Upfield US Inc.

Patent Trials and Appeals Board

Apr 1, 2021

2020003054 (P.T.A.B. Apr. 1, 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.
13/697,578 12/04/2012 Richard Draijer 039676.00036 2133
68543 7590 04/01/2021
Arent Fox LLP - Los Angeles
555 West Fifth Street
48th Floor
Los Angeles, CA 90013
EXAMINER
CORNET, JEAN P
ART UNIT PAPER NUMBER
1628
NOTIFICATION DATE DELIVERY MODE
04/01/2021 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 RICHARD DRAIJER and
BERT-JAN HENDRIK VAN DEN BORN

_________________

Appeal 2020-003054
Application 13/697,578
Technology Center 1600
_________________

Before DEBORAH KATZ, JON M. JURGOVAN, and
JOHN E. SCHNEIDER, Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 seeks our review,2 under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1–4 and 17–19. We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.

1 We use the word “Appellant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party-in-interest as Upfield U.S. Inc. (Appeal Br. 3.)
2 We consider the Non-Final Office Action issued January 22, 2019 (“Non-
Final Act.”), the Appeal Brief filed September 24, 2019 (“Appeal Br.”), and
the Examiner’s Answer issued on January 15, 2020 (“Ans.”).
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Application 13/697,578

2
The Examiner previously rejected Appellant’s claims 1–3 as being
anticipated under 35 U.S.C. § 102(b) by Mumford,3 as evidenced by
Harvard.4 (See Non-Final Act. 4–6.) The Examiner withdrew this rejection
in the Answer, but maintains rejections over Mumford and Harvard Health
under 35 U.S.C. § 103. (See Ans. 9.) The Examiner also rejects claims 1–4
and 17–19 under 35 U.S.C. § 103(a) as being unpatentable over McKee,5
Cholesterol Information,6 and Eteng.7 (See Ans. 6–9.)
Appellant’s Specification is directed to methods of increasing HDL
cholesterol or the ratio of HDL/LDL cholesterols in humans by
administering theobromine. (Spec. 1:5–10.)
Appellant’s claim 1 recites:
A method for increasing HDL-cholesterol in a human in need
of treatment of increasing HDL-cholesterol, which method
comprises administering to the human an HDL cholesterol
raising effective amount of theobromine, wherein the effective
amount is from 300 to 2000 mg theobromine per day and
wherein the increase in HDL-cholesterol in humans (in blood
and/or serum) is at least 5%.

3 Mumford et al., “Discriminative stimulus and subjective effects of
theobromine and caffeine in humans,” PSYCHOPHARMACOLOGY, 115:1–8
(1994).
4 Harvard Women’s Health Watch, “Up with HDL, the ‘good’ cholesterol,”
June 2008.
5 McKee and Nolan, International Patent Application Publication WO
2004/082609 A2, published September 30, 2004.
6 Continuing Medical Implementation, Cholesterol Information, available at
http://www.cvtoolbox.com/cvtoolbox1/cholesterol/ch.html (November
2007).
7 Etang et al., “Comparative Effects of Theobromine and Cocoa Extracts on
Lipid Profile in Rats,” Nutrition Research, 20:1513–17 (2000).

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(Appeal Br. 14.) Appellant’s independent claim 2 is similar, but is directed
to “increasing the ratio HDL-cholesterol /LDL-cholesterol in a human in
need of treatment for improving blood lipids and/or blood lipids profile
. . . .” (See id.) Appellant’s independent claim 3 is also similar, but is
directed to “increasing the ratio HDL-cholesterol /non-HDL cholesterol in a
human in need of treatment for improving blood lipids and/or blood lipids
profile . . . .” (See id.)
Mumford and Harvard Health
As the Examiner finds, Mumford teaches administering 1000 – 2000
mg theobromine to healthy subjects. (See Ans. 4, citing Mumford 2.)
Although the Examiner finds that Mumford does not expressly teach the
healthy subjects were in need of increasing HDL-cholesterol, the Examiner
cites Harvard Health for the teaching that healthy patients can benefit from
increasing HDL cholesterol and improving blood lipid profiles. (See Ans. 5,
citing Harvard Health.) The Examiner cites the teaching in Harvard Health
that HDL is “good” cholesterol and that it removes LDL from the artery
walls and ferries it back to the liver for processing or removal. (See id.)
Harvard Health also states: “So let HDL-boosting be one more reason to
stay on track with some healthy lifestyle choices that should be pretty
familiar to most of us by now.” (Harvard Health 2.)
The Examiner determines that one of ordinary skill in the art would
have a reason to administer theobromine to increase HDL as taught in
Mumford because Harvard Health teaches the advantages of increasing
HDL. (See Ans. 5.)
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Appellant argues that Mumford’s subjects were healthy, without any
medical conditions and, thus, not in need of treatment as required in the
claims. (See Appeal Br. 11.) Appellant argues:
The Office Action fails to provide a reasonable basis for
concluding that one of ordinary skill in the art familiar with
Mumford’s study, would extrapolate from this data that an
effective amount of theobromine could be administered once a
day in the effective amounts required by the claims to treat
subjects in need of increasing their HDL-cholesterol or
improving blood lipids and/or blood lipids profile.

