Ex Parte Velez Argumedo et al

Patent Trial and Appeal Board

Nov 30, 2018

14684976 (P.T.A.B. Nov. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/684,976 04/13/2015
110933 7590 11/30/2018
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
FIRST NAMED INVENTOR
Catalina Maria Velez Argumedo
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.
CQKER.4019 1649
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
11/30/2018 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 CATALINA MARIA VELEZ ARGUMEDO,
SOFIA LETICIA FERNANDEZ GOMEZ, and
BEATRIZ ELENA DE LA PENA LA VALLE
Appeal 2018-001138
Application 14/684,976
Technology Center 1700
Before ROMULO H. DELMENDO, BRIAND. RANGE, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
final decision rejecting claims 1---6 and 19-26. 3 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 In this Decision, we refer to the Specification filed April 13, 2015
("Spec."), the Final Office Action dated November 1, 2016 ("Final Act."),
Advisory Action dated January 30, 2017 ("Adv. Act."), the Appeal Brief
filed May 1, 2017 ("Appeal Br."), the Examiner's Answer dated
September 12, 2017 ("Ans."), and the Reply Brief filed November 13, 2017
("Reply Br.").
2 Appellant is the Applicant, The Quaker Oats Company, which, according
to the Appeal Brief, is the real party in interest. Appeal Br. 2.
3 Claims 7-18 were previously canceled. Appeal Br. 2.
Appeal 2018-00113 8
Application 14/684,976
The subject matter of the claims on appeal relates to an aqueous sugar
coating used as a glaze for snack food products. Spec. ,r,r 1, 6. Claim 1,
reproduced below, is illustrative of the claims on appeal.
1. An aqueous sugar coating comprising about 1 % to about
2% juice concentrate, and at least 60% added sugar, said sugar
lacking cornstarch, wherein said aqueous sugar coating
comprises at least 68°Brix and greater than about 16.5%
reducing sugars, and said aqueous sugar coating substantially
lacking solids at room temperatures.
Appeal Br. 11 (Claims App.).
REJECTIONS
The Examiner maintains the following rejections on appeal: 4
Rejection 1: Claims 1, 4, 5, and 20-25 under 35 U.S.C. § 103 as
unpatenable over Carpenter et al. (US 4,880,645, issued November 14,
1989) ("Carpenter") (Ans. 3);
Rejection 2: Claim 2 under 35 U.S.C. § 103 as patentable over
Carpenter in view of Swensen (US 5,840,356, issued November 24, 1998)
(Ans. 6);
Rejection 3: Claim 3 under 35 U.S.C. § 103 as unpatentable over
Carpenter as evidenced by Water Activity of Foods Table, Pennsylvania
State University College of Agricultural Sciences (2014),
http://extension.psu.edu/food/preservation/issues/water-activity-of-
foods/water-activity-of-foods-table ("Beuchat") 5 (Ans. 6);
4 The Examiner withdrew the rejection of claim 26 under 35 U.S.C. § 112(b)
in response to Appellant's Response to Final Office Action filed
January 3, 2017. Adv. Act. 2.
5 Although the reference lists no author, the Examiner and Appellant refer to
this reference as "Beuchat." Final Act. 6; Appeal Br. 7. The reference
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Application 14/684,976
Rejection 4: Claim 6, 19, and 26 under 35 U.S.C. § 103 as
unpatentable over Carpenter in view of Long et al. (US 2008/0317919 Al,
published December 25, 2008) ("Long") (Ans. 6).
DISCUSSION
After review of the cited evidence in light of Appellant's and the
Examiner's opposing positions, we determine that Appellant has not
identified reversible error in the Examiner's rejections except where
otherwise explained below. Accordingly, where we affirm the rejections, we
do so for reasons set forth in the Final Action, in the Examiner's Answer,
and below. We add the following.
Appellant argues the claims in the following groups: (1) claims 1, 4,
5, and 20-25 (Group I), (2) claim 2 (Group II), (3) claim 3 (Group III),
(4) claim 6 (Group IV), and (5) claims 19 and 26 (Group V). See Appeal
Br. 6-9. We address Appellant's arguments regarding each group of
claims in tum.
