Ex Parte Vadlamani et alDownload PDFPatent Trial and Appeal BoardMar 31, 201712207190 (P.T.A.B. Mar. 31, 2017) 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. 12/207,190 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. 2 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.). 3 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”). 4 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 5 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. 6 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 7 Copy with citationCopy as parenthetical citation