2020000601 (P.T.A.B. Nov. 25, 2020)

KRAFT FOODS GROUP BRANDS LLC

Patent Trials and Appeals BoardNov 25, 2020

2020000601 (P.T.A.B. Nov. 25, 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. 13/838,849 03/15/2013 Dana Marie Brown 1410-130767-US 2149 48940 7590 11/25/2020 FITCH EVEN TABIN & FLANNERY, LLP 120 SOUTH LASALLE STREET SUITE 2100 CHICAGO, IL 60603-3406 EXAMINER DICUS, TAMRA ART UNIT PAPER NUMBER 1791 MAIL DATE DELIVERY MODE 11/25/2020 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANA MARIE BROWN and KARL RAGNARSSON Appeal 2020-000601 Application 13/838,849 Technology Center 1700 Before JEFFREY B. ROBERTSON, GEORGE C. BEST, and DONNA M. PRAISS, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL1 1 This Decision includes citations to the following documents: Specification filed March 15, 2013 (“Spec.”); Non-Final Action mailed June 27, 2017 (“Non-Final Act.”); Final Office Action mailed February 15, 2018 (“Final Act.”); Appeal Brief filed July 16, 2018 and supplemented September 17, 2018 (“Appeal Br.”); Examiner’s Answer mailed September 3, 2019 (“Ans.”); and Reply Brief filed November 4, 2019 (“Reply Br.”). Appeal 2020-000601 Application 13/838,849 2 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 17–25, 34, 36–38, 40–42, and 45. Appeal Br. 5.3 We have jurisdiction under 35 U.S.C. § 6(b). We affirm in part, but designate our affirmance as a new ground of rejection. CLAIMED SUBJECT MATTER Appellant states the invention relates to shelf-stable, concentrated liquid flavorings that are suitable for dilution with a beverage to provide a flavored beverage and methods of preparing such flavored beverages. Spec. ¶ 2. Claim 17, reproduced below, illustrates the claimed subject matter (Appeal Br., Claims Appendix 22): 17. A method of preparing a flavored beverage using a concentrated acidic liquid flavoring without causing curdling in the flavored beverage, the method comprising: dispensing a jet of concentrated acidic liquid flavoring into a beverage from a container having a nozzle, the nozzle configured to provide a mass flow between 1.0 g/s and 5 g/s to rapidly mix the concentrated acidic liquid flavoring with the beverage without causing curdling in the beverage, wherein the beverage includes a protein-containing liquid, and the concentrated acidic liquid flavoring comprises: 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies Kraft Foods Group Brands LLC, which is a wholly-owned subsidiary of KFG Management Services LLC, which is wholly owned by Kraft Heinz Foods Company, as the real party in interest. Appeal Br. 3. 3 Claims 1–16, 26–33, and 35 were cancelled. Claims 39, 43, and 44 stand objected to as depending from a rejected claim. Appeal Br. 5; Ans. 12. Appeal 2020-000601 Application 13/838,849 3 about 10 to about 45 percent water; about 3 to about 40 percent flavor component; and less than about 2.0 percent acidulant, the amount of acidulant effective to provide the concentrated liquid flavoring with a pH of about 3.8 to about 4.5. Claim 42 is also independent and recites a similar method of preparing a flavored beverage. Id. at 24. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Fox et al. hereinafter “Fox”4 US 2,977,231 March 28, 1961 DeLease et al. hereinafter “DeLease” US 2008/0286421 A1 November 20, 2008 Kamarei et al. hereinafter “Kamarei” US 2009/0104312 A1 April 23, 2009 Toyohara et al. hereinafter “Toyohara” US 2011/0166086 A1 July 7, 2011 Juga et al. hereinafter “Juga” WO 2011036163 (US 2012/0321745 A1)5 March 31, 2011 4 The Examiner and Appellant refer to this reference as “Palley,” who is the second named inventor. However, we maintain our normal practice of referring to the prior art by the surname of the first named inventor. 5 The Examiner uses the US PG Pub document as an English equivalent to the WO document. Ans. 3. Appeal 2020-000601 Application 13/838,849 4 REJECTIONS6 1. The Examiner rejected claims 17–25, 36–38, 40–42, and 45 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over DeLease, Fox, and Juga. Ans. 3–7; Final Act. 2–3. 2. The Examiner rejected claims 36–38, 40–42, and 45 under pre- AIA 35 U.S.C. § 103(a) as unpatentable over DeLease, Fox, Juga, and Kamarei. Ans. 7–9; Final Act. 3–5. 3. The Examiner rejected claim 34 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over DeLease, Fox, Juga, and Toyohara. Ans. 10. 4. The Examiner rejected claims 36–38 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over DeLease, Fox, Juga, and Kamarei. Ans. 11–12. OPINION Rejection 1 Appellant presents separate arguments with respect to independent claims 17 and 42, which are subject to this rejection. See Appeal Br. 13–20. We select claims 17 and 42 as representative for disposition of this rejection. 