Ex Parte Vadlamani et al

Patent Trial and Appeal Board

Mar 31, 2017

12207190 (P.T.A.B. Mar. 31, 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.
12/207,190 09/09/2008 Keswara R. Vadlamani 311.0009USU1 1265
57557 7590 04/04/2017
PAULY, DEVRIES SMITH & DEFFNER, L.L.C.
Suite 900
121 South 8th Street
MINNEAPOLIS, MN 55402-2841
EXAMINER
MCCLAIN-COLEMAN, TYNESHA L.
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
04/04/2017 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):
docketing@pdsdlaw.com
kds@pdsdlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KESWARA R. VADLAMANI,
DILLON FRIDAY, AMY BROSKA, and JARED MILLER
Appeal 2016-000644
Application 12/207,190
Technology Center 1700
Before TERRY J. OWENS, ROMULO H. DELMENDO, and
GEORGE C. BEST, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 19, 20, 23, 25, 26, 98, and 99 of
Application 12/207,190 under 35 U.S.C. § 103(a) as obvious. Non-Final
Act. (September 11, 2014). Appellants1 seek reversal of these rejections
pursuant to 35 U.S.C. § 134(a). Because at least one of the claims on appeal
has been rejected at least twice, we have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we AFFIRM.2
1 Campbell Soup Co. is identified as the real party in interest. Br. 3.
2 The ’190 Application is the parent of Application No. 13/234,409. While
we are considering this appeal, we also are considering Appeal No. 2015-
Appeal 2016-000644
Application 12/207,190
BACKGROUND
The ’190 Application describes methods and compositions for
reducing the sodium content of processed food. Spec. 11. Because
excessive sodium intake is suspected as a source of a number of health
problems, including hypertension, there is a perceived need for salt
substitutes. Many of the substitutes—which attempt to mimic the salt
perception and flavor of sodium chloride—are based upon potassium
chloride. Id. 14. Potassium chloride, however, produces a bitter aftertaste.
Id. Appellants’ Specification describes compositions containing potassium
chloride; monopotassium phosphate, monocalcium phosphate, and/or lactic
acid; and potassium citrate which mimic the pH and conductance of sodium
chloride solutions over a wide range of concentrations. Id. 1 8. Such
compositions are said to have a synergistic effect with sodium chloride that
results in the perception of a greater perceived to sodium chloride content.
Id. 17.
Claims 19 and 20 are representative of the ’190 Application’s claims
and are reproduced below from the Claims Appendix to the Brief:
19. A method for preparing a foodstuff formulated for
enhanced salt perception, the method comprising:
providing from 0.25 to 1.2 wt.% potassium chloride,
based on the total weight of said foodstuff, from 0.0075 to 0.05
wt.% of at least one of monocalcium phosphate and
monopotassium phosphate, based on the total weight of said
foodstuff, and from 0.025 to 0.4 wt.% potassium citrate, based
on the total weight of said foodstuff, and less than 0.3 wt.%
007343, which is an appeal from a non-final rejection in the ’409
Application.
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Appeal 2016-000644
Application 12/207,190
sodium chloride, based on the total weight of said foodstuff,
and
blending the potassium chloride, the at least one of
monocalcium phosphate and monopotassium phosphate, the
potassium citrate, and the sodium chloride into said foodstuff,
wherein said foodstuff is selected from the group consisting of
a soup, a beverage, a sauce, a bakery product, or a meat
product.
20. A processed foodstuff formulated for reduced sodium
content with enhanced salt perception, said foodstuff
comprising:
(a) potassium chloride in an amount from 0.25 to 1.2
wt.%;
(b) monophosphate salt in an amount from 0.0075 to
0.05 wt.%, said monophosphate salt comprising a member
selected from the group consisting of monopotassium
phosphate and monocalcium phosphate;
(c) a potassium agent in an amount from 0.025 to 0.4
wt.%, said potassium agent comprising potassium citrate;
and
(d) sodium chloride in an amount of less than 0.3
wt.% sodium chloride;
wherein said foodstuff is selected from the group
consisting of a soup, a beverage, a sauce, a bakery product, or a
meat product.
Br. 14 (Claims App.).
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Appeal 2016-000644
Application 12/207,190
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 19, 20, 23, 25, and 26 are rejected under 35 U.S.C. § 103(a)
as unpatentable over the combination of Kohutiak3 and Jendrysik.4
Non-Final Act. 4.
2. Claims 98 and the 99 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Kohutiak, Jendrysik,
Krustyklimber,5 and Edmonds.6 Non-Final Act. 5.
DISCUSSION
Rejection 1. The Examiner rejected claims 19, 20, 23, 25, and 26 as
unpatentable over the combination of Kohutiak and Jendrysik. Non-Final
Act. 4.
Appellants argue that this rejection should be reversed because (1) the
