Vincent Rinaldi et al.

Patent Trials and Appeals Board

Mar 11, 2020

13152835 - (D) (P.T.A.B. Mar. 11, 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.
13/152,835 06/03/2011 Vincent Rinaldi 2189-296977 7732
23644 7590 03/11/2020
Barnes & Thornburg LLP (CH)
P.O. Box 2786
Chicago, IL 60690-2786
EXAMINER
BEKKER, KELLY JO
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
03/11/2020 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):
Patent-ch@btlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte VINCENT RINALDI, JIA KHIUN WEE,
MARINA BRASLAVSKAYA, ZEINAB ALI, and
VICTOIRE AUBRY
____________

Appeal 2018-005487
Application 13/152,835
Technology Center 1700
____________

Before MONTÉ T. SQUIRE, MERRELL C. CASHION, JR., and
JANE E. INGLESE, Administrative Patent Judges.

SQUIRE, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 3, 14, 15, 18–20, and 24–33.3 We have
jurisdiction under 35 U.S.C. § 6(b).

1 In this Decision, we refer to the Specification filed June 3, 2011 (“Spec.”);
Final Office Action dated June 26, 2017 (“Final Act.”); Advisory Action
dated Sept. 13, 2017 (“Advisory Act.”); Appeal Brief filed Nov. 27, 2017
(“Appeal Br.”); Examiner’s Answer dated Feb. 21, 2018 (“Ans.”); and
Reply Brief filed Apr. 20, 2018 (“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies Stokely-Van Camp, Inc. as the real
party in interest. Appeal Br. 2.
3 Claims 1, 2, 4–13, 16, 17, and 21–23 are cancelled. Appeal Br. 2.
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We AFFIRM.
CLAIMED SUBJECT MATTER
The claimed subject matter relates to electrolyte blends and beverage
compositions comprising the electrolyte blends, and, in particular, to
rehydration products such as powders and beverages, for example, sports
drinks. Spec. ¶ 2; Abstract. According to Appellant’s Specification, the
rehydration products are said to have improved taste due to reduced saltiness
as compared to typical rehydration products. Spec. ¶ 2.
Claim 14 illustrates the claimed subject matter on appeal and is
reproduced below from the Claims Appendix to the Appeal Brief:
14. A rehydration beverage comprising:
water;
at least one sweetener present in an amount between
0 wt. % and 10 wt. %;
at least one acid present in an amount between 0.1 wt. %
and 1.0 wt. %; and
electrolytes;
wherein, excepting the at least one sweetener and the at
least one acid, the rehydration beverage contains only the
electrolytes consisting of sodium chloride, sodium lactate, and
monopotassium phosphate;
wherein the electrolyte blend provides 50 to 250 mg
sodium per serving, 20 to 350 mg potassium per serving, and 10
to 250 mg chloride per serving, wherein one serving is 240 mL
of the rehydration beverage; and
wherein the rehydration beverage exhibits a salty taste
that is lower than a salty taste of a reference beverage, wherein
the reference beverage is the same as the rehydration beverage
except that an electrolyte blend of the reference beverage
consists of sodium chloride, sodium citrate, and potassium
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phosphate in amounts that provide the same milligrams per
serving of sodium, potassium and chloride as the rehydration
beverage.
Appeal Br. 33 (key disputed claim language italicized and bolded).
REFERENCES
The Examiner relies on the following prior art references as evidence
in rejecting the claims on appeal:
Name Reference Date
Gillota US 2003/0143311 A1 July 31, 2003
Takaichi et al. (“Takaichi”) EP 0470259 A1 Feb. 12, 1992
Murray et al. (“Murray”) WO 2005/046360 A2 May 26, 2005
Rod et al. (“Rod”) RU2375930 (C2) Dec. 20, 2009
REJECTIONS
On appeal, the Examiner maintains (Ans. 2) the following rejections:
1. Claims 14, 15, 18, and 24–33 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Takaichi (“Rejection 1”).
Ans. 2.
