Anijs, Harrold Glenn. et al.

Patent Trials and Appeals Board

Nov 15, 2019

13525786 - (D) (P.T.A.B. Nov. 15, 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.
13/525,786 06/18/2012 Harrold Glenn Anijs 123246-5003-US-02 4380
9629 7590 11/15/2019
Morgan, Lewis & Bockius LLP (WA)
1111 Pennsylvania Avenue, N.W.
Washington, DC 20004
EXAMINER
MCCLAIN-COLEMAN, TYNESHA L.
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
11/15/2019 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):
karen.catalano@morganlewis.com
patents@morganlewis.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte HARROLD GLENN ANIJS and RONALD HEISTEK
____________

Appeal 2019-000500
Application 13/525,786
Technology Center 1700
____________

Before GEORGE C. BEST, N. WHITNEY WILSON, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 18–21, 25, and 26.1, 2 We have
jurisdiction over this appeal 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 Olam International Limited as the real
party in interest. Appeal Brief filed February 20, 2018 (“Appeal Br.”) at 3.
2 Although claims 1, 4, 6, 8, 10–15, and 17–27 were rejected in the Final
Office Action entered August 10, 2017 (“Final Act.”), Appellant cancelled
claims 1, 4, 6, 8, 10–15, 17, 22–24, and 27 in an amendment filed February
20, 2018, and the Examiner confirmed entry of the amendments in an
Advisory Action entered March 21, 2018.
Appeal 2019-000500
Application 13/525,786

2
STATEMENT OF THE CASE
Appellant claims a method of producing a high-brightness cocoa
powder. Appeal Br. 3–4. Independent claim 18 illustrates the subject matter
on appeal and is reproduced below with contested language italicized:
18. A method of producing a high-brightness cocoa powder,
comprising the following steps in the following order:
pre-heating de-shelled cocoa beans;
sterilizing the de-shelled cocoa beans at a temperature of
between 90–110°C;
cooling the sterilized, de-shelled cocoa beans with water;
after cooling the sterilized, de-shelled cocoa beans,
alkalizing the cooled, de-shelled cocoa beans in an alkalizing
mixture comprising the de-shelled cocoa beans, alkali and
water, at an alkalization temperature of from about 50°C to
about 85°C, wherein essentially no steam and a minimal
amount of air is used during the alkalizing step, wherein the
alkalized, de-shelled cocoa beans have a moisture content of
18–30%;
roasting the alkalized, de-shelled cocoa beans; and
processing the roasted, de-shelled cocoa beans into cocoa
powder;
wherein the sterilizing, cooling and alkalizing are
adjusted to produce a high-brightness cocoa powder having
color values of L less than 16, of C greater than 22, of H from
about 35 to about 55, and of a from about 15.93 to about 16.98
as determined according to CIE 1976 color standards; and a
pH of greater than 7.0.
Appeal Br. 23 (Claims Appendix) (emphasis added).
Appeal 2019-000500
Application 13/525,786

3
The Examiner maintains the following rejections in the Examiner’s
Answer entered August 28, 2018 (“Ans.”) (Ans. 30; see also Advisory
Action entered March 21, 2018, pg. 2):
I. Claims 18 and 21 under 35 U.S.C. § 103(a) as unpatentable
over RD 363032,3 in view of Smith,4 Kajiwara,5 Van Der
Meer,6 and Kattenberg;7
II. Claims 18 and 21 under 35 U.S.C. § 103(a) as unpatentable
over RD 363032 in view of Smith, Van Der Meer, Kattenberg
and Wissgott,8
III. IV. Claims 19, 20, 25, and 26 under 35 U.S.C. § 103(a) as
unpatentable over RD 363032 in view of Shore,9 Smith,
Wiant,10 Van Der Meer, and Kattenberg; and
IV. Claims 19, 20, 25, and 26 under 35 U.S.C. § 103(a) as
unpatentable over RD 363032 in view of Shore, Smith, Van
Der Meer, Kattenberg, and Raboud.11

