Dean Foods Company

Patent Trials and Appeals Board

Sep 14, 2020

14745131 - (D) (P.T.A.B. Sep. 14, 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.
14/745,131 06/19/2015 Benjamin Hall 486135.57 4030
25764 7590 09/14/2020
Faegre Drinker Biddle & Reath LLP
PATENT DOCKETING - INTELLECTUAL PROPERTY
2200 WELLS FARGO CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MN 55402-3901
EXAMINER
GWARTNEY, ELIZABETH A
ART UNIT PAPER NUMBER
1796
NOTIFICATION DATE DELIVERY MODE
09/14/2020 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):
PatentDocketing@FaegreDrinker.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BENJAMIN HALL, DEAN A. LIPPOLD, and
BRYAN C. SHIPLETT
Appeal 2019-006357
Application 14/745,131
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
MICHAEL G. MCMANUS, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–24. See Final Act. 1. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as Dean Foods
Company. Appeal Br. 3.
Appeal 2019-006357
Application 14/745,131

2
CLAIMED SUBJECT MATTER
The claims are directed to a high-protein dairy product composition
(see, e.g., claim 1) and a method for producing it (see, e.g., claim 21). The
composition is a homogenized mixture of at least one curd component and at
least one softening agent. See, e.g., claim 1. According to the Specification,
the softening agent may be one or more of fruit juice, fruit preparation, milk,
flavored milk, oils, and fats. Spec. ¶ 8.
The claims require the homogenized mixture contain curds with
particle sizes of less than 100 µm and an overrun less than 50%. See, e.g.,
claims 1 and 21. According to the Specification, the desired particle sizes
and overrun are obtained by milling the mixture to form a fully
homogenized product. Spec. ¶¶ 6, 43. Overrun refers to the percentage of air
incorporated into the mixture. Spec. ¶ 14. Claim 1, reproduced below, is
illustrative of the claimed subject matter:
1. A high-protein dairy product composition comprising:
a homogenized mixture of at least one curd component
comprising curds with particle sizes between 0.1 mm to 3.0 mm
in diameter, and a protein content greater than 10% by weight;
and
at least one softening agent having a viscosity of less
than 300,000 centipoise;
wherein the homogenized mixture of the at least one curd
component and the at least one softening agent has a protein
content greater than 5% by weight, curds with particle sizes of
less than 100 µm, and an overrun less than 50%.
Appeal Br. 10.
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Application 14/745,131

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Myfitnesspal Strawberry Cheesecake Smoothie,
http://community.myfitnesspal.com/en/dis
cussion/192775 (accessed March 24,
2017)
Mar. 14, 2011
Engelen Engelen et al., Relating particles and
texture perception, Physiology &
Behavior 86 (2005) 111–117
June 29, 2005
Darigold Darigold, Fat Free Cottage Cheese, https:/
/www.darigold.com/products/fat-free-
cottage-cheese (accessed March 24, 2017)
Accessed Mar.
24, 2017
Bakshi Bakshi et al., Effect of Fat Content and
Temperature on Viscosity in Relation to
Pumping Requirements of Fluid Milk
Products, Journal of Dairy Science, June
1984 Volume 67, Issue 6, pp. 1157–1160
(abstract only)
June 1984
USDA USDA Specifications for Cottage Cheese
and Dry Curd Cottage Cheese, USDA,
effective February 13, 2001, pp.1–3
Eff. Feb. 13,
2001
Berk Berk, Z., Mixing - Chapter 7, Food
Process Engineering and Technology,
Elsevier 2009, pp.175–194
2009

REJECTIONS
Claims 1–23 are rejected under 35 U.S.C. § 103 as being unpatentable
over Myfitnesspal in view of Engelen, and as evidenced by Darigold, Bakshi
and USDA. Final Act. 3.
Claim 24 is rejected under 35 U.S.C. § 103 as being unpatentable over
Myfitnesspal in view of Engelen and as evidenced by Darigold, Bakshi and
USDA, and further in view of Berk. Final Act. 7–8.
Appeal 2019-006357
Application 14/745,131

