Ex Parte MATTEI

Patent Trials and Appeals BoardJan 31, 2019

12136588 - (D) (P.T.A.B. Jan. 31, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/136,588 06/10/2008 GIANFRANCO MATTEI 24998 7590 02/04/2019 Blank Rome LLP 1825 Eye Street, NW Washington, DC 20006-5403 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. Gl919.0001/P001 5861 EXAMINER MOORE, WALTER A ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 02/04/2019 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): W ashingtonDocketing@blankrome.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GIANFRANCO MATTEI Appeal2018-000076 Application 12/136,588 Technology Center 1700 Before CATHERINE Q. TIMM, MONTE T. SQUIRE, and MERRELL C. CASHION, JR., Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision to reject claims 15-17 and 26-29, which constitute all the claims pending in this application. We have jurisdiction under 35 U.S.C. Â§ 6(b). We AFFIRM. 1 In explaining our Decision, we refer to the Specification filed June 10, 2008 ("Spec."); Non-Final Office Action dated September 22, 2016 ("Non- Final Act."); Appeal Brief filed March 9, 2017 ("Appeal Br."); Examiner's Answer dated August 7, 2017 ("Ans."); and Reply Brief filed October 3, 2017 ("Reply Br."). 2 According to the Appeal Brief, S.p.A. Egidio Galbani is the real party in interest. Appeal Br. 1. Appeal2018-000076 Application 12/136,588 The Claimed Invention Appellant's disclosure relates to a method for producing and packaging a pasta filata cheese, including substantially dry packaging, i.e. without preserving liquid, and heat packaging of the pasta filata cheese. Abstract; Spec. 1, 3--4. Claim 15 is illustrative of the claimed subject matter on appeal and is reproduced below from the Claims Appendix to the Appeal Brief (key disputed claim language italicized and bolded): 15. A multi-portion container, comprising: two dry half-shells, each half-shell having an inner portion with an opening heat-sealed by a separate film isolating the inner portion from an external environment, each half-shell having a hemispheric shape, wherein each half-shell contains a portion of a pasta filata cheese, each half-shell being free of a preserving liquid, wherein the pasta filata cheese has a lactose content and a Na Cl content, and wherein the pasta filata cheese has a moisture of 62%, wherein a projecting edge is provided, projecting from each half-shell, each projecting edge comprising a hinge portion, the hinge portion connecting the two half- shells, and a tab portion arranged in an opposite position relative to the hinge portion, wherein the half-shells are closed on each other around the hinge portion to form a multi-portion container provided with a spherical shell, a tab portion and projecting edges, wherein the half-shells are fixed to each other at preset locations along the projecting edge projecting from each half-shell to define the spherical shell, and wherein each half-shell is configured to maintain unchanged the lactose and Na Cl contents of the pasta filata cheese. 2 Appeal2018-000076 Application 12/136,588 The References The Examiner relies on the following prior art references as evidence in rejecting the claims on appeal: Reuman us 2,834,686 May 13, 1958 Mauk et al., us 3,692,540 Sept. 19, 1972 ("Mauk") Dahlstrom et al., US 6,319,526 Bl Nov. 20, 2001 ("Dahlstrom") Silver et al., US 6,372,268 B 1 Apr. 16, 2002 ("Silver") Dunker et al., US 2004/0040448 Al Mar. 4, 2004 ("Dunker") Duffield et al., US 2004/01153575 Al June 1 7, 2004 ("Duffield") Fux US 2005/0257503 Al Nov. 24, 2005 Sinichko et al., US 2006/0062874 Al Mar. 23, 2006 ("Sinichko") Kemper DE 2981903 Ul Oct. 27, 1998 The Rejection On appeal, the Examiner maintains the following rejection: claims 15-17 and 26-29 rejected under 35 U.S.C. Â§ I03(a) as being unpatentable over Kemper in view of Fux, Sinichko, Duffield, Reuman, Dahlstrom, and/or Silver, and/or Mauk, as evidenced by Dunker. Ans. 2; Non-Final Act. 3--4. OPINION Having considered the respective positions advanced by the Examiner and Appellant in light of this appeal record, we affirm the Examiner's rejection based on the fact-finding and reasoning set forth in the Answer and 3 Appeal2018-000076 Application 12/136,588 Non-Final Office Action, which we adopt as our own. We highlight and address specific findings and arguments below. Appellant argues claims 15-17 and 26-29 as a group. Appeal Br. 3, 11. We select claim 15 as representative and claims 16, 17, and 26-29 stand or fall with claim 15. 