2. Claim 26 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Takaichi, further as evidenced by Rod4 (“Rejection 2”).
Id. at 7.
3. Claim 3 is rejected under 35 U.S.C. § 103(a) as being
unpatentable over Takaichi in view of Gillota (“Rejection 3”). Id. at 9.

4 The Examiner refers and cites to the machine translation of the Rod
reference dated December 19, 2013 provided in the record.
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4. Claims 19 and 20 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Takaichi, further in view of Gillota (“Rejection 4”).
Id. at 11.
5. Claims 18–20, 24, and 28 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Murray (“Rejection 5”). Id. at 14.
OPINION
Having considered the respective positions advanced by the Examiner
and Appellant in light of this appeal record, we affirm the Examiner’s
rejections based on the fact-finding and reasoning set forth in the Answer,
Advisory Action, and Final Office Action, which we adopt as our own. We
add the following primarily for emphasis.
Rejection 1
The Examiner rejects claims 14, 15, 18, and 24–33 under § 103(a) as
obvious over Takaichi (Ans. 2–7), which we refer to as Rejection 1. In
response to the Examiner’s rejection, Appellant presents separate arguments
for the patentability of the claims based on different claim groupings
(Appeal Br. 7), which we address in turn below.
Claims 14, 15, and 18
Appellant presents argument for the patentability of claims 14 and 18
as a group but does not present separate argument for the patentability of
claim 15. Appeal Br. 12, 19. We select claim 14 as representative of this
group and claims 15 and 18 stand or fall with claim 14. 37 C.F.R.
§ 41.37(c)(1)(iv).
The Examiner determines that the subject matter of claim 14 would
have been obvious to one skilled in the art from Takaichi’s teachings.
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Ans. 2–7. On the record before us, we find a preponderance of the evidence
and sound technical reasoning support the Examiner’s analysis and
determination that Takaichi suggests a beverage satisfying all of the
limitations of claim 14, and conclusion the reference would have rendered
the claim obvious. Takaichi, Abstract, 2:1–10, 2:8–19, 2:30–38, 2:51–3:8,
3:9–13, 3:21–22, 3:29–30, 3:43–47, 3:43–53, 3:53–54, 4:1–6, 5 (Table 1).
Appellant argues the Examiner’s rejection of claim 14 should be
reversed because Takaichi does not teach “a single embodiment,” which
includes all of the limitations of the claim. Appeal Br. 13. In particular,
Appellant contends
no specific embodiment is described [in Takaichi] that
teaches or suggests the claimed, limited combination of
electrolytes . . . .
Id. at 13.
Appellant also contends the passages of Takaichi relied upon in the
Examiner’s rejection “only provide lists of components without any
indication that a specific combination of electrolytes can be used” and no
example teaches a rehydration beverage containing “only the electrolytes
consisting of: sodium chloride, sodium lactate, and monopotassium
phosphate,” as claimed. Id. at 15. See also id. at 15 (arguing “no example
appears to teach monopotassium phosphate”).
Appellant’s arguments in this regard are misplaced and not persuasive
of reversible error in the Examiner’s rejection because Takaichi’s teachings
are not limited to the disclosures in its examples or preferred embodiments.
See In re Mills, 470 F.2d 649, 651 (CCPA 1972) (“[A] reference is not
limited to the disclosure of specific working examples.”); see also In re Susi,
440 F.2d 442, 445-46 (CCPA 1971) (explaining that disclosure of particular
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preferred embodiments does not teach away from a prior art reference’s
broader disclosure).
