Ex Parte Rivera et alDownload PDFPatent Trial and Appeal BoardJun 18, 201412755513 (P.T.A.B. Jun. 18, 2014) 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. 12/755,513 04/07/2010 Teodoro Rivera 006943.03213 8768 66811 7590 06/18/2014 BANNER & WITCOFF, LTD. and ATTORNEYS FOR CLIENT NO. 006943 10 SOUTH WACKER DR. SUITE 3000 CHICAGO, IL 60606 EXAMINER MOORE, WALTER A ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 06/18/2014 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 TEODORO RIVERA, NICHOLAS SHIELDS and JASON DOUGLASS-MICKEY ____________ Appeal 2013-0049111 Application 12/755,513 Technology Center 1700 ____________ Before CHARLES F. WARREN, JEFFREY T. SMITH, and MARK NAGUMO, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL 1 See related appeal 2012-012071 in application 11/961,689, the parent of this application, decided concurrently. Appeal 2013-004911 Application 12/755,513 2 STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from a final rejection of claims 23 through 29, 31 through 34, and 37 through 43. We have jurisdiction under 35 U.S.C. § 6. Appellants’ invention is directed to methods of making calcium- fortified orange juice beverages. App. Br. 7-8. Claim 23 illustrates the subject matter on appeal and is reproduced below: 23. A method of making a juice beverage having a bioavailable source of calcium comprising: combining orange juice, an orange citrus flavor topnote, and a calcium source comprising calcium lactate and hydroxyapatite, wherein the juice beverage provides no less than 100 mg calcium per 240 ml serving, wherein the calcium source comprises about 40% to about 65% calcium lactate and about 35% to about 60% hydroxyapatite, and wherein the orange citrus flavor topnote is present in the juice beverage in an amount of from 0.001 wt. % to 0.004 wt. %. The Examiner relied on the following references in rejecting the appealed subject matter: Japikse US 4,693,905 Sep. 15, 1987 Rohr US 4,766,002 Aug. 23, 1988 Kalala US 4,871,554 Oct. 3, 1989 Fulger US 5,601,865 Feb. 11, 1997 Klesges US 5,942,255 Aug. 24, 1999 Ishaq US 6,780,841 B2 Aug. 24, 2004 Appeal 2013-004911 Application 12/755,513 3 Myers US 2005/0013903 A1 Jan. 20, 2005 Stephen US 2006/0141127 Al Jun. 29, 2006 Philip E. Shaw et al., Classification of Commercial Orange Juice Types by Pattern Recognition Involving Volatile Constituents Quantified by Gas Chromatography, J. AGRIC. FOOD CHEM. 41, 809-813 (1993) Appellants (App. Br. 9-10) request review of the following rejections from the Examiner’s final office action: I. Claims 23, 24, 31-33, 37, 38 and 40-43 rejected under 35 U.S.C. § 103(a) as unpatentable over Kalala, Myers and Rohr. II. Claims 24-29, 37 and 38 rejected under 35 U.S.C. § 103(a) as unpatentable over Kalala, Myers, Rohr and Klesges. III. Claims 37, 39 and 41 rejected under 35 U.S.C. § 103(a) as unpatentable over Kalala, Myers, Rohr and Ishaq. IV. Claims 23, 24, 31-34, 37, 38 and 40-43 rejected under 35 U.S.C. § 103(a) as unpatentable over Kalala, Myers, Japikse, Fulger and Shaw. V. Claims 24-29, 37 and 38 rejected under 35 U.S.C. § 103(a) as unpatentable over Kalala, Myers, Japikse, Fulger, Shaw and Klesges. VI. Claims 37, 39 and 41 rejected under 35 U.S.C. § 103(a) as unpatentable over Kalala, Myers, Japikse, Fulger, Shaw, and Ishaq. VII. Claims 23, 24, 29, 31-33, 37, 38 and 40-43 rejected under 35 U.S.C. § 103(a) as unpatentable over Stephen, Rohr, Kalala and Myers. VIII. Claims 24-29, 37, 38 and 41 rejected under 35 U.S.C. § 103(a) as unpatentable over Stephen, Rohr, Kalala, Myers and Klesges. IX. Claims 37, 39 and 41 rejected under 35 U.S.C. § 103(a) as unpatentable over Stephen, Rohr, Kalala, Myers and Ishaq. OPINION Rejections under 35 U.S.C. § 103(a) based