GIVAUDAN SA

Patent Trials and Appeals BoardMay 4, 2021

2020003120 (P.T.A.B. May. 4, 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. 15/025,684 03/29/2016 Frans WITTEVEEN GIV.P30692 5041 23575 7590 05/04/2021 CURATOLO SIDOTI CO., LPA 24500 CENTER RIDGE ROAD, SUITE 280 CLEVELAND, OH 44145 EXAMINER TRAN, LIEN THUY ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 05/04/2021 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): docket@patentandtm.com pair@patentandtm.com sidoti@patentandtm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANS WITTEVEEN Appeal 2020-003120 Application 15/025,684 Technology Center 1700 Before LINDA M. GAUDETTE, JEFFREY B. ROBERTSON, and JAMES C. HOUSEL, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 5, and 6 under 35 U.S.C. § 103 as unpatentable over Dusterhoft (US 2006/0110494 A1, pub. May 25, 2006) in view of Spence (US 2011/0027412 A1, pub. Feb. 3, 2011) and Ciliberto (US 4,288,460, iss. Sept. 8, 1981). We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Givaudan S.A. as the real party in interest. Appeal Brief (“Appeal Br.”) filed December 11, 2019, 3. Appeal 2020-003120 Application 15/025,684 2 CLAIMED SUBJECT MATTER The invention relates to flavor encapsulation, and in particular, an encapsulated flavor granule comprising a core material, a flavor material, and a coating material, wherein the core material includes a finely-divided native starch, xanthan gum, and konjac. Specification (“Spec.”) filed March 29, 2016, 1:3, 23–25.2 Appellant discloses that gelatin is one of the most common materials for encapsulating flavors because of its many advantages including its gelling and swelling behavior, and its mouth-feel and specific melting behavior in the mouth upon consumption. Id. at 1:11–14. However, Appellant discloses that gelatin, being an animal product, cannot be used in vegetarian products, and makes it difficult to overcome kosher and halal prohibitions. Id. at 1:16–20. The flavor granule of the invention, being gelatin-free, does not suffer from these disadvantages, yet provides the desirable qualities of gelatin. Id. at 2:1–2. Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the claimed subject matter: 1. A gelatin-free encapsulated flavour,[3] comprising flavour granules composed of a gelatin-replacer core material, flavour material on the core material and a coating material on the flavor granules, the gelatin-replacer core material comprising a finely-divided native starch, xanthan gum and konjac, wherein the coating material is selected from the group consisting of cellulosic materials and starch-based materials, and 2 This Decision also cites to the Examiner’s Answer (“Ans.”) dated March 5, 2020, and the Reply Brief (“Reply Br.”) filed March 20, 2020. 3 This application uses the chiefly British variant spelling of the term, “flavor.” Accordingly, we use these spellings interchangeably. Appeal 2020-003120 Application 15/025,684 3 wherein the flavour material contains an emulsifier comprising polyoxyethylene sorbitan monooleate. OPINION The Examiner has the initial burden of establishing a prima facie case of obviousness based on an inherent or explicit disclosure of the claimed subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[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”). Meeting that burden requires that the Examiner supply the requisite factual basis (rational underpinning) by showing that each and every limitation of the claim is described or suggested by the prior art and articulate reasoning based thereon that the applied prior art would have provided one of ordinary skill in the art with an apparent reason to modify the prior art to arrive at the claimed invention. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“[R]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.”), quoted with approval in KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also, In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988). The Examiner finds that Dusterhoft discloses encapsulated functional bakery ingredients in the form of gelatin-free granules having a core containing the functional bakery ingredients, a lipophilic, substantially continuous layer encapsulating the core, and an additional exterior coating comprising dextrin. Ans. 3–4, 6. The Examiner further finds that Dusterhoft teaches that the core comprises hydrocolloids, starches, flavor, sugar, etc., Appeal 2020-003120 Application 15/025,684 4 wherein the hydrocolloids may include xanthan gum, guar gum, etc., and the lipophilic encapsulating layer contains emulsifiers as release agents. Id. at 4. The Examiner determines that Dusterhoft’s lipophilic layer is a flavor emulsion because it includes an emulsifier and fat such as cocoa butter, which is known to have a cocoa flavor and aroma. Id. at 4–5. However, the Examiner acknowledges that Dusterhoft fails to disclose that the core contains konjac, and that the emulsifier is polyoxyethylene sorbitan monooleate. Id. at 4. The Examiner finds that Spence teaches encapsulated compositions comprising a gelling dietary fiber, a coating component, and a wetting component, wherein the gelling dietary fiber includes konjac, xanthan gum, and combinations thereof, in amounts from about 1–15%. Ans. 4. The Examiner also finds that