Ex Parte Uhrhan et al

Patent Trial and Appeal BoardOct 26, 2017

13736311 (P.T.A.B. Oct. 26, 2017)

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. 13/736,311 01/08/2013 Richard B. Uhrhan 8693-US-DIV 1322 69099 7590 10/30/2017 Nestle Purina Petcare Global Resources, Inc Checkerboard Square Intellectual Property Patents ST. LOUIS, MO 63164 EXAMINER STULII, VERA ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 10/30/2017 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): purinapatentmail@purina.nestle.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RICHARD B. UHRHAN and DAVID W. KUEHNLE Appeal 2016-002541 Application 13/736,3111 Technology Center 1700 Before JEFFREY T. SMITH, MONTE T. SQUIRE, and AVELYN M. ROSS, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from the final rejection of claims 1, 4—17, and 19-24. An oral hearing was held on September 28, 2017.2 We have jurisdiction under 35 U.S.C. § 6. Appellants’ invention relates generally to food compositions having a meat-like appearance, feel, and texture and to methods of making such food 1 According to Appellants, the real party in interest is Nestec S.A. See App. Br. 2. 2 A written transcript of the oral hearing will be entered into the record when the transcript is made available. Appeal 2016-002541 Application 13/736,311 compositions. (Spec. 2). Claims 1 and 16 are illustrative of the subject matter on appeal: 1. A method of making a food composition comprising: (1) mixing one or more functional proteins and one or more cross-linking agents to produce a base mix; (2) mixing one or more humectant plasticizers and one or more meats to form a meat slurry; (3) forming a preconditioned mix by mixing the base mix and the meat slurry in a mixture comprising from about 70 to about 90% base mix and from about 30 to about 10% meat slurry and heating the mixture to a temperature from about 160 to about 245° F; (4) after the preconditioned mix is formed, feeding the preconditioned mix into an extruder in which the preconditioned mix is heated to a temperature from 310 to 380 °F under a pressure from about 400 to about 1000 psi to form a heated composition; (5) expanding the heated composition to form an expanded food composition having a striated or fibrous meat-like appearance, feel and texture; and (6) reducing the moisture of the expanded food composition to form the food composition. 16. A composition having a striated or fibrous meat-like appearance, feel and texture and made according to the method of claim 1 comprising from about 40 to about 90% of the functional proteins, from about 0.05 to about 2% of the one or more cross-linking agents, and the meat slurry, wherein the meat slurry comprises the one or more meats and the one or more humectant plasticizers in a meat:humectant plasticizer ratio of from about 20:80 to about 80:20. Claims Appendix to App. Br. 2 Appeal 2016-002541 Application 13/736,311 Appellants (see App. Br., generally) request review of the following rejections under 35 U.S.C. § 103(a): I. Claims 1, 4—11, 13—17, and 19-24 rejected as unpatentable over the combined teachings of Miller et al (US 3,908,025, issued Sept. 23. 1975) (“Miller”) in view of Wilding (US 4,044,157, issued Aug. 23, 1977) and Merrick (US 2006/0105098 Al, published May 18, 2006). II. Claim 12 rejected as unpatentable over the combined teachings of Miller, Wilding, Merrick, and Huetter et al (US 2007/0009647Al, published Jan. 11, 2007) (“Huetter”). The complete statement of the rejections on appeal appear in the Final Office Action. (Final Act. 2—9). OPINION3 After consideration of Appellants’ arguments and evidence and the Examiner’s position in the Final Office Action and Answer we REVERSE the obviousness determinations. Upon consideration of the evidence in this appeal record in light of the respective positions advanced by the Examiner and Appellants, we determine that Appellants have identified reversible error in the Examiner’s determination that the subject matter recited in claims 1, 4—17, and 19—24 would have been obvious to one of ordinary skill in the art within the meaning of 35 U.S.C. § 103(a). Accordingly, we reverse Rejections I and II. 3 Our discussion applies to independent claims 1,16, and 23. 3 Appeal 2016-002541 Application 13/736,311 The Examiner found the process of Miller and Wilding differ from the claimed invention by failing to disclose the inclusion of cross-linking agents. (Final Act. 5). The Examiner found the process of Merrick discloses the suitability of utilizing cross-linking agents. (Id.) According to the Examiner, since Miller, Wilding, and Merrick are all directed to the preparation of proteinaceous food compositions suitable for animal consumption it would have been obvious to a person of ordinary skill in the art to combine the teachings and components from the cited references. (Final Act. 3—6). Appellants argue Miller and Wilding emphasize the criticality of expansion, and neither of these references teaches any alternative processes in which water is not flashed off and the product is not expanded (App. Br. 7—8; Miller, col. 1,11. 61—63; Wilding, col. 2,11. 1—13). Appellants argue Merrick teaches away from using the ingredients disclosed therein in a process that results in expansion after extrusion. (App. Br. 7; Merrick 17). Appellants argue Merrick is directed to a non-expanded product produced by extrusion in which vapor-flashing is substantially inhibited. As such, Appellants argue Merrick teaches away from the claimed invention. (App. Br. 8; Merrick || 12—14). Appellants further argue the skilled artisan would not have modified the method disclosed by Miller, which involves ingredients that include denatured proteins as nutrients, to use the ingredients disclosed by Merrick that include undenatured proteins for their texturizing functionality. (App. Br. 8). Appellants also rely the affidavit of Jagat Persaud4 in further support of their arguments. 4 Affidavit signed November 4, 2014. 4 Appeal 2016-002541 Application 13/736,311 In response to the arguments and Affidavit, the Examiner asserts the Affidavit and Appellants’ arguments are directed to the references individually. (Ans. 10—14). The Examiner asserts Appellants’arguments regarding denatured proteins versus undenatured proteins are features not recited in the rejected claims. (Ans. 15). The Examiner repeats the position stated in the rejection that the rejections are proper [sjince all three references disclose preparation of a proteinaceous food composition suitable for animal consumption, one of ordinary skill in the art would have been motivated to modify the combination of Miller et al and Wilding in view of Merrick, and to prepare the food composition employing ingredients as taught by Merrick. (Ans. 14). The Examiner has not adequately addressed Appellants’ arguments. In this case, the Examiner’s dismissive response that the references have been addressed individually does not provide a technical reason explaining the underlying chemistry of denatured proteins versus undenatured proteins, in the formation of proteinaceous food compositions, are sufficiently similar that a person of ordinary skill in the art would have expected the materials and components utilized would have been interchangeable. The Examiner has failed to direct us to evidence that a person of ordinary skill in the art would have reasonably expected the teachings from Miller, Wilding, and Merrick could have been combined. Thus, the Examiner has not established that the relied-upon disclosures of Miller, Wilding, and Merrick are sufficient to support obviousness of independent claims 1,16, and 23. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“A rejection based on section 103 clearly 5 Appeal 2016-002541 Application 13/736,311 must rest on a factual basis, and these facts must be interpreted without hindsight reconstruction of the invention from the prior art”). Accordingly, we reverse the rejection. Accordingly, we reverse the Examiner’s decision to reject claims 1, 4—17, and 19-24 for the reasons presented by Appellants and given above. ORDER The rejections of claims 1, 4—17, and 19-24 under 35 U.S.C. § 103(a) are reversed. REVERSED 6