on Kalala The dispositive issue for these rejections on appeal is: Did the Examiner err in determining that the combined teachings of Kalala, Myers Appeal 2013-004911 Application 12/755,513 4 with either Rohr or with Japikse, Fulger and Shaw would have led one skilled in the art to a method of making calcium-fortified orange juice beverage that combines a calcium source and 0.001% to 0.004% by weight of an orange citrus flavor topnote as required by the subject matter of independent claims 23, 40, 41 and 43?2 After review of the respective positions provided by Appellants and the Examiner, we AFFIRM the prior art rejections for the reasons presented by the Examiner and add the following. The Examiner found that Kalala discloses a method of making an orange beverage having a calcium source comprising a calcium lactate and a tribasic calcium phosphate (TCP) at concentration levels that overlap the claimed concentration ranges. Ans. 12; Kalala Table I, col. 1, ll. 6-7, col. 4, ll. 21, 37-41, col. 5, ll. 10-11, 28-44. The Examiner found that Kalala does not disclose the use of hydroxyapatite as the tribasic calcium phosphate or of an orange citrus flavored topnote. Ans. 12-13. The Examiner found that Myers discloses the use of hydroxyapatite in calcium fortified beverages as cost effective and more efficient alternative to known calcium supplements. Ans. 12; Myers ¶¶ [0010], [0027], [0030]. The Examiner also found that Rohr (Rejection I) and, alternatively, the combined teachings of Japikse, Fulger and Shaw (Rejection IV) disclose the use of an orange citrus topnote at a concentration range that encompasses the claimed range to improve the organoleptic properties of foodstuff, including beverages. Ans. 5, 13; Rohr col. 1, l. 32, col. 2, ll. 30-37, col. 3, l. 2, 16-19, 41-46, col. 6, l. 47; Japikse col. 3, ll. 10-14. The Examiner found that it would have been obvious to one 2 We limit our discussion to independent claim 23. Claims argued separately will be addressed separately. Appeal 2013-004911 Application 12/755,513 5 skilled in the art to substitute the calcium supplement in Kalala’s method with Myers’ hydroxyapatite calcium supplement in view of Myer’s disclosure that hydroxyapatite is a less expensive source for calcium and more efficient calcium supplement. Ans. 12-13. The Examiner also found that it would have been obvious to one skilled in the art to incorporate the step of using an orange flavor topnote in Kalala’s method to improve the organoleptic properties of the beverage as disclosed by Rohr, Japikse, Fulger and Shaw. Id. at 5, 13. Appellants argue that the cited art does not disclose a method of making a calcium-fortified orange juice beverage that combines a calcium source and 0.001 % to 0.004% by weight of an orange citrus flavor topnote. App. Br. 11-12, 18. We are unpersuaded by Appellants’ arguments and agree with the Examiner’s determination of obviousness. As noted by the Examiner, Kalala is directed to an orange beverage combining a calcium lactate and a tribasic calcium phosphate (TCP) as the calcium source. Ans. 12; Kalala col. 4, ll. 36-48. The Examiner relied on Rohr and the combined teachings of Japikse, Fulger and Shaw to teach addition of an orange flavor topnote to beverages to improve, enhance or modify the flavor of the beverage. Ans. 13; Rohr col 2, ll. 22-33. col. 3, ll. 8-23; col. 6, ll. 50-64; Japikse col. 1, ll. 46-49. Appellants have not adequately explained why one skilled in the art would not have modified Kalala’s calcium fortified beverage by adding a topnote according to the teachings of Rohr, Japikse, Fulger and Shaw. Appellants have not explained why the orange flavor topnote of Rohr, Japikse, Fulger and Shaw would have been