Holst, Hans Henrik. et al.

Patent Trials and Appeals Board

Dec 17, 2019

13811532 - (D) (P.T.A.B. Dec. 17, 2019)

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.
13/811,532 02/19/2013 Hans Henrik Holst PS4422091 5556
40401 7590 12/17/2019
Hershkovitz and Associates, PLLC
2845 Duke Street
Alexandria, VA 22314
EXAMINER
MUKHOPADHYAY, BHASKAR
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
12/17/2019 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):
USPTO@hershkovitz.net
patent@hershkovitz.net
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HANS HENRIK HOLST, ANJA SUNDGREN, and
VALENTIN RAUH
Appeal 2019-002242
Application 13/811,532
Technology Center 1700
Before GEORGE C. BEST, BRIAN D. RANGE, and
MICHAEL G. McMANUS, Administrative Patent Judges.
RANGE, 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, 3–5, 7, 8, 10–12. 16–24, 26, 27, and
34–38. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Aria Foods
AmbA. Appeal Br. 2.
Appeal 2019-002242
Application 13/811,532
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CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to lactose-reduced milk-
related products having a long shelf life. Spec. 1:7–10. Appellant alleges
that the claimed milk product has a previously unknown combination of a
very long shelf life, surprising low furosine value, and acceptable taste.
Appeal Br. 11. Claim 1 is illustrative:
1. A method of producing a packaged, lactose-reduced milk-
related product, the method comprising:
a) providing a lactose-reduced milk-related feed comprising a
total amount of mono- and disaccharides in a range of 1-3.2% (w/w)
relative to a total weight of the milk-related feed,
b) subjecting a milk derivative derived from said milk-related
feed to a High Temperature (HT)-treatment, wherein the milk
derivative is heated to a temperature in the range of 150-160
degrees C, kept in that temperature range for a period of at most
200 msec., and then finally cooled,
c) packaging a lactose-reduced milk-related product derived
from the HT-treated milk derivative,
which method furthermore involves hydrolysis wherein at least
some of the lactose is hydrolyzed into glucose and galactose and
enzyme inactivation whereby the combined activity of plasmin and
plasminogen of a treated liquid is reduced by at least 60% relative to
the activity of an untreated liquid,
and wherein the hydrolysis is performed at least one of:
(1) after subjecting the milk-related feed to the enzyme
inactivation,
and

