Ex Parte Rivera et al

Patent Trial and Appeal Board

Jun 18, 2014

12755513 (P.T.A.B. Jun. 18, 2014)

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.
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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
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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
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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.
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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
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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.
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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.
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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

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