3 Description of the Process of Producing Alkalized and Sterilized Cocoa
Beans and Their Derived Products (Cocoa Powder and Cocoa Flour) From
Raw Cocoa Beans, Research Disclosure data base number 363032 (1994) (as
translated by FLS, Inc.) (hereinafter “RD 363032”).
4 Smith, US 3,615,668, issued October 26, 1971.
5 Kajiwara, et al., JP H 09–98681, published April 12, 1994 (hereinafter
“Kajiwara”).
6 Van Der Meer, WO 2006/008627 A1, published January 26, 2006.
7 Kattenberg, US 4,704,292, issued November 3, 1987.
8 Wissgott, US 4,784,866, issued November 15, 1988.
9 Shore et al., US 3,700,468, issued October 24, 1972.
10 Wiant et al., US 5,009,917, issued April 23, 1991 (hereinafter “Wiant”).
11 Raboud et al, US 4,349,579, issued September 14, 1982 (hereinafter
“Raboud”).
Appeal 2019-000500
Application 13/525,786

4
DISCUSSION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we affirm the Examiner’s rejections of
claims 18–21, 25, and 26 under 35 U.S.C. § 103(a), for the reasons set forth
in the Final Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the appellant provides for each issue the appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv); 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)) (explaining that even if the Examiner had
failed to make a prima facie case, “it has long been the Board’s practice to
require an applicant to identify the alleged error in the examiner’s
rejections.”).
Rejection I: claims 18 and 21 under 35 U.S.C. § 103(a) as unpatentable over
RD 363032 in view of Smith,12 Kajiwara, Meer, and Kattenberg
Appellant argues claims 18 and 21 as a group on the basis of claim 18,
to which we accordingly limit our discussion. Appeal Br. 10; C.F.R.
§ 41.37(c)(1)(iv).
RD 363032 discloses a process for producing “cocoa powder having a
very wide range of colors, varying from dark brown to very red” that
involves, in part, removing the shell from raw cocoa beans, sterilizing the
shelled beans by heating them to a temperature of 80°C to 140°C for 20 to

12 We need not address Smith for disposition of this appeal because
Appellant does not present any arguments directed to this reference. In re
NuVasive, Inc., 841 F.3d 966, 974 (Fed. Cir. 2016) (The Board is “not
required to address undisputed matters” or arguments about limitations with
which it was never presented.).
Appeal 2019-000500
Application 13/525,786

5
90 minutes, and alkalizing the sterilized beans “as soon as possible” after the
sterilization process. RD 363032 pp. 2–4. RD 363032 discloses that “[t]he
reaction vessel for the alkalinization is preferably the same reaction vessel in
which the product was sterilized so as to save time.” RD 363032 pg. 3. RD
363032 discloses that the alkalization process involves adding an alkaline
solution of potassium carbonate to the sterilized beans with intensive
mixing, and RD 363032 indicates that “the temperature in the reaction vessel
must be kept between 60 and 100°C” during alkalinization. Id.
The Examiner determines that “[w]hile the cooling step may occur
during the alkalization step in RD 363032 since the alkalization temperature
is lower than the temperature of the sterilized cocoa beans,” the
“transposition of process steps or the splitting of one step into two (e.g.,
separating the cooling step from the alkalization step [as recited in claim
18]), where the processes are substantially identical or equivalent in terms of
function, manner and result,” does not patentably distinguish the processes.
Ans. 34.
Kajiwara discloses a method of producing alkalized cocoa powder
that involves heating cocoa nibs in a reaction chamber with steam to raise
the temperature of the nibs to 85°C, adding an alkali solution previously
maintained at 85°C to the reaction chamber, and adding heated air to the
reaction chamber while stirring the nibs to bring them “into good contact”
with the air to maintain the temperature of the cocoa nibs at 75°C to 85°C.
Kajiwara ¶¶ 10, 20, and 28–36. Kajiwara discloses that “the color tones
differed depending on the temperature of the [alkali] treatment,” and
Kajiwara discloses that alkalizing at a temperature of 100°C or lower,
Appeal 2019-000500
Application 13/525,786

