LAND O'LAKES, INC.

Patent Trials and Appeals BoardMar 23, 2021

2020002298 (P.T.A.B. Mar. 23, 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. 14/011,294 08/27/2013 Thomas A. Glenn III P235565.US.01 1061 25763 7590 03/23/2021 DORSEY & WHITNEY LLP - Minneapolis INTELLECTUAL PROPERTY DEPARTMENT 50 South Sixth Street Suite 1500 Minneapolis, MN 55402-1498 EXAMINER MORNHINWEG, JEFFREY P ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 03/23/2021 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): ip.docket@dorsey.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS A. GLENN III, RICHARD DINESEN, CLINT GAROUTTE, and JASON THOMPSON Appeal 2020-002298 Application 14/011,294 Technology Center 1700 Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and MICHAEL P. COLAIANNI, Administrative Patent Judges. GAUDETTE, Administrative Patent Judge. Appeal 2020-002298 Application 14/011,294 2 DECISION ON APPEAL1 The Appellant2 appeals under 35 U.S.C. § 134(a), from the Examiner’s decision finally rejecting claims 1–6, 11–13, 17, 18, and 20–24.3 We AFFIRM IN PART. CLAIMED SUBJECT MATTER Claims 1 and 18, reproduced below, are illustrative of the claimed subject matter: 1. A method of producing concentrated cream, the method comprising: providing a cream composition in a homogenous, oil-in- water emulsion, the cream composition comprising fat globules, phospholipid membrane components and non-fat solids, wherein an initial fat content of the cream composition is between about 35 to about 55 percent by weight; and removing moisture from the cream composition through evaporative processing using a wiped film evaporator that operates from about 75 rpm to about 280 rpm to produce the concentrated cream, wherein the concentrated cream remains in a homogenous state as the oil-in-water emulsion or as a bi- continuous emulsion, wherein the step of removing moisture 1 The appeal record includes the following documents: Substitute Specification filed Nov. 15, 2013 (“Spec.”); Final Office Action dated Apr. 25, 2019 (“Final Act.”); Appeal Brief filed Sept. 24, 2019 (“Appeal Br.”); Examiner’s Answer dated Nov. 29, 2019 (“Ans.”); and Reply Brief filed Jan. 29, 2020 (“Reply Br.”). 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Land O’ Lakes, Inc. Appeal Br. 3. 3 We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2020-002298 Application 14/011,294 3 causes the concentrated cream to retain the native fat globules, native phospholipid membrane components, and native non-fat solids, and wherein the concentrated cream comprises a fat content of at least about 70 percent to about 82 percent by weight and a salt and the retained native non-fat solids content of at least about 8 percent by weight. 18. A concentrated cream product comprises a homogenous, oil-in-water or a bi-continuous emulsion including fat globules, phospholipid membranes and retained, native non-fat solids, wherein the concentrated cream product includes a fat content of at least about 70 percent to about 82 percent by weight and a salt and the retained, native non-fat solids content of at least about 8 percent by weight, and wherein at least a portion of the fat globules are intact. Appeal Br. 27, 29. REFERENCES The Examiner relies on the following prior art: Name Reference Date Bell US 3,108,875 Oct. 29, 1963 Weissman US 4,341,801 July 27, 1982 Mackereth WO 2011/122966 A1 Oct. 6, 2011 REJECTIONS 1. Claims 1–6, 11–13, 18, and 20–24 are rejected under 35 U.S.C. § 103 as unpatentable over Mackereth and Bell. Final Act. 2–13. 2. Claim 17 is rejected under 35 U.S.C. § 103 as unpatentable over Mackereth, Bell, and Weissman. Final Act. 13–14. Appeal 2020-002298 Application 14/011,294 4 OPINION The Appellant argues that the combined teachings of Mackereth and Bell fail to disclose or suggest the claim 1 and claim 13 methods and the claim 18 product. Appeal Br. 10. For the reasons discussed below, we are persuaded of reversible error in the rejections of the method claims, but we sustain the rejection of the product claims. The Examiner made the following findings of fact: Mackereth discloses the claim 1 method except for an explicit teaching that the resultant concentrated cream remains in a homogenous state as an oil-in-water emulsion or a bi-continuous emulsion, has at least about 70 percent to about 82 percent by weight fat content, and a salt and the retained native non-fat solids content of at least about 8 percent by weight. Final Act. 2–3. Mackereth uses a high fat cream starting material—“about 38 to about 85% by weight lipid” (Mackereth ¶ 92)—that is an oil-in-water emulsion, but uses a high shear step to cause a phase inversion to a water-in-oil emulsion. Final Act. 3–4. The ordinary artisan would have understood from Mackereth “that the high-shear step and phase inversion is necessary only to achieve . . . especially high lipid concentrations as high as about 99.5%.” Id. at 4. The ordinary artisan would have understood from Bell that in applications not requiring such high lipid concentrations, Mackereth’s method could be simplified by omitting the high-shear step. Id. at 3–4. By omitting the high- shear step, Mackereth’s method would produce a concentrated cream that remains in a homogenous state as an oil-in-water emulsion. Id. at 4. The Appellant argues that Mackereth and Bell, alone or in combination, do not teach or suggest using a wiped film evaporator in the Appeal 2020-002298 Application 14/011,294 5 manner claimed: to evaporate moisture from the cream composition such that the resulting concentrated cream remains in a homogenous state as an oil-in-water or bi-continuous emulsion. The Appellant argues that Mackereth discloses that evaporators, including wiped film evaporators, should be operated in a manner that creates high shear so as to effect a phase inversion. Appeal