Andreas Manfred. Linsenmeier et al.Download PDFPatent Trials and Appeals BoardMay 8, 202014025813 - (D) (P.T.A.B. May. 8, 2020) Copy Citation 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. 14/025,813 09/12/2013 Andreas Manfred LINSENMEIER 3712036.03633 9283 29157 7590 05/08/2020 K&L Gates LLP-Nestec S.A. P.O. Box 1135 Chicago, IL 60690 EXAMINER TURNER, FELICIA C ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 05/08/2020 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): USpatentmail@klgates.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ANDREAS MANFRED LINSENMEIER, FRANK ANDRE STORR, and MATHILDE HALLE Appeal 2019-001607 Application 14/025,813 Technology Center 1700 Before CATHERINE Q. TIMM, JAMES C. HOUSEL, and JANE E. INGLESE, Administrative Patent Judges. TIMM, 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 1–6, 8–10, 32, and 33. 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. Appellant identifies the real party in interest as Nestec S.A. Appeal Br. 1. Appeal 2019-001607 Application 14/025,813 2 CLAIMED SUBJECT MATTER The claims are directed to a shelf stable, thick-textured, dairy-based, solid nutritional food product. See, e.g., claims 1 and 33. Claim 1, reproduced below with the limitations most at issue highlighted, is illustrative of the claimed subject matter: 1. A method of making a shelf stable, thick-textured, dairy- based, solid nutritional food product, the method comprising the steps of: mixing a dairy-based composition and a preparation comprising hydrocolloids, causing a thickening of the composition; depositing the composition into packaging; allowing post-thickening of the composition to occur, thereby producing the solid food product; wherein the thick-textured, dairy-based, solid nutritional food product is thickened to a jellified texture and is shelf stable at room temperatures in a range of from about 20°C to about 25°C for a period of at least three months; and wherein the thick-textured, dairy-based, solid nutritional food product comprises macronutrients and micronutrients that are tailored to the nutritional needs of children in an age range of from about 6 to about 36 months, the solid nutritional food product having micronutrients added thereto whereby the solid nutritional food product provides at least 15% of a child's daily requirements for calcium, magnesium, and zinc. Appeal Br. 19 (Claims Appendix) (emphasis added). Claim 33 differs from claim 1 by requiring the thick-textured, dairy-based, solid nutritional food product be “thickened to a texture/viscosity of curd” instead of “thickened to a jellified texture.” Appeal 2019-001607 Application 14/025,813 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Hoecker US 2,501,445 Mar. 21, 1950 Andon US 5,571,441 Nov. 5, 1996 Ashourian US 2004/0185161 A1 Sept. 23, 2004 Mercenier US 2012/0064051 A1 Mar. 15, 2012 Wiessel US 2012/0114625 A1 May 10, 2012 REJECTION The Examiner maintains a rejection of claims 1–6, 8–10, 32, and 33 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Wiessel, as evidenced by Hoecker, in view of Ashourian, Mercenier, and Andon. OPINION Appellant’s arguments focus on the rejection of claims 1 and 33. Appeal Br. 9–17. Thus, we also focus on the rejection of those claims. Appellant seeks to differentiate the method of claims 1 and 33 based on the solid nature of the product produced and the particular amount of thickening recited in the first wherein clause of the claims. Appeal Br. 9–17; Reply Br. 4–9. Claim 1 requires the solid nutritional food product be “thickened to a jellified texture.” Claim 33 requires it be “thickened to a texture/viscosity of curd.” There is no dispute that Wiessel discloses a method of making “a shelf-stable fermented dairy product including a fermented dairy component, a physical or chemical stabilizer, and a puree composition.” Compare Final Act. 2, with Appeal Br. 10; see also Wiessel ¶ 15. “The fermented dairy component can be, for example, dehydrated or fresh yogurt, sour cream, Appeal 2019-001607 Application 14/025,813 4 buttermilk, kefir, cheese, or a combination thereof.” Wiessel ¶ 15. As found by the Examiner, and not disputed by Appellant, Wiessel suggests using a hydrocolloid as the stabilizer. Compare Final Act. 2, with Appeal Br. 10; see also Wiessel ¶¶ 20, 37. According to Wiessel, “[a] fermented dairy product such as yogurt is very susceptible to protein coagulation when heated following the fermentation process.” Wiessel ¶ 5. Wiessel stabilizes the protein by coating it with, for instance, a suitable hydrocolloid pectin. Wiessel ¶ 37. Wiessel adds the stabilizer to the fermented dairy component under shear at a temperature of 33–65 °F, homogenizes the mixture at 33– 165 °F, adds a puree composition, and heat processes to sterilize at 185– 240 °F. Wiessel ¶ 35. According to Wiessel, stabilization “allows the shelf- stable fermented dairy mixture to be heated to sterilization temperatures (e.g., above 185° F.) without coagulating the