The Coca-cola Company

Patent Trials and Appeals Board

Jun 2, 2020

2019004591 (P.T.A.B. Jun. 2, 2020)

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.
14/662,638 03/19/2015 Indra Prakash 12600.105054 US CON 4646
121055 7590 06/02/2020
King & Spalding
1180 Peachtree Street
Atlanta, GA 30309
EXAMINER
WONG, LESLIE A
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
06/02/2020 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):
atlipdocketing@kslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte INDRA PRAKASH, GRANT E. DUBOIS, PRASHANTHI
JELLA, GEORGE A. KING, RAFAEL I. SAN MIGUEL, KELLY H.
SEPCIC, DEEPTHI K. WEERASINGHE, and NEWTON R. WHITE
Appeal 2019–004591
Application 14/662,638
Technology Center 1700
Before BEVERLY A. FRANKLIN, MICHAEL P. COLAIANNI, JULIA
HEANEY, Administrative Patent Judges.
FRANKLIN, 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 166–169, 172, and 173. 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(a). Appellant identifies the real party in interest as Coca-Cola Co.
Appeal Br. i.
Appeal 2019–004591
Application 14/662,638

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CLAIMED SUBJECT MATTER
Claim 166 is illustrative of Appellant’s subject matter on appeal and is
set forth below:

166. A beverage comprising at least one amino acid and about
400 to about 500 ppm rebaudioside A, wherein:
the at least one amino acid is present in an amount from
about 100 ppm to about 25,000 ppm and the amino acid is
selected from the group consisting of aspartic acid, arginine,
glycine, glutamic acid, praline, threonine, theanine, cysteine,
cystine, alanine, valine, tyrosine, leucine, isoleucine, asparagine,
serine, lysine, histidine, omithine, methionine,
camitine, aminobutyric acid, glutamine, hydroxyproline, taurine,
norvaline, sarcosine, salts thereof and combinations thereof.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Payzant US 5,962,678 Oct. 5, 1999
Harada US 6,083,549 July 4, 2000
Catani US 2006/0073254 A1 Apr. 6, 2006
Jan M.C. Geuns, REVIEW: The safety of stevioside used as a sweetener,
Proc. of the first symposium, The safety of Stevioside, (2004)

THE REJECTION
Claims 166–169, 172, and 173 stand rejected under pre-AIA 35
U.S.C. § 103(a) as being unpatentable over Geuns, Payzant, Catani, and
Harada.
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OPINION
Appellant does not present any substantively distinct arguments for
the Examiner’s rejection or for any dependent claims. See Appeal Br.
passim. Therefore, consistent with the provisions of 37 C.F.R.
§ 41.37(c)(1)(iv) (2013), we limit our discussion to claim 166, and all other
claims on appeal stand or fall together with claim 166.
Upon consideration of the evidence and each of the respective
positions set forth in the record, we find that the preponderance of evidence
supports the Examiner’s findings and conclusion that the subject matter of
Appellant’s claims is unpatentable over the applied art. Accordingly, we
sustain the Examiner’s rejection on appeal essentially for the reasons set
forth in the Non-Final Office Action (mailed February 6, 2018), and in the
Answer, and add the following for emphasis.
We refer to the Examiner’s statement of the rejection as set forth on
pages 3–4 of the Answer, which we adopt as our own.
Appellant’s arguments are set forth in section “D. Appellant’s
Traversal” of the Appeal Brief.2 Therein, Appellant argues that the
Examiner has not established a prima facie case of obviousness because a)
the Examiner has failed to resolve the Graham factors, b) the Examiner has
not made any finding that in combination, each element performs the same
function as it did separately, and c) the Examiner has not made any finding
that an ordinary artisan would have considered the results of the combination