As the Examiner finds (Ans. 2–4, 15–17), Takaichi teaches a beverage
composition comprising each of the components recited in the claim,
including sodium chloride, sodium lactate, and monopotassium phosphate,
and combinations thereof. Takaichi, Abstract, 2:51–3:8, 3:21–22, 3:29–30,
3:43–53. Although Takaichi describes specific examples that may not
include all of the claimed components in a single embodiment, such
disclosure is exemplary or merely preferred embodiments and, without
more, does not negate or take away from Takaichi’s broad disclosure
regarding the use of the claimed components in combination for beverage
compositions, and that such use was known in the prior art. See In re Preda,
401 F.2d 825, 826 (CCPA 1968) (explaining that a prior art reference’s
disclosure must be considered for all that it teaches, including “the
inferences which one skilled in the art would reasonably be expected to draw
therefrom”). Likewise, the fact that Takaichi discloses each of the claimed
components in a list and combinations thereof, without more, does not
render any particular formulation less obvious. Merck & Co., Inc. v.
Biocraft Labs, Inc., 874 F.2d 804, 807 (Fed. Cir. 1989).
Appellant next argues the Examiner’s rejection should be reversed
because Takaichi fails to teach or suggest the claimed limited saltiness.
Appeal Br. 15–16. In particular, Appellant contends Takaichi does not teach
the “wherein the rehydration beverage exhibits a salty taste that is lower than
a salty taste of a reference beverage” recitation of the claim. Id. at 15–16.
We do not find Appellant’s argument persuasive based on the
Examiner’s fact-finding and reasoning provided at pages 3–4 and 17–18 of
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the Answer. As the Examiner finds (Ans. Ans. 2–4, 15–17) and as
previously discussed above, Takaichi suggests a beverage comprising all of
the same components recited in the claim, including each of the claimed
electrolytes and combinations thereof. Takaichi, Abstract, 2:51–3:8,
3:21–22, 3:29–30, 3:43–53; see also Spec. ¶ 16 (attributing the “low salty
taste” of the claimed beverage to composition the electrolytes). As the
Examiner further finds (Ans. 18), Takaichi teaches that, like the claimed
beverage, the beverage it discloses has a good flavor and leaves no bad taste.
Takaichi 2:30–38 (describing the composition as “leaving no bad taste due
to the inorganic electrolyte when taken and having a good flavor” and
“being capable of retaining the good taste over a prolonged period of time
without deteriorating the taste stability”).
As the Examiner also finds and explains (Ans. 17), because Takaichi
suggests a beverage comprising the same components recited in the claim,
including the claimed electrolytes, it follows that one of ordinary skill in the
art would have reasonably expected the prior art beverage of Takaichi to
have exhibited the same lower salty taste as the claimed product. Thus, the
burden shifted to Appellant to show that the beverage compositions of
Takaichi do not inherently possess the recited “salty taste” of the claimed
beverage. See In re Spada, 911 F.2d 705, 708-09 (Fed. Cir. 1990) (“[W]hen
the PTO shows sound basis for believing that the products of the applicant
and the prior art are the same, the applicant has the burden of showing that
they are not.”); see also In re Best, 562 F.2d 1252, 1255 (CCPA 1977)
(“Where, as here, the claimed and prior art products are identical or
substantially identical, or are produced by identical or substantially identical
processes, the PTO can require an applicant to prove that the prior art
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products do not necessarily or inherently possess the characteristics of his
claimed product.”).
Appellant, however, has not carried that burden. Appellant’s
assertions that “the cited reference fails to teach or suggest the claimed
limited saltiness” (Appeal Br. 15) and that there is no “evidence that the
cited reference has any interest in reducing a salty flavor” (id. at 16) are
conclusory and, without more, insufficient to rebut or otherwise establish
reversible error in the Examiner’s rejection. Attorney argument is not
evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984).
Lastly, Appellant argues that the claimed invention yields unexpected
results. Appeal Br. 16–19; Reply Br. 3–5. In particular, relying principally
on the experimental results provided at Tables 6 and 8 and Example 16 of
the originally-filed Specification (Spec. 25, 27), Appellant contends that
when the combination of components is used, the saltiness
of the product is lower than expected relative to other
potential combinations of electrolytes achieving the same
amount of Na+, K+, and Cl-.
Appeal Br. 16.
