Ex Parte Aguilar et al

Board of Patent Appeals and Interferences

Feb 26, 2007

10437163 (B.P.A.I. Feb. 26, 2007)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte CORINNE AGUILAR,
LAURENCE BECK NEE TRESCOL
and CHRISTIAN RIFFET
____________

Appeal 2006-2315
Application 10/437,163
Technology Center 1700
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Decided: February 26, 2007
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Before EDWARD C. KIMLIN, BRADLEY R. GARRIS, and LINDA M.
GAUDETTE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the Examiner’s Final Rejection of claims 1-17,
the only claims pending in this application.
Appellants’ invention relates to an edible emulsion comprising live
micro-organisms. The emulsion may be used in spreads, dressings,
mayonnaises and the like. Claim 1, the sole independent claim, is
illustrative of the invention:
Appeal 2006-2315
Application 10/437,163

1. An edible oil-in-water emulsion comprising from 30 to 75% wt oil,
water, live micro-organisms, and a preservation system, the emulsion having
an edible acid content in the aqueous continuous phase in the range of from
0.1 to 3% by weight and a pH at 20oC of not less than 4.0.

The Examiner relies on the following prior art references to show
unpatentability:
Gelfand US 1,697,312 Jan. 1, 1929
Lowe, "Experimental Cookery", 2nd Edition, John Wiley & Sons, Inc.,
269-271 (1937).

Jay, "Modern Food Microbiology," 2nd Edition, D. Van Nostrand Co. 253-
265 (1978).

McGee, "On Food and Cooking, Collier Books, MacMillaim Publishing Co.,
14 (1984).

The Examiner has rejected claims 1-17 under 35 U.S.C § 103(a) as
unpatentable over Gelfand as further evidenced by McGee, Lowe and Jay.

ISSUES
The Examiner contends that one of ordinary skill in the art at the time
of the invention would have understood Gelfand as disclosing the invention
as claimed in light of the teachings of the secondary references. Appellants
contend that Gelfand fails to disclose a product having live microorganisms.
Appellants further contend that the Examiner has not clearly established that
Gelfand uses an oil-in-water emulsion, the recited pH and edible acid
content of claim 1. The issue before is whether the Examiner has shown, by
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Application 10/437,163

a preponderance of the evidence, that the claimed oil-in-water emulsion
would have been obvious within the meaning of 35 U.S.C § 103(a).

FINDINGS OF FACT
1) Gelfand discloses a food product which is “an emulsion including
vegetable oils, yolk material and the aromatic substances resulting from
lactic acid fermentation of milk constituents.” (P. 1, ll. 3-7).
2) Gelfand teaches that the food product is made by pasteurizing a
suitable milk material and inoculating it with a viable culture, then
allowing the material to set at 70oF until “the proper amount of acid has
been developed and the organisms have produced a sufficient quantity of
flavoring constituents.” (P. 1, ll. 48-50).
3) Lactic acid bacteria, such as the bacteria used in yogurt and
acidophilus milk, are known to produce up to 3% lactic acid. (Jay, p.
256).
4) Gelfand then incorporates, by emulsification, the cultured milk into an
emulsion of oil and yolk material. (P. 1, ll. 94-99).
5) Milk is an oil-in-water emulsion. McGee, p. 14. Egg yolk and oil are
known to form a stable oil-in-water emulsion. (Lowe, p. 271, 5th para.).
6) Gelfand teaches that a sufficient amount of edible organic acid in
water solution is added to stabilize the product. (P. 2, ll. 88-94).
7) Gelfand states that a feature of the process involves “treating the
emulsion in such a manner as to retain the aromatic substances produced
by the bacteria of the milk product and at the same time, preventing the
product from putrifying at ordinary room temperature, although including
also yolk and vegetable oils.” (P. 1, ll. 24-29).
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Application 10/437,163

8) Gelfand notes that when organisms are allowed to propagate, they
will die causing the milk product to become putrid “as a result of the
multiplication of other putrifying organisms present.” (P. 1, ll. 21-22).
9) Gelfand teaches that the edible organic acid is, therefore, “of
sufficient hydrogen ion concentration to suppress further growth of the
organisms and their biological activities which have been introduced with
the cultured milk material, so that no further undesirable bacteriological
changes will take place in the product after it is placed on the market.”
(P. 1, l. 108 - P. 2, l. 3). See P. 2, ll. 44-51 (“hydrogen ion concentration
. . . is sufficient to substantially, if not entirely, arrest the further growth
and biological activity”).

PRINCIPLES OF LAW
1) The Examiner bears the initial burden of establishing a prima
facie case of obviousness. See In re Rijckaert, 9 F.3d 1531, 1532,
28 USPQ2d 1955, 1956 (Fed. Cir. 1993).
2) TThe Examiner must initially produce evidence sufficient to
support a ruling of obviousness; thereafter the burden shifts to the
applicant to come forward with evidence or argument in rebuttal.
In re Piasecki, 745 F.2d 1467, 1475, 223 USPQ 785, 788 (Fed.
Cir. 1984)..
3) Attorney arguments are not evidence. See C.R. Bard, Inc. v.
Advanced Cardiovascular Systems, 911 F.2d 670, 674 n.2,
15 USPQ2d 1540, 1544 n.2 (Fed. Cir. 1990).
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Application 10/437,163

ANALYSIS
Appellants argue that one of ordinary skill in the art would understand
Gelfand’s disclosure of suppressing further growth of the organisms and
their biological activities as a teaching that no live micro-organisms are
present in the finished product. Br. 9-10. The Examiner argues that one of
ordinary skill in the art would understand this language as meaning that
Gelfand retains the desirable microorganisms in a live state and controls
only the undesirable, proteolytic microorganisms. Answer 6. We find the
Examiner’s reading of Gelfand more plausible. Gelfand uses the term
“cultured.” The Examiner points out, and Appellants do not refute, that the
term “cultured” in connection with foods implies that the food contains live
microorganisms. Answer 6. Moreover, the broad recitation of “live micro-
organisms” in the appealed claims does not distinguish over Gelfand’s
teaching that at least some live microorganisms will likely remain in the
finished product. See Finding of Fact 9.
Appellants’ remaining arguments are likewise unpersuasive in
overcoming the Examiner’s obviousness rejection. In our view, the
Examiner has provided sufficient evidence to support a finding that one of
ordinary skill in the art would understand that the emulsion is oil-in-water
(i.e., McGee and Lowe) and that the amount of edible acid and pH of
Gelfand’s product would fall within the claimed ranges (i.e., Jay). See
Answer 4-5. Appellants have not directed us to any evidence which
establishes that the Examiner’s findings are incorrect.

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Application 10/437,163

CONCLUSION
We conclude that the facts and reasons set forth by the Examiner are
sufficient to establish a prima facie showing of unpatentability of claims 1-
17 under 35 U.S.C. § 103. Appellants have failed to overcome this showing.
ORDER
The final rejection of claims 1-17 under 35 U.S.C § 103(a) as
unpatentable over Gelfand as further evidenced by McGee, Lowe and Jay 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)(iv)(effective Sept.
13, 2004).
AFFIRMED

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