Br. 16–17 (citing Mackereth ¶ 94). The Appellant does not dispute the Examiner’s finding that Bell discloses concentrating a cream without using high shear, but argues that Bell does not teach or suggest that the method can be performed using a wiped film evaporator. Id. at 17. Rather, Bell discloses that “a falling film, non-agitating vacuum evaporator, is a critical feature in [the] operation of the inventive process.” Bell 5:4–6; see Appeal Br. 17. We are persuaded that the applied prior art fails to support the Examiner’s finding that the ordinary artisan would have understood that a wiped film evaporator could be used to remove moisture from a cream composition to produce a concentrated cream that remains in a homogenous state as an oil-in-water emulsion or as a bi-continuous emulsion as recited in claim 1. We further agree with the Appellant that the Examiner has not cited evidence to support a finding that the ordinary artisan would have had a reason to modify Mackereth’s process to eliminate a high shear step. As the Appellant argues, Appeal Br. 21, Mackereth’s goal is to further concentrate a high fat cream comprising about 38 to about 85% by weight lipid and to produce a water-in-oil emulsion. See Mackereth, code (57). Bell uses a falling film evaporator to minimize destabilization of a sucrose-cream mixture during concentration, explaining that agitation is known to affect Appeal 2020-002298 Application 14/011,294 6 emulsion stability of a sweetened cream. See Bell 2:14–39. We credit Mr. Glenn’s testimony in paragraphs 11–12 of the Declaration under 37 C.F.R. § 1.132, filed January 11, 2019, that supports the Appellant’s argument that sweetened cream does not respond to evaporative processes in the same way as unsweetened cream. That Bell does not phase invert its concentrated sweetened cream, which has up to 50% fat, says nothing to one of skill in the art about how to achieve the claimed fat content of “at least about 70 percent to about 82 percent by weight” without phase inversion. Appeal Br. 20. As the only basis for the Examiner’s modification of Mackereth in view of Bell appears to be improper hindsight reasoning, we do not sustain the rejection of claim 1 or its dependent claims 2–6, 11, 12, and 21–24. Like claim 1, independent method claim 13 recites a step of removing moisture “using a wiped film evaporator” to produce a “concentrated cream product [that] remains as the oil-in-water or is in a bi-continuous emulsion.” Appeal Br. 28. The Examiner relies on the same references and similar reasoning in rejecting claim 13. See Final Act. 6–10. For the same reasons discussed above, we do not sustain the rejection of claim 13 or the rejection of its dependent claim 17. Independent claim 18 recites “[a] concentrated cream product compris[ing] a homogenous, oil-in-water or a bi-continuous emulsion including fat globules, phospholipid membranes and retained, native non-fat solids.” Appeal Br. 29. Claim 18 does not explicitly recite the method by which the product is produced. See id. But the claim specifies “a fat content of at least about 70 percent to about 82 percent by weight and a salt and [a] retained, native non-fat solids content of at least about 8 percent by weight.” Appeal 2020-002298 Application 14/011,294 7 Id. Claim 18 further requires that “at least a portion of the fat globules are intact.” Id. The Appellant disputes the Examiner’s finding that Mackereth’s starting material meets these limitations. See Appeal Br. 18 (citing Sept. 29, 2017 Office Action ¶ 52). In paragraph 52 of the cited Office Action, the Examiner found that Mackereth discloses “‘[t]he starting material is a high fat cream (10) that is an oil-in-water emulsion comprising about 38 to about 85% by weight lipid’ . . . obtained by ‘known concentration methods’ . . . [that] has not undergone phase inversion” (quoting Mackereth ¶ 92). See also Ans. 16 (citing Mackereth ¶ 92). Mackereth discloses that the high fat cream starting material “may be prepared from whole milk and low fat cream by known concentration methods including centrifugation” and will contain phospholipid that originates from the original dairy source. Mackereth ¶ 92. In Example 1, Mackereth discloses preparing a high fat cream starting material by centrifuging to separate the milk into skim milk and cream to about 40% fat by weight and then producing a high fat cream of about 80% fat by weight using a high fat cream centrifugal separator. Id. ¶ 119. The high fat cream is described as an oil-in-water emulsion. Id. ¶ 120. Bell discloses that “centrifuging, especially of cold milk, removes only a minor part of the total fat globule membrane from the fat globules during the separation of cream.” Bell 1:49–52. Bell discloses that the non-fat solids content of whole milk is 8.9%. Id. at 1:41–42. The above disclosures support the Examiner’s determination that the applied prior art discloses or suggests “[a] concentrated cream product” as recited in claim 18. We have considered the Appellant’s evidence of Appeal 2020-002298 Application 14/011,294 8 unexpected results. See Appeal Br. 22 (citing the Glenn Declaration). But we agree with the Examiner that Mr. Glenn’s opinion testimony, absent evidentiary support, is not persuasive of unexpected results. See Ans. 26. In other words, taking into account the Glenn Declaration, a preponderance of the evidence still weighs in favor of the Examiner’s conclusion of obviousness as to claim 18. Accordingly, we sustain the rejection of claim 18, as well as its dependent claim 20. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–6, 11–13, 18, 20–24 103 Mackereth, Bell 18, 20 1–6, 11– 13, 21–24 17 103 Mackereth, Bell, Weissman 17 Overall Outcome 18, 20 1–6, 11– 13, 17, 21– 24 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). AFFIRMED IN PART