This argument is not persuasive. In attempting to overcome a prima
facie case of obviousness by showing unexpected results, the burden rests
with Appellant to establish (1) that the alleged unexpected results presented
as associated with the claimed invention are, in fact, unexpected, (2) that the
comparisons are to the disclosure of the closest prior art, and (3) that the
supplied evidentiary showing is commensurate in scope with the claimed
subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Based on the fact-finding and for the well-stated reasons provided by
the Examiner at pages 18–23 of the Answer, we concur with the Examiner
that Appellant has failed to satisfy the requisite burden.
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As the Examiner finds (Ans. 20), Appellant has failed to establish that
the relied upon results are, in fact, unexpected. In particular, Appellant does
not direct us to persuasive evidence or explain adequately why the alleged
reduced saltiness Appellant contends is shown in the experimental results
(Appeal Br. 16–17) is considered an unexpected result, and not just a typical
result, which would have been reasonably expected by one of ordinary skill.
Klosak, 455 F.2d at 1080 (“[T]he burden of showing unexpected results rests
on [the party] who asserts them.”). Rather, as the Examiner explains
(Ans. 20), because it was known in the art that certain electrolytes, for
example, sodium lactate, exhibit a milder salty taste relative to others, and
that low molecular weight electrolytic anions, for example, produce saltier
tasting compositions, it would not have been unexpected to one of ordinary
skill in the art that different electrolyte combinations provide for a reduced
salty taste when compared to others.
As the Examiner explains (Ans. 19–20), Appellant has not provided
persuasive evidence sufficient to show that there is actually a difference
between the saltiness of the claimed beverage and those of the closest prior
art (Takaichi). Although Appellant contends “the combination of
electrolytes in claim 14 would be expected to result in a less salty product
when used to provide the same amounts of sodium, potassium and chloride
per serving” (Appeal Br. 18), as compared to the examples provided in
Table 1 of Takaichi, Appellant does not provide an adequate explanation or
direct us to reliable data or experimental results sufficient to support that
contention. De Blauwe, 736 F.2d at 705 (“It is well settled that unexpected
results must be established by factual evidence. Mere argument or
conclusory statements in the specification does not suffice.”).
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Further, Appellant’s alleged showing of unexpected results is not
commensurate in scope with the claims. As the Examiner finds
(Ans. 18–19), Appellant’s claims are broader in scope than the examples
tested and Appellant does not explain why the examples tested are
representative of the overall scope of the claims. In particular, as the
Examiner points out (Ans. 18) claim 14 recites “at least one sweetener
present in an amount between 0 wt. % and 10 wt. %” and “at least one acid
present in an amount between 0.1 wt. % and 1.0 wt. %,” but none of the
examples relied upon by Appellant for showing unexpected results include
any amount of sweetener or acid.
As the Examiner further notes (Ans. 18–19), claim 14 recites ranges
for the electrolyte composition “wherein the electrolyte blend provides 50 to
250 mg sodium per serving, 20 to 350 mg potassium per serving, and 10 to
250 mg chloride per serving,” but the example relied upon by Appellant for
these limitations is limited to 110 mg sodium, 20 mg potassium, and 90 mg
chloride, which fails to evince the criticality over the entire breadth of the
electrolyte blend composition recited in the claims. Thus, we are not
persuaded Appellant has provided data sufficient to show that the alleged
unexpected results occur over the entire claimed ranges. See In re Kao, 639
F.3d 1057, 1068 (Fed. Cir. 2011) (“Evidence of secondary considerations
must be reasonably commensurate with the scope of the claims.”).
We, therefore, sustain the Examiner’s rejection of claims 14, 15, and
18.
Claims 24, 25, 27, 29, 30, and 32
Although Appellant presents nominally arguments for the
patentability of claims 24, 25, 27, 29, 30, and 32 enumerated under separate
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headings at pages 19, 20, and 23 of the Appeal Brief, Appellant does not
present any new or additional substantive argument, but instead relies on
essentially the same arguments previously presented above in response to
the Examiner’s rejection of claim 14.
