General Mills, Inc.

Patent Trials and Appeals Board

Apr 16, 2021

2020003290 (P.T.A.B. Apr. 16, 2021)

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.
15/797,154 10/30/2017 Rob G Clements 8427US01 9025
7590 04/16/2021
General Mills, Inc.
Number One General Mills Blvd.
M04-A
Minneapolis, MN 55426
EXAMINER
LACHICA, ERICSON M
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
04/16/2021 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 ROB G. CLEMENTS, PAUL ALLEN GRUBE,
WILLIAM R. LLOYD III, JOHN THOMAS LUND,
DAVID L. PERSELLS, and TERRY W. ZIEGLER
Appeal 2020-003290
Application 15/797,154
Technology Center 1700
Before JENNIFER R. GUPTA, LILAN REN, and SHELDON M. MCGEE,
Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s final decision to reject claims 1–3, 5–14, and 26–35. We have
jurisdiction under 35 U.S.C. § 6(b).

1 In this Decision, we refer to the Specification filed October 30, 2017
(“Spec.”), the Final Office Action dated September 9, 2019 (“Final Act.”),
the Appeal Brief filed December 31, 2019 (“Appeal Br.”), the Examiner’s
Answer mailed February 3, 2020 (“Ans.”), and the Reply Brief filed March
31, 2020 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42(a). Appellant identifies the real party in interest as General
Mills, Inc. Appeal Br. 4.
Appeal 2020-003290
Application 15/797,154

2
We AFFIRM IN PART.
CLAIMED SUBJECT MATTER
The subject matter on appeal relates to a cultured dairy-based and
cultured plant-based yogurt-type product and to the packaging of such
products that highlights the mix-in ingredients, e.g., fruit, included with the
yogurt. Spec. ¶¶ 1, 4, 18.
Independent claims 1 and 31, reproduced below with emphasis to
highlight key disputed limitations, are illustrative of the claimed subject
matter:
1. A method for packaging a food product in a
container including a bottom wall and a sidewall, the method
comprising:
depositing a mix-in in a center of the bottom wall;
driving the mix-in from the center of the bottom wall to
the sidewall with a blast of gas, wherein driving the mix-in from
the center of the bottom wall to the sidewall includes causing
the mix-in to not cover a center point of the bottom wall; and
depositing a dairy or plant-based product in the container,
wherein the mix-in does not cover the center point of the bottom
wall when the dairy or plant-based product is deposited in the
container.
Appeal Br. 17 (Claims App.) (emphasis added).
31. A method for packaging a food product in a
container including a bottom wall and a sidewall, the method
comprising:
depositing a mix-in in a center of the bottom wall;
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dispersing at least a majority of the mix-in from the
center of the bottom wall to the sidewall with a blast of fluid;
and
after dispersing the mix-in, depositing a dairy or plant-
based product in the container while the mix-in remains
dispersed to the sidewall.
Id. at 19 (Claims App.) (emphasis added).
REJECTIONS
The Examiner maintains the following rejections on appeal (Final Act.
3–12; Ans. 3):
Rejection 1: Claims 1–3, 5–7, 10–14, 26–28, 31, and 34 are rejected
under 35 U.S.C. § 103 over Bergmiller (DE 3537753 A1, published Apr. 23,
1987)3;
Rejection 2: Claims 8, 9, 29, 30, and 35 are rejected under 35 U.S.C.
§ 103 over Bergmiller in view of Swertvaegher (US 2011/0200718 A1,
published Aug. 18, 2011);
Rejection 3: Claim 32 is rejected under 35 U.S.C. § 103 over
Bergmiller in view of Whitmore (US 2,862,822, issued Dec. 2, 1958);
Rejection 4: Claim 33 is rejected under 35 U.S.C. § 103 over
Bergmiller in view of Chanet (US 2013/0209649 A1, published Aug. 15,
2013); and
Rejection 5: Claim 33 is rejected under 35 U.S.C. § 103 over
Bergmiller in view of Belferman (US 2011/0244077 A1, published Oct. 6,
2011).

3 We refer to the English translation of record of Bergmiller as cited by the
Examiner.
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DISCUSSION
Rejection 1 – Obviousness over Bergmiller
Claims 1–3, 5–7, 10–14, and 26–28
The Examiner finds that Bergmiller discloses claim 1’s method for
packaging a food product in a container containing a bottom wall and a
sidewall. Final Act. 3. The Examiner finds that Bergmiller discloses a
method for producing a fruit yogurt that includes depositing fruit concentrate
4 (corresponding to claim 1’s “mix-in”) in a center of the bottom wall of the
container, driving the mix-in from the bottom wall of the container to the
sidewall of the container using a blast of air, and then depositing yogurt 7 in
the container. Id. at 3–4. Bergmiller’s method is illustrated in Figure 1
reproduced below.

