Robert Beltman et al.

Patent Trials and Appeals BoardJun 17, 2021

2020003387 (P.T.A.B. Jun. 17, 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. 13/697,607 01/30/2013 Robert Beltman 039676.00037 3679 68543 7590 06/17/2021 Arent Fox LLP - Los Angeles 555 West Fifth Street 48th Floor Los Angeles, CA 90013 EXAMINER TRAN, LIEN THUY ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 06/17/2021 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): patentdocket@arentfox.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROBERT BELTMAN, HENK HUSKEN, RENATE GEMMA JACOBINE MARIA JACOBS, IRENE ERICA SMIT-KINGMA, and KRASSIMIR PETKOV VELIKOV Appeal 2020-003387 Application 13/697,6071 Technology Center 1700 ____________ Before BEVERLY A. FRANKLIN, MICHAEL P. COLAIANNI, and JEFFREY R. SNAY, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1, 3–11, and 15–23. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 This application was the subject of Appeal No. 2016-005687 in which the Board affirmed the Examiner’s rejections. 2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Upfield U.S. Inc. Appeal Br. 3. Appeal 2020-003387 Application 13/697,607 2 Appellant’s invention is directed to edible fat continuous spreads comprising plant sterol (Spec. 1:4–5; Claim 1). Claims 1 and 7 are representative of the subject matter on appeal: 1. An edible fat continuous spread being a water in oil emulsion comprising a water phase and a fat phase, wherein the fat phase comprises liquid oil and a structuring fat, said spread comprising a first emulsifier and a second emulsifier, 5 to 85 wt% fat and 0.1 to 20 wt% plant sterol particles wherein the first emulsifier is a water soluble biopolymer based emulsifier with a molecular weight of at least 500 Daltons, the second emulsifier is an oil soluble emulsifier and at least 70 vol% of the plant sterol particles is smaller than 10 micrometer, the water soluble biopolymer based emulsifier being a milk-derived protein. 7. The spread of claim 1, wherein the amount of structuring fat is from 6 to 8 wt%. Appellant appeals the following rejections: 1. Claims 1, 3–11, and 15–23 are rejected under 35 U.S.C. § 112, first paragraph, as failing to comply with the written description requirement. 2. Claims 1, 3–11, and 15–23 are rejected under 35 U.S.C. § 103(a) as unpatentable over Vulfson (WO 00/41491 A2; pub. July 20, 2000) in view of Auweter (US 2006/0035871 A1; pub. Feb. 16, 2006). FINDINGS OF FACT & ANALYSIS Written Description The Examiner finds the addition of “Daltons” as the unit for the molecular weight of 500 in claim 1 lacks written description (Final Act. 2). Appeal 2020-003387 Application 13/697,607 3 The Examiner finds that the biochemistry textbook evidence3 of record submitted by Appellant discusses the molecular weight of proteins and states that the units are expressed in Daltons (Ans. 6). The Examiner finds that the biochemistry textbook does not discuss that dimensionless means Daltons (Ans. 6). The Examiner determines that the biochemistry textbook is not evidence that Appellant was in possession of the claimed limitation and the dimensionless reference does not implicitly refer to measurements in Daltons (Ans. 6). The Examiner finds the Specification does not disclose that the water soluble biopolymer based emulsifier has a molecular weight of at least 500 Daltons (Ans. 6). The Examiner finds that the Specification discloses components other than protein for the soluble biopolymer based emulsifier (Ans. 6). Based on these findings, the Examiner determines that the Specification does not inherently mean that the dimensionless reference is Daltons (Ans. 6). The test for written descriptive support is whether the disclosure of the application relied upon reasonably conveys to those skilled in the art that the inventor had possession of the claimed subject matter as of the filing date. Ariad Pharms., Inc. v. Eli Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010). The test for written description requires an objective inquiry into the four corners of the specification from the perspective of a person of ordinary skill in the art. Id. Based on that inquiry, the specification must describe an invention understandable to that skilled artisan and show that the inventor actually invented the invention claimed. Id. 3 Berg et al., Biochemistry (5th Ed. 2002). Appeal 2020-003387 Application 13/697,607 4 As noted, the sufficiency of written description is determined from the perspective of a person of ordinary skill in the art. In this case, Appellant proffers evidence of a biochemistry textbook that shows that molecular weight of proteins may be stated in terms of a dimensionless number (e.g., a molecular weight of 50,000) or a mass of 50,000 daltons (Biochemistry textbook evidence submitted August 20, 2018). The textbook evidence shows that a person of ordinary skill in the art would have understood that molecular weight of a protein may be either stated as a dimensionless