Examiner erred in finding that Kohutiak describes a reduced sodium
processed foodstuff that includes less than 0.3 weight % sodium chloride,
Br. 7; (2) modifying Kohutiak or Jendrysik to include less than 0.3 weight
percent sodium chloride would render Kohutiak inoperable for its intended
purpose, id. at 7—8; and (3) the Examiner’s proposed combination would
render Jendrysik inoperable, id. at 8—10.
3 US 2006/0172016 Al, published August 3, 2006.
4 US 2007/0003670 Al, published January 4, 2007.
5 The New Huntmastersbbs, Jerky Marinade, Member Forum,
http://www.huntmasterbbs.com (Aug. 11, 2005) (“Krustyklimber”).
6 Teshawn Edmonds, What is something good to marinate sirloin steaks
in??, http://answers.yahoo.com/question/index?qid=20070622063644
AAQKr8a (2006) (“Edmonds”).
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Appeal 2016-000644
Application 12/207,190
For the reasons set forth below, we do not find Appellants’ arguments
to be persuasive.
First, Appellants argue that the Examiner erred by finding that
Kohutiak describes a sport drink that includes less than 0.3 weight % sodium
chloride. In particular, the Examiner found that Kohutiak teaches the use of
sodium chloride in an amount of zero—5% by weight of the foodstuff, which
overlaps the range of less than 0.3% of signed by weight claimed by the
Appellants. See Non-Final Act. 4 (citing Kohutiak || 34, 40, 68). Pointing
tot 40, Appellants argue that Kohutiak actually teaches the use of between
1—5% of signed by weight sodium chloride. Br. 7. Paragraph 40 of
Kohutiak reads:
In the practice of this invention, ordinary table salt
(sodium chloride) is the preferred component, however other
salts such as potassium chloride, sodium citrate, potassium
citrate and mixtures thereof may be used. The preferred range
of concentration for the salt component of the invention is 1.0
to 5.0% by weight with the most preferred range being 2.5 to
3.5% by weight.
In view of Kohutiak’s teaching that some or all of the sodium chloride
may be replaced with other salts, we determine that the Examiner did not err
in finding that Kohutiak describes the use of between 0 to 5% by weight
sodium chloride.
Second, Appellants argue that modifying Kohutiak to include less than
0.3% by weight sodium chloride would render it inoperable for its intended
purpose. Br. 7—8. The Examiner agrees that using less than 1% by weight
salt would render Kohutiak inoperable for its intended purpose. Answer 7.
As discussed above, however, Kohutiak describes the use of alternatives to
sodium chloride to make up the minimum of 1% by weight salt. We,
therefore, are not persuaded that the Examiner’s proposed combination of
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Appeal 2016-000644
Application 12/207,190
Kohutiak and Jendrysik would be unsuitable as a sports drink comprising
1% to 5% by weight salt.
Third, Appellants argue that modifying Jendrysik as described by the
Examiner would render it inoperable. Br. 8—10. We are not persuaded by
this argument because the Examiner relied upon Jendrysik for its description
of the amount of monopotassium phosphate present in the claimed beverage.
Because the Examiner relied upon Jendrysik as a secondary reference and
not as the primary reference, the question of whether the Examiner’s
proposed modification would render Jendrysik inoperable is not relevant.
See MPEP§§ 2143.01, 2145.
In view of the foregoing, we affirm the Examiner’s rejection of claims
19, 20, 23,25, and 26.
Rejection 2. The Examiner rejected claims 98 and 99 as unpatentable
over the combination of Kohutiak, Jendrysik, Krustyklimber, and Edmonds.
Non-Final Act. 5.
Appellants argue that the rejection should be reversed because the
Examiner erred as a matter of law by relying on In re Levin, 178 F.2d 945,
84 USPQ 232 (CCPA 1949). Br. 10-12. In particular, Appellants argue that
the Examiner’s reliance on Levin is misplaced because it predates the 1952
Patent Act and is inconsistent with the subsequent Supreme Court decisions
in Graham v. John Deere Co., 383 U.S. 1 (1966), and KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398 (2007).
We have reviewed the Examiner’s stated reasons for the rejection of
claims 98 and 99. See Non-Final Act. 2—10. The Examiner’s analysis meets
the requirements set forth by the Supreme Court in Graham and KSR. Thus,
the Examiner’s gratuitous citation of Levin does not amount to reversible
error.
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Appeal 2016-000644
Application 12/207,190
In view of the foregoing, we affirm the Examiner’s rejection of claims
98 and 99.
CONCLUSION
For the reasons set forth above, we affirm the rejection of claims 19,
20, 23, 25, 26, 98, and 99 of the ’190 Application.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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