Ciliberto teaches non-caking, water-soluble, granular coated food ingredients comprising a core of finely divided food ingredient and a continuous encapsulating coating surrounding the core, wherein the coating consists of polyoxyethylene sorbitan monooleate, propylene glycol, and a flow promoter. Id. The Examiner concludes that it would have been obvious to include polyoxyethylene sorbitan monooleate in Dusterhoft’s lipophilic coating in order “to obtain the advantage of preventing the granular particles from caking during storage.” Id. at 5. In addition, the Examiner concludes that it would have been obvious to have included konjac in Dusterhoft’s core because Spence teaches that dietary Appeal 2020-003120 Application 15/025,684 5 gelling fibers such as konjac and xanthan gum may be used in combination.4 Id. at 6. Appellant argues, inter alia, that the Examiner’s justification for the proposed modification of Dusterhoft’s granule to include polyoxyethylene sorbitan monooleate into the lipophilic layer—to prevent caking—is not sufficiently tied to the alleged benefit. Appeal Br. 13. In this regard, Appellant contends that Ciliberto fails to disclose or suggest that use of polyoxyethylene sorbitan monooleate by itself provides this anti-caking benefit. Id. at 13–14. Instead, Appellant asserts that Ciliberto teaches the polyoxyethylene sorbitan monooleate is critical to achieve the needed solubility of the coated granules, and that the flow promoter component provides the anti-caking functionality. Id. at 14. As such, Appellant urges that the Examiner’s reasoning lacks rational underpinning. Id. at 15. Appellant further argues that adding Ciliberto’s polyoxyethylene sorbitan monooleate to Dusterhoft’s lipophilic coating fails to provide any benefit. Appeal Br. 15. In this regard, Appellant asserts that Dusterhoft teaches that the lipophilic encapsulated granules already exhibit free flowing behavior, and that the additional exterior dextrin coating further improves this free flowing behavior. Id. at 15–18. Therefore, Appellant contends that there is no reason to believe that adding Ciliberto’s emulsifier to Dusterhoft’s lipophilic coating would further improve Dusterhoft’s free flowing properties, nor further prevent caking. Id. 4 Appellant does not challenge the Examiner’s findings regarding Spence, nor the Examiner’s obviousness conclusion based thereon. Accordingly, we need not further discuss Spence. Appeal 2020-003120 Application 15/025,684 6 Appellant’s arguments are persuasive of reversible error. Although the Examiner finds that Ciliberto “clearly attributes the stability [of the coating particles] to the fatty acid derivative which includes polyoxyethylene sorbitan monooleate,” the Examiner’s cited portion of Ciliberto (col. 2, ll. 31–43) does not support this finding because this portion teaches a combination of three ingredients for the coating, but does not attribute stability to any one ingredient per se. See Ans. 9. Further, although Dusterhoft teaches the use of release agents that are also used as emulsifiers in a variety of food products, Dusterhoft expressly teaches that these release agents provide release enhancing properties that are not common to emulsifiers. Dusterhoft ¶ 15. Therefore, although Ciliberto’s polyoxyethylene sorbitan monooleate is a known emulsifier, the Examiner fails to explain why an ordinary artisan would have included an additional emulsifier that was not included in Dusterhoft’s listing of desired release agents. In addition, as Appellant asserts, the ordinary artisan would not have expected adding polyoxyethylene sorbitan monooleate to Dusterhoft’s lipophilic coating would provide any benefit either to prevent caking or to improve release of ingredients during proofing. Because Dusterhoft provides an exterior coating including dextrin to improve stability and free flow characteristics, the skilled artisan would not have reasonably expected adding this emulsifier to the lipophilic layer would improve free flow or anti-caking properties as this layer is covered by the dextrin layer. In addition, Dusterhoft teaches release of the core bakery ingredients is delayed until the bakery product is proofed (by heating) using a coating which combines the selected release agents and the selected fat. The Examiner does Appeal 2020-003120 Application 15/025,684 7 not explain how Ciliberto’s emulsifier would improve Dusterhoft’s property of delayed release only at proofing, especially given that Dusterhoft teaches that the important release enhancing property is not common to other unlisted emulsifiers. Accordingly, the combination of Dusterhoft and Ciliberto lacks the necessary rational underpinning to support the Examiner’s obviousness conclusion. As such, we do not sustain the Examiner’s rejection of claim 1, as well as dependent claims 5 and 6, as unpatentable over the combination of Dusterhoft, Ciliberto, and Spence. CONCLUSION Upon consideration of the record and for the reasons set forth above and in the Appeal and Reply Briefs, the Examiner’s decision to reject claims 1, 5, and 6 under 35 U.S.C. § 103 as unpatentable over Dusterhoft in view of Spence and Ciliberto is reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 5, 6 103 Dusterhoft, Spence, Ciliberto 1, 5, 6 REVERSED