Thus, based on the fact-finding and reasoning provided by the
Examiner, and for principally the same reasons discussed above for
sustaining the Examiner’s rejection of claim 14, we sustain the Examiner’s
rejection of claims 24, 25, 27, 29, 30, and 32.
Claims 26 and 31
Appellant presents separate argument for the patentability of claims
26 and 31 as a group. Appeal Br. 20. We select claim 31 as representative
of this group and claim 26 stands or falls with claim 31. 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 31 depends from claim 14 and further recites “wherein the
electrolyte blend provides about 110 mg sodium per serving, about 20 mg
potassium per serving, and about 90 mg chloride per serving.” Appeal
Br. 36 (Claims Appendix) (key disputed claim language italicized and
bolded).
Appellant argues the Examiner’s rejection of claim 31 should be
reversed for the same reasons previously presented above in response to the
Examiner’s rejection of claim 14. Appeal Br. 20 (“Claim 31 depends from
claim 14 and is nonobvious over the cited reference for at least the reasons
that claim 14 is nonobvious over the cited reference.”); see also id. at 20–21
(arguing unexpected results). We do not find this argument persuasive for
principally the same reasons discussed above for affirming the Examiner’s
rejection of claim 14.
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Appellant further argues that the Examiner’s rejection of claim 31
should be reversed because Takaichi does not teach or suggest the claimed
amount of potassium. Appeal Br. 21. In particular, Appellant contends
Takaichi does not teach an electrolyte blend that provides “about 20 mg
potassium per serving,” as recited in the claim. Id. at 22.
We do not find Appellant’s argument persuasive of reversible error in
the Examiner’s rejection based on the Examiner’s fact-finding and reasoning
provided at pages 4–5 of the Answer, which is supported by a preponderance
of the evidence. As the Examiner finds (Ans. 4–5), and Appellant does not
refute, Takaichi teaches electrolyte compositions having, for example,
37.5–46.8 mg potassium per serving. Takaichi 5 (Table 1). As the Examiner
further finds (Ans. 5), Takaichi teaches that the electrolyte components are
used in an amount sufficient to make up for the electrolytes lost by sweating
and that the amount of such component used may be variable over a wide
range. Takaichi 3:9–13 (disclosing the “electrolyte component is used in an
amount sufficient to make up for inorganic electrolyte cations and anions
lost by sweating” and “[t]he amount of such component to be used is
variable over a wide range which corresponds to the conventional range for
this kind of beverage”). That is, the amount of potassium is a
result-effective variable. See In re Applied Materials, Inc., 692 F.3d 1289,
1297 (Fed. Cir. 2012) (“A recognition in the prior art that a property is
affected by the variable is sufficient to find the variable result-effective.”).
Thus, as the Examiner determines (Ans. 5), it would have been
obvious to one of ordinary skill in the art to have arrived at the claimed
range of “about 20 mg potassium per serving” by varying the amount of
potassium to make up for the depleted amount lost by sweat as a matter of
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routine experimentation. In re Aller, 220 F.2d 454, 456 (CCPA 1955)
(“[W]here the general conditions of a claim are disclosed in the prior art, it is
not inventive to discover the optimum or workable ranges by routine
experimentation.”).
Appellant’s arguments do not reveal reversible error in the
Examiner’s factual findings and analysis in this regard.
We, therefore, sustain the Examiner’s rejection of claims 26 and 31.
Claims 28 and 33
Appellant presents separate arguments for the patentability of claims
28 and 33 as a group. Appeal Br. 23. We select claim 33 as representative
of this group and claim 28 stands or falls with claim 33. 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 33 depends from claim 14 and recites
wherein the rehydration beverage exhibits a salty taste of
less than 1.5 on a scale of 0 to 15 as determined by a
trained sensory panel, wherein a salty taste of a 0.70 wt.
% solution of sodium chloride equals 15 on the scale, a
salty taste of water subjected to reverse osmosis equals 0
on the scale.
Appeal Br. 36 (Claims Appendix) (key disputed claim language italicized
and bolded).
Appellant argues the Examiner’s rejection of claim 33 should be
reversed for principally the same reasons previously presented above in
response to the Examiner’s rejection of claim 14. Id. at 23.
We do not find Appellant’s argument persuasive for principally the
same reasons discussed above for affirming the Examiner’s rejection of
claim 14. In particular, Appellant’s contentions that Takaichi does not teach
or suggest “wherein the rehydration beverage exhibits a salty taste of less
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than 1.5 on a scale of 0 to 15” (Appeal Br. 23) nor the “claimed saltiness”
(id. at 24) are not well-taken because, as previously discussed above
regarding claim 14, Takaichi suggests a beverage comprising the same
components recited in the claim, it follows that Takaichi’s beverage would
have exhibited the same salty taste as the claimed product.
We, therefore, sustain the Examiner’s rejection of claims 28 and 33.
Accordingly, we affirm the Examiner’s rejection of claims 14, 15, 18,
and 24–33 under 35 U.S.C. § 103(a) as obvious over Takaichi.
Rejection 2
In response to the Examiner’s rejection of claim 26 under § 103(a) as
obvious over Takaichi, as evidenced by Rod (Ans. 7–9), which we refer to
as Rejection 2, Appellant repeats and relies on principally the same
arguments previously presented above in response to the Examiner’s
rejection of claim 31.
Accordingly, for principally the same reasons discussed above for
affirming the Examiner’s rejection of claim 31, we affirm the Examiner’s
rejection of claim 26 under 35 U.S.C. § 103(a) as obvious over Takaichi, as
evidenced by Rod.
Rejection 3
The Examiner rejects claim 3 under § 103(a) as obvious over the
combination of Takaichi and Gillota (Ans. 9–11), which we refer to as
Rejection 3.
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Claim 3 is reproduced below from the Claims Appendix to the Appeal
Brief:
3. A rehydration beverage comprising:
electrolytes;
at least one of maltodextrin, isomaltulose, and dextrose;
and
water;
wherein the rehydration beverage contains only
electrolytes consisting of sodium lactate and potassium chloride;
wherein the rehydration beverage comprises 50 to 220 mg
sodium per serving, 20 to 110 mg chloride per serving, and 80 to
100 mg potassium per serving and low calories; and
wherein one serving is 240 mL of the rehydration
beverage.
Appeal Br. 32 (key disputed claim language italicized and bolded).
Appellant argues the Examiner’s rejection of claim 3 should be
reversed for principally the same reasons or reasons analogous to those
previously presented above in response to the Examiner’s rejection of claim
14. Appeal Br. 25 (arguing Takaichi “provide[s] a laundry list of
electrolytes and salts of organic acids” and does not teach or suggest the
claimed “reduced saltiness”); see also id. at 20–21 (arguing “unexpected
and/or unpredictable results”). We, therefore, do not find these arguments
persuasive for principally the same reasons discussed above for affirming
the Examiner’s rejection of claim 14.
Appellant further argues the Examiner’s rejection of claim 3 should be
reversed because “the cited references do not teach the claimed potassium
range.” Appeal Br. 26. We do not find this argument persuasive based on
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the Examiner’s fact-finding and reasoning provided at pages 9–11 and 25 of
the Answer.
Contrary to what Appellant argues, a preponderance of the evidence
supports the Examiner’s finding that the cited art suggests that element of
the claim. As the Examiner finds (Ans. 10–11), Takaichi teaches a beverage
composition comprising electrolytes, including examples ranging from
37.5–46.8 mg potassium per serving, and further teaches that the electrolyte
component is used in an amount sufficient to make up for inorganic
electrolyte cations and anions lost by sweating, and the amount used is
variable over a wide range. Takaichi 3:9–13, 5 (Table 1).
As the Examiner further finds (Ans. 11), Gillotta teaches a recovery
drink that includes 38–114 mg potassium per serving and that the potassium
functions to maintain fluid balance, nerve transmission, muscle contraction
and glycogen formation. Gillotta, Abstract, ¶¶ 13, 79, 94.