expected by one skilled in the art to be unsuitable for use in Kalala’s calcium fortified beverage. The weight Appeal 2013-004911 Application 12/755,513 6 of the evidence is that a person of ordinary skill in the art would have expected reasonably that such an orange flavor topnote would have been suitable to enhance the flavor of Kalala’s calcium fortified orange juice so that the flavor would be more reminiscent of the natural orange juice. Rohr col. 3, ll. 15-22; Japikse col. 1, ll. 46-49, col. 3, ll. 10-14. Appellants additionally argue that Japikse does not disclose acetaldehyde is an orange citrus flavor topnote. Id. at 12. Appellants further argue that Fulger and Shaw do not disclose Japikse’s topnote (acetaldehyde) as an orange citrus flavor topnote. Id. at 13. We are also unpersuaded by these argument. We first note that Japikse recognizes acetaldehyde as an organic compound responsible for fresh Valencia orange juice flavor. Japiske col. 1, ll. 46-49. As noted by the Examiner, the prior art, as represented by Fulger and Shaw, also recognizes acetaldehyde as a topnote that provides foods and beverages with fresh flavors. Fulger col. 1, ll. 22-25; Shaw 812. Given these disclosures, Appellants have not adequately explained why one skilled in the art would not have understood acetaldehyde to be an orange citrus topnote. With respect to dependent claim 43, Appellants argue that Kalala does not teach attenuating the bitter or metallic aftertaste contributed by combining calcium lactate and hydroxyapatite as claimed. App. Br. 15-16. We are unpersuaded by this argument and agree with the Examiner’s determination of obviousness. Moreover, Kalala recognizes the need to provide a calcium fortified orange juice having a pleasant fruity taste with no bitter after-taste. Kalala Abstract, col. 4, ll. 30-35; col. 5, l. 63-col. 6, l. 5. Accordingly, we affirm the Examiner’s Rejections I and IV for the reasons given above and presented by the Examiner. Appeal 2013-004911 Application 12/755,513 7 The Examiner separately rejected claims 24-29, 37-39 and 41 under 35 U.S.C. § 103(a) as unpatentable over Kalala, Myers and either Rohr or Japikse, Fulger and Shaw in view of a number of secondary references (Rejections II, III, V and VI). Ans. 9-11, 17-20. In addressing these separate rejections, Appellants’ arguments are substantially similar to the arguments presented when discussing Rejections I and IV. App. Br. 16-20. Appellants did not substantively address or further distinguish the cited secondary references based on the additional limitations of the dependent claims. Id. Accordingly, we affirm these rejections for the reasons presented by the Examiner and given above. Rejections under 35 U.S.C. § 103(a) based on Stephen With respect to the rejections of claims 23-29, 31-34 and 37-43 under 35 U.S.C. § 103(a) based on Stephen, Rohr, Kalala and Myers (Rejection VII-IX), the teachings of Stephen do not detract from the teachings of Kalala, Myers and Rohr discussed above.3 Therefore, we affirm the Examiner’s prior art rejections based on Stephen (Rejections VII-IX) for the reasons given above and presented by the Examiner. ORDER The Examiner’s prior art rejections of claims 1-6, 8-10, 15-17 and 23 under 35 U.S.C. § 103(a) are affirmed. 3 In addressing the rejections under 35 U.S.C. § 103 (a) based on Stephen as the primary reference, Appellants line of arguments is substantially similar to the arguments presented when discussing the rejection under 35 U.S.C. § 103 (a) based on Kalala (Rejection 1). App. Br. 20-22. Appeal 2013-004911 Application 12/755,513 8 TIME PERIOD 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). AFFIRMED tc Copy with citationCopy as parenthetical citation