6
preferably 75°C to 85°C, results in a “desirable reddish brown color [tone].”
Id. ¶¶ 11, 36.
Van Der Meer discloses a process for producing cocoa powder from
alkalized cocoa nibs that results in a more attractive and intense red color,
and a brighter red color. Van Der Meer, 1, ll. 10–12, 2, ll. 12–15, 5, ll. 25–
26, and 9, ll. 25–27. Van Der Meer describes an exemplary alkalization
process that involves mixing cocoa nibs with an alkali solution, heating the
mixture with steam, and mixing the wetted cocoa nibs for 45 minutes at a
temperature of 96°C–99°C “to completely absorb the alkali solution and to
simultaneously sterilize the mixture.” Van Der Meer, 8, ll. 1–12.
Kattenberg discloses treating intermediate products used to produce
cocoa powder with a solution of a hydroxide or carbonate of sodium or
potassium (i.e., alkalizing) to produce a deeper more attractive color.
Kattenberg, col. 1, ll. 15–25. Kattenberg discloses that cocoa powder that is
not treated with alkali (natural process cocoa powder) has a tan to light-
brown color, while slightly alkalized cocoa powder has a light brown to red-
brown color. Id. at col. 1, ll. 25–31. Kattenberg further discloses that
medium processed cocoa powder has an intense red-brown to red color, and
intensely processed cocoa powder has a very intense red-brown to deep red
color. Id. at col. 1, ll. 31–35.
Based on these disclosures, the Examiner determines that “the color
and brightness of the cocoa powder are variables that can be modified by
adjusting the intensity of alkalization of the cocoa,” and the color and
brightness therefore “would have been considered a result effective variable
by one having ordinary skill in the art at the time the invention was made.”
Final Act. 10. The Examiner concludes that “[i]t would have been obvious
Appeal 2019-000500
Application 13/525,786

7
to one of ordinary skill in the art at the time the invention was made to
optimize the L, C, H, and b [sic: a] values of alkalized cocoa through routine
experimentation to obtain a cocoa powder of desirable color and
attractiveness.” Id.
Appellant argues that “[e]ach of RD363032, Kajiwara and [Van Der
Meer] explicitly teach away from cooling the cocoa nibs between the
sterilization and the alkalization steps.” Appeal Br. 12. Appellant argues
that although RD 363032 teaches that cocoa nibs may be alkalized at a
temperature lower than the temperature of the nibs immediately after
sterilization, “nothing in RD 363032 teaches cooling the cocoa nibs before
the alkalization process” as recited in claim 18. Id (citing RD 363032 ¶ 8).
Appellant argues that RD 363032 explicitly teaches away from such cooling
by disclosing that after sterilization, the cocoa nibs are alkalized as soon as
possible, preferably in the same reactor in which they were sterilized, to save
time. Id (citing RD 363032 ¶¶ 5–6). Appellant argues that Kajiwara teaches
against cooling cocoa beans between sterilization and alkalization steps
because Kajiwara discloses “preheating an alkali solution to 85°C when
adding it to cocoa beans at 85°C so that there is no difference in the
temperature of the cocoa bean prior to combining it with the alkali solution.”
Appeal Br. 13–14 (citing Kajiwara ¶¶ 8, 30–31). Appellant argues that Van
Der Meer discloses a simultaneous sterilization and alkalization step, and,
therefore, “there is no temperature difference of cocoa bean between
sterilization and alkalization processes.” Appeal Br. 14 (citing Van Der
Meer 3, ll. 13–19, 8, ll. 10–12). Appellant argues that these teachings of RD
363032, Kajiwara, and Van Der Meer “constitute a general understanding in
Appeal 2019-000500
Application 13/525,786

8
the art . . . that there are several disadvantages of cooling the cocoa nibs
between the sterilization step and the alkalization step.” Appeal Br. 14.
Appellant’s arguments are unpersuasive of reversible error in the
Examiner’s rejection, however, for reasons that follow.
It is well-established that “mere disclosure of alternative designs does
not teach away.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004); see
also Meiresonne v. Google, Inc., 849 F.3d 1379, 1382 (Fed. Cir. 2017) (“A
reference that ‘merely expresses a general preference for an alternative
invention but does not criticize, discredit, or otherwise discourage
investigation into’ the claimed invention does not teach away.” (quoting
Galderma Labs., L.P. v. Tolmar, Inc., 737 F.3d 731, 738 (Fed. Cir. 2013))).
Rather, teaching away requires “clear discouragement” from implementing a
technical feature. In re Ethicon, Inc., 844 F.3d 1344, 1351 (Fed. Cir. 2017).
Although RD 363032 may not disclose a dedicated step of cooling
shelled cocoa beans after sterilization and before alkalization, we find no
disclosure in RD 363032 that criticizes, discredits, or otherwise would have
discouraged one of ordinary skill in the art from cooling cocoa nibs after
sterilization and before alkalization, or disclosure of any disadvantages of
doing so, and Appellant does not identify any such disclosures in RD
363032. Appeal Br. 12–14. Furthermore, as the Examiner points out (Ans.
35), claim 18 does not specify any particular degree to which the recited de-
shelled cocoa beans must be cooled after sterilization, and, accordingly,
claim 18 encompasses any degree of cooling. One of ordinary skill in the art
would have understood that some degree of cooling—however slight—
would occur during the time after the sterilization process disclosed in RD
363032 is completed and before the alkalization process begins, even if
Appeal 2019-000500
Application 13/525,786