The Examiner also provides a reasonable basis, which is supported by
a preponderance of the evidence in the record, to evince why one of ordinary
skill would have combined the teachings of Takaichi and Gillotta to arrive at
the claimed invention. As the Examiner concludes (Ans. 11), it would have
been obvious to one of ordinary skill in the art to have arrived at the claimed
range by adjusting the amount of potassium within the known range in order
to maintain fluid balance, nerve transmission, muscle contraction and
glycogen formation, as taught by Gillota. Aller, 220 F.2d at 456; see also
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007) (explaining that any
need or problem known in the art can provide a reason for combining the
elements in the manner claimed).
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Appellant’s assertions that “Gillotta actually teaches away” and “a
skilled person would not be led to combine Gillota with Takaichi to obtain
the claim invention” (Appeal Br. 26) are conclusory and, without more,
insufficient to establish reversible error in the Examiner’s factual findings
and analysis in this regard. De Blauwe, 736 F.2d at 705; see also In re
Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (explaining that mere
lawyer’s arguments or conclusory statements, which are unsupported by
concrete factual evidence, are entitled to little probative value).
Accordingly, we affirm the Examiner’s rejection of claim 3 under
35 U.S.C. § 103(a) as obvious over the combination of Takaichi and Gillota.
Rejection 4
In response to the Examiner’s rejection of claims 19 and 20 under
§ 103(a) as obvious over the combination of Takaichi and Gillota (Ans.
11–14), which we refer to as Rejection 4, Appellant does not present any
new or additional substantive arguments in the Appeal Brief.
Rather, Appellant apparently intends to rely on the same arguments
previously discussed and presented above in response to the Examiner’s
rejection of claim 3 as obvious over the combination of Takaichi and Gillota
(Rejection 3, stated above).
Thus, based on the fact-finding and reasoning provided by the
Examiner, and for principally the same reasons discussed above for
affirming the Examiner’s Rejection 3, we affirm the Examiner’s rejection of
claims 19 and 20 under 35 U.S.C. § 103(a) as obvious over the combination
of Takaichi and Gillota.
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Rejection 5
The Examiner rejects claims 18–20, 24, and 28 under § 103(a) as
obvious over Murray (Ans. 14–15), which we refer to as Rejection 5.
Murray is directed to an improved rehydration beverage, which includes a
combination of electrolytes, and discloses beverage compositions similar to
those of Takaichi. Compare Murray 1–2, 9–11 with, Takaichi 2–3.
In response to the Examiner’s rejection, Appellant presents arguments
for the patentability of claims 18–20 as a group and separate arguments for
the patentability of claims 24 and 28, respectively, which we address in turn
below.
Claims 18–20
Appellant presents argument for the patentability of claims 18–20 as a
group. Appeal Br. 27. We select claim 18 as representative of this group
and the claims 19 and 20 stand or fall with claim 18. 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 18 includes language similar to claim 14 and is reproduced
below from the Claims Appendix to the Appeal Brief:
18. A rehydration beverage comprising:
water;
at least one sweetener present in an amount between 0 wt.
% and 10 wt. %;
at least one acid present in an amount between 0.1 wt. %
and 1.0 wt. %; and
electrolytes,
wherein, excepting the at least one sweetener and the at
least one acid, the rehydration beverage contains only the
electrolytes consisting of:
sodium chloride;
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sodium lactate;
monopotassium phosphate;
magnesium-containing electrolytes; and
calcium-containing electrolytes;
wherein the electrolyte blend provides 50 to 250 mg
sodium per serving, 20 to 350 mg potassium per serving, and 10
to 250 mg chloride per serving; wherein one serving is 240 mL
of the rehydration beverage; and
wherein the rehydration beverage exhibits a salty taste that
is lower than a salty taste of a reference beverage, wherein the
reference beverage is the same as the rehydration beverage
except that an electrolyte blend of the reference beverage
consists of sodium chloride, sodium citrate, and potassium
phosphate in amounts that provide the same milligrams per
serving of sodium, potassium and chloride as the rehydration
beverage.