37 C.F.R. § 41.37(c)(1)(iv). 6 Rejections 3 and 4, although present in the Non-Final Action and in the Examiner’s Answer, were not set forth in the Final Action. Non-Final Act. 15–17; Ans. 10–12.; see Final Act. 2–6. Appeal 2020-000601 Application 13/838,849 5 Claim 17 The Examiner’s Rejection In rejecting claim 17 over DeLease, Fox, and Juga, the Examiner found DeLease discloses a container, water, flavor components, acidulant, and pH values that are within or overlap the claimed range. Ans. 4. The Examiner found DeLease does not describe a container with a nozzle having the mass flow, timing, and jetting requirements as claimed. Id. The Examiner found Fox discloses a discharge jet with a velocity on the order of 10 to 15 inches per second, which may vary depending on the size of the discharge orifice, viscosity of the food concentrate, and the pressure of the propellant gas, to effect thorough self-agitation of the glass of water or milk into which the food concentrate is discharged, either instantly or within a matter of a few seconds. Id. Thus, in view of Fox, the Examiner determined it would have been obvious to have modified DeLease’s method to include a container and nozzle to produce the recited mass flow, jetting, and timing in order to impact a target container, such as a glass of water, without displacing a significant amount of fluid from within the target container. Id. The Examiner found DeLease does not disclose a method of preparing a flavored beverage without causing curdling and including protein as recited in claim 1. Id. at 5. The Examiner found Juga discloses that no curdling occurs when the consumer adds water to an acid milk powder to form a drinkable product. Id. Therefore, the Examiner determined it would have been obvious to have modified DeLease’s method to not coagulate by including a beverage described by Juga including protein liquid as claimed. Id. Appeal 2020-000601 Application 13/838,849 6 Appellant’s contentions Appellant contends DeLease does not disclose forcefully adding a concentrate into a liquid, such as by a jet. Appeal Br. 14. Appellant argues that the Examiner has not sufficiently explained how one of ordinary skill in the art would have used the acidified milk beverage powder disclosed in Juga to modify DeLease’s composition. Id. at 14–16. Appellant argues there is no suggestion in Fox that dispensing concentrated acidic liquid flavorings having a pH of 3.8 to about 4.5 into a protein-containing beverage through a nozzle as claimed can prevent curdling. Id. at 16. Issue Did Appellant demonstrate reversible error in the Examiner’s determination that the method recited in claim 17 would have been obvious over DeLease, Fox, and Juga? Discussion At the outset, we observe that Appellant does not particularly argue the Examiner’s actual findings regarding Fox or the Examiner’s reasoning for combining Fox and DeLease. Rather, Appellant’s position is that Fox does not disclose prevention of curdling through the use of a nozzle when dispensing concentrated acidic liquid flavorings, and that Fox does not disclose the pH of the acidic liquid flavorings such that the Examiner cites Fox only through improper hindsight. Appeal Br. 16. However, the Examiner does not rely on Fox for the pH of the acidic liquid flavorings, relying on DeLease itself for the pH. Ans. 4 (citing DeLease ¶ 134). Thus, Appellant’s arguments with respect to pH are not persuasive. As to Appellant’s arguments regarding improper hindsight, although the Examiner’s reasoning for combining DeLease and Fox is different from Appeal 2020-000601 Application 13/838,849 7 Appellant’s, such reasoning is not indicative of improper hindsight. As stated by the Supreme Court in KSR, “[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls. What matters is the objective reach of the claim. If the claim extends to what is obvious, it is invalid under § 103.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 419 (2007). Here, the Examiner’s reasoning relies on Fox’s benefits of providing almost instantaneous self-agitation without displacing a significant amount of fluid from within the target container. Ans. 4; Fox col. 3, l. 50 – col. 4, l. 60. Such reasoning, unchallenged by Appellant, is not the product of improper hindsight, but is based on the prior art itself. However, we agree with Appellant that the manner in which the Examiner relies on Juga is not clear. In particular, we agree with Appellant that the Examiner’s reasoning for modifying DeLease “to not coagulate by including a beverage expressed by Juga including protein liquid as claimed” (Ans. 5), does not sufficiently explain how Juga’s acidic milk powders would be used with DeLease to prevent coagulation. Juga ¶ 4. The Examiner’s explanation in the Answer that “no coagulation” is equivalent to “no curdling” (Ans. 14), does little to clarify the Examiner’s position. We are of the view that this deficiency does not constitute reversible error. In particular, DeLease discloses that the liquid (beverage) includes a dairy component and may be a combination of a dairy component and another liquid such as coffee. DeLease ¶ 38. Thus, DeLease discloses beverages with protein-containing liquids. Juga provides evidence that milk proteins are coagulated by acid present in a drinkable product. Juga ¶ 4. Indeed, Juga indicates that it is Appeal 2020-000601 Application 13/838,849 8 advantageous to reduce the immediate effect of the acid onto the proteins. Id. at ¶ 7. Although Juga effects this reduction by a different mechanism than the present claims due to the powder compositions employed therein, we are of the view that one of ordinary skill in the art would have understood that localized highly acidic environments in beverages lead to curdling. See id. at ¶ 14 (discussing non-uniform distribution of citric acid in a beverage as “causing in its surrounding a high ‘acidic’ environment and might lead to flocculation of protein” and dissolution of citric acid particles at a rate that is so fast that “minutes later, clear protein curdling can be detected visually and taste wise (enhanced grainy texture).”). Thus, we are of the view that the property of “without causing curdling” recited in claim 17 would have been expected as a result of combining DeLease and Fox, which results in a method of preparing a flavored beverage of rapid dispensing acidic liquid flavoring having a pH as recited in claim 17 and at the mass flow recited therein. See Spec. ¶¶ 56, 58 (attributing the benefit of preventing curdling to the rapid dispersion of the concentrated liquid flavoring having a pH of 3.8 to 4.5.) We determine that the benefit of thorough uniform self-agitation “almost instantly and within a matter of a very few seconds” disclosed in Fox (col. 4, ll. 8–13; col. 3, ll. 12–14) would have indicated to one of ordinary skill in the art, that DeLease’s concentrated acidic liquid flavoring having a pH overlapping the pH recited in claim 17, when added to a protein-containing liquid, would have produced a flavored beverage without causing curdling, because of the lack of localized high acidic environments being created during the addition. As a result, we are of the view that claim 17 would have been obvious over the combination of DeLease, Fox, and Juga. Because our rationale Appeal 2020-000601 Application 13/838,849 9 differs significantly from the Examiner’s, we designate our affirmance as a new ground of rejection. In addition, because the rationale discussed above does not affect the Examiner’s application of prior art to the dependent claims subject to this rejection (see Ans. 3–7), we include the dependent claims in the new ground of rejection. Claim 42 Claim 42, however, stands on different footing than claim 17. Claim 42 recites a “concentrated acidic non-dairy liquid flavoring” (emphasis added). As Appellant points out, DeLease discloses a foam creating composition that comprises a dairy component. Appeal Br. 17 (citing DeLease, Abst., ¶ 6). Indeed, DeLease discloses the foam-creating composition includes “about 2 to about 95 wt% dairy composition.” DeLease ¶ 6. In rejecting claim 42, the Examiner found only that “DeLease teaches overlapping ingredients.” Ans. 6. Thus, the Examiner appears to be overlooking the recitation that the acidic liquid flavoring be “non-dairy” by focusing only on the expressly recited components in claim 42. We do not subscribe to this position. In addition to the recited components of the acidic liquid flavoring recited in claim 42, the claim expressly excludes the presence of a dairy component in the acidic liquid flavoring. Thus, while the acidic acid flavoring is open to the inclusion of other components by virtue of the open-ended transitional phrase “comprises,” such components cannot include a dairy component. The Examiner does not direct our attention to any embodiment disclosed in DeLease for a foam-creating composition that does not contain a dairy component, nor does the Examiner provide any rationale as to why Appeal 2020-000601 Application 13/838,849 10 one of ordinary skill in the art would have omitted the dairy component from the foam-creating composition disclosed therein. Accordingly, we reverse