(Appeal Br. 11.) We are not persuaded by this argument because Appellant
does not explain what distinguishes the humans recited in Appellant’s claims
and the healthy subjects taught in Mumford, particularly when Harvard
Health teaches that increasing HDL-cholesterol provides benefits and is part
of a healthy lifestyle. We are not persuaded that “a human in need of
treatment” as recited in Appellant’s claims cannot also be healthy.
Appellant argues that Mumford does not teach that the subjects
disclosed were deficient in HDL (see Appeal Br. 11), but Appellant does not
direct us to an interpretation of the phrase “a human in need of treatment of
increasing HDL-cholesterol” that requires a deficiency of HDL-cholesterol.
Appellant does not direct us to evidence supporting an interpretation of the
claim phrase that distinguishes the subjects of Mumford from those who
would benefit from the advantageous effects of HDL-cholesterol taught in
Harvard Health. We note that Appellant’s Specification states:
Although the use as set out herein is not believed to be the
treatment of a disease (but helps people to maintain a healthy
life style without the need to take prescription drugs), the
invention further relates to the use of theobromine for the
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5
manufacture of a medicament or foodstuff for increasing HDL-
C in humans.

(Spec. 12:17–20.) Appellant thus acknowledges in the Specification that
even those not suffering from a disease can be in need of treatment to
increase HDL-cholesterol. Accordingly, we are not persuaded that “a
human in need of treatment of increasing HDL-cholesterol,” as required in
Appellant’s claims, is limited by any particular disease or deficiency.
We are not persuaded that the Examiner erred in rejecting Appellant’s
claim 1 over Mumford and Harvard Health. Appellant does not present
separate arguments against the rejections of claim 2 or 3. For the same
reasons we are not persuaded that the Examiner erred in rejecting these
claims either. Accordingly, we affirm the rejections.
McKee, Cholesterol Information, and Eteng
The Examiner entered a separate rejection of all of Appellant’s
pending claims as being obvious over McKee, Cholesterol Information, and
Eteng. (See Ans. 6–9.) Appellant argues only that the website for the
reference Cholesterol Information was not provided and that Appellant
cannot be sure if it qualified as a printed publication. (See Appeal Br. 11–
12.) Appellant states: “Appellants reserve the right to provide a more
fulsome response to this ground of rejection in a Reply Brief to be filed after
the Examiner’s Answer.” (Appeal Br. 12.)
After the Examiner provided a direct link to the reference in the
Answer (see Ans. 13), Appellant did not file a Reply Brief. We note that the
reference provided by the Examiner is available at
http://www.cvtoolbox.com/cvtoolbox1/cholesterol/ch.html, and includes a
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Application 13/697,578

6
date of “November 2007.” Appellant does not argue or direct us to evidence
that this date is unreliable.
Because Appellant raised no substantive argument against the
rejection based on McKee, Cholesterol Information, and Eteng, we are not
persuaded that the Examiner erred in rejecting Appellant’s claims as being
obvious over these references. Accordingly, we affirm the rejection.
Conclusion
Upon consideration of the record and for the reasons given, we affirm
the Examiner’s rejection.
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–3 102(b) Mumford, Harvard 1–3
1–4, 17–19 103 McKee,
Cholesterol
Information, Eteng
1–4, 17–19
Overall
Outcome
1–4, 17–19

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED