Ex Parte VAN DIJK et alDownload PDFPatent Trial and Appeal BoardMar 22, 201713413500 (P.T.A.B. Mar. 22, 2017) 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. 13/413,500 03/06/2012 Johannes Henricus VAN DIJK 069818-5651 8757 22428 7590 03/24 Foley & Lardner LLP 3000 K STREET N.W. SUITE 600 WASHINGTON, DC 20007-5109 EXAMINER STULII, VERA ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 03/24/2017 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): ipdocketing @ foley. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JOHANNES HENRICUS VAN DIJK and PAULINE ELISABETH ANTOINETTE SMULDERS Appeal 2015-002999 Application 13/413,5001 Technology Center 1700 Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and N. WHITNEY WILSON, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL This is a decision on appeal under 35 U.S.C. § 134(a) from the Examiner’s final rejection of claims 1—3, and 5—22. An oral hearing was held on March 14, 2017.2 We have jurisdiction pursuant to 35 U.S.C. § 6(b). We REVERSE. 1 According to the Appeal Brief, the real party in interest is FrieslandCampina Nederland Holding B.V. App. Br. 3. 2 A written transcript of the oral hearing will be entered into the record when the transcript is made available. Appeal 2015-002999 Application 13/413,500 BACKGROUND According to Appellants, the invention relates to a stable alcoholic milk and/or soy protein-based drink with a pH in the range from 5.2—6.2. Spec. 11. Claim 1 is reproduced below from the Claims Appendix to the principal Brief: 1. A stable alcoholic drink having a pH in the range from 5.2— 6.2, comprising (i) at least one or more milk proteins or soy proteins, (ii) alcohol, and (iii) an alkylene glycol alginate, wherein the drink exhibits substantially no agglomeration or segregation when stored at 15-25° C for 2 months. The Examiner maintains, and Appellants appeal, the rejection under 35 U.S.C. § 103(a) of: (I) claims 1—3, 5—9 and 21—22 over Murphy et al (CA 2,316,406; Feb. 20, 2001) (“Murphy”) in view of Rose (EP 0,067,592; Dec. 22, 1982) (“Rose”) and Wolf et al (US 5,342,643; Aug. 30, 1994) (“Wolf’); (II) claims 10-20 over van den Hoven (EP 0,177,077; Apr. 9, 1986) in view of Rose and Wolf. OPINION3 Rejection I The dispositive issue on appeal is: Did the Examiner err in determining that the combined teachings of Murphy in view of Rose and Wolf would have led one skilled in the art to a stable alcoholic drink having a pH in the range from 5.2—6.2, comprising (i) at least one or more milk 3 We refer to the Final Office Action for a complete statement of the Examiner’s rejections. Final Act. 2—8; Nov. 7, 2013. 2 Appeal 2015-002999 Application 13/413,500 proteins or soy proteins, (ii) alcohol, and (iii) an alkylene glycol alginate as required by the subject matter of independent claim l?4 After review of the respective positions provided by Appellants and the Examiner, we REVERSE for the reasons presented by Appellants. We refer to the Examiner’s Final Office Action for a complete statement of the rejection. Final Act. 2—5. The Examiner found Murphy discloses alcoholic cream beverage having pH of 5.0-5.5 and contains milk protein and/or soya protein. Final Act. 2. The Examiner found Murphy is silent as to the volume-surface average particle size distribution or specific stability parameters as required by independent claim 1. Final Act. 2. The Examiner found Rose discloses a stable alcoholic milk protein-based drink that exhibits substantially no agglomeration or segregation when stored at room temperature for at least two months. Final Act. 2—3. The Examiner determined one of ordinary skill in the art would have been motivated to modify Murphy to employ particle size as taught by Rose in order to achieve beverage stability as disclosed by Rose. Final Act. 2. The Examiner recognized the combination of Murphy and Rose failed to disclose an alkylene/propylene glycol alginate stabilizer as required by independent claim 1. Final Act. 4. The Examiner found Wolf discloses protein/alkylene glycol alginate stabilizer that is suitable for use in acidic beverages. Final Act. 4, Wolf abstract. The Examiner determined it would have been obvious to one of ordinary skill in the art to modify the combination of Murphy and Rose to include alkylene glycol alginate as the stabilizer. 