General Mills, Inc.Download PDFPatent Trials and Appeals BoardApr 16, 20212020003290 (P.T.A.B. Apr. 16, 2021) 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. 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; Appeal 2020-003290 Application 15/797,154 3 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. Appeal 2020-003290 Application 15/797,154 4 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. Appeal 2020-003290 Application 15/797,154 5 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 Appeal 2020-003290 Application 15/797,154 6 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- Appeal 2020-003290 Application 15/797,154 7 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)– Appeal 2020-003290 Application 15/797,154 8 –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. Appeal 2020-003290 Application 15/797,154 9 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, Appeal 2020-003290 Application 15/797,154 10 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 11 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 Copy with citationCopy as parenthetical citation