Appeal Br. 34.
The Examiner determines that Murray suggests a beverage satisfying
all of the limitations of claim 18 and concludes the reference would have
rendered the claim obvious. Ans. 14–15. On the record before us, we find a
preponderance of the evidence and sound technical reasoning support the
Examiner’s analysis and determination that Murray suggests a beverage
satisfying all of the limitations of claim 18, and conclusion the reference
would have rendered the claim obvious. Murray, Abstract, 4:23–32,
9:19–11:14, 12:15–16.
In response to the Examiner’s rejection of claim 18, Appellant repeats
and relies on principally the same arguments or arguments analogous to
those previously presented above in response to the Examiner’s rejection of
claim 14. Appeal Br. 27–29.
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We do not find Appellant’s arguments persuasive of reversible error
in the Examiner’s rejection based on the Examiner’s fact-finding and
reasoning provided at pages 14–15 and 25–27 of the Answer, and for
principally the same reasons or reasons analogous to those previously
discussed above in affirming the Examiner’s rejection of claim 14.
We, therefore, sustain the Examiner’s rejection of claims 18–20.
Claim 24
Although Appellant presents nominally arguments for the
patentability of claim 24 enumerated under a separate heading at page 30 of
the Appeal Brief, Appellant does not present any new or additional
substantive argument. Instead, Appellant relies on the same or similar
arguments discussed and previously presented above in response to the
Examiner’s rejections of claims 18 and 29, respectively.
Thus, based on the fact-finding and reasoning provided by the
Examiner, and for principally the same reasons discussed above for
sustaining the Examiner’s rejections of claims 18 and 29, we sustain the
Examiner’s rejection of claim 24 as obvious over Murray.
Claim 28
Claim 28 depends from claim 18 and further recites
wherein the rehydration beverage exhibits a salty taste of less
than 1.5 on a scale of 0 to 15 as determined by a trained
sensory panel, wherein a salty taste of a 0.70 wt. % solution of
sodium chloride equals 15 on the scale, a salty taste of water
subjected to reverse osmosis equals 0 on the scale.
Appeal Br. 35 (Claims Appendix) (key disputed claim language italicized
and bolded).
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21
Appellant argues the Examiner’s rejection should be reversed for
principally the same reasons as claim 18 and reasons similar to the reasons
presented in response to the Examiner’s rejection of claim 33 as obvious
over Takaichi. Appeal Br. 30. We do not find these argument persuasive
for principally the same reasons or reasons analogous to those previously
discussed above in affirming the Examiner’s rejections of claims 18 and 33,
respectively.
Appellant further argues the Examiner’s rejection of claim 28 should
be reversed because Murray does not teach or suggest the “wherein the
rehydration beverage exhibits a salty taste of less than 1.5 on a scale of 0 to
15” recitation of the claim.
We do not find this argument persuasive of reversible error based on
the Examiner’s fact-finding and reasoning provided at pages 26–27 of the
Answer, which is supported by a preponderance of the evidence. In
particular, as the Examiner finds and explains (Ans. 26), because Murray
teaches or suggests a beverage comprising the same components recited in
the claim, it follows that Murray’s beverage would have exhibited the same
salty taste as the claimed product.
We, therefore, sustain the Examiner’s rejection of claim 28.
Accordingly, we affirm the Examiner’s rejection of claims 18–20, 24,
and 28 under 35 U.S.C. § 103(a) as obvious over Murray.
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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C. §  Reference(s)/Basis Affirmed Reversed
14, 15, 18,
24–33
103(a) Takaichi 14, 15, 18,
24–33

26 103(a) Takaichi, Rod 26
3 103(a) Takaichi, Gillota 3
19, 20 103(a) Takaichi, Gillota 19, 20
18–20, 24,
28
103(a) Murray 18–20, 24,
28

Overall
Outcome
3, 14, 15,
18–20,
24–33

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a) (1)(iv).
AFFIRMED