37 C.F.R. Â§ 4I.37(c)(l)(iv). The Examiner determines that the combination of Kemper, Fux, Sinichko, Duffield, Reuman, Dahlstrom, Silver, and Mauk, as evidenced by Dunker suggests a multi-portion container satisfying all of the limitations of claim 15 and thus, concludes that the combination would have rendered the claim obvious. Ans. 2-15. Regarding the recitations "a pasta filata cheese ... being free of a preserving liquid" and "wherein the pasta filata cheese has a moisture of 62%," the Examiner relies on the combination of Dahlstrom and Mauk for teaching or suggesting those claim elements. Id. at 8-15 (citing Dahlstrom, Title, 2:52-53, 3:9, 3:12-15, 3:37-38, 4:2, 4:33-35, 4:38-39, 6:39--41,7:6, 7:44, 8:38-39, 9:29-30, 9:32-33; Mauk, 1:11, 1:33- 34, 1:64---66, 5:11-12, 6:13-15, 6:18-19). Appellant principally argues that the Examiner's rejection of claim 15 should be reversed because the prior art does not teach or suggest "a pasta filata cheese ... being free of a preserving liquid" and "wherein the pasta filata cheese has a moisture of 62%," as recited in the claim. Appeal Br. 3- 4; Reply Br. 2. In particular, Appellant argues that"[ e ]ven when it is considered together with the other prior art references, Dahlstrom does not suggest packaging a very wet and juicy pasta filata cheese, especially one with a moisture content of 62%, without preserving liquid." Appeal Br. 8. Appellant further argues that the moisture content range Dahlstrom discloses of from about 20% to about 90% is "so broad" that it would not 4 Appeal2018-000076 Application 12/136,588 have been helpful to one of ordinary skill because "it covers the moisture contents of essentially all known cheeses." Appeal Br. 5. Appellant also argues that Dahlstrom teaches that the moisture content should be centered around the moisture contents provided in Dahlstrom's Examples I (48.61 %), II (47.22%), and III (44.38%) (Appeal Br. 5) and preferably should not be more than 60% (id. at 5) ( citing Dahlstrom, claim 127 of Reexamination Certificate). Additionally, Appellant argues that, although Mauk discloses and refers to the dry packaging of pasta filata cheese without preserving liquid as being "conventional" (see Mauk, 1 :33-34, 1 :64---66), Mauk's teachings are "no more than cumulative to the background art" and the reference does not disclose or suggest a "pasta filata cheese (the very wet and juicy type) without the known preserving liquid." Id. at 9. We do not find Appellant's arguments persuasive of reversible error in the Examiner's rejection. On the record before us, we find that a preponderance of the evidence and sound technical reasoning support the Examiner's analysis and determination that the combination of cited references suggests all of the limitations of claim 15, and the Examiner's conclusion that the combination would have rendered the claim obvious. Ans. 2-15. In particular, based on the Examiner's fact-finding and reasoning provided at pages 8-15 and 18-28 of the Answer and pages 8-13 of the Non-Final Office Action, we concur with the Examiner's analysis and determination that the combination of Dahlstrom and Mauk teaches or suggests the "pasta filata cheese ... being free of a preserving liquid" and "wherein the pasta filata cheese has a moisture of 62%" recitations of the 5 Appeal2018-000076 Application 12/136,588 claim, and that the references' disclosures would have rendered each of these claim elements obvious. Dahlstrom, Title, 1:4--7, 2:52-53, 3:9, 3:12- 15, 3:37-38, 4:2, 4:33-35, 4:38-39, 6:39-41,7:6, 7:44, 8:38-39, 9:29-30, 9:32-33; Mauk, 1:11, 1:33-34, 1:64--66, 5:11-12, 6:13-15, 6:18-19. As the Examiner finds (Ans. 8-10, 18-20), Dahlstrom discloses a pasta filata cheese having a final moisture content of about 20% to about 90%, which encompasses the claimed moisture content of 62%. Dahlstrom, Title, 1:4--7, 2:52-53, 5:1-2, 8:38-39, 9:29-31. As the Examiner concludes (Ans. 20), based on Dahlstrom's disclosure, it would have been obvious to one of ordinary skill to have arrived at the claimed moisture content of 62% through routine experimentation. See also In re Petersen, 315 F.3d 