Group I- Claims 1, 4, 5, and 20-25
The Examiner finds that Carpenter discloses a coating for a ready-to-
eat cereal that includes a sweetening syrup having from 9% to 85% by
weight reducing sugars and a pectin solution. Final Act. 3 ( citing Carpenter,
Abstract). The Examiner finds that Carpenter's Example I discloses an
aqueous sugar coating for com flakes that includes mixed fruit juice
concentration as a sweetening syrup, water, and pectin. Final Act. 3 ( citing
indicates that its source is "Water Activity of Some Foods and Susceptibility
to Spoilage by Microorganisms Adapted from Beuchat (1981)." To avoid
confusion in this Decision, we will also refer to this reference as Beuchat.
3
Appeal 2018-00113 8
Application 14/684,976
Carpenter 4: 15--40 (Example I)). The Examiner also finds that Carpenter
discloses that the sweetening syrup may be selected from the group
comprising fruit juice, honey, com syrup, brown sugar, invert sugar, and
combinations thereof, and may have levels of reducing sugars from 9% to
85% by weight. Id. 3--4 ( citing Carpenter 3: 4--9).
The Examiner acknowledges that Carpenter fails to specifically
disclose that the aqueous sugar coating comprises about 1 to about 2% juice
concentrate and at least 60% added sugar. Final Act. 4. However, because
Carpenter teaches that the sweetener syrup can be a combination of juice
concentrate and sugars, such as com syrup, brown sugar, and invert sugar,
the Examiner determines that it would have been obvious to one of ordinary
skill in the art to use a combination of about 1 % to about 2% juice
concentrate and at least 60% of added sugar. Id.
The Examiner also acknowledges that Carpenter fails to disclose that
the aqueous sugar coating substantially lacks solids at room temperature. Id.
The Examiner finds, however, that Carpenter teaches that the viscosity of the
coating should be low enough to spray the coating onto the intended food
product. Id. at 4--5. The Examiner also finds that Carpenter teaches pre-
heating its coating mixture to a temperature ranging from 165°F to 185°F,
which is above the temperature range of about 135°F to about 145°F
disclosed in Appellant's Specification for dissolving the sugar component
and keeping it in solution at room temperature. Compare Carpenter 2: 14--
15, and 3:42--45, with Spec. ,r,r 13, 21, 23. The Examiner determines that it
would have been obvious to heat Carpenter's coating mixture to a
temperature ranging from 165°F to 185°F to ensure any solids remain
properly dissolved at room temperature "so that the coating can be easily
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Appeal 2018-00113 8
Application 14/684,976
sprayed onto the intended food product and so it can remain a stable liquid."
Final Act. 5.
Appellant argues that the Examiner "offers no support for the
proposition that Carpenter's coating 'through proper heating and mixing'
would substantially lack solids at room temperature" or "that it would
remain a stable liquid form at said room temperature." Appeal Br. 6.
Appellant's argument is not persuasive of reversible error because it
fails to address the Examiner's rejection of record. As discussed above, the
Examiner identifies factual support in Carpenter and then compares it to
Appellant's Specification for concluding that it would have been obvious to
heat Carpenter's coating solution at a temperature ranging from I65°F to
175°F to dissolve the sugar component so that the coating, like claim 1 's
coating, would substantially lack solids at room temperature and could be
easily sprayed onto the intended food product. Final Act. 4--5. Appellant
does not identify reversible error in the Examiner's findings and reasoning.
Accordingly, we sustain the rejection of claim 1 under 35 U.S.C. § 103 over
Carpenter.
Appellant does not present separate arguments for the patentability of
claims 4, 5, and 20-25. Appeal Br. 6-7. 6 Thus, we also sustain the rejection
of those claims under 35 U.S.C. § 103 over Carpenter.
6 See 37 C.F.R. § 4I .37(c)(l)(iv) ("A statement which merely points out
what a claim recites will not be considered an argument for separate
patentability of the claim."); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) (holding that "the Board reasonably interpreted Rule 41.37 to require
more substantive arguments in an appeal brief than a mere recitation of the
claim elements and a naked assertion that the corresponding elements were
not found in the prior art").
5
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Application 14/684,976
Group II - Claim 2
Claim 2 depends from claim 1 and requires that claim 1 's sugar
coating comprises "a pH of between about 1.7 and about 3.3." Appeal
Br. 11 (Claims App.).
The Examiner finds that Carpenter is silent regarding the pH of its
aqueous sugar coating. Final Act. 6. The Examiner, however, finds that
Swensen teaches a shelf stable fruit puree with a pH of about 2.3 to 3.8. Id.
