CONOPCO, INC., D/B/A UNILEVER

Patent Trials and Appeals Board

Mar 9, 2021

2020001729 (P.T.A.B. Mar. 9, 2021)

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.
15/111,967 07/15/2016 Phillippa JUDGE F3657USw 4583
201 7590 03/09/2021
UNILEVER PATENT GROUP
700 SYLVAN AVENUE
Floor A4
ENGLEWOOD CLIFFS, NJ 07632-3100
EXAMINER
BEKKER, KELLY JO
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
03/09/2021 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
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PHILLIPPA JUDGE, GEORGE SIMEONOV MARINOV,
JOHN TURNER MITCHELL, and ANN-MARIE WILLIAMSON
Appeal 2020-001729
Application 15/111,967
Technology Center 1700
Before CATHERINE Q. TIMM, LINDA M. GAUDETTE, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s final decision to reject claims 1, 3, and 5–11. We have
jurisdiction under 35 U.S.C. § 6(b).

1 This Decision includes citations to the following documents: Specification
filed July 15, 2016 (“Spec.”); Final Office Action dated March 6, 2019
(“Final Act.”); Appeal Brief filed September 20, 2019 (“Appeal Br.”);
Examiner’s Answer dated November 1, 2019 (“Ans.”); and Reply Brief filed
January 2, 2020 (“Reply Br.”).
2 Appellant refers to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant
identifies the real party in interest as Conopco, Inc. d/b/a Unilever, which is
a member of the Unilever Group of companies headed by Unilever N.V. in
Rotterdam and Unilever PLC in London. Appeal Br. 3.
Appeal 2020-001729
Application 15/111,967

2
We AFFIRM.
CLAIMED SUBJECT MATTER
The claims are directed to a frozen beverage. Spec. 1, l. 3.
Independent claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A frozen beverage in the form of a slush
comprising:
(a) 35 to 90 % w/w water;
(b) 5 to 45% w/w freezing point depressant;
(c) An ice crystal population wherein the number
average length of the longest dimension of the ice
crystals is 110 to 250 microns; and
(d) 0.001 to 10 % w/w/ of an ingredient having a
Trouton ration of at least 75 as measured in a
0.2 wt. % aqueous solution at 20 degrees
centigrade;
wherein the distribution of the number average
length of the longest dimension of the ice crystals
is monomodal; and
wherein (d) is added to (a) to (c) under low shear;
and wherein the ingredient (d) comprises okra
pectin or Jews Mallow pectin or water-soluble
extract of Mekabu or a combination thereof, and
wherein the extensional viscosity of a degassed
melt of the frozen beverage is at least 13 Pa.s
higher at 20° C than a degassed melt of an
identical frozen beverage but without technical
feature (d).
Appeal Br. 12 (Claims App.).
Appeal 2020-001729
Application 15/111,967

3
REJECTIONS
The Examiner maintains the following rejections on appeal (Final Act.
2–11; Ans. 2):
Rejection 1: Claims 1, 3, 5–9, and 11 are rejected under 35 U.S.C.
§ 103 as unpatentable over GFC,3 Masuda,4 and Hunan,5 or alternatively
over GFC, Masuda, and Yuan;6 and
Rejection 2: Claims 1, 3, and 5–11 are rejected under 35 U.S.C. § 103
as unpatentable over GFC, Masuda, Hunan and Villagran,7 or alternatively
over GFC, Masuda, Yuan, and Villagran.
DISCUSSION
Appellant’s arguments focus on claim 1. Appeal Br. 8–11. Appellant
does not present separate substantive arguments regarding claims 3 and 5–
11. Id. Thus, we select claim 1 as representative of the rejected claims, and
the remaining claims will stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(1)(iv).
Upon consideration of the evidence on this record and each of
Appellant’s arguments, we find that the preponderance of evidence supports
the Examiner’s conclusion that the subject matter of claim 1 is unpatentable
over the applied prior art. Thus, we sustain the Examiner’s § 103 rejections

3 General Foods Corporation, GB 1 331 518, published September 26, 1973.
4 Masuda et al., US 2007/0248736 A1, published October 25, 2007.
5 Hunan Amazing Grace Biotechnology Co., Ltd., CN 102993331 A,
published March 27, 2013. We refer to the machine translation of record of
Hunan as cited by the Examiner.
6 Yuan et al., CN 103462037 A, published December 25, 2013. We refer to
the machine translation of record of Hunan as cited by the Examiner.
7 Villagran et al., US 6,673,384 B1, issued January 6, 2004.
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Application 15/111,967