the Examiner’s rejection of claim 42 as well as claim 45, which depends therefrom. Rejections 2 and 4 Although the Examiner rejects claims 36–38, 40–42, and 45 as obvious over DeLease, Fox, Juga, and Kamarei (Rejection 2), as observed by Appellant, the Examiner appears to rely on Kamarei only for teaching different types of milk, which appears to us to apply only to claims 36–38. See Final Act. 3–6 and Ans. 7–9, both citing Non-Final Act. 16–17; Appeal Br. 20; Reply Br. 8. Our understanding appears to be confirmed by the Examiner’s rejection of claims 36–38 only as obvious over DeLease, Fox, Juga, and Kamarei (Rejection 4) set forth in the Answer. Ans. 11–12. Appellant does not separately argue claims 36–38, and 40, but relies on the dependency thereof from claim 17 as a basis for patentability. Appeal Br. 21. In addition, Appellant does not appear to argue separately claim 41, which depends from claim 36, and recites particular percentages by weight of a flavor component in the acidic liquid flavoring. The Examiner also does not rely on Kamarei to reject claim 41. Final Act. 3–4; Ans. 7–8. Thus, because Appellant does not set forth any particular arguments with respect to claims 36–38, 40, and 41, we affirm the Examiner’s rejections of those claims as set forth in Rejections 2 and 4, but consistent with the discussion above, designate our affirmance as a new ground of rejection. However, we reverse the Examiner’s rejection of claims 42 and 45 in Rejection 2 as obvious over DeLease, Fox, Juga, and Kamarei, as Kamarei Appeal 2020-000601 Application 13/838,849 11 does not make up for the deficiencies of DeLease, Fox, and Juga as discussed above with respect to those claims. Rejection 3 The Examiner’s Rejection Claim 34 depends from claim 17 and recites “wherein the concentrated acidic liquid flavoring is dispensed into the beverage to dilute the concentrated acidic liquid flavoring by a factor of about 40 to about 160 times.” In rejecting claim 34 over the combination of DeLease, Fox, Juga, and Toyohara, the Examiner found DeLease, Fox, and Juga do not disclose the dilution factor as claimed. Ans. 10. The Examiner found Toyohara discloses fruit and flavoring agents for beverages and includes dilution factors up to 500 times, which overlaps the claimed range. Id. The Examiner determined it would have been obvious to select any portions of the disclosed ranges including the instantly claimed ranges from the ranges disclosed in the prior art references based on the normal desire of scientists or artisans to improve upon what is generally known. Id. Appellant’s Contentions Appellant contends the Examiner has not explained sufficiently why one of ordinary skill in the art would have substituted Toyohara’s very different dilution range for that of DeLease, which is only 3–5 fold dilution of a concentrate. Reply Br. 8–9. Discussion We are persuaded by Appellant’s arguments. That is, DeLease discloses a dairy-containing foam-creating composition for beverages where Appeal 2020-000601 Application 13/838,849 12 dilution is from 2-fold to 5-fold by volume. DeLease ¶¶ 6, 38. Toyohara discloses a flavor improving agent derived from fruit juice, which gives a juice-like feel or removes or reduces unpleasant tastes. Toyohara ¶ 1. Although Toyohara discloses dilution factors from 2 to 500 times (id. at ¶ 41), we are of the view the Examiner has not provided a sufficient explanation as to how Toyohara’s dilution factors that fall within the range recited in claim 34, would have been applicable to DeLease’s foam-creating compositions. That is, the Examiner has not sufficiently explained why the higher dilution factors in Toyohara would have been applied to DeLease, particularly where the compositions of Toyohara and DeLease are different and serve different purposes. Accordingly, we reverse the Examiner’s rejection of claim 34. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 17–25, 36–38, 40–42, 45 103(a) DeLease, Fox, Juga 17–25, 36–38, 40, 41 42, 45 17–25, 36–38, 40, 41 36–38, 40–42, 45 103(a) DeLease, Fox, Juga, Kamarei 36–38, 40, 41 42, 45 36–38, 40, 41 34 103(a) DeLease, Fox, Juga, Toyohara 34 36–38 103(a) DeLease, Fox, Juga, Kamarei 36–38 36–38 Overall Outcome 17–25, 36–38, 40, 41 34, 42, 45 17–25, 36–38, 40, 41 Appeal 2020-000601 Application 13/838,849 13 TIME PERIOD FOR RESPONSE This Decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) also provides that the Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. . . . Further guidance on responding to a new ground of rejection can be found in the Manual of Patent Examining Procedure § 1214.01. AFFIRMED IN PART 37 C.F.R. § 41.50(b)