Ex Parte von Harras et al

Patent Trials and Appeals Board

Nov 2, 2018

14386276 - (D) (P.T.A.B. Nov. 2, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/386,276
68543 7590
Arent Fox LLP
555 West Fifth Street
48th Floor
09/18/2014
11/06/2018
Los Angeles, CA 90013
FIRST NAMED INVENTOR
Jaimy Chantal von Harras
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
F8165USw 4747
EXAMINER
MORNHINWEG, JEFFREY P
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
11/06/2018 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 JAIMY CHANTAL VON HARRAS
and ECKHARD FLOTER
Appeal2017---009839
Application 14/386,276
Technology Center 1700
Before TERRY J. OWENS, BRIAND. RANGE, and
DEBRA L. DENNETT, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Applicant/ Appellant (Conopco, Inc., d/b/a/ Unilever) appeals
under 35 U.S.C. § 134(a) from the Examiner's rejection of claims 1-20. We
have jurisdiction under 35 U.S.C. § 6(b ).
The Invention
The claims are to a food product. Claim 1 is illustrative:
1. Fermented food product being a water-continuous
emulsion, being spoonable and non-liquid at a temperature of
5 degrees Celsius, having a pH-value between 3.5 and 5.8, the
food product comprising at least 60 wt% water and further
comprising from 1 0 to 2 5 wt% fat and from O. 0 5 to 15 wt%
protein, wherein the fat comprises at least a vegetable fat and
wherein the fat comprises from O to up to 60 wt% of saturated
Appeal2017-009839
Application 14/386,276
fatty acids (SAFA), at least 30 wt% P2U triglycerides and from
0 to up to 7 wt% P3 triglycerides, wherein the ratio of
SAP A:P2U is up to 1. 7, and wherein P is palmitic acid and U is
unsaturated fatty acid.
Bot
Dilley
Campbell
The References
US 2005/0069619 Al
US 2011/0262599 Al
EP O 540 085 Al
Mar. 31, 2005
Oct. 27, 2011
May 5, 1993
Occurrence and Characterisation of Oils and Fats 49--53 (hereinafter Lin). 1
The Rejection
Claims 1-20 stand rejected under 35 U.S.C. § I03(a) over Campbell
in view of Bot, Dilley, Lin, and the Appellant's admitted prior art (AAPA).
OPINION
We affirm the rejection.
The Appellant argues the claims as a group (App. Br. 4---6). We
therefore limit our discussion to one claim, i.e., claim 1, which is the sole
independent claim. Claims 2-20 stand or fall with that claim. See
37 C.F.R. § 4I.37(c)(l)(iv) (2012).
Campbell discloses a water-continuous, soured, spoonable non-dairy
cream which comprises 15-60 wt% fat and 1.0-15.0 wt% protein, and has a
pH of 4.0-4.8 (p. 2, 11. 40-50; p. 3, 11. 4--9). The useful fats are the
well-known vegetable fats, and the preferred fats include palm kernel oil
(p. 2, 11. 51-53).
1 The Examiner does not provide evidence of the source of this reference,
but refers to it as "Lin" and states that it was publicly available as of 2002
(Ans. 2).
2
Appeal2017-009839
Application 14/386,276
Bot discloses a water-continuous, acidified, spreadable food product
which comprises 5--40 wt% fat, 0.05-15 wt% protein, and 0.01-3 wt%
biopolymer, and has a pH of 3.7-5.8 (i1i11, 11, 13). The preferred fats
include palm oil and palm kernel oil, and the more preferred fats include
palm oil fractions (i1i1 45, 46).
Dilley discloses that "[p ]alm oil is generally fractionated into three
fractions: palm stearin fraction, which is enriched in S3 triglycerides; palm
mid-fraction which is enriched in S2U[,] and palm olein fraction, which
contains much of the SU2 and U3 triglycerides" (i-f 27).
AAPA is a palm oil mid-fraction which contains 58 wt% SAFA,
48 wt% P2U, and 1.4 wt% P3 and has an SAFA/P2U of 1.2, thus meeting the
Appellant's claim 1 's fat composition requirement (Spec. Tables 2, 3).
The Appellant asserts that Campbell does not mention palm oil or its
fractions as useful fats and provides no instruction as to what fat
characteristics should be considered in selecting a particular fat (App. Br. 6;
Reply Br. 5).
Campbell's water-continuous, soured, spoonable non-dairy cream
containing 15---60 wt% fat and 1.0-15.0 wt% protein and having a pH of
4.0-4.8 and Bot's water-continuous, acidified, spreadable food product
containing 5--40 wt% fat, 0.05-15 wt% protein, and as little as 0.0Iwt%
biopolymer and having a pH of 3.7-5.8 appear to be the same type of
product. Campbell discloses that the suitable fats include palm kernel oil
(p. 2, 11. 51-52) and Bot discloses that suitable fats include palm kernel oil
and palm oil fractions (i1i1 45, 46). Due to the similarity between Campbell's
and Bot's products and Bot's disclosure that both palm kernel oil and palm
oil fractions are suitable fats, Bot would have led one of ordinary skill in the
3
Appeal2017-009839
Application 14/386,276
art, through no more than ordinary creativity, to use palm oil fractions
instead of Campbell's palm kernel oil as Campbell's fat. See KSR Int'! Co.
v. Teleflex Inc., 550 U.S. 398,418 (2007) (in making an obviousness
determination one "can take account of the inferences and creative steps that
a person of ordinary skill in the art would employ").
The Appellant argues, in reliance upon Lin's disclosure of five palm
oil fractions (Table 2.20 (palm olein, super olein, palm stearin, palm
mid-fraction soft and palm mid-fraction hard)), none of which meets Bot's
preferred solids content (i-f 43), that it is not apparent why one of ordinary
skill in the art would have selected palm mid-fraction as Bot's palm oil
fraction (App. Br. 6; Reply Br. 6).
One of ordinary skill in the art, given Bot's disclosure that the fat can
be palm oil fractions (i-f 46), would have selected from the known palm oil
fractions, whether there generally are three as disclosed by Dilley (i-f 27) or
can be five as disclosed by Lin (Table 2.20), the fraction(s) suitable for
making Bot's spreadable food product (i-f 13). Because the Appellant's food
product wherein the fat is palm mid-fraction is spoonable and, therefore,
appears to be spreadable, it appears that the palm oil fraction(s) determined
by one of ordinary skill in the art to be suitable for making Bot's spreadable
product would include palm mid-fraction. See In re O 'Farrell, 853 F.2d
894, 903---04 (Fed. Cir. 1988) ("Obviousness does not require absolute
predictability of success .... For obviousness under§ 103, all that is
required is a reasonable expectation of success").
Accordingly, we are not persuaded of reversible error in the rejection.
4
Appeal2017-009839
Application 14/386,276
DECISION
The rejection of claims 1-20 under 35 U.S.C. § 103(a) over Campbell
in view of Bot, Dilley, Lin, and the Appellant's admitted prior art (AAPA) is
affirmed.
The Examiner's decision is affirmed.
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
5