4 We limit our discussion to independent claim 1. 3 Appeal 2015-002999 Application 13/413,500 Appellants argue the claimed invention is directed to alcoholic beverages comprising milk proteins having a pH in the range of 5.2—6.2 which is the isoelectric point, i.e., the pH at which the molecules such as proteins carry no net charge. Reply Br. 2, Bindels Declaration | 5. Appellants argue Rose is directed to stabilizing alcoholic beverages at a pH over 6.3. Reply Br. 2, Rose, p. 6,11. Appellants argue the Examiner has not provided a reasonable basis to stabilize a composition having a pH below 6.3. Reply Br. 3. We agree with Appellants that the “Examiner’s implication that it would have been obvious to find stability—or even an expectation thereof—in the claimed composition having a pH below 6.3 lacks any reasonably factual, technical, or legal basis.” Reply Br. 3. The Examiner has not adequately explained how Rose’s descriptions of compositions having pH above 6.3 would have led one skilled in the art to a stable alcoholic drink having a pH in the claimed range from 5.2—6.2. Accordingly, the Examiner has not directed us to evidence sufficient to sustain the rejection. Rejection II The dispositive issue on appeal is: Did the Examiner err in determining that the combined teachings of van den Hoven in view of Rose and Wolf would have led one skilled in the art to a process of forming a stable alcoholic drink having a pH in the range from 5.2—6.2, comprising (i) at least one or more milk proteins or soy proteins, (ii) alcohol, and (iii) an alkylene glycol alginate as required by the subject matter of independent claim 10?5 5 We limit our discussion to independent claim 10. 4 Appeal 2015-002999 Application 13/413,500 The Examiner found van den Hoven describes a process for making an alcoholic beverage comprising of milk proteins however, the process is not disclosed as producing the final beverage with a pH as recited by the claimed invention. Final Act. 6. The Examiner found van den Hoven discloses the pH of the final beverage can be adjusted to the desired value. Final Act. 6. The Examiner found Rose discloses adjusting the pH of an alcoholic milk-proteins-based mixture to a value above about 6.3. Final Act. 6. The Examiner concluded “[o]ne of ordinary skill in the art would have been motivated to modify van den Hoven in view of Rose and to adjust/increase the pH of the alcoholic milk protein-based mixture to the higher value in order to provide long-term stability of the milk-based alcoholic beverage as disclosed by Rose.” Final Act. 6. We cannot sustain the Examiner’s rejection. We agree with Appellants that the modifications proposed by the Examiner fall short of providing a process for producing a milk-based alcoholic beverage having a pH within the range of 5.2—6.2 as required by independent claim 10. Reply Br. 3. We agree with Appellants that Rose described stabilization at pH values over about 6.3, van den Hoven describes beverages having pH values between 3.5 and 5.0. Reply Br. 3. The Examiner has not adequately explained how Rose’s descriptions of compositions having pH above 6.3 would have led one skilled in the art to a process for forming a stable alcoholic drink having a pH in the claimed range from 5.2—6.2. Accordingly, the Examiner has not directed us to evidence sufficient to sustain the rejection. 5 Appeal 2015-002999 Application 13/413,500 Conclusion Under these circumstances, and based on the errs Appellants identify, we cannot conclude that the Examiner has met the minimum threshold of establishing obviousness under 35 U.S.C. § 103(a). See In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992); KSRInt’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). Accordingly, we reverse the Examiner’s prior art rejections of claims 1—3 and 5—22 under 35 U.S.C. § 103(a). DECISION The Examiner’s obviousness rejections of claims 1—3 and 5—22 are reversed. REVERSED 6 Copy with citationCopy as parenthetical citation