4
essentially for the reasons set out by the Examiner in the Final Office Action
and the Answer. We add the following.
The Examiner finds that GFC teaches a frozen slush beverage that
includes (a) 40–85% water, (b) 0–8% of a freezing point depressant, and (d)
0.05–1% of a gum, such as pectin, but is silent as to the type of pectin and
the Trouton ratio of the pectin. Final Act. 2 (citing GFC 2, ll. 34–50); id. at
4. The Examiner finds that one of ordinary skill in the art would have used
okra pectin as the gum in GFC’s slush beverage based on Hunan’s teaching
that okra pectin is a natural food additive that provides health benefits,
thickening, and stability. Id. (citing Hunan, Abstract, ¶¶ 1, 7). Hunan does
not disclose a Trouton ratio of okra pectin, but the Examiner finds that one
of ordinary skill in the art would have reasonably expected Hunan’s okra
pectin to have the same Trouton ratio as claim 1’s okra pectin given that it is
the same material. Id.
As to claim 1’s ice crystal population (claim 1, (c)), the Examiner
finds that GFC teaches that its frozen slush beverage includes a large
quantity of small ice crystals to provide a pleasant, cooling sensation (Final
Act. 3 (citing GFC 2, ll. 50–60)), but is silent on the size of the crystals. Id.
The Examiner finds that one of ordinary skill in the art would have used
small grain ice crystals having a size of 60–800 microns in GFC’s slush
beverage because Masuda teaches that small grain ice crystals having a size
of 0.06–9 mm (60–800 microns) provide a beverage with appropriate
sensation of coolness. Final Act 3. (citing Masuda, code (57), ¶ 10).
Appellant argues that the method of preparing its beverage in claim 1
is different than GFC’s method. Appeal Br. 9. Appellant argues that in
claim 1, ingredient (d) comprising okra pectin is added to the beverage after
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Application 15/111,967

5
ice is already formed (recitation (c) of claim 1), whereas in GFC, the gum
(e.g., pectin) is added to the beverage prior to freezing. Id. Appellant argues
that Figure 3 of their application demonstrates that the order in which the
ingredients are added results in a difference in beverage characteristics. See
id.; see also id. at 10 (discussing Figure 3 of Appellant’s application).
Appellant’s argument and evidence are not persuasive. Claim 1 is a
product-by-process claim. As the Examiner correctly points out, it is the
product resulting from the process that limits the claim, not the process steps
themselves. Ans. 13; see In re Thorpe, 777 F.2d 695, 698 (Fed. Cir. 1985)
(citations omitted) (“[E]ven though product-by-process claims are limited by
and defined by the process, determination of patentability is based on the
product itself.”). Appellant’s evidence (Figure 3) appears to show that a
slush beverage has differing sensorial benefits based on whether okra pectin
is added to the beverage before or after dispensing the beverage from the
slush barrel. Spec. 21, ll. 17–18; Fig. 3. Appellant, however, has not directed
us to evidence that demonstrates that adding pectin before freezing as in
GFC or after ice is formed as in claim 1 produces beverages with differing
characteristics.
Appellant argues that “it is . . . unclear . . . why one of ordinary skill
would select okra pectin from the universe of pectins” for claim 1’s frozen
beverage. Appeal Br. 10.
Appellant’s argument is not persuasive. GFC teaches including gums,
such as pectin, in a frozen slush beverage. GFC 2, ll. 33–42, 3, ll. 105–109.
Hunan and Yuan disclose okra as a known source of pectin with many health
benefits. Hunan 1, ¶ 1; Yuan 1, ¶ 4. Although there are many sources of
pectin, Hunan and Yuan teach that okra pectin is suitable as a food additive.
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Application 15/111,967

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In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985) (affirming obviousness
rejection of claims in light of prior art teaching that “hydrated zeolites will
work” in detergent formulations, even though “the inventors selected the
zeolites of the claims from among ‘thousands’ of compounds”). Appellant
does not explain why, based on Hunan and Yuan’s disclosure, the use of
okra pectin as the gum in GFC’s frozen slush beverage would have been
anything more than the predictable use of prior art elements according to
their established functions. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007) (assessing the obviousness of claims to a combination of prior art
elements by asking “whether the improvement is more than the predictable
use of prior art elements according to their established functions.”).
Appellant argues that “one of ordinary skill would not look to use
Masuda’s particle size distribution in the slush beverages of GFC since a
domestic freezer will not shave, pulverise or sieve large ice pieces to achieve
the ice particles described by Masuda.” Appeal Br. 10. Appellant further
argues that “the Office points to no disclosure of an average particle size for
the ice by Masuda, let alone one that is a number average in the range 110 to
250 microns.” Id. at 11.
Appellant’s arguments are not persuasive. GFC teaches a slush
beverage that includes fine ice crystals to provide a pleasant, cooling
sensation (GFC 2, ll. 50–60), and Masuda teaches a slush beverage with
small grain ice crystals having a size of 0.06–9 mm (60–800 microns)
provides the beverage with an appropriate sensation of coolness. Masuda,
code (57), ¶ 10. Based on those teachings, we are not persuaded that the
Examiner erred in finding that one of ordinary skill in the art would have
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Application 15/111,967

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used small grain ice crystals having a size of 60–800 microns in GFC’s slush
beverage to provide its beverage with pleasing coolness. Final Act. 3.
In view of the foregoing, we sustain the Examiner’s obviousness
rejections of claims 1, 3, and 5–11.
CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 3, 5–9,
11
103 GFC, Masuda,
Hunan
1, 3, 5–9,
11

1, 3, 5–9,
11
103 GFC, Masuda,
Yuan
1, 3, 5–9,
11

1, 3, 5–11 103 GFC, Masuda,
Hunan, Villagran
1, 3, 5–11
1, 3, 5–11 103 GFC, Masuda,
Yuan, Villagran
1, 3, 5–11
Overall
Outcome
1, 3, 5–11

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