protein thereby resulting in a smooth textured fermented dairy product.” Wiessel ¶ 37. Wiessel does not specifically state that the product is solid or that the product is deposited in packaging and post-thickened. Thus, the Examiner turns to Ashourian for teachings of thickening and packaging. Final Act. 3. The Examiner also relies on Hoecker for evidence that a mixture of dairy- based components and hydrocolloid thicken on cooling. Final Act. 3–4. Appellant contends that the teachings of Ashourian cannot be combined with the methods taught by any other references to arrive at the claimed solid product that has a jellified texture or the texture/viscosity of curd because Ashourian discloses a beverage product. Appeal Br. 11. After considering the teachings of Ashourian along with Wiessel, we determine the argument is not persuasive of reversible error. Ashourian’s teachings are similar to those of Wiessel in a way that supports the Appeal 2019-001607 Application 14/025,813 5 Examiner’s findings. Ashourian, like Wiessel, teaches stabilizing a dairy- based food product with a hydrocolloid stabilizer such as pectin. Ashourian ¶ 2. Like Wiessel, Ashourian mixes the pectin into the dairy component (cold milk in Ashourian, fermented diary component in Wiessel) under intense agitation before homogenizing and heating to sterilize. Ashourian ¶ 28. Although Ashourian’s starting material is milk, and thinner than the fermented dairy component of Wiessel, and Ashourian seeks to produce a beverage, given the similarities in starting material (dairy-based components and pectin) and processing, those of ordinary skill in the art would have understood that the mechanism of stabilization with pectin is the same whether the starting diary component is milk or fermented dairy components. Wiessel further discloses that the method results in significant viscosity increase. Wiessel ¶ 23; Tables 1–3. Wiessel evinces that the use of fermented dairy components such as yogurt, sour cream, or cheese as a starting material will result in a dairy-based product of increased viscosity. The end product viscosity depends on the identity of the starting material. For instance, using cheese as a starting material would result in a solid product. Also, the meaning of “solid” as used in the claims is not particularly clear from Appellant’s Specification. The Specification does not describe the product as solid, but as “thickened,” having a “thickened texture,” “thickened to a jellified texture,” or having a “thick texture . . . similar to that of high viscosity dairy products such as curd.” See, e.g., Spec. ¶¶ 1, 4, 21, 132, 183. Appellant’s method uses the same types of starting dairy component (“yogurt, sour cream, buttermilk, kefir, sour milk, créme fraiche, fermented cheese”) as Wiessel (“dehydrated or fresh yogurt, sour cream, Appeal 2019-001607 Application 14/025,813 6 buttermilk, kefir, cheese, or a combination thereof.”). Compare Spec. ¶ 7, with Wiessel ¶ 15. The mechanism of thickening also appears to be the same, i.e., interaction of the calcium ions, magnesium ions, or combinations thereof in the dairy-based component with the hydrocolloids (pectin). Compare Spec. ¶ 185, with Ashourian ¶ 20. Thus, a preponderance of the evidence supports the Examiner’s finding that Wiessel teaches or suggests forming a solid product using the method Wiessel describes. Appellant further contends that the Examiner has not established that a jellified texture of a solid food product is an inherent property of Wiessel’s product. Appeal Br. 12–17; Reply Br. 8–9. We disagree. The similarities in the starting materials and processing discussed above support the Examiner’s finding of inherency. Hoecker provides further evidence that post-thickening occurs after the product cools within the package to form a solid product. Hoecker col. 6, ll. 24–33 (describing a packaged dairy-based product made by a similar process to that of Wiessel that “thickens considerably” and “sets in the container to a plastic, cohesive mass of smooth and uniform texture, having little resistance to shearing as when sheared by a spreading knife). “It is long settled that in the context of obviousness, the ‘mere recitation of a newly discovered function or property, inherently possessed by things in the prior art, does not distinguish a claim drawn to those things from the prior art.’” Persion Pharms. LLC v. Alvogen Malta Operations Ltd., 945 F.3d 1184, 1190 (Fed. Cir. 2019) (quoting In re Oelrich, 666 F.2d 578, 581 (CCPA 1981)). Appellant has not identified a reversible error in the Examiner’s rejection. Appeal 2019-001607 Application 14/025,813 7 CONCLUSION The Examiner’s decision to reject claims 1–6, 8–10, 32, and 33 is affirmed. DECISION SUMMARY Claims 35 U.S.C. § Basis/References Affirmed Reversed 1–6, 8–10, 32, 33 103(a) Wiessel, Hoecker, Ashourian, Mercenier, Andon 1–6, 8–10, 32, 33 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 Copy with citationCopy as parenthetical citation