number or equivalently stated as the same value in daltons. The Examiner finds the water soluble biopolymer based emulsifier is not limited to a protein (Ans. 6). Contrary to the Examiner’s finding, claim 1 was amended and now recites “the water soluble biopolymer based emulsifier being a milk-derived protein.” In other words, the evidence supports that a person of ordinary skill would have understood Appellant to be in possession of a water soluble biopolymer based emulsifier being a milk-derived protein having a molecular weight of 500 Daltons. Based on these findings, we reverse the Examiner’s § 112, first paragraph, rejection of claims 1, 3–11, and 15–23 as lacking written description. § 103 Rejection Appellant argues the subject matter of claims 1 and 16, and dependent claims 7, 18, and 23 as a group (Appeal Br. 8–12). We select claims 7 and 18 as representative of the group. Therefore, we address Appellant’s arguments regarding claims 1, 7, 16, and 18. Appeal 2020-003387 Application 13/697,607 5 Claims 1 and 16 The Examiner’s findings and conclusions regarding Vulfson and Auweter are located on pages 2 to 4 of the Final Action. The Examiner finds that Vulfson discloses the subject matter of claim 1, except for the particle size of the plant sterols and the molecular weight of the water- soluble emulsifier (Final Act. 2, 3). The Examiner finds that Auweter teaches incorporating phytosterols having a particle size in the range from 0.01 to 100 micrometers in aqueous and oily preparations having improved dispersibility (Final Act. 3). The Examiner finds that Vulfson teaches varying the amount of fat in the composition such that it would have been obvious to vary the amounts of liquid oil and hardened fat depending on the desired consistency and nutritional profile (Final Act. 3). The Examiner concludes it would have been obvious to use plant sterol having small particle sizes as taught by Auweter to improve the sterol’s dispersibility in the aqueous and fat phases of the spread product (Final Act. 3). The Examiner finds that Vulfson discloses the same type of protein and milk powder as recited in claim 1, such that the molecular weight of 500 recited in claim 1 would have been obvious (Final Act. 3–4). Appellant argues the Examiner’s reason for combining the teachings of Vulfson and Auweter (i.e., to improve dispersibility) is undermined by Vulfson’s teaching that an even distribution of phytosterols in both the aqueous and lipid phases is undesirable due to poor organoleptic properties (Appeal Br. 9). Appellant cites page 6, lines 10–13 of Vulfson to support this argument (Appeal Br. 9). Contrary to Appellant’s argument, the Examiner correctly finds that Vulfson on page 6, lines 10–13 discusses problems with the prior art, not Appeal 2020-003387 Application 13/697,607 6 Vulfson (Ans. 7). The Examiner finds that Vulfson criticizes the expensive grinding process required to achieve the small particle size, not the use of smaller particles in the spread (Ans. 7). Indeed Vulfson discloses at page 6, lines 4–13 that Tianen teaches to add plant sterols to emulsified spreads, but such a process requires an expensive grinding process to form 30 micrometer particles of the plant sterols. Vulfson teaches the poor organoleptic properties are a result of different organoleptic perceptions of the particular sterols in the oil and water phases between which the sterol powder is evenly distributed by admixing with the emulsified spread. (Vulfson 6:10–13). In other words, it is not the particle size that is the issue, but rather the process used to make and mix the powder with the emulsified spreads. Appellant argues that Auweter’s particle sizes are based on a mean particle size and is silent as to the volume percent of the particle sizes (Appeal Br. 10). Appellant argues mean particle size is based on numerical averages and there is simply no correlation between volume percentages and mean particle size (Appeal Br. 10). Appellant contends that in Auweter’s pulverulent powder the volume percent of the particles smaller than 10 micrometers would be less than or equal to 10% instead of the at least 70 vol.% as required by claim 1 or at least 90 vol.% as required by claim 16 (Appeal Br. 10). The Examiner finds that even if Appellant’s argument is correct that Auweter and Vulfson do not disclose volume percent of the particle sizes, the Examiner finds that Appellant’s argument is based on Auweter’s broadest particle size range (0.01 to 100 micrometers) (Ans. 8). The Examiner finds that Auweter teaches a most preferred particle size range Appeal 2020-003387 Application 13/697,607 7 from 0.05 to 1 micrometer (Ans. 8). The Examiner finds and Appellant does not contest that the percent of particles having the size of less than 10 micrometers would be encompassed within the percent claimed (i.e., at least 70 vol.% or at least 90 vol.