Figure 1 above illustrates Bergmiller’s method of packaging fruit
yogurt where: (1) a cup is loaded with fruit concentrate 4 at
filling station 3, (2) air is briefly blown into the cup via air nozzle
5 to substantially uniformly distribute fruit concentrate 4 on the
bottom of the cup, and (3) then yogurt 7 is introduced into the
cup at filling station 6.
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The Examiner acknowledges that Bergmiller does not disclose driving
the fruit concentrate from the center of the bottom wall to the sidewall to not
cover a center point of the bottom wall or the fruit concentrate not covering
the center point of the bottom wall when the dairy or plant-based product is
deposited in the container. Final Act. 4. The Examiner finds, however, that
“[t]he step of driving the mix-in from the center of the bottom wall to the
sidewall is a function of the amount of time the air nozzle is applied over the
mix-in, i.e., generally longer times of applying air over the mix-in is
required to achieve the claimed mix-in not covering a center point of the
bottom wall.” Id. at 4–5. In other words, the Examiner finds that the length
of time or amount of air applied to the mix-in is a result-effective variable.
The Examiner determines that it would have been obvious to one of ordinary
skill in the art to modify Bergmiller’s method of producing a fruit yogurt by
applying the air nozzle over the fruit concentrate for a longer amount of time
so that the fruit concentrate does not cover a center point of the bottom wall
when the yogurt is deposited in the container. See id. at 5.
Appellant argues that applying the air nozzle to the fruit concentrate
for a longer period of time in Bergmiller’s process, as suggested by the
Examiner, “would not result in the fruit concentrate not covering the center
point of the bottom wall when the dairy or plant-based product is deposited
as claimed in claim 1.” Appeal Br. 9. We agree.
Bergmiller teaches using an air nozzle to blow air into the middle of a
fruit concentrate, causing the fruit concentrate to “rise[] upwardly in a
temporary and circumferential way around the cup wall.” Bergmiller 5.
Bergmiller teaches that after the blowing process is finished, the fruit
concentrate “immediately flows down again” and upon reaching yogurt
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filling station 6, the fruit concentrate “has substantially reached again its
previous filling level.” Id. at 5–6. As Appellant persuasively argues, even if
Bergmiller’s process was modified to apply air over the fruit concentrate for
a long enough time to drive the fruit concentrate from the center of the
bottom wall of the container, the Examiner has not provided sufficient
factual evidence or technical reasoning to establish that the fruit concentrate
in Bergmiller would not re-cover the center point of the bottom wall of the
container once the air nozzle stops blowing and before the yogurt is
deposited in the container. Appeal Br. 8–9.
“[T]he examiner bears the initial burden, on review of the prior art or
on any other ground, of presenting a prima facie case of unpatentability.” In
re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992). Further, a rejection based
on § 103 must rest upon a factual basis rather than speculation. “Where the
legal conclusion [of obviousness] is not supported by facts it cannot stand.”
In re Warner, 379 F.2d 1011, 1017 (CCPA 1967). Because, as discussed
above, the § 103 rejection is not adequately supported by factual evidence,
the Examiner has not met the initial burden of setting forth a prima facie
case of obviousness over Bergmiller. Thus, we do not sustain the rejection of
claims 1–3, 5–7, 10–14, and 26–28.
Claims 31 and 34
Unlike claim 1, claim 31’s method does not require “the mix-in does
not cover the center point of the bottom wall when the dairy or plant-based
product is deposited in the container.” Rather, claim 31’s method requires
“dispersing at least a majority of the mix-in from the center of the bottom
wall to the sidewall with a blast of fluid,” and “depositing a dairy or plant-
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based product in the container while the mix-in remains dispersed to the
sidewall.” Appeal Br. 19 (Claims App).
The Examiner finds that Bergmiller discloses using an air nozzle to
disperse at least a majority of its fruit concentrate (corresponding to claim
31’s “mix-in”) from the center of the bottom wall of the container to the
sidewall of the container and depositing the yogurt while the mix-in remains
dispersed on the sidewall of the container. Final Act. 7–8 (citing Bergmiller
5, ll. 1–5; Fig. 1).
Appellant argues that Bergmiller teaches that its fruit concentrate
immediately runs back down to the bottom of the container after being
driven outwardly and thus does not teach that at least a majority of the fruit
concentrate is dispersed to the sidewall and remains dispersed on the
sidewall while a yogurt is deposited in the container. Appeal Br. 13.
Appellant’s argument is not persuasive. As the Examiner finds,
Bergmiller’s Figure 1 appears to disclose dispersing “at least a majority” of
the fruit concentrate from the center of the bottom wall. Final Act. 8;
