Ex Parte LINSENMEIER et al

Patent Trial and Appeal Board

Jun 1, 2018

14025817 (P.T.A.B. Jun. 1, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/025,817 09/12/2013
74475 7590
Nestec S.A.
Attn: Patent Department
12 Vreeland Road
Florham Park, NJ 07932
06/05/2018
FIRST NAMED INVENTOR
Andreas Manfred LINSENMEIER
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.
12671-US-NP 7861
EXAMINER
BEKKER, KELLY JO
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
06/05/2018 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):
patentdepartment@rd.nestle.com
gary.lobel@us.nestle.com
docketing@dunlapcodding.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREAS MANFRED LINSENMEIER,
FRANK ANDRE STORR and MATHILDE HALLE
Appeal2017-005415
Application 14/025,817
Technology Center 1700
Before TERRY J. OWENS, GEORGE C. BEST,
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1-9, 23, 26-28, and 31-38 of
Application 14/025,817 under 35 U.S.C. § 103(a). Final Act. (May 12,
2016). Appellant 1 seeks reversal of these rejections pursuant to 35 U.S.C.
§ 134(a). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.
1 Appellant is the Applicant, Nestec, S.A., which is also identified as the real
party in interest. Appeal Br. 2.
Appeal2017-005415
Application 14/025,817
BACKGROUND
The present application generally relates to a shelf stable dairy based
composition having a thick texture which is able to satisfy nutritional
requirements for babies and young children and methods for producing the
same. Spec., Abstract.
Claim 1 is representative and is reproduced below:
1. A method of making a shelf stable, dairy based
nutritional composition having a thickened texture, wherein the
shelf stable, dairy based nutritional composition contains
macronutrients and micronutrients tailored to meet the
nutritional needs of a child in an age range of from about 6
months to about 3 6 months, the method comprising the steps of:
mixing a dairy based composition and a low pH fruit
and/or flavor preparation, wherein the low pH fruit
and/or flavor preparation directly acidifies the dairy
based composition to yield a thickening of the dairy
based composition, thereby providing the shelf stable,
dairy based nutritional composition having a
thickened texture;
depositing and sealing the shelf stable, dairy based
nutritional composition in packaging that is of an
appropriate size and shape for a child beginning to
self feed; and
allowing post-thickening of the shelf stable, dairy based
nutritional composition to occur in the packaging,
wherein the dairy based composition and the low pH fruit
and/or flavor preparation have lower viscosities than
the viscosity of the final thickened dairy based
nutritional composition, and wherein the shelf stable,
dairy based nutritional composition is shelf stable at
ambient room temperature for a period of more than
three months.
Appeal Br. 27 (Claims App.).
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Application 14/025,817
REJECTIONS
The Examiner maintains the following rejections:
1. Claims 1, 2, 4--9, 23, 26, 31-34, and 37 are rejected under 35
U.S.C. § 103(a) as obvious over Weisberg2 in view of Potter et
al. 3, Powell-Smith4, and Little5. Final Act. 2-8.
2. Claim 3 is rejected under 35 U.S.C. § 103(a) as obvious over
Weisberg in view of Potter, Powell-Smith, Little, and Svensson et
al. 6 . Id. at 8.
3. Claims 27 and 28 are rejected under 35 U.S.C. § 103(a) as obvious
over Weisberg in view of Potter, Powell-Smith, and Little as
evidenced by Alkaline-alkaline.com7. Id. at 8-10.
4. Claims 35 and 36 are rejected under 35 U.S.C. § 103(a) as obvious
over Weisberg in view of Potter, Powell-Smith, and Little and
further in view of Konkoly8. Id. at 10-11.
5. Claim 38 is rejected under 35 U.S.C. § 103(a) as obvious over
Weisberg in view of Potter, Powell-Smith, and Little and further in
view ofKonkoly. Id. at 12-15.
2 US 2006/0286254 Al, published Dec. 21, 2006.
3 N. Potter et al., Food Science, 5th ed., 1995.
4 High Protein Foods for Toddlers, November 9, 2010,
httg://www.livestrong.com/article/241800-high-grotein-foods-for-toddlers
/#.Qage=2.
5 US 3,378,375, issued April 16, 1968.
6 WO 02/069725 Al, published Sept. 12, 2002.
7 Food PH Chart - Most Alkaline and Acidic Foods, May 29, 2010,
http://alkaline-alkaline.com/ph_food_chat.html.
8 US 2003/0194468 Al, published Oct. 16, 2003.
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Application 14/025,817
DISCUSSION
Rejection 1. The Examiner rejected claims 1, 2, 4--9, 23, 26, 31-34,
and 37 as obvious over Weisberg in view of Potter, Powell-Smith, and Little.
Id. at 2-8. Appellant alleges error on several bases.
"Acidifies the Dairy Based Composition to Yield a Thickening"
First, Appellant asserts that Weisberg does not teach that "the low pH
fruit and/or flavor preparation directly acidifies the dairy based composition
to yield a thickening of the dairy based composition" as required by claim 1.
Appeal Br. 12. Appellant argues that Weisberg teaches that the flavoring
agent must lack sufficient acidity to cause thickening of the dairy protein.
Id.
In this regard, the Examiner found that Weisberg teaches providing a
dairy-based composition and "a low pH preparation comprising acids and
flavorings simultaneously added or added separately (paragraphs 0033,
0034, 0037 and 0063)." Final Act. 3. The Examiner further determined as
follows:
Regarding the low pH fruit and/or flavor preparation as
recited in claims 1 and 33, as Weisberg teaches that the order of
addition of ingredients is not critical (paragraph 0063), that the
acid and flavor are contacted with the protein ingredient
simultaneously (paragraph 0063) and of acids with flavorings
under the teachings of thickeners (paragraph 0037), it would
have been obvious to premix the flavoring and thickening
components, such as a non-fruit flavor and thickener to form
the low pH preparation. Furthermore, it is noted that without
said mixing, the acid component alone also reads upon the low
pH flavor preparation as instantly recited in claims 1 and 33 and
certain flavoring agents alone, such as lime juice and lemon
juice (paragraph 0048) also read upon the low pH flavor
preparation as instantly recited in claims 1 and 33.
Id. at 3--4.
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Appellant's argument does not accurately reflect the teachings of
Weisberg. Weisberg teaches that protein thickening, as in the case of key
lime pie, is desirable. Weisberg i-fi-1 3---6. Weisberg further teaches that
"edible acids[ ]can thicken dairy protein." Id. i16. Accordingly, Weisberg
seeks to impart the dairy protein thickening property of lime to other
flavoring preparations, even if they lack the (desirable) natural acidity that
causes such thickening. Weisberg does not "teach[ ]away from the use of a
flavoring agent having sufficient acidity to cause thickening of dairy
protein" as argued by Appellant. Appeal Br. 12.
Additionally, with regard to the flavor preparation directly acidifying
the dairy-based composition, we note that Weisberg teaches that the dairy-
based composition, the edible acid (thickening agent), and the flavorant, may
be combined "in any order." Final Act. 3--4; Weisberg i163.
"Macronutrients and Micronutrients"
Second, Appellant argues that the cited references do not teach a
composition that contains the "macronutrients and micronutrients" of the
preambles of claims 1 and 33.
In this regard, the Examiner determined that "Weisberg teaches that
the product is a functional food or foodaceutical that comprises unusually
high amounts of nutrients (paragraph 0010)." Final Act. 6. Weisberg
teaches that "[a]s used herein, 'functional foods' or 'foodaceuticals' include
food products comprising unusually high amounts of added nutrients, for
instance ascorbic acid." Weisberg i-f 10. Weisberg further teaches that food
compositions with ascorbic acid "provide nutritional benefit." Id. i136. The
Examiner additionally found that Powell-Smith teaches that dairy products
are a valuable source of protein for toddlers. Id. Powell-Smith, titled "High
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Application 14/025,817
Protein Foods for Toddlers," additionally teaches that lean meats and poultry
"are an excellent source of protein and iron." Powell-Smith 1.