%) (Ans. 8). The Examiner finds that Auweter discloses grinding is carried out until the particles are in the size range from 0.2 to 0.8 micrometers and all the particles would have a size smaller than 10 micrometers when the mean particle size is from 0.2 to 0.8 micrometers (Ans. 8). Appellant does not file a Reply Brief to respond to these findings. Appellant does argue that the particles are dried and the drying process produces agglomerates that range in size from 100 to 1000 micrometers and then the powders are ground to yield a particle size from 0.1 to 1.0 micrometers (Appeal Br. 9–10). The Examiner correctly finds Auweter to teach that the heating step used in the drying process is another embodiment (Ans. 8). Auweter discloses in paragraphs 50 to 51 that a further variant of the grinding process involves heating the phytosterol suspension after grinding to cause complete or partial melting of the phytosterols. Auweter teaches agglomerates form from this heating process and redistribution to form a uniform distribution of 0.1 to 1.0 micrometer particles (¶¶ 51–53). This disclosure, however, relates to a single embodiment and does not detract from Auweter’s disclosure to grind the phytosterols into particles having a particle size from 0.2 to 0.8 micrometers (¶ 48). Appellant has not established reversible error with the Examiner’s rejection of claims 1 and 16. Appeal 2020-003387 Application 13/697,607 8 Claims 7 and 18 Appellant argues that Example 33 of Vulfson includes 14.7 wt.% structured fat component, which is double the amount of structured fat recited in claim 7 (Appeal Br. 11). Appellant argues that Vulfson does not teach compositions having such a low weight percent of structured fat as recited in claims 7 and 18 and teaches away from small particle sizes (Appeal Br. 12). We are unpersuaded by the argument that Vulfson teaches away from small particle sizes for the same reasons discussed above with regard to claim 1. Regarding the structured fat content, the Examiner finds Vulfson’s Example 33 is merely one embodiment and Vulfson includes a broader disclosure in paragraph 53 that the amount of fat including liquid oil and hardened fat can be up to 40% (Ans. 9). The Examiner finds that it would have been a matter of routine optimization to determine the amount of structured fat needed to achieve the desired consistency and nutritional value of the spread (Final Act. 3; Ans. 9). The Examiner finds that Vulfson’s teaching that the amount of fat being varied including in amounts up to 40% of the mixture of liquid oil and hardened fat is a recognition that the amount of fat is a result-effective variable (Ans. 9). The preponderance of the evidence supports the Examiner’s obviousness conclusion. Appellant argues that the Example 1 and Comparative Examples A to E in the Specification establish it was surprisingly found that the claimed combinations of water-soluble emulsifier, a fat-soluble emulsifier and plant sterol particles of a certain size allow for an edible fat continuous spread with good organoleptic properties and an increased hardness (Appeal Br. 10–11). Appellant argues that evidence in Example 1 and Comparative Appeal 2020-003387 Application 13/697,607 9 Examples A to E demonstrate criticality regarding the specific combinations and ranges of components required by the pending claims and in particular claim 7 (Appeal Br. 11). The Examiner finds that evidence is not commensurate in scope with the Specification that recites a broader range of structured fat content from 1 to 20% (Ans. 9). Indeed, claim 1 does not recite any range for the structured fat content. Claim 1 only recites a total (liquid oil and structuring fat) content of 5 to 85%. Claim 7 recites the structuring fat content of 6 to 8 wt.% and claim 18 recites a structuring fat content of 3 to 5 wt.%. Appellant’s evidence uses a fat powder content in Example 1 of 4.3% (Spec. 14). It is not clear if the fat powder corresponds to the structuring fat. If the fat powder in Appellant’s examples corresponds to the structuring fat, then Example 1 is outside the range recited in claim 7. In the case of claim 18, the 4.3% structuring fat content is only a single data point and fails to establish criticality over the entire range (i.e., 3 to 5%). Appellant provides no comparative results for compositions where the structuring fat content is below 3%. In any event, Appellant has not explained how the results compare to the closest prior art (i.e., Vulfson) which uses a structuring fat and liquid oil. In re Burckel, 592 F.2d 1175, 1179 (CCPA 1979). Appellant has not established unexpected results or criticality in the claimed ranges. We affirm the Examiner’s § 103(a) rejection of claims 1, 3–11, and 15–23 over Vulfson and Auweter. DECISION In summary: Appeal 2020-003387 Application 13/697,607 10 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–11, 15–23 112 Written Description 1, 3–11, 15–23 1, 3–11, 15–23 103(a) Vulfson, Auweter 1, 3–11, 15–23 Overall Outcome 1, 3–11, 15–23 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) (2019). AFFIRMED