Cargill, Incorporated

Patent Trials and Appeals Board

Dec 18, 2020

2020006385 (P.T.A.B. Dec. 18, 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.
15/604,033 05/24/2017 Timothy A. Murphy 4361.0411US2 9769
139867 7590 12/18/2020
CARGILL, INCORPORATED / SLW
P.O. Box 5624
Minneapolis, MN 55440-5624
EXAMINER
HINES, LATOSHA D
ART UNIT PAPER NUMBER
1771
NOTIFICATION DATE DELIVERY MODE
12/18/2020 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):
patent_docketing@cargill.com
slw@blackhillsip.com
uspto@slwip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY A. MURPHY and JAMES THOMAS GROCE
Appeal 2020-006385
Application 15/604,033
Technology Center 1700
Before JEFFREY T. SMITH, JAMES C. HOUSEL, and
N. WHITNEY WILSON, Administrative Patent Judges.
SMITH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE

Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 2–8, 10, 12, 16, 17, and 21–39.1 See
Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the term “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Cargill, Incorporated as the real party
in interest. Appeal Br. 2.
Appeal 2020-006385
Application 15/604,033

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CLAIMED SUBJECT MATTER
The claims are directed to a wax compositions and the effect of metals
on burn rates. Claim 2, reproduced below, is illustrative of the claimed
subject matter:
2. A candle comprising a wick in a candle wax
composition, the candle wax composition comprising:

a hydrogenated natural oil composition having a melting
point of 49 °C to 57 °C, wherein the hydrogenated natural oil
composition is one or more triacylglycerols, wherein the one or
more triacylglycerols have a fatty acid composition of from 14
wt% to 25 wt% Cl6:0 fatty acids, from 45 wt% to 60 wt% Cl8:l
fatty acids, and from 20 wt% to 30 wt% Cl8:0 fatty acids, the
hydrogenated natural oil composition is at least 50 wt% of the
wax composition, the wax composition has a nickel content of
less than 0.5 ppm, and every triacylglycerol in the wax
composition contains exactly one glycerol and exactly three
carboxylic acid groups, each of which is esterified to the
glycerol.
Appeal Br. 33, Claims App.
Appeal 2020-006385
Application 15/604,033

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REFERENCES
The prior art relied upon by the Examiner is:

Name Reference Date
Kopp US 4,857,237 Aug. 15, 1989
Murphy US 6,503,285 B1 Jan. 7, 2003
Uptain US 2010/0132250 A1 June 3, 2010
Tao US 8,137,418 B2 Mar. 20, 2012
BFR Lead, nickel and
allergenic scents in
candles to be restricted,
BFR opinion No.
004/2014
www.bfr.bund.de,
hereinafter “BFR”
Nov. 11, 2013

REJECTIONS
Claims 2–7, 10, 12, 16, 17, 21, and 23–29 are rejected under
35 U.S.C. § 103 as unpatentable over Murphy, Uptain, and BFR. Final
Act. 3.
Claims 8, 22, and 30–39 are rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Murphy, Uptain, BFR, and further in
view of Tao. Final Act. 8.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has
long been the Board’s practice to require an applicant to identify the alleged
Appeal 2020-006385
Application 15/604,033

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error in the examiner’s rejections.”) (citing Ex parte Frye, 94 USPQ2d 1072,
1075 (BPAI 2010) (precedential)).
The dispositive issue for this appeal is: Did the Examiner err in
utilizing the teachings of the BFR reference in rejecting the appealed claims?
Appellant argues BFR is the only reference relied upon for providing
motivation to utilize a low nickel concentration. Appellant contends BFR,
published November 11, 2013, is not available as “prior art” because it was
published later than the priority date of the present application of February
17, 2013. Appeal Br. 13.
As evidence of obviousness of the subject matter recited in the
appealed claims 2–8, 10, 12, 16, 17, and 21–39 under 35 U.S.C. § 103, the
Examiner relies upon the disclosure of the combination of Murphy and
Uptain, as evidenced or explained by BFR.2 Final Act. 3, 8. The Examiner
finds Murphy discloses candles formed from triacylglycerol-based wax that
differs from the claimed invention by failing to state the wax composition
has a nickel content of less than 0.5 ppm. Final Act. 3–4. The Examiner
finds Uptain discloses a process for making candles from wax wherein the
wax is formed from the hydrogenation natural oils and the hydrogenation
catalyst is removed from the hydrogenated product utilizing filtration
techniques. Final Act. 4–5; Uptain ¶¶ 83, 85. The Examiner cites BFR to
establish the detrimental effects of including nickel in candle compositions.
The Examiner specifically states:
The BFR opinion No. 004/2014 [teaches] inhalation of nickel may
cause cancer. For this reason, nickel should be reduced in candles to
the lowest level technically achievable. From the health perspective a

2 The Examiner cited Tao to address the additional limitations of dependent
claims 8, 22, and 30–39.
Appeal 2020-006385
Application 15/604,033

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quantity of 0.6 nano grams (ng) of nickel per gram of candle should
not be exceeded.