9
alkalization starts “as soon as possible” following sterilization.
Turning to Kajiwara and Van Der Meer, as discussed above, Kajiwara
discloses alkalizing cocoa nibs by first heating the nibs to 85°C in a reaction
chamber, and then adding an alkali solution maintained at a temperature of
85°C to the reaction chamber. We find no disclosure in Kajiwara of
sterilizing the cocoa nibs before this alkalization process, and, consequently,
find no disclosure that criticizes, discredits, or otherwise would have
discouraged one of ordinary skill in the art from cooling cocoa nibs
following sterilization and before alkalization, or of any disadvantages of
doing so. Although Van Der Meer discloses a simultaneous sterilization and
alkalization process, we similarly find no disclosure in this reference that
criticizes, discredits, or otherwise would have discouraged one of ordinary
skill in the art from cooling cocoa nibs following sterilization and before
alkalization, or of any disadvantages of doing so.
Accordingly, contrary to Appellant’s arguments, RD 363032,
Kajiwara, and Van Der Meer, alone or in combination, do not teach away
from cooling cocoa nibs following sterilization and before alkalization, as
recited in claim 18. Nor do the teachings of the references “constitute a
general understanding in the art . . . that there are several disadvantages of
cooling the cocoa nibs between the sterilization step and the alkalization
step” as Appellant asserts. Appeal Br. 14.
Moreover, as discussed above, the Examiner finds that transposition
of process steps, or splitting one process step into two, such as separating
cooling from alkalization in the method disclosed in RD 363032, where the
original and modified process steps are substantially identical or equivalent
in terms of function, manner and result, does not patentably distinguish the
Appeal 2019-000500
Application 13/525,786

10
original and modified process steps. Although Appellant argues that “the
Examiner provides no evidence to support that a process in which the de-
shelled cocoa beans are cooled with water after sterilization, and alkalized
after cooling the sterilized, de-shelled cocoa beans, as required in the
independent claims, is equivalent in terms of either of function, manner[, or]
result” to the process disclosed in RD 363032 (Reply Br. 7), “[t]here is
nothing in the instant record which indicates that the particular order of steps
[recited in claim 18] produces results differing in any way from those which
would be brought about if another order of steps were followed.” In re
Hampel, 162 F.2d 483, 485–86 (CCPA 1947); see also In re Burhans, 154
F.2d 690, 692 (CCPA 1946) (“Appellant contends that the references taken
singly or together do not teach his characteristic four steps which are new in
the art and which are necessary to obtain the desired result. There is no
merit in the point here in the absence of any proof in the record that the
order of performing the steps produces any new and unexpected results.”);
In re Gibson, 39 F.2d 975, 976 (CCPA 1930) (“It is conceded that the patent
to McIntyre discloses the same constituents used in substantially the same
proportions. The only claimed difference between appellant and McIntyre is
the process or order in which the constituents are put together. . . . We think
the proper sequence of adding the three ingredients to obtain the most
satisfactory mixture of three constituents is within the expected skill and
judgment of a mechanic and such choice of sequence does not involve
invention in making a mix of the constituents named in McIntyre.”)
(quotation marks omitted).
Under the principles of Burhans and Gibson set forth above, the order
of performing the known process steps recited in claim 18 of sterilizing,
Appeal 2019-000500
Application 13/525,786

