Ex Parte BLUMENTHAL

Patent Trial and Appeal Board

Sep 25, 2018

12985096 (P.T.A.B. Sep. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/985,096 01/05/2011
140 7590
LADAS & PARRY LLP
1040 A venue of the Americas
NEW YORK, NY 10018-3738
09/27/2018
FIRST NAMED INVENTOR
Marco BLUMENTHAL
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.
U 018283-6 3607
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
09/27/2018 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):
nyuspatactions@ladas.com
nymail@ladas.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARCO BLUMENTHAL
Appeal2017-001810
Application 12/985,096 1
Technology Center 1700
Before ADRIENE LEPIANE HANLON, BRIAND. RANGE, and
JENNIFER R. GUPTA, Administrative Patent Judges.
HANLON, Administrative Patent Judge.
DECISION ON APPEAL
A. STATEMENT OF THE CASE
The Appellant filed an appeal under 35 U.S.C. § 134 from an
Examiner's decision finally rejecting claims 35--45, 47-55, and 59---63 under
35 U.S.C. § 103(a) as unpatentable over Merrick2 in view of Cupp et al. 3
We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.
1 The real party in interest is said to be ZWEIFEL POMY-CHIPS AG.
Appeal Brief dated February 16, 2016 ("App. Br."), at 3.
2 US 2006/0062892 Al, published March 23, 2006 ("Merrick").
3 US 6,841,178 B2, issued January 11, 2005 ("Cupp").
Appeal2017-001810
Application 12/985,096
The Appellant's invention relates to the production of dehydrated
snacks, such as snacks with vegetable chips, fruit chips, meat chips, and fish
chips. Spec. 1, 11. 13-17. The claimed method comprises the steps of: (a)
providing pieces of a product of a first kind having a water content of
between 5% and 15% by weight; (b) providing pieces of a product of a
second kind having a water content of less than 3% by weight; (c) drying the
pieces of the product of the first kind by a dehydration means that comprises
mixing the pieces of the products of the first kind and the second kind
together to form a mixture, wherein the pieces of the product of the second
kind absorb water from the pieces of the product of the first kind; and ( d)
maintaining the mixture at ambient temperature, with no other dehydration
means, until the water content of the pieces of the mixture is adjusted to a
final water content that is below 5% by weight.
Representative claim 35 is reproduced below from the Claims
Appendix to the Appeal Brief.
Claim 3 5. A method for making a dehydrated product
comprising the steps of:
(a) providing pieces of a product of a first kind wherein
the pieces having a water content of between 5% and 15% by
weight, the pieces of the product of the first kind being selected
from the group consisting of vegetable pieces, fruit pieces, meat
pieces, fish pieces, dough pieces and mixtures thereof;
(b) providing pieces of a product of a second kind
wherein the pieces have a water content of less than 3% by
weight, the pieces of the product of the second kind being
selected from the group consisting of vegetable pieces, fruit
pieces, dough pieces and mixtures thereof, wherein the product
of the second kind is different from the product of the first kind;
and
( c) drying the pieces of the product of the first kind by a
dehydration means that comprises mixing the pieces of the
2
Appeal2017-001810
Application 12/985,096
product of the first kind with the pieces of the product of the
second kind to form a mixture wherein the pieces of the product
of the second kind absorb water from the pieces of the product
of the first kind whereby to reduce the water content of the
pieces of the product of the first kind, and maintaining the
mixture at ambient temperature until the water content of the
pieces of the mixture is adjusted to a final water content that is
below 5% by weight, wherein no other dehydration means is
used to dry the mixture in or after the drying step ( c).
App. Br. 18.
B. DISCUSSION
Merrick discloses a dry pet food comprising kibble in combination
with dehydrated vegetables and/or fruit and dried meat jerky pieces.
Merrick ,r 2. The Examiner finds Merrick discloses a method of making the
pet food comprising the steps of:
(a) providing pieces of a product of a first kind in the form of a meat-
based kibble having a water content of about 10 weight percent, which is
within the claimed range;
(b) providing pieces of a product of a second kind in the form of dried
vegetable pieces having a water content of about 2 to about 4 weight percent
and dried meat jerky pieces having a moisture content of about 2 to about 5
weight percent, which overlap the claimed range; and
( c) drying the pieces of the product of the first kind by a dehydration
means that comprises mixing the pieces of the product of the first kind
(meat-based kibble) with the pieces of the product of the second kind
( vegetable pieces and dried meat jerky pieces) to form a mixture. Final
Act. 3. 4
4 Final Office Action dated August 12, 2015.
3
Appeal2017-001810
Application 12/985,096
The Examiner finds Merrick does not disclose a heating step after the
kibble, vegetable pieces, and dried meat jerky pieces are mixed. Therefore,
the Examiner finds that one of ordinary skill in the art would have
understood that the mixture is maintained at ambient temperature as claimed.
Final Act. 4.
The Examiner also finds that when the product of the first kind having
a high moisture content ( about 10 weight percent) is mixed with the product
of the second kind having a lower moisture content ( about 2 to about 4
weight percent), the moisture content of the product of the first kind would
inherently decrease, causing some drying of the product of the first kind, due
to equilibration of moisture. Final Act. 3; see also Ans. 8-9 ( describing the
transfer of moisture from a composition having a high moisture content to a
composition having a lower moisture content). 5 The Examiner, however,
finds that Merrick "is silent on the moisture content of the mixture as a
whole upon drying and subsequent equilibration of moisture." Final Act. 3.
The Examiner finds Cupp discloses a pet food having a moisture
content of about 3 to about 7%, which overlaps the claimed range of below