(citing Swensen Abstract). The Examiner also finds that Swensen teaches
that the puree can contain fruit juice concentrate. Id.; Swensen 2: 12-17.
The Examiner determines that it would have been obvious to adjust the pH
of Carpenter's aqueous coating to be about 2.3 to 3.8 to "produce[] a stable
fruit concentrate product." Final Act. 6.
Appellant argues that Swensen's teachings regarding a puree "are not
combinable with any coating for topical application, let alone [Carpenter's]
aqueous [sugar] coating." Appeal Br. 7.
Appellant's argument is not persuasive of reversible error because it
fails to address the Examiner's rejection of record. As discussed above, the
Examiner provides a reason supported by rational underpinnings for
combining the teachings of Carpenter and Swensen. Final Act. 6; Ans. 12.
Appellant does not identify reversible error in the Examiner's findings and
reasoning. Therefore we sustain the rejection of claim 2 under 35 U.S.C. §
103 over Carpenter in view of Swensen.
Group III - Claim 3
Claim 3 depends from claim 1. Appellant relies on the same
arguments presented for claim 1 for the patentability of claim 3. Appeal
Br. 7. Because we do not find Appellant's argument regarding claim 1
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Application 14/684,976
persuasive for the reasons discussed above, we sustain the rejection of claim
3 under 35 U.S.C. § 103 over Carpenter as evidenced by Beuchat.
Group IV - Claim 6
Claim 6 depends from claim 1 and requires that claim 1 's aqueous
sugar coating consists of "water, the juice concentrate, salt, and the sugar."
Appeal Br. 11 (Claims App.).
The Examiner finds that Carpenter teaches that its coating
composition consists of water, juice concentrate, sugar (in the juice
concentrate), and pectin. Final Act. 6. The Examiner only relies on Long
for teaching an aqueous sugar coating for a cereal product that contains
salt. Id.
Appellant argues that Carpenter and Long do not teach an aqueous
sugar coating "consisting of water, the juice concentrate, salt, and the
sugar." Appeal Br. 8.
Appellant's argument is persuasive of reversible error. As
Appellant's argue, Carpenter teaches that in addition to the pectin
indigenous in the fruit juice itself, a pectin solution is a necessary or
essential component of its coating because it improves the functionality of
the coating (e.g., by reducing clumping). Carpenter Abstract, 3:25-29.
Because added pectin solution changes functionality, Carpenter also
indicates that fruit juice (with indigenous pectin) will not have the same
composition as fruit juice plus added pectin solution. Thus, a preponderance
of the evidence supports Appellant's position that the Examiner failed to
show that Carpenter teaches claim 6's aqueous sugar coating (i.e., a coating
that excludes added pectin other than pectin indigenous to the juice
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Appeal 2018-00113 8
Application 14/684,976
concentrate). Accordingly, we do not sustain the rejection of claim 6 under
35 U.S.C. § 103 over Carpenter in view of Long.
Group V- Claims 19 and 26
Claims 19 and 26 depend from claim 1. Appellant relies on the same
arguments presented for claim 1 for the patentability of claims 19 and 26.
Appeal Br. 8-9. Because we do not find Appellant's argument regarding
claim 1 persuasive for the reasons discussed above, we sustain the rejection
of claims 19 and 26 under 35 U.S.C. § 103 over Carpenter and Long.
Reply Brief
We do not consider the new arguments Appellant presents in the
Reply Brief because Appellant could have raised these arguments in the
Appeal Brief, and do not show good cause for not doing so. 37 C.F.R.
§ 4I.37(c)(l)(iv); 37 C.F.R. § 4I.41(b)(2) (arguments raised for the first
time in the Reply Brief that could have been raised in the Appeal Brief will
not be considered by the Board unless good cause is shown).
DECISION
The rejection of claims 1, 4, 5, and 20-25 under 35 U.S.C. § 103 over
Carpenter is affirmed.
The rejection of claim 2 under 35 U.S.C. § 103 over Carpenter in view
of Swensen is affirmed.
The rejection of claim 3 under 35 U.S.C. § 103 over Carpenter as
evidenced by Beuchat is affirmed.
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Application 14/684,976
The rejection of claims 6, 19, and 26 under 35 U.S.C. § 103 over
Carpenter in view of Long is affirmed as to claims 19 and 26, and reversed
as to claim 6.
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-IN-PART
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