Final Act. 4.
The only reference relied upon by the Examiner for stating a reason to
obtain a low nickel concentration is BFR. The Examiner in the Answer
states “the BFR reference is not considered prior art but rather as an
‘evidence by’ which gives further fact that inhalation of nickel may cause
cancer. For this reason, nickel should be reduced in candles to the lowest
level technically achievable.” Ans. 18.
In certain narrow circumstances later-issued patents and publications
may be used to show the state of the art or facts existing on the date of the
application in question. For example, a later publication may be used to
show that, as of an application’s filing date, undue experimentation would
have been required, In re Corneil, 347 F.2d 563, 568 (CCPA 1965), that a
parameter absent from the claims was or was not critical; In re Rainer, 305
F.2d 505, 507 n.3 (CCPA 1962), that a statement in the [S]pecification was
inaccurate; In re Marzocchi, 439 F.2d 220, 223 n.4 (CCPA 1971), that, at the
time of the invention, the invention was inoperative or lacked utility; In re
Langer, 503 F.2d 1380, 1391 (CCPA 1974); or that characteristics or
properties of prior art products were known, In re Wilson, 311 F.2d 266,
268–69 (CCPA 1962).
Here, the Examiner reversibly erred in the reliance on BFR, a later
filed publication, to show the motivation for lowering the nickel content in
candles to the lowest possible level. Final Act. 4. The Examiner has not
asserted that Murphy, Uptain, and Tao provide motivation to lower nickel
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Application 15/604,033

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content in candles to less than 0.5 ppm as required by the independent
claims 2, 22, 30, and 31.
The Examiner finds Uptain discloses a candle and process for making
a candle wherein the wax of the composition is derived from hydrogenated
natural oil waxes. The Examiner finds Uptain discloses the hydrogenation
catalyst may be removed from the hydrogenated product using known
techniques, such as by filtration with a plate and frame filter. Final Act. 4–5;
Uptain ¶ 85. The Examiner concludes:
Therefore, it would have been obvious to one of ordinary skill in the
art at the time of the invention to bleach and filter the hydrogenated
oils of Murphy as taught by the filtration process of Uptain. The
motivation to do so is, in order to remove the metal content (i.e.
nickel) of the hydrogenated oils (see paragraphs 0033 and 0085 of
Uptain and paragraphs 0134 and Examples) and have a wax
composition with a metal content of zero.
Final Act. 5.
The Examiner’s conclusion of obviousness is not supported by
evidence. The Examiner has not directed us to evidence as the basis for the
inclusion of a “bleaching” step in addition to a filtration process.
Appellant presents the declaration of the inventor Timothy A Murphy,
signed February 26, 2019 (Declaration 1) as evidence that filtration alone
would not yield a nickel content of less than 0.5 ppm as required by the
claimed invention. The Murphy declaration specifically states “merely
removing the solid catalyst, e.g., by the filtration described in Uptain, does
not remove these soluble or colloidal forms of nickel and therefore is not
sufficient to achieve a nickel content of less than 0.5 ppm.” Declaration 1 ¶
7.
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The Examiner has not directed us to evidence that rebuts the
statements of this declaration.
For these reasons we do not sustain the Examiner’s obviousness
rejections.

DECISION
The Examiner’s decision to reject claims 2–8, 10, 12, 16–17, and 21–
39 is reversed.

Appeal 2020-006385
Application 15/604,033

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SUMMARY CONCLUSION
In summary:

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
2–7, 10, 12,
16, 17, 21,
23–29
103 Murphy, Uptain,
BFR
2–7, 10, 12,
16, 17, 21,
23–29
8, 22, 30–39 103 Murphy, Uptain,
BFR, Tao
8, 22, 30–39
Overall
Outcome
2–8, 10, 12,
16, 17, 21–
39

REVERSED