5%. Final Act. 3. In contrast to Merrick and the claimed invention,
however, Cupp discloses that a dryer is used to achieve the disclosed
moisture content. Cupp, col. 4, 11. 32-34.
The Examiner concludes that it would have been obvious to one of
ordinary skill in the art "to reduce the moisture content of the kibble product
in Merrick to a final moisture content of about 3 to about 7% since this is an
acceptable moisture content for a hard pet food." Final Act. 3. More
specifically, the Examiner explains:
5 Examiner's Answer dated September 12, 2016.
4
Appeal2017-001810
Application 12/985,096
Since moisture is transferred from the kibble to the dried
vegetable and dried jerky pieces, it would have been obvious to
equilibrate the entire composition to the moisture content taught
in Cupp via mixing and waiting an appropriate amount of time.
Merrick teaches that the initial moisture content of the coated
kibble is about 9 to about 11 % (paragraph 8) so it would have
been achievable to dry the kibble to a slightly lower moisture
content of about 3 to about 7% via mixing and waiting for
equilibration.
Final Act. 3--4. The Examiner explains that "[t]he exact amount of moisture
transfer and moisture content of the final product would vary depending on
the amount of higher moisture content and lower moisture content
components present." Ans. 9. More specifically, the Examiner explains that
"if more higher moisture kibble pieces are present than [ sic, then] the final
moisture content would be higher than if more lower moisture fruit and
vegetable pieces are present." Ans. 9.
The Appellant argues that under the best case scenario for the
Examiner's position, the lowest moisture/water content of Merrick's final
pet food product would be 8.65wt%, using the highest amounts of
vegetables 6 and dried meat jerky pieces 7 and the lowest amount of kibble
disclosed in Merrick and the lowest water content disclosed in Merrick for
all of the components in the mixture:
6 The pet food disclosed in Merrick is said to comprise from about 2 to about
3 weight percent dried vegetables. Merrick ,r 9.
7 The pet food disclosed in Merrick is said to comprise from about 0.25 to
about 2.0 weight percent dried meat jerky pieces. Merrick ,r 10.
5
Appeal2017-001810
Application 12/985,096
Cqmppnent
Vegdabk: (V):
1vteat (M):
Sum (V -, '.Vt):
Kibble (K):
5 wt'%
2 wt%,
2v,t%,
App. Br. 1 O; see also App. Br. 11 ( calculating the total water content of the
final product as 8.65wt%).
The Appellant argues:
[I]n order to arrive at the claimed final water content of "below
5wt%", a kibble with a minimal moisture/water content of
9wt% would have to be combined with about 58wt0/o of
vegetable/fruit and meat at the minimal allowed water content
described by Merrick. In other words, the equilibration that the
Examiner states would have been obvious would result in a
totally different product from that taught by Merrick wherein,
instead of being present in an amount of at least 95wt%, the
kibble would be a minor component.
App. Br. 13; see also Reply Br. 5--6 (arguing that the Examiner's proposed
modification of Merrick would impermissibly change Merrick's product
from one in which vegetable is added to kibble as a supplement in a minor
amount (i.e., 2-3%) to one in which vegetable is the major component (i.e.,
57%). 8
In response, the Examiner explains that
it would have been obvious to adjust the amount of kibble and
fruit/vegetable component depending on the taste desired in the
final composition. Fruit and vegetables are known to contain
many nutrients and vitamins so it would have been obvious to
increase this component with in [sic] the kibble product for
maximum nutrition.
Ans. 11 ( emphasis added).
8 Reply Brief dated November 14, 2016.
6
Appeal2017-001810
Application 12/985,096
The Appellant argues that the modified Merrick product, having a
major part vegetable and/or fruit and a minor part meat, would have "a
totally different nutritional value [ compared to Merrick's disclosed pet
food], which would be unacceptable for dogs and cats from a health
perspective." Reply Br. 6. The Appellant argues that dogs and cats "need a
high amount of protein, which is not sufficiently provided by vegetables and
fruit." Reply Br. 6. Therefore, the Appellant argues that "the modification
proposed by the Examiner would impermissibly render the Merrick product
unsatisfactory for its intended purpose." Reply Br. 6.
The Appellant also argues:
Even assuming arguendo that one of skill in the art were
motivated to dry Merrick's kibble to a final moisture content of
below 5%, he or she would be motivated to perform the final
drying by means other than "equilibrium and waiting" so as to
avoid changing the nature of the Merrick product ....
Reply Br. 8.
The Appellant's arguments are persuasive of reversible error. Merrick
discloses that the inventive pet foods "can be effectively tailored for use
with puppies, mature dogs or aging dogs." Merrick ,r 6. Merrick discloses
that the pet food comprises from about 2 to about 3 weight percent dried
vegetables, from about 0.25 to about 2.0 weight percent dried meat jerky
pieces, and from about 1 to about 1.5 weight percent gravy coating, with the
balance being kibble. 9 Merrick ,r,r 7-10. On this record, the Examiner has
failed to establish, in the first instance, that one of ordinary skill in the art
would have considered Merrick's modified pet food, which contains
9 Merrick discloses that the kibble comprises grains, animal proteins, animal
fats, vegetable oils, added vitamins and minerals, and herbs and seasonings.
Merrick ,r 7.
7
Appeal2017-001810
Application 12/985,096
significantly more vegetables and significantly less kibble than Merrick's
disclosed pet food, to provide sufficient nutrition for a pet, such as a dog,
and thus be suitable as a pet food. See In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) (examiner bears the initial burden of presenting a prima
facie case ofunpatentability). For that reason, the obviousness rejection on
appeal is not sustained.
C. DECISION
The Examiner's decision is reversed.
REVERSED
8