2 In this Decision, we refer to the Final Office Action dated February 23,
2018 (“Final Act.”), the Appeal Brief filed July 23, 2018 (“Appeal Br.”), the
Examiner’s Answer dated December 11, 2018 (“Ans.”), and the Reply Brief
filed January 1, 2019 (“Reply Br.”).
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Application 13/811,532
3
(2) one of, before or after, subjecting the HT-treated milk
derivative to the enzyme inactivation.
Appeal Br. 21 (Claim App.) (emphasis added to certain key recitations).
REJECTION AND REFERENCES
On appeal, the Examiner maintains the rejection of claims 1, 3–5, 7, 8,
10–12, 16–24, 26, 27, and 34–38 under 35 U.S.C. § 103 as obvious over Ur-
Rehman et al., US 2007/0166447 A1; July 19, 2007 (“Ur-Rehman”) in view
of Tossavainen et al., WO 2009/00972 A1; Dec. 31, 2008 (“Tossavainen”),
Rysstad, G., & Kolstad, J., Extended shelf life milk-advances in technology,
Int’l J. Dairy Tech., 59(2), 85–96 (2006) (“Rysstad”), and Lewis et al., “Heat
Treatment of Milk,” BLBK061-Tamine, 15:19, 168-204 (September 19,
2008) (“Lewis”).
OPINION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t
has long been the Board’s practice to require an applicant to identify the
alleged error in the examiner’s rejections.”). After considering the evidence
presented in this Appeal and each of Appellant’s arguments, we are not
persuaded that Appellant identifies reversible error. Thus, we affirm the
Examiner’s rejections for the reasons expressed in the Final Office Action
and the Answer. We add the following primarily for emphasis.
Appellant argues all claims as a group. See Appeal Br. 11–19.
Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(1)(iv)
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Application 13/811,532
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(2013), we limit our discussion to claim 1, and all other claims on appeal
stand or fall together with claim 1.
The Examiner finds that Ur-Rehman teaches treatment of a lactose
reduced milk composition where, for example, the composition meets the
“mono- and disaccharide” recitation of claim 1. Ans. 4 (citing Ur-Rehman).
The treatment includes a hydrolysis step and heat treatment step. Id. at 4–5.
The Examiner finds that Ur-Rehman does not teach claim 1’s recited
reduction in plasminogen and plasmin activity and does not teach claim 1’s
time and temperature for heat treatment (“150–160 degrees C, kept in that
temperature range for a period of at most 200 msec”).
The Examiner finds that Tossavainen teaches heat treatment to
destroy plasmin and plasminogen enzyme activity. Id. at 5 (citing
Tossavainen). The Examiner determines that a person having ordinary skill
in the art would have been motivated to include the Tossavainen heat
treatment to modify Ur-Rehman to inactivate plasminogen and plasmin
enzymes. Id. The Examiner further finds that Rysstad teaches high
temperature treatment at 130–145°C for less than one second and that Lewis
teaches heating for 130–150°C for an appropriate holding time. Id. at 6
(citing Rysstad and Lewis). The Examiner determines that a person of skill
in the art would have, based on the combined disclosure of Rysstad and
Lewis, used high temperature heating to destroy spore containing microbes
after subjecting the feed to an enzyme inactivation step. Id. at 6–7.
Appellant argues that Ur-Rehman teaches a much lower heating that
would not inhibit plasmin and plasminogen. Appeal Br. 13–14. Similarly,
Appellant argues that Tossavainen does not teach the temperature or times
recited by claim 1. Reply Br. 5. This argument does not persuasively
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Application 13/811,532
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identify error because the Examiner’s rejection is not based on Ur-Rehman
or Tossavainen alone. Rather, the Examiner combines the teachings of Ur-
Rehman, Tossavainen, Rysstad, and Lewis. Ans. 4–7. The Examiner
explains why the combined references suggest a process that includes the
recited heating step and includes inactivation of plasmin and plasminogen.
Id. at 15–17. One cannot show nonobviousness by attacking references
individually when the rejection is based on a combination of references. In
re Keller, 642 F.2d 413, 425 (CCPA 1981).
Appellant also argues that Ur-Rehman does not teach heat treating a
lactose-reduced derivative derived from the claimed feed. Appeal Br. 14.
The Examiner finds that Ur-Rehman teaches heating of a derivative at
paragraphs 34 and 38 (Ans. 18), and Appellant does not explain why this
finding is incorrect. We also note that, according to the Specification, the
“milk derivative may be identical to the milk-related feed.” Spec. 16:34–37.
Appellant further argues that a person of skill in the art would not
have a reason to combine the teachings of Ur-Rehman and Tossavainen.
Appeal Br. 15. Appellant emphasizes that Tossavainen teaches separation of
fractions while Ur-Rehman does not. Id.; see also Reply Br. 5–6 (arguing
that Tossavainen teaches that enzyme destruction requires separation of
materials and temperatures and times not part of the claims on appeal). The
Examiner, however, determines that a person of skill in the art would use
heat treatment, as taught by Tossavainen, with the Ur-Rehman process
because doing so would, according to Tossavainen, inactivate problematic
plasmin enzyme activities. Ans. 5 (citing Tossavainen ¶¶ 32, 33). In
particular, Tossavainen explains that problematic enzymes can be
inactivated by heating them “simultaneously with separation.” Tossavainen
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Application 13/811,532
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¶ 33. Based on the preponderance of the evidence before us, we agree with
the Examiner that Tossavainen is best understood as teaching that it is the
heating of the feed that leads to enzyme inactivation. Id. at ¶ 32 (explaining
that the half-life of the enzymes depends on time and temperature).
Appellant’s argument, therefore, does not persuasively rebut the Examiner’s
stated rationale as to why a person of skill in the art would combine the
teachings of Ur-Rehman and Tossavainen.
Appellant also argues by extensively quoting the December 28, 2015,
Declaration of Valentin Rauh (“the Rauh Declaration”). Appeal Br. 15–17.
We have carefully considered the content of the Rauh Declaration, but we
agree with the Examiner that the Declaration and Appellant’s related
arguments do not identify error. Ans. 18–20. In particular, the Declaration
focuses on distinctions between Tossavainen and the Specification’s
disclosure, but the Examiner’s rejection relies on Ur-Rehman as the primary
reference. Id. at 18–19. The Declaration does not address the Examiner’s
findings regarding Ur-Rehman and does not squarely address the Examiner’s
stated rationale for combining the teachings of the cited art. Appeal Br. 15–
17.
The Declaration also states that Rauh finds the Specification’s results
“unexpected and very surprising.” Id. at 17. Establishing that results are
unexpected requires, for example, Appellant to proffer factual evidence that
shows unexpected results relative to the closest prior art. See In re Baxter
Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). Here, Appellant does
not address what the closest prior art is or why its method provides better or
unexpected results as compared to the closest art.
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Appellant argues that Rysstad is not focused on lactose-reduced milk
and Lewis produces commercial sterile milk. Id. at 18–19. Appellant again
addresses the references individually rather than addressing the Examiner’s
rejection based upon the references’ combined teachings. Appellant does
not dispute, for example, the Examiner’s stated rationale as to why a person
of skill in the art would have combined the high temperature treatments of
Rysstad and Lewis with Ur-Rehman (to destroy microorganisms such as
spore containing microbes). Ans. 6–7.
Finally, in the Reply Brief, Appellant argues that none of the
references teach heat treatment at 150°C for at most 200 milliseconds.
Reply Br. 4–5. Appellant’s argument does not identify error because it does
not address the references’ combined teachings. Lewis teaches heating to
150°C for “appropriate holding times necessary to achieve ‘commercial
sterility,’” and Rysstad teaches that aerobic spores can be eliminated by
heating for less than 1 second. Rysstad 87. The time taught by Rysstad,
zero to one second, overlaps with claim 1’s recited time period of zero to 0.2
seconds. A person of skill in the art would look to references like Rysstad to
determine the “appropriate” holding time referenced in Lewis. Ans. 6–7, 16.
Moreover, our reviewing court has held that “even a slight overlap in range
establishes a prima facie case of obviousness.” See In re Peterson, 315 F.3d
1325, 1329 (Fed. Cir. 2003).
Because Appellant’s arguments do not identify harmful error, we
sustain the Examiner’s rejection.
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Application 13/811,532
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CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–5, 7, 8,
10–12, 16–
24, 26, 27,
34–38
103
Ur-Rehman,
Tossavainen, Rysstad,
Lewis
1, 3–5, 7,
8, 10–12,
16–24, 26,
27, 34–38

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