2020001546 (P.T.A.B. Dec. 16, 2020)

Givaudan, S.A.

Patent Trials and Appeals BoardDec 16, 2020

2020001546 (P.T.A.B. Dec. 16, 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. 15/519,929 04/18/2017 Atsushi HIBINO GIV.P30779 9844 23575 7590 12/16/2020 CURATOLO SIDOTI CO., LPA 24500 CENTER RIDGE ROAD, SUITE 280 CLEVELAND, OH 44145 EXAMINER DUBOIS, PHILIP A ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 12/16/2020 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): docket@patentandtm.com pair@patentandtm.com sidoti@patentandtm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ATSUSHI HIBINO Appeal 2020-001546 Application 15/519,929 Technology Center 1700 Before BEVERLY A. FRANKLIN, MICHAEL P. COLAIANNI, and JEFFREY B. ROBERTSON, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–12. See Appeal Br. 6. We have jurisdiction under 35 U.S.C. § 6(b). 1 This Decision includes citations to the following documents: Specification filed April 18, 2017 (“Spec.”); Final Office Action mailed February 13, 2019 (“Final Act.”); Appeal Brief filed July 29, 2019 (“Appeal Br.”); Examiner’s Answer mailed November 19, 2019 (“Ans.”); and Reply Brief filed December 27, 2019 (“Reply Br.”). 2 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Givaudan SA. Appeal Br. 3. Appeal 2020-001546 Application 15/519,929 2 We reverse. CLAIMED SUBJECT MATTER The disclosure relates to citrus-flavoured beverages. Spec. 1, ll. 3–4. Claim 1, reproduced below, is illustrative of the claimed subject matter (Appeal Br., Claims Appendix 10): 1. A citrus-flavoured beverage comprising a beverage base, citrus flavour and a citrus flavour-enhancing proportion of a mega-fatty complex. Claim 4 is also independent and recites a method of preparing a citrus- flavoured beverage with similar components as recited in claim 1. Id. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Yamaguchi US 2007/0009642 A1 Jan. 11, 2007 Chen US 2009/0018186 A1 Jan. 15, 2009 REJECTION The Examiner rejected claims 1–12 under 35 U.S.C. § 103 as obvious over Chen and Yamaguchi. Final Act. 3–4. OPINION We confine our discussion to claim 1, which is sufficient for disposition of this rejection. Appeal 2020-001546 Application 15/519,929 3 The Examiner’s Rejection In rejecting claim 1 as obvious over Chen and Yamaguchi, the Examiner found Chen discloses a stable beverage including an emulsion containing a citrus flavor, liquid base, and a long chain polyunsaturated fatty acid such as arachidonic acid. Final Act. 3, citing Chen ¶¶ 24, 27, 36, 39; Ans. 4. The Examiner found Chen does not disclose a mega-fatty complex as recited in claim 1. Id. The Examiner found Yamaguchi discloses a mega- fatty complex, which can improve food products associated with long chain polyunsaturated fatty acids. Id.; Ans. 4. The Examiner determined it would have been obvious to deliver a long chain polyunsaturated fatty acid in Chen in the form of a complex disclosed in Yamaguchi to eliminate any off flavors in the food product. Id.; Ans. 4. Appellant’s Arguments Appellant contends Chen and Yamaguchi expressly teach away from each other, and as a result, are not properly combinable. Appeal Br. 6. Appellant argues Chen discloses formation of stable emulsions to avoid undesirable oxidation of long chain polyunsaturated acids, whereas Yamaguchi expressly discloses oxidation of long chain polyunsaturated acids. Id. Appellant argues additionally that the decomposed/oxidized long chain polyunsaturated fatty acids in Yamaguchi have a different structure and exhibit different properties from the mega-fatty complexes recited in claim 1. Id. at 8. Appeal 2020-001546 Application 15/519,929 4 Issue Has Appellant demonstrated reversible error in the Examiner’s position that one of ordinary skill in the art would have combined Chen and Yamaguchi as recited to arrive at the beverage recited in claim 1? Discussion We are persuaded by Appellant’s argument that one of ordinary skill in the art would not have combined Chen and Yamaguchi as determined by the Examiner. Chen discloses polyunsaturated fatty acids “are known to enhance cognitive function and maintain cardiovascular health, among other health benefits.” Chen ¶ 3. Chen discloses polyunsaturated fatty acids can become unstable and degrade, because they are prone to oxidation, and consumption of foods having highly oxidized lipids may have adverse health implications. Id. at ¶¶ 6, 7. Chen discloses that by forming stable emulsions that inhibit, reduce, or suppress oxidation of polyunsaturated fatty acids, a beverage that is more aesthetically pleasing and which provides health benefits may be provided. Id. at ¶ 12. On the other hand, Yamaguchi discloses a body taste improver including a decomposed substance of long chain highly unsaturated fatty acid or extract thereof. Yamaguchi ¶ 1. Yamaguchi discloses that the addition of decomposed substances to foods will improve body taste, and such substances are oxidatively decomposed long-chain highly unsaturated fatty acids. Id. at ¶¶ 22, 30. Yamaguchi further discloses the decomposed substance includes aldehydes, ketones, and alcohols. Id. at 41, 42. In this regard, the Examiner’s position that Yamaguchi discloses increasing the stability of long-chain polyunsaturated fatty acids by heating them (Ans. 6, Appeal 2020-001546 Application 15/519,929 5 citing Yamaguchi ¶ 30) is misplaced. Yamaguchi discloses heating as a preferred method for producing a stable oxidatively decomposed substance on an industrial scale, and not as a means for preserving long-chain polyunsaturated fatty acids. Yamaguchi, ¶ 30; see Reply Br. 3–4. As a result, we agree with Appellant that because Chen discloses forming stable emulsions in order to suppress oxidation of polyunsaturated fatty acids in order to preserve health benefits of polyunsaturated fatty acids, and Yamaguchi discloses purposely decomposing unsaturated fatty acids, one of ordinary skill in the art would not have used the decomposed substance of Yamaguchi to replace the polyunsaturated acid in Chen. When references teach away from the claimed combination, it is improper to combine them in an obviousness rejection. In re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983). Although we reverse the Examiner’s rejection, we would be remiss if we did not address Appellant’s contention that Yamaguchi does not disclose a “mega-fatty complex” as recited in claim 1. In particular, we find Appellant’s arguments that Yamaguchi only discloses the origin of the fatty acid ester used as a means of distinction between the recited “mega-fatty complex” and the decomposed products in Yamaguchi (Appeal Br. 8) to be without merit. The Specification expressly defines “mega-fatty complex” as “a composition prepared from an arachidonic acid-enriched single cell oil.” Spec. 1, ll. 30–31. The Specification discloses a “mega-fatty complex” that was prepared by the process disclosed in Example 1 of Yamaguchi. Id. at 2, ll. 24–25. Thus, it is clear that the products produced in Yamaguchi are “mega-fatty complexes” as recited in claim 1. Appeal 2020-001546 Application 15/519,929 6 CONCLUSION The Examiner’s decision to reject claims 1–12 is reversed. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–12 103 Chen, Yamaguchi 1–12 Overall Outcome 1–12 REVERSED