Ex Parte Ruijter

Patent Trials and Appeals BoardJan 4, 2019

14396649 - (D) (P.T.A.B. Jan. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/396,649 10/23/2014 23117 7590 01/08/2019 NIXON & V ANDERHYE, PC 901 NORTH GLEBE ROAD, 11 TH FLOOR ARLINGTON, VA 22203 FIRST NAMED INVENTOR Hendrik Ruijter 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. BHD-4662-2937 4823 EXAMINER GEORGE,PATRICIAANN ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 01/08/2019 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): PTOMAIL@nixonvan.com pair_nixon@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HENDRIK RUIJTER Appeal2018-001816 Application 14/396,649 Technology Center 1700 Before TERRY J. OWENS, CHRISTOPHER C. KENNEDY, and LILAN REN, Administrative Patent Judges. Opinion for the Board by OWENS, Administrative Patent Judge. Opinion Dissenting filed by REN, Administrative Patent Judge. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellant (DSM IP Assets B.V.) appeals under 35 U.S.C. Â§ 134(a) from the Examiner's rejection of claims 1-5. We have jurisdiction under 35 U.S.C. Â§ 6(b). The Invention The claims are to a process for producing a vitamin-containing product. Claim 1 is illustrative: 1. A process for production of a pasteurized vitamin- containing product, wherein the process comprises the steps of: (A) providing an aqueous vitamin-containing formulation comprised of: Appeal 2018-001816 Application 14/396,649 (i) at least 20 g/1 of vitamin C, and (ii) at least 10 g/1 of at least one further water-soluble vitamin, and (iii) water, (B) sterilizing the aqueous vitamin-containing formulation by passing the aqueous vitamin-containing formulation of step (A) through a filter with a pore size of 2: 0.22 Âµm to obtain a sterilized aqueous vitamin-containing formulation having particles smaller than 0.22 Âµm, and (C) adding the sterilized aqueous vitamin-containing formulation obtained according to step (B) to a non-vitamin- containing pasteurized product to obtain a pasteurized vitamin- containing product. [ 1 J Steven2 The References WO 2009/092628 Al July 30, 2009 Robert F. Cathcart, III, Vitamin C, Titrating to Bowel Tolerance, Anascorbemia, and Acute Induced Scurvy, 7 Med. Hypotheses 1359--76 (1981 ), http://vitamincfoundation.org/www.orthomed.com/titrate.htm. L.H. Leung, Pantothenic Acid Deficiency as the Pathogenesis of Acne Vulgaris, 44 Med. Hypotheses 490-92 (1995). A. Hofer, Vitamin B-3: Niacin and It's [sic] Amide, DoctorYourself.com, http/web.archive.org/web/20001206134200/http://doctoryourself.com/hoffer _niacin.html 1-12 (Dec. 6, 2000). James H. Lake & David Spiegel, Complementary and Alternative Treatments in Mental Health Care, Am. Psych. Pub. 138--41 (Apr. 2, 2007) (hereinafter Lake). 1 In this claim and throughout the Appellant's Specification, "2: 0.22 Âµm" should be ":S O .22 Âµm". 2 Although WO 2009/092628 Al is in English, the Examiner cites to US 2011/0020497 Al (published Jan. 27, 2011) which is based on the same PCT application (PCT/EP2009/05015I) as WO 2009/092628 Al (Ans. 2). For consistency, we likewise do so. 2 Appeal 2018-001816 Application 14/396,649 The Rejection Claims 1-5 stand rejected under 35 U.S.C. Â§ 103(a) over Steven in view of Cathcart, Hoffer, Leung, and Lake. OPINION We reverse the rejection. We need address only the sole independent claim, i.e., claim 1. That claim requires adding sterilized aqueous vitamin- containing formulation to a non-vitamin-containing pasteurized product to obtain a pasteurized vitamin-containing product. To meet that claim requirement the Examiner relies upon Steven (Ans. 6-7). Steven removes undesirable microorganisms such as bacteria from vitamin-containing infant formula (contained in chamber 12) by passing it through an antimicrobial filter (1) having pores as small as 0.2 Âµm, mixes the filtered infant formula with pro biotic microorganisms ( contained in chamber 6), and flows the mixture into a baby bottle (2) (i1i126, 28, 55, 87, 96, 100, 103, 108; Figs. 1, 2B). The Examiner finds that "pasteurization kills some microbes where sterilization kills all microbes, therefore a sterilized product encompasses a pasteurized product" (Ans. 7), "[i]t would be a matter of common sense to pasteurize/sterilize baby bottles" (Ans. 6), and Steven's baby bottle, after being sterilized, would correspond to the Appellant's non-vitamin- containing pasteurized product such that flowing Steven's filtered infant formula into the sterilized baby bottle would correspond to the Appellant's step of adding sterilized aqueous vitamin-containing formulation to a non-vitamin-containing pasteurized product to obtain a pasteurized vitamin- containing product (Ans. 7-8). 3 Appeal 2018-001816 Application 14/396,649 Pasteurization is "[t]he application of heat to matter for a specified time to destroy harmful microorganisms or other undesirable species," 3 whereas sterilization is "[ a ]n act or process of destroying all forms of microbial life on and in an object."4 The Examiner does not establish that one of ordinary skill in the art would have considered a sterilized baby bottle to be pasteurized. Nor does the Examiner establish that the broadest reasonable interpretation of the Appellant's claim term "non-vitamin- containing pasteurized product" consistent with the Specification encompasses a sterilized baby bottle. 