13140024 (P.T.A.B. Jan. 29, 2016)

Ex Parte Dilley et al

Patent Trial and Appeal BoardJan 29, 2016

13140024 (P.T.A.B. Jan. 29, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/140,024 07 /12/2011 Kevin Michael Dilley 201 7590 02/02/2016 UNILEVER PATENT GROUP 800 SYLVAN A VENUE AG West S. Wing ENGLEWOOD CLIFFS, NJ 07632-3100 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. F3502USw 5619 EXAMINER MORNHINWEG, JEFFREY P ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 02/02/2016 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): patentgroupus@unilever.com pair_unilever@firsttofile.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KEVIN MICHAEL DILLEY, MARY ELIZABETH MCDOUGALL, KEVIN WARREN SMITH, and JEFFREY UNDERDOWN Appeal2014-001600 Application 13/140,024 Technology Center 1700 Before TERRY J. OWENS, PETERF. KRATZ, and MICHAEL P. COLAIANNI, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. Â§ 134(a) from the Examiner's rejection of claims 1-15. We have jurisdiction under 35 U.S.C. Â§ 6(b ). The Invention The Appellants claim a coating composition for a frozen confection. Claim 1 is illustrative: 1. A composition for coating a frozen confection, the composition comprising from 63 to 70 wt% of a fat component comprising: â€¢ 70 to 95 wt% of a palm oil fraction or blend of fractions which contains at most 8 wt% of S3 triglycerides and has a S2U: SU2 ratio of> 2.5; â€¢ 5 to 15% of a liquid oil; and Appeal2014-001600 Application 13/140,024 â€¢ 0 to 15% of cocoa butter. Miller Nalur The References US 6,488,971 Bl WO 2008/064962 Al Dec. 3, 2002 Jun. 5,2008 E. Deffense, Fractionation of Palm Oil, 62 JAOCS 376-85 (Feb. 1985). Karlshamns Products Brochure, Speciality [sic] Fats in Ice Cream Production 1-12 (Sept. 2004) (hereinafter Karlshamns). FOOD PROCESSING TECH., PalsgaarcP- Troubleshooting Emulsifiers for Ice Cream Coatings, 1-3 (May 24, 2006), at http:www.foodprocessing. technology. com/ contractors/ingredients/pal. (hereinafter Palsgaard). The Rejections The claims stand rejected under 35 U.S.C. Â§ 103 as follows: claims 1-13 and 15 over Nalur in view ofKarlshamns, Palsgaard, and Deffense and claim 14 over Nalur in view of Karlshamns, Palsgaard, Deffense, and l\1iller. OPINION We affirm the rejections. The Appellants argue the claims as a group (App. Br. 4--8). Although an additional reference is applied to claim 14, the Appellants do not separately argue that claim (App. Br. 7). We therefore limit our discussion to one claim, i.e., claim 1. Claims 2-15 stand or fall with that claim. See 37 C.F.R. Â§ 41.37(c)(l)(iv) (2011). Nalur discloses a frozen confection coating composition comprising 40-60 wt% fat (comprised of 65-90 wt% fractionated palm oil and 10- 35 wt% liquid oil) and up to 30 wt% cocoa liquor (which, as acknowledged by the Appellants, typically contains about 50 wt% fat (Spec. 7:8-9)) (p. 5, 2 Appeal2014-001600 Application 13/140,024 1. 25 -p. 6, 1. 5). Thus, Nalur's composition containing 0-15 wt% cocoa liquor typically contains 40- about 67.5 wt% fat. Deffense states that "palm mid-fraction is characterized by a high disaturated triglycerides S2 U content - greater than 50% - and a low monosaturated triglyceride SU2 content- lower than 30% (Table VIII)" (p. 383) and discloses palm mid-fractions (from double stage fractionation) containing 2.1---6.7 wt% S3 glycerides and having S2U:SU2 ratios of 1.97, 2.96, 4.47, 16.4 and 19.7 (Table VIII; Fig. 6). 1 The Appellants argue (App. Br. 5---6): NALUR discloses at page 5, line 25, that the coating comprises from 40 to 60% by weight fat, and the examples contain 54.50% fat and 11.12% cocoa liquor. As set out in the present application (page 7, lines 8-9) cocoa liquor typically contains about 50% fat (i.e., cocoa butter). The examples ofNALUR therefore contain 54.50% + (11.12% x 50%) = 60.1 % of a fat component. N alur is not limited to its examples. See In re Fracalossi, 681 F .2d 792, 794 n.1(CCPA1982); In re Mills, 470 F.2d 649, 651(CCPA1972). Instead, all disclosures therein must be evaluated for what they would have fairly suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d 961, 965 (CCPA 1966). Nalur's indication that the composition containing 0-15 wt% cocoa liquor typically contains 40 - about 67 .5 wt% fat (p. 5, 1. 25 - p. 6, 1. 5) would have rendered prima facie obvious, to one of ordinary skill in the art, fat contents within the Appellants' 63-70 wt% overlapping range. See In re Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir. 1997); In re Boesch, 1 The Appellants state that "[p ]referably the palm oil fraction is a palm mid- fraction" (Spec. 3: 12). 3 Appeal2014-001600 Application 13/140,024 617 F.2d 272, 276 (CCPA 1980); In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974). The Appellants argue (App. Br. 6): The specification demonstrates the unexpected advantage of the present invention over Nalur as explained at the bottom of page 12 of the specification, Examples D and E introduce coating compositions disclosed in US 2008/131564, which is in the same patent family as Nalur W02008/064962 cited herein. The composition of Example D contains only 32.4% SAFA [saturated fat], but the pickup weight is high and hence the amount of SAP A per product is similar to other relatively high SAP A comparative examples. In contrast, in Examples 1 through 3 according to the invention, the amount of SAP A per product is lower. Example E contains a higher amount of liquid oil and has a low amount of SAP A per product but has a low yield stress and a high yield strain and is not sufficiently firm and brittle as described in the first paragraph of page 13 in the specification. [2J That argument is not \~1ell taken because the 1A~ppellants have not set forth a side-by-side comparison of the claimed invention with the closest 2 The Appellants state that "[ w ]e have now developed coating compositions for frozen confections that give reduced amount of saturated fat per coated product whilst retaining the desired physical properties (Spec. 2:28-30) and "[t]he compositions have a saturated fatty acid content of from 30 to 40% by weight of the composition, preferably from 34-36%" (Spec. 5:31-32), whereas Nalur states that "the invention provides an ice confection product comprising an ice confection core and an edible low-saturated-fat snappy compound coating having an SF A level from fat and oil additives that is reduced by at least about 25% compared to conventional compound coatings while retaining snap properties that are similar to those of the conventional compound coating (p. 2, 11. 21-24) and "[a ]dvantageously, the ice confection product has an SF A level from fat and oil additives of no more than 3 3 % by weight" (p. 2, 11. 24--26). 4 Appeal2014-001600 Application 13/140,024 prior art which is commensurate in scope with the claims and provided evidence that the results would have been unexpected by one of ordinary skill in the art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d 1029, 1035 (CCPA 1980); In re Freeman, 474 F.2d 1318, 1324 (CCPA 1973); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). Hence, we are not persuaded of reversible error in the rejections. DECISION/ORDER The rejections under 35 U.S.C. Â§ 103 of claims 1-13 and 15 over Nalur in view of Karlshamns, Palsgaard, and Deffense and claim 14 over Nalur in view of Karlshamns, Palsgaard, Deffense, and Miller are affirmed. It is ordered that 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. Â§ 1.136(a). AFFIRMED sl 5