The Specification lists exemplary macronutrients as "protein, fats, and
carbohydrates." Spec. i-f 121. The Specification further describes calcium,
magnesium and zinc as nutrients as follows:
The presently disclosed nutritional compositions also
have the nutrients required to support children's growth. . ..
Also[, i]n an embodiment, the nutritional compositions provide
calcium, magnesium and zinc for the growth generally as well
as for the development of strong bones and teeth. In an
embodiment, two servings of 60 grams of the nutritional
compositions provide 45% of babies' daily calcium, magnesium
and zinc needs.
Id. i-f 162. Similarly, the Specification further provides as follows:
In an embodiment, the method includes providing
calcium, magnesium, and zinc. The nutritional product may
provide at least 45% of young children's daily requirement for
calcium, magnesium and zinc. In an embodiment, iron is also
provided.
Id. i-f 64. In view of the foregoing, we construe "macronutrients" to include
protein, fats, and carbohydrates, and "micronutrients" to include calcium,
magnesium, zinc, and iron.
Weisberg teaches a composition that has "high amounts of added
nutrients" such as ascorbic acid (Vitamin C). Weisberg i-f l 0. Powell-Smith
teaches that dairy products are a valuable source of protein. Powell-Smith
further teaches the desirability of protein and iron for toddlers. Accordingly,
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the cited references teach the "macronutrients and micronutrients" described
in the preambles of claims 1and33. 9
"Shelf Stable"
Third, Appellant argues that the cited references do not teach a
composition that is "shelf stable" at room temperature. In regard to the
"shelf stable" limitation, the Examiner relies, in part, on Potter. Final Act. 5.
Potter teaches hot filling of acidic foods as follows:
The terms hot pack or hot fill refer to the packing of
previously pasteurized or sterilized foods, while still hot, into
clean but not necessarily sterile containers, under clean but not
necessarily aseptic conditions. The heat of the food and some
holding period before cooling the closed container is utilized to
render the container commercially sterile.
Hot pack, as distinguished from aseptic packaging, is
most effective with acid foods since lower temperatures in the
presence of acid are lethal . . . . Hot pack with low-acid foods
(above pH 4.6) is not feasible unless the product is recognized
as being only pasteurized and will be stored under
refrigeration.
Potter 159-160 (emphasis added). The Examiner additionally relies upon
Little's teaching regarding pasteurization and Weisberg' s teaching regarding
the pH of the composition. Final Act. 5; Answer 17. Weisberg teaches that,
"[i]n certain embodiments, the edible acid or acids are present in a total
amount sufficient to yield a food composition pH of from about 3. 0 to about
5.0." Weisberg i-f 41. Weisberg further teaches that "[i]n further
embodiments, the edible acid or acids are present in a total amount sufficient
to yield a food composition pH of less than 4.1. In further embodiments, the
9 We do not here decide if such preambulatory language limits the scope of
the claims.
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Application 14/025,817
edible acid or acids are present in a total amount sufficient to yield a food
composition pH of less than 4.0." Id. i-f 40. This is similar to the
Specification which provides as follows:
The nutritional compositions may be slightly acidified. In an
embodiment, the composition may have a pH ranging from 3.5
to 4.5. The composition may have a pH ranging from 4 to 4.5.
The pH of the nutritional composition may also range from 3.8
to 4 .2, or 3. 9 to 4 .1, or about 4. 0. The skilled artisan will
appreciate that the nutritional compositions may have any pH
that is not unpleasant tasting for the consumer and still allows
the thick texture to be maintained.
Id. i-f 188.
In view of the pH teachings of Weisberg, the pasteurization teachings
of Little, and the "hot pack" teachings of Potter, the Examiner determined
that there is a prima facie showing that the hypothetical combined method of
the references would yield a shelf stable composition. Answer 17.