5 The Appellant does not define "non-vitamin-containing pasteurized product," but exemplifies it as "drinks (such as fruit juices), dairy products (such as yogurts, milk drinks)" (Spec. 6) and "fruit juice ( orange juice)" (Spec. 7), all of which mix with the sterilized aqueous vitamin-containing formulation and none of which bears any apparent resemblance to a baby bottle. Thus, the Examiner does not establish that flowing Steven's mixture of filtered vitamin-containing infant formula and pro biotic microorganisms into a sterilized baby bottle would correspond to or have suggested, to one of ordinary skill in the art, the Appellant's step of adding sterilized aqueous 3 McGraw-Hill Dictionary of Scientific and Technical Terms 1456 (5th ed. 1994). 4 Supra note 3, at 1920. See also, Concise Chemical and Technical Dictionary 782, 986 (Chem. Pub. Co., 1974) ("pasteurization. Partial sterilization of a liquid by subjection to elevated temperature for a specified period of time, e.g., milk at 63-65.SQC. for 30 minutes;" "sterile. Free of living organisms." 5 "' [D]uring examination proceedings, claims are given their broadest reasonable interpretation consistent with the specification."' In re Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). 4 Appeal 2018-001816 Application 14/396,649 vitamin-containing formulation to a non-vitamin-containing pasteurized product to obtain a pasteurized vitamin-containing product. Accordingly, we reverse the rejection. DECISION The rejection of claims 1-5 under 35 U.S.C. Â§ 103(a) over Steven in view of Cathcart, Hoffer, Leung, and Lake is reversed. The Examiner's decision is reversed. REVERSED 5 UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte HENDRIK RUIJTER Appeal2018-001816 Application 14/396,649 Technology Center 1700 Before TERRY J. OWENS, CHRISTOPHER C. KENNEDY, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge, dissenting. I respectfully dissent from the majority opinion reversing the Examiner's decision to reject claims 1-5 under 35 U.S.C. Â§ 102(a)(l) as rendered obvious by Steven in view of Cathcart, Hoffer, Leung, and Lake. Claim 1, a method claim, does not recite a pasteurization step but rather "a pasteurized vitamin-containing product" which is produced by "adding [a] sterilized aqueous vitamin-containing formulation" and "a non- vitamin-containing pasteurized product." The Examiner's finding that both sterilized product and pasteurized product are subject to bacterial removal and that "a sterilized product encompasses a pasteurized product" is unchallenged. Compare Ans. 7, with App. Br. 5---6. Whether the prior art explicitly contemplates "pasteurization" - which is not a recited claim term - is not the dispositive in the obviousness analysis as "the analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account Appeal 2018-001816 Application 14/396,649 of the inferences and creative steps that a person of ordinary skill in the art would employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007). In a case such as this one at bar in which the prior art teaches "to avoid the risk of contamination with bacteria" in infant formula because "the water may not be boiled prior to use in which case any pathogens in the water are fed to the infant," (Steven ,r,r 3, 5) and contemplates simultaneously administering certain heat sensitive probiotics to the infant (id. ,r,r 1, 7, 12 ), I do not find that Appellant has identified reversible error in the Examiner's finding that a pasteurized product would have been suggested to a skilled artisan. The skilled artisan is presumed to have a certain level of knowledge and skill who would have understood that neither sterilization by pasteurization nor a pasteurized infant formula is novel. "An obviousness determination is not the result of a rigid formula disassociated from the consideration of the facts of a case." Leapfrog Enterprises, Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007). The mere fact that the prior art in this case does not explicitly describe pasteurization does not show reversible error in the Examiner's determination that both sterilized product and pasteurized product are known and may be substituted. See Ans. 7-8. A claim can be obvious even where all of the claimed features are not found in specific prior art references, where there is "a showing of a suggestion or motivation to modify the teachings of [the prior art] to the claimed invention." SIEJA Neurosciences, Inc. v. Cadus Pharm. Corp., 225 F.3d 1349, 1356 (Fed. Cir. 2000). Because the Examiner has, in my opinion, sufficiently and reasonably explained the analysis supporting the obviousness rejection and because the analysis does not require "a specific hint or suggestion in a particular 2 Appeal 2018-001816 Application 14/396,649 reference," (see Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009)), I respectfully dissent. 3