiner’s § 103 rejection over Griffin and Lawrence. 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)(1). ORDER AFFIRMED 4