Accordingly, the Examiner determined that "the burden is shifted to the
Appellant to show that the prior art product is different." Id.
Appellant first argues that Little and Potter teach away from the
proposed combination. Appeal Br. 14. "A reference 'teaches away' when it
'suggests that the line of development flowing from the reference's
disclosure is unlikely to be productive of the result sought by the applicant."'
Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344, 1354 (Fed. Cir. 2012).
Here, Appellant argues that Little's compositions must be refrigerated and,
therefore, Little teaches away from a shelf stable composition. Appeal Br.
15-17. This does not reflect the language of the rejection. The Examiner
found that "Little teaches of preparing thickened dairy products wherein the
product is held under refrigeration or can be pasteurized and cooled to
provide considerable savings in refrigeration." Final Act. 5. The Examiner
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does not find that Little's teachings render a dairy product shelf stable.
Rather, the Examiner finds that it is the combined teachings of Weisberg,
Little, and Potter that would have yielded a shelf stable product. Id.
Appellant further argues that the teachings of Potter are not applicable
to dairy products and therefore a person of ordinary skill in the art would not
have had a reasonable expectation of success of creating a shelf stable dairy
composition. Id. at 17-18. Potter, by its terms, is applicable to "previously
pasteurized or sterilized foods." Potter 159. Nor does Appellant offer
factual support for its assertion that Potter is inapplicable to dairy foods.
Accordingly, Appellant has not shown error in the Examiners reliance upon
Potter.
Appellant argues that the Examiner's determination of a prima facie
case of obviousness and determination that the burden of showing that the
combined teachings would lead one of skill in the art to the claimed
composition has shifted to Appellant (referred to as "inherency" in
Appellant's Reply) is in error because the Examiner has failed to show the
following:
( 1) Direct acidification by the low pH fruit or flavor
preparation to yield a thickened texture;
(2) "Macronutrients and micronutrients" tailored to
children's needs; and,
(3) Shelf stability at room temperature.
Reply Br. 10-11. That is, Appellant relies upon its prior arguments.
Appellant has failed to show error in the Examiner's finding that
Weisberg teaches the direct acidification of the dairy based composition by
the low pH fruit or flavor preparation. Appellant has additionally failed to
show error in the Examiner's finding that the references teach
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macronutrients and micronutrients tailored to children's needs. Appellant
has similarly failed to show error in the Examiner's finding that the
references teach a combination that would exhibit shelf stability as a natural
result of the combination. Accordingly, Appellant has not shown error in
the Examiner's determination that there is a prima facie case that a
composition made in keeping with the teachings of the cited references
would have exhibited properties similar to a composition made according to
the claimed method.
In view of the foregoing, and in view of the reasons set forth in the
Final Action and the Answer, Appellant has failed to show error in the
rejection of claims 1, 2, 4--9, 23, 26, 31-34, and 37 as obvious over
Weisberg in view of Potter, Powell-Smith, and Little.
Rejections 2-5. Appellant asserts error in the rejection of claims 3,
27, 28, 35, 36, and 38. In support of such assertion, Appellant relies upon
the same arguments set forth in regard to Rejection 1. For the reasons set
forth above, we do not find such arguments persuasive.
We further incorporate the findings and determinations made in the
Final Rejection and Examiner's Answer.
CONCLUSION
The rejection of claims 1, 2, 4--9, 23, 26, 31-34, and 37 as obvious
over Weisberg in view of Potter, Powell-Smith, and Little is affirmed. The
rejection of claim 3 as obvious over Weisberg in view of Potter, Powell-
Smith, Little, and Svensson is affirmed. The rejection of claims 27 and 28
as obvious over Weisberg in view of Potter, Powell-Smith, and Little as
evidenced by Alkaline-alkaline.com is affirmed. The rejection of claims 35,
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36, and 38 as obvious over Weisberg in view of Potter, Powell-Smith, and
Little and further in view of Konkoly 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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