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OPINION
Claims 1–23
For the rejection of claims 1–23 as obvious over Myfitnesspal in view
of Engelen, as evidenced by Darigold, Bakshi and USDA, the issues are the
same for all the claims as Appellant does not argue any claim apart from the
others. Appeal Br. 6–8. We select claim 1 as representative for resolving the
issues on appeal.
As a first matter we determine that a number of facts are not in
dispute. For instance, there is no dispute that Myfitnesspal discloses a recipe
for making a strawberry cheesecake smoothie. Compare Final Act. 3, with
Appeal Br. 6–8, and Reply Br. 2–5. Or that the recipe calls for 1/2 cup skim
milk (i.e. about 122 g), 1/2 cup non-fat cottage cheese (i.e. about 113 g.
cottage cheese), 1 cup strawberries (i.e. about 152 g), 6 packets sweetener,
and 1/2 tsp vanilla extract. Compare Final Act. 3, with Appeal Br. 6–8, and
Reply Br. 2–5. Nor is there any dispute that Myfitnesspal’s non-fat cottage
cheese has particles of sizes between 0.1 mm and 3.0 mm diameter or that it
has the required protein content. Compare Final Act. 3, 6 (citing Darigold
and USDA), with Appeal Br. 6–8, and Reply Br. 2–5. Or that skim milk is a
softening agent with the viscosity required by claim 1. Compare Final Act. 4
(citing Bakshi), with Appeal Br. 6–8, and Reply Br. 2–5. Lastly, there is no
dispute that blending according to Myfitnesspal’s recipe results in a
homogenized mixture with a protein content of greater than 5% by weight.
Compare Final Act. 3, with Appeal Br. 6–8, and Reply Br. 2–5.
Myfitnesspal’s recipe is directed to the home cook and it directs the
home cook to “combine all ingredients in blender, blend until smooth.” The
question on appeal is whether it is reasonable to conclude that arriving at the
Appeal 2019-006357
Application 14/745,131

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particle sizes and overrun of claim 1 is a matter of routinely blending
Myfitnesspal’s ingredients to obtain a desired smoothness. Compare Final
Act. 3–4, and Ans. 9–11, with Appeal Br. 6–8, and Reply Br. 2–5.
For the following reasons, we agree with the Examiner that a
preponderance of the evidence supports such a determination.
First, and foremost, Myfitnesspal specifically directs the home cook to
blend the mixture until smooth. Blending until smooth, by definition
requires blending until the curds are reduced in size so they are not visible
and cannot be perceived when drinking. The photograph in Myfitnesspal
shows such a smooth beverage with no visible particles.
Second, other evidence supports the Examiner’s finding. Engelen
provides evidence that increased particle size contributes to perceived
grittiness, which is the anathema of smoothness. Engelen 112. Appellant’s
own Specification indicates that curds milled to sizes of, e.g., less than about
100 µm, are not visible and that particles of sizes not distinguishable in the
final dairy product composition result in a smooth, creamy, homogenous
texture. Spec. ¶ 43.
Third, contrary to Appellant’s argument that more is involved than
routine optimization and there is no reasonable expectation of success
because there are too many parameters to vary (Appeal Br. 4–8; Reply Br.
2–3), there are only two parameters here: time of blending and blender
speed. The ordinary home cook would blend at the speed and for the time
that would result in the desired smoothness. Although we agree with
Appellant that other factors can influence the perceived
grittiness/smoothness (Appeal Br. 6–7), it is blending time and speed that are
the variables available to the home cook following the Myfitnesspal recipe.
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Fourth, contrary to Appellant’s argument, the Examiner’s rationale
here is not analogous to that reversed in In re Stepan Co., 868 F.3d 1342,
1345 (Fed. Cir. 2017). Here, a preponderance of the evidence shows a
known straightforward relationship between particle size and smoothness.
Myfitnesspal directs one to “blend until smooth,” which reduces curd
particle size to produce the smooth beverage. The ordinary artisan, i.e., the
home cook, in blending until smooth would conduct blending for the time
and at the speed necessary to obtain the desired level of smoothness.
Smoothness means the particles are not visible and cannot be perceived
during drinking. Engelen Abstr. A preponderance of the evidence indicates
that when the smoothie particles are reduced to less than 100 µm, the
smoothie will be “smooth” within the meaning of Myfitnesspal. There is no
lack of explanation or picking and choosing amongst a number of different
components to reach a property higher than that disclosed by the prior art —
cloud point in Stepan—in the present case.
Fifth, as to overrun, the claimed range of overrun encompasses
percentages of air within the smoothie of up to 50%. This range is large and,
given the ingredients (cottage cheese, milk, sweetener, and frozen fruit) and
the method of mixing in a home blender, a preponderance of the evidence
supports the finding that less than 50% of the smