Ex Parte Velez Argumedo et alDownload PDFPatent Trial and Appeal BoardNov 30, 201814684976 (P.T.A.B. Nov. 30, 2018) Copy Citation 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 2 Appeal 2018-00113 8 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 4 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 Appeal 2018-00113 8 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 6 Appeal 2018-00113 8 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 7 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. 8 Appeal 2018-00113 8 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 9 Copy with citationCopy as parenthetical citation