11
cooling, and alkalizing de-shelled cocoa beans in a process for producing
cocoa powder does not impart patentability to the process steps, absent a
showing of the criticality of the recited order of the steps, such as a showing
that the recited order produces unexpected results. On the record before us,
Appellant does not point to a direct comparison between cooling de-shelled
cocoa beans after sterilization and before alkalization as recited in claim 18,
and the process disclosed in RD 363032. Appeal Br. 10–17. Appellant,
therefore, does not demonstrate that cooling de-shelled cocoa beans before
alkalization produces results that would have been unexpected relative to
results achieved with the process disclosed in RD 363032.
Nonetheless, Appellant argues that “the result of the claimed process
is not equivalent to the result of the process disclosed in RD363032 at least
for the reason that the alkalized cocoa nibs obtained from the claimed
process have different color properties than those obtained from the process
disclosed in RD363032,” based on the Examiner’s finding in the Answer
that “RD363032 does not disclose a specific cocoa powder having color
values of L less than about 16 . . . as presently claimed.” Reply Br. 7 (citing
Ans. 38).
Although cocoa powder produced according to the process disclosed
in RD 363032 may have a different L value than cocoa powder produced
according to the method recited in claim 18, Appellant does not provide any
evidence establishing that the difference in L values can be attributed to
when cooling de-shelled cocoa beans occurs in the respective processes
relative to alkalization of the beans, due to numerous other differences in the
processes disclosed in RD 363032 and recited in claim 18. In other words, a
cause-and-effect relationship between when de-shelled cocoa beans are
Appeal 2019-000500
Application 13/525,786

12
cooled relative to when they are alkalized and the L value of cocoa powder
ultimately produced is lost in multiple unfixed variables. In re Dunn, 349
F.2d 433, 439 (CCPA 1965) (“The cause and effect sought to be proven is
lost here in the welter of unfixed variables.”). Accordingly, on the record
before, Appellant does not provide persuasive evidence demonstrating the
criticality of the order of the process steps recited in claim 18.
Appellant argues that the Declaration of inventor Ronald Heistek filed
November 18, 2016 (“the Heistek Declaration”) provides evidence of how
one of ordinary skill in the art would have understood the disclosures of RD
363032. Appeal Br. 12–13. Appellant argues that the Heistek Declaration
explains that “[p]ersons skilled in the art of cocoa production would not
understand RD363032 to disclose a process for producing a cocoa powder
that includes sterilizing cocoa beans, cooling the sterilized beans and
alkalizing the cooled beans.” Appeal Br. 13 (citing Heistek Decl. ¶¶ 5–10).
Appellant argues that the Heistek Declaration “provides cogent reasoning for
this position” by indicating that persons skilled in the art of cocoa
production would not have cooled sterilized cocoa beans prior to alkalization
because lowering the temperature between sterilization and alkalization adds
an additional step and time to the process, lowering the temperature can
introduce loss of sterilization, and the loss of energy from the cooled beans
results in decreased activity during alkalization. Appeal Br. 13 (citing
Heistek Decl. ¶ 9). Appellant argues that the Examiner “has committed
reversible procedural error” by failing to address the Heistek Declaration.
Appeal Br. 13.
We point out initially that the Examiner explains in the Answer that
the Examiner addressed the Heistek Declaration at paragraphs 147–154 of
Appeal 2019-000500
Application 13/525,786

13
the January 20, 2017, Office Action. Ans. 34. In addition, as discussed
above, any difference between the order of process steps recited in claim 18
and disclosed in RD 363032 does not impart patentability absent a
persuasive showing of unexpected results, which Appellant does not provide
on the record before us. Appeal Br. 10–17.
Furthermore, although the Heistek Declaration may provide “cogent
reasoning,” neither the Declarant nor Appellant provides any objective
evidence corroborating the Declarant’s conclusory assertions that lowering
the temperature between sterilization and alkalization “can” introduce loss of
sterilization, and that loss of energy from the cooled beans results in
“decreased” activity during alkalization. Appeal Br. 10–17; Heistek Decl.
¶¶ 5–17. In particular, neither the Declarant nor Appellant provides any
objective evidence demonstrating that such purported loss of sterilization, or
decreased activity during alkalization, would be detrimental to a process for
producing cocoa powder as disclosed in RD 363032. Appeal Br. 10–17.
Moreover, as discussed above, claim 1 encompasses any degree of cooling
before alkalizing, and neither Appellant nor the Declarant provides any
showing that a very slight degree of cooling, as encompassed by claim 1,
would result in any loss of sterilization, or decreased activity during
alkalization.
Moreover, although the Declarant asserts that one of ordinary skill in
the art would not have cooled sterilized cocoa beans prior to alkalization
because lowering the temperature between sterilization and alkalization adds
an additional step and time to a process for producing cocoa powder, such
additional time alone would not have discouraged one of ordinary skill in the
art seeking to produce cocoa powder from cooling sterilized cocoa beans
Appeal 2019-000500
Application 13/525,786