Bergmiller 5, ll. 17–20, Fig. 1. Even assuming that Bergmiller’s Figure 1
does not teach “at least a majority” of the fruit concentrate is dispersed from
the center of the bottom wall to the sidewall, because one of ordinary skill in
the art would know that the length of time or amount of air applied to the
fruit concentrate is a result-effective variable (see Final Act. 4–5). As
discussed above with respect to claim 1, it would have been obvious for one
of ordinary skill in the art to apply the air pressure over the mix-in for a
longer period of time so that at least a majority of the fruit concentrate
would be dispersed on the sidewalls of Bergmiller’s container.
Significantly––and contrary to Appellant’s apparent belief (Appeal Br. 13)–
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–claim 31 does not recite that “a majority of the mix-in” remains on the
sidewall prior to deposition of a dairy or plant-based product. See Appeal
Br. 19 (Claims App.) (Claim 31) (“after dispersing the mix-in, depositing a
dairy or plant-based product in the container while the mix-in remains
dispersed to the sidewall” (emphasis added)). This is undisputedly taught by
Bergmiller. Bergmiller 6 (“[A] wall strip 10 covered with residual fruit
concentrate remains.”), Figs. 2–3; see also Appeal Br. 13 (Appellant
acknowledging that “Bergmiller discloses that a ‘residual fruit concentrate’
can remain” dispersed on the sidewall). Therefore, we sustain the rejection
of claims 31 and 34 under 35 U.S.C. § 103 over Bergmiller.
Rejections 2 and 3 – Obviousness over Bergmiller in combination with
Swertvaegher or Whitmore
Claims 8, 9, 29, and 30
The Examiner’s rejection over Bergmiller in combination with
Swertvaeher is based on the same deficient factual findings and reasoning
regarding Bergmiller as discussed above with respect to claim 1. Final Act.
8. The Examiner does not rely on Swertvaegher to cure the deficiencies of
Bergmiller. Id. at 9–10. Thus, for the reasons discussed above, we do not
sustain the rejection of claims 8, 9, 29, and 30 under 35 U.S.C. § 103 over
Bergmiller and Swertvaegher.
Claims 32 and 35
Appellant argues that claims 32 and 35 “stand or fall with claim 31.”
Appeal Br. 14. Because we sustain the rejection of claim 31 under 35 U.S.C.
§ 103 over Bergmiller as discussed above, we also sustain the rejection of
claims 32 and 35 under 35 U.S.C. § 103 over Bergmiller and Whitmore or
Swertvaegher.
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Rejection 4 – Obviousness over Bergmiller and Chanet
Claim 33 depends from claim 31 and requires that the fluid for
dispersing at least a majority of the mix-in from the center of the bottom
wall to the sidewall in claim 31 “is carbon dioxide or nitrogen.” Appeal Br.
19 (Claims App.).
The Examiner finds that one of ordinary skill in the art would have
substituted nitrogen or carbon dioxide for air in Bergmiller’s method to
disperse the fruit concentrate in its fruit yogurt based on Chanet’s teaching
that air, nitrogen, and carbon dioxide are all suitable for aerating dairy
products. Final Act. 11 (citing Chanet ¶ 34).
Appellant argues that one of ordinary skill in the art would not have
looked to the teachings of Chanet, which teaches creating a stable dairy
foam on top of a liquid beverage, to modify Bergmiller’s method of making
a yogurt that can be demolded from a cup and retain the cup’s shape. Appeal
Br. 15.
We are not persuaded by Appellant’s argument. Where two known
alternatives are interchangeable for a desired function, an express suggestion
to substitute one for the other is not needed to render a substitution obvious.
In re Fout, 675 F.2d 297, 301 (CCPA 1982). Chanet teaches that nitrogen,
carbon dioxide, and air, like air in Bergmiller, are suitable for aerating a
dairy-based food product. Chanet ¶ 34. Thus, we agree with the Examiner’s
determination that it would have been obvious to one of ordinary skill in the
art to substitute nitrogen or carbon dioxide, as taught by Chanet, for air in
Bergmiller’s filling system to disperse at least a majority of the fruit
concentrate from the center of the bottom wall to the sidewall. We,
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therefore, sustain the rejection of claim 33 under 35 U.S.C. § 103 over
Bergmiller and Chanet.
Rejection 5 – Obviousness over Bergmiller and Belferman
Because we sustain the rejection of claim 33 over Bergmiller and
Chanet for the reasons discussed above, we do not reach the Examiner’s
additional rejection of claim 33 over Bergmiller and Belferman.

CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3, 5–7,
10–14, 26–
28, 31, 34
103 Bergmiller 31, 34 1–3, 5–7,
10–14, 26–
28
8, 9, 29, 30,
35
103 Bergmiller,
Swertvaegher
35 8, 9, 29, 30
32 103 Bergmiller,
Whitmore
32
33 103 Bergmiller, Chanet 33
33 103 Bergmiller,
Belferman4

Overall
Outcome
31–35 1–3, 5–14,
26–30

4 As explained above, we do not reach this additional rejection of claim 33
because we sustain the rejection of claim 33 under 35 U.S.C. § 103 over
Bergmiller and Chanet.
Appeal 2020-003290
Application 15/797,154

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TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED IN PART