2 The Appeal Brief does not have page numbers, so we refer to section
headings as appropriate. Where page numbers are used, we numbered the
Appeal Brief whereby the first page is page 1.
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predictable. Appellant additionally argues that the claimed invention would
not have been obvious to one of ordinary skill in the art in view of the cited
references at the time of the invention because a) a person of skill in the art
would not have been motivated to combine the cited references and b) a
person of skill in the art would have lacked a reasonable expectation of
success. Appellant also submits that the Examiner has not properly
considered Appellant’s rebuttal arguments because a) the Examiner has not
specifically set forth the facts and reasoning that justify the conclusion that
the Appellant’s rebuttal arguments are insufficient and b) the Examiner has
not established that the Appellant’s unexpected results are not commensurate
with the scope of the claims. Appellant also argues (citing certain case law)
that there is no obviousness where there would have been no reason to
modify the initial formulation, even though the modification was possible,
and when there is no evidence that the secondary reference provided an
advantage that the primary reference needed. Appellant presents related
arguments in the Reply Brief.
We are unpersuaded by the aforementioned line of arguments for the
following reasons.
As stated by the Examiner beginning on page 5 of the Answer, the
Examiner finds that Geuns discloses the steviol glycosides extracted from
Stevia rebaudiana to include rebaudioside A, rebaudioside B, rebaudioside
C, rebaudioside E, rebaudioside F, dulcoside A, dulcoside B, stevioside, and
steviolbioside. The Examiner relies upon Payzant for teaching the extraction
and purification of the Stevia rebaudiana plant, wherein a purity of
rebaudioside A is at least 95%. The Examiner relies upon Catani for
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teaching the addition of amino acids as claimed to high intensity sweeteners
(“HIS” sweeteners) such as stevioside. Ans. 5. The Examiner relies upon
Harada for teaching sweetening compositions wherein the use of amino
acids serves to reduce astringency and bitterness of intense sweetener such
as rebaudioside. Thus, the Examiner’s statement that the combination of a
rebaudioside type sweetener with a sweetness-improving agent is known in
the art is well-founded. Ans. 5. The Examiner then states that once the art
has recognized the use of the claimed components for a specific purpose,
then the use and manipulation of amounts would be obvious, expected, and
well-within the skill of the art, including the manipulation of sweetener
amounts. Ans. 5.
In response to Appellant’s argument that there is no teaching,
suggestion, or motivation to combine the references, the Examiner replies
that in this case, all of the references are directed to the use of sweeteners
including steviol glycosides. Ans. 5. The Examiner also states that
sweeteners are numerous and structurally diverse; however, the ultimate
goal in the sweetener art is to duplicate or closely match the characteristics
of sucrose. The Examiner states that it is well-known that different
sweeteners have different sucrose equivalencies, and consequently, the
manipulation of amounts is expected. Ans. 6.
We agree with the Examiner’s aforementioned stated position, and
thus agree that a prima facie case has been made for the reasons provided by
the Examiner in the record as highlighted hereinabove. We note that “[f]or
obviousness under § 103, all that is required is a reasonable expectation of
success.” In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988)(citations
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omitted); see also, PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d
1342, 1364 (Fed. Cir. 2007) (quoting Pfizer, Inc. v. Apotex, Inc., 480 F.3d
1348, 1367–69 (Fed. Cir. 2007) (“[T]he expectation of success need only be
reasonable, not absolute.”)). Also, “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.” KSR Int’l v. Teleflex Inc., 550 U.S. 398, 415-
16 (2007). The question to be asked is “whether the improvement is more
than the predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417. In the instant case, the applied art
indicates (as stated by the Examiner in the record) that the combination of a
rebaudioside type sweetener with a sweetness-improving agent is known in
the art, as well as the associated characteristics. The Examiner thus
appropriately determines that the combination of teachings of the applied
references would be merely a predictable use of a prior art element for its
established function. KSR, 550 U.S. at 417.
Having determined that the Examiner has properly presented a prima
facie case, we turn now to Appellant’s rebuttal evidence of non-obviousness.
Appellant relies on Example Set B and Example Set F set forth in the
Specification. Appellant also refers to an article by Indra Prakash in an
effort to show that the sweetener art is unpredictable because of differing
flavoring and temporal profiles. Appeal Br. 19. Appellant argues that the
Examiner has not considered the rebuttal evidence.
However, the Examiner discusses the rebuttal evidence on page 6 of
the Answer. Therein, the Examiner identifies three reasons why the rebuttal
evidence is not adequate, and we agree with those reasons. In so doing, we
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note that Appellant can rebut a prima facie case of obviousness by showing
“unexpected results,” i.e., showing that the claimed invention possesses a
superior property or advantage that a person of ordinary skill in the art
would have found surprising or unexpected. See In re Geisler, 116 F.3d
1465, 1469 (Fed. Cir.1997) (quoting In re Soni, 54 F.3d 746, 750 (Fed. Cir.
1995)). Appellant does not adequately present an analysis of the data
sufficient to establish unexpected results. Manifestly, it is not within the
province of the Board to independently review Appellant’s data and ferret
out possible evidence of unexpected results. On the contrary, the burden of
establishing unexpected results rests squarely upon the party asserting them.
In re Klosak, 455 F.2d 1077, 1088 (CCPA 1972).
We also note that “where the prior art gives reason or motivation to
make the claimed [invention] . . . the burden (and opportunity) then falls on
an applicant to rebut that prima facie case. Such rebuttal or argument can
consist of . . . any other argument or presentation of evidence that is
pertinent.” In re Dillon, 919 F.2d 688, 692-93 (Fed. Cir. 1990) (internal
citations omitted) (en banc). The burden rests with Appellants to establish,
inter alia, (1) that the comparisons are to the disclosure of the closest prior
art, and (2) that the supplied evidentiary showing is commensurate in scope
with the claimed subject matter. See In re Klosak, 455 F.2d 1077, 1080
(CCPA 1972).
On this record, we concur with the Examiner that the showing
(rebuttal evidence) is insufficient.
CONCLUSION
We affirm the Examiner’s decision.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
166–169,
172, 173
103(a) Geuns, Payzant,
Catani, Harada
166–169,
172, 173

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