14
before alkalization. See In re Farrenkopf, 713 F.2d 714, 718 (Fed. Cir.
1983) (“[A]dditional expense associated with the addition of inhibitors
would not discourage one of ordinary skill in the art.”).
The uncorroborated opinions provided in the Heistek Declaration are,
therefore, of limited probative value. Velander v. Garner, 348 F.3d 1359,
1371 (Fed. Cir. 2003) (“In giving more weight to prior publications than to
subsequent conclusory statements by experts, the Board acted well within
[its] discretion.”); Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010)
(The Board has discretion to give more weight to one item of evidence over
another “unless no reasonable trier of fact could have done so.”).
Appellant argues that “the combination of cited references fails to
provide a roadmap of determining conditions used in processing cocoa nibs
to obtain cocoa powder with the claimed values of L, C, H and a.” Appeal
Br. 17. Appellant argues that Wissgot and Wiant each disclose that as a
cocoa product is darkened, its brightness is reduced significantly, and neither
reference discloses cocoa powder with a C (brightness) value above 18.
Appeal Br. 16 (citing Spec. ¶¶ 5–6 (discussing Wissgot and Wiant) and
Heistek Decl. ¶ 15). Appellant argues that the Heistek Declaration explains
that “while alkalizations typically result in darker cocoa powders, such
processes also make the resultant cocoa powders duller, i.e., they reduce the
brightness or C color value of the resultant cocoa powders,” demonstrating
that it would not have been obvious “how to adjust processing parameters to
achieve an alkalized dark, but bright cocoa powder.” Appeal Br. 16 (citing
Heistek Decl. ¶¶ 11–17). Appellant argues that the Examiner’s “conclusion
that ‘it would have been obvious to one of ordinary skill in the art at the time
the invention was made to optimize the L, C, H and a values of alkalized
Appeal 2019-000500
Application 13/525,786

15
cocoa through routine experimentation to obtain a cocoa powder of desirable
color and attractiveness,’” is, therefore, “factually and legally incorrect.”
Appeal Br. 17.
As discussed above, however, Van Der Meer discloses that alkalizing
cocoa nibs during production of cocoa powder imparts a brighter and more
intense red color to the cocoa powder. As also discussed above, Kattenberg
discloses that the degree of alkalization performed during preparation of
cocoa powder affects the intensity and redness of the cocoa powder
produced, with greater alkalization resulting in a more intense and deeper
red color. Wissgott discloses a process for alkalizing cocoa that “enable[s] a
wide range of colours to be obtained therefrom.” Wissgott, col. 1, ll. 6–9.
Wissgott discloses that the “colour of the cocoa may be selected by varying
any of the parameters of the alkalization reaction, namely the alkali content,
the water content, the alkalization and evaporation temperature and the
alkalization time.” Wissgott, col. 2, ll. 13–18. Wiant discloses a process for
alkalizing cocoa material that produces “intensely or deep black or red
colors.” Wiant, col. 2, ll. 29–40. Wiant discloses that “[p]roper selection of
[alkalization] reaction conditions . . . can lead to the production of either
deep-black or deep red cocoa powder.” Wiant, col. 2, ll. 65–68.
These disclosures in Van Der Meer, Kattenberg, Wissgott, and Wiant
evidence that there was a recognition in the art at the time of Appellant’s
invention that alkalization conditions affect the color of cocoa powder, and
the color’s brightness and intensity. Alkalization conditions are, therefore,
result-effective variables. In re Applied Materials, Inc., 692 F.3d 1289,
1297 (Fed. Cir. 2012) (“A recognition in the prior art that a property is
affected by the variable is sufficient to find the variable result-effective.”).
Appeal 2019-000500
Application 13/525,786