1325, 1329 (Fed. Cir. 2003); In re Aller, 220 F.2d 454, 456 (CCPA 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"). Appellant's argument regarding the moisture content disclosed in Dahlstrom being too broad (Appeal Br. 5) is not persuasive of reversible error because this is not the type of case where the prior art's disclosed range is so broad as to encompass a very large number of possible distinct compositions analogous to the obviousness of a species when the prior art broadly discloses a genus. See, e.g., In re Baird, 16 F.3d 380, 383 (Fed. Cir. 1994). Rather, as the Examiner finds here (Ans. 8-10, 22-24), the prior art discloses only a single type of composition-pasta filata cheese----over the specified range of moisture content. Moreover, as the Examiner correctly points out (Ans. 23), Appellant has not proffered or directed us to any objective evidence in the record to 6 Appeal2018-000076 Application 12/136,588 suggest the criticality of the claimed moisture content or that a pasta filata cheese having the claimed moisture content achieves unexpected results relative to the prior art. Peterson, 315 F.3d at 1330 (explaining that "the existence of overlapping or encompassing ranges shifts the burden to the applicant to show that his invention would not have been obvious"). Appellant's argument that Dahlstrom teaches that the moisture content should be centered around the moisture contents provided in Dahlstrom's examples (Appeal Br. 5) is not persuasive because, as the Examiner points out (Ans. 22), disclosure of examples having a specific or preferred range for the moisture content, without more, does not constitute a teaching away from the broader range Dahlstrom discloses. In re Susi, 440 F .2d 442, 445- 46 ( CCP A 1971) ( disclosure of particularly preferred embodiments does not teach away from broader disclosure). Appellant's argument that Dahlstrom's claim 127 of the Reexamination Certificate teaches that the cheese moisture content preferably should not be more than 60% (Appeal Br. 5) is not persuasive because it misconstrues claim 12 7. Claim 12 7 of the Reexamination Certificate recites: 127. The process of claim 126 wherein the cheese has a final moisture content in the range of about 30 to 60 weight percent. Thus, contrary to what Appellant's argument suggests, the claim does not teach that the cheese moisture content should not be more than 60%. As the Examiner further finds (Ans. 8, 12-13, 24--25), Dahlstrom discloses that the finished cheese product is directly extruded into packaging while hot (Dahlstrom, 6:39-41) and the process neither requires nor suggests adding a preserving liquid before or after the packaging the cheese (id. at 7 Appeal2018-000076 Application 12/136,588 3:9, 3: 12-15, 3:37-38, 6:29-42). As the Examiner also finds (Ans. 13-14), Mauk discloses a "conventional procedure" for preparing a pasta filata cheese that includes the step of dry packaging the cheese without a preserving liquid. Mauk, 1:11, 1:33-34 (disclosing a "conventional procedure for preparing pasta filata cheese"), 1 :64---66, ( disclosing that the cheese is "dried in air and packaged for shipment"). Appellant's assertions that "Mauk refers to two different packaging processes" and is "no more than cumulative to the background art" (Appeal Br. 9) are conclusory and do not reveal reversible error in the Examiner's factual findings and conclusions in this regard. Attorney argument is not evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Appellant's repeated assertions that the prior art does not disclose or suggest packaging a "very wet and juicy type" of pasta filata cheese (Appeal Br. 3, 4, 5, 8, 9) are not persuasive of reversible error because, as the Examiner notes (Ans. 20), there are no such limitations recited in the claims. In re Van Geuns, 988 F.2d 1181, 1184--85 (Fed. Cir. 1993). Accordingly, we affirm the Examiner's rejection of claims 15-17 and 26-29 under 35 U.S.C. Â§ 103 as obvious over the combination of Kemper, Fux, Sinichko, Duffield, Reuman, Dahlstrom, Silver, and Mauk, as evidenced by Dunker. DECISION/ORDER The Examiner's rejections of claims 15-17 and 26-29 are affirmed. It is ordered that the Examiner's decision is affirmed. 8 Appeal2018-000076 Application 12/136,588 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 9