16
One of ordinary skill in the art seeking to produce cocoa powder
according to the process disclosed in RD 363032, involving sterilizing,
cooling, and alkalizing de-shelled cocoa beans, reasonably would have been
led by the disclosures discussed above in Van Der Meer and Kattenberg to
adjust the conditions used during alkalization to impart a desired color with
an appealing intensity and brightness to the cocoa powder, and would have
arrived at a desired color, brightness, and intensity, such as a high-brightness
cocoa powder having L, C, H, and a values within the ranges recited in claim
18, through nothing more than routine adjustment of the alkalization
conditions. In re Boesch, 617 F.2d 272, 276 (CCPA 1980) (“[D]iscovery of
an optimum value of a result effective variable in a known process is
ordinarily within the skill of the art.”); In re Aller, 220 F.2d 454, 456 (CCPA
1955) (“[W]here the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation.”).
A reference submitted as an Appendix to the Heistek Declaration—
Encapsulated and Powdered Foods—further supports this position by
indicating that it was within the level of ordinary skill in the art at the time
of Appellant’s invention to determine a unique combination of alkalization
process parameters that would produce a desired cocoa powder color
profile.13 Specifically, the reference indicates that color formation in cocoa
powder depends upon “the kind of bean, degree of fermentation,” and the
alkalization process parameters, including the “type and amount of alkali,

13 Charles Onwulata, Encapsulated and Powdered Foods Double Coated
Particles (Food, Science and Technology), Chapter 17, 451–464, CRC
Taylor & Francis Group, (2005) (“Onwulata”).
Appeal 2019-000500
Application 13/525,786

17
time, temperature, moisture, amount of oxygen, as well as the type of
equipment.” Onwulata, 463–464. The reference goes on to state that “[t]he
processor of alkalized cocoa powders will use his experience to determine
which unique combination with result in the desired color profiles.” Id. at
464.
Accordingly, although the applied prior art references do not explicitly
disclose particular alkalization conditions that result in L, C, H, and a values
recited in claim 18, and may disclose cocoa powders having L, C, H, and a
values that differ from those recited in the claim, there was a recognition in
the art that alkalization conditions could be adjusted to achieve a desired
color having an appealing intensity and brightness, and one of ordinary skill
in the art seeking to produce a high-brightness cocoa powder, therefore,
would have adjusted alkalization conditions to achieve a desired color,
brightness, and intensity, such as a color having a combination of L, C, H,
and a values recited in claim 18, through routine experimentation within the
level of ordinary skill in the art. Applied Materials, 692 F.3d at 1297;
Boesch, 617 F.2d at 276; Aller, 220 F.2d at 456. Contrary to Appellant’s
arguments, the Examiner’s conclusion that it would have been obvious to
one of ordinary skill in the art at the time of Appellant’s invention to
optimize the L, C, H, and a values of alkalized cocoa through routine
experimentation to obtain a cocoa powder of desirable color and
attractiveness is, therefore, based on supported factual findings, and is not
“legally incorrect.” Appeal Br. 17.
Although the Heistek Declaration indicates that “[w]hile alkalizations
typically result in darker cocoa powders, such processes also make the
resultant cocoa powders duller, i.e., they reduce the brightness or C color
Appeal 2019-000500
Application 13/525,786

18
value of the resultant cocoa powders,” neither Appellant nor the Declarant
addresses the disclosures in Van Der Meer, Kattenberg, Wissgott, Wiant,
and Onwulata discussed above indicating that while alkalization conditions
affect the color of cocoa powder, and the color’s brightness and intensity,
one of ordinary skill in the art nonetheless could have adjusted the
conditions to achieve a desired color, brightness, and intensity, through
routine experimentation. Heistek Decl., ¶ 12. By failing to address these
particular disclosures in Van Der Meer, Kattenberg, Wissgott, Wiant, and
Onwulata, the Declarant does not take into consideration the state of the art
as a whole at the time of Appellant’s invention. We, therefore, accord little
weight to the opinion provided in the Declaration.
Finally, Appellant faults the Examiner for referring to our decision
entered February 22, 2018 in parent application 11/867974 in the
Examiner’s Answer, arguing that because the present application is a
divisional of the parent application, “a determination of the unpatentability
of the product claims of parent application, as a matter of law, cannot
support a determination of unpatentability of the method claims of the
current application.” Reply Br. 2–3.
The Examiner indicates in the Answer, however, that our decision in
the parent application supports the position that, based on the disclosures of
Van Der Meer and Kattenberg discussed above, “it would have been within
the bounds of routine experimentation, such as manipulating processing
conditions (duration, temperature, and strength/concentration of the alkali
agent), as well as the skill level of one of ordinary skill in the art, to produce
a cocoa powder with a very wide range of colors, ranging from dark brown
to very red.” Ans. 40–41. As discussed above, the Examiner’s position is
Appeal 2019-000500
Application 13/525,786

19
based on sound factual findings grounded in prior art of record in the current
appeal. Furthermore, although restriction may be required between two or
more independent and distinct inventions claimed in a single application,
each such invention may nonetheless be unapatentable over one or more
common prior art references. See, e.g., M.P.E.P. § 801.01.
Considering the totality of the record in this appeal, a preponderance
of the evidence weighs in favor of the Examiner’s conclusion of
obviousness. We, accordingly, sustain the Examiner’s rejection of claims 18
and 21 under 35 U.S.C. § 103(a) as unpatentable over RD 363032 in view of
Smith, Kajiwara, Van Der Meer, and Kattenberg.
Rejection II: claims 18 and 21 under 35 U.S.C. § 103(a) as unpatentable
over RD 363032 in view of Smith, Wissgott, Van Der Van Der Meer, and
Kattenberg
Appellant points out that this rejection differs from Rejection I by
relying on Wissgott as an applied prior art reference rather than Kajiwara,
and argue that Wissgot discloses that intense alkalization results in
darkening with reduced brightness of cocoa powder, and, therefore, shows
that it was not apparent in the art how to process cocoa beans to achieve an
alkalized, high brightness cocoa powder. Appeal Br. 17–18.
As discussed above, however, one of ordinary skill in the art seeking
to produce cocoa powder according to the process disclosed in RD 363032,
involving sterilizing, cooling, and alkalizing de-shelled cocoa beans,
reasonably would have been led by the disclosures discussed above in Van
Der Meer and Wissgott to adjust the conditions used during alkalization to
impart a desired color with an appealing intensity and brightness to the
cocoa powder, and would have arrived at a desired color, brightness, and
Appeal 2019-000500
Application 13/525,786

20
intensity, such as a high-brightness cocoa powder having L, C, H, and a
values within the ranges recited in claim 18, through nothing more than
routine adjustment of the alkalization conditions. Boesch, 617 F.2d at 276;
Aller, 220 F.2d at 456.
We, accordingly, sustain the Examiner’s rejection of claims 18 and 21
under 35 U.S.C. § 103(a) as unpatentable over RD 363032 in view of Smith,
Wissgott, Van Der Meer, and Kattenberg.
Rejections III–VI
To address these rejections, Appellant relies on the arguments made
for Rejections I and II (discussed above), and argue that the additional prior
art references applied in these rejections fail to cure the deficiencies of the
prior art applied in Rejections I and II. Appeal Br. 19–21. Because we are
unpersuaded of reversible error in Rejections I and II for the reasons
discussed above, Appellant’s position as to these rejections is also
inadequate to support reversal.
CONCLUSION
Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
18, 21 103(a) RD 363032
363032, Smith,
Kajiwara, Van Der
Van Der Meer,
Kattenberg
18, 21
18, 21 103(a) RD 363032
363032, Smith,
Kajiwara, Van Der
Van Der Meer,
Kattenberg
18, 21
Appeal 2019-000500
Application 13/525,786

21
Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
19, 20, 25,
26
103(a) RD 363032
363032, Shore,
Smith, Wiant, Van
Der Van Der
Meer, Kattenberg
19, 20, 25,
26

19, 20, 25,
26
103(a) RD 363032
363032, Shore,
Smith, Raboud,
Van Der Van Der
Meer, Kattenberg
19, 20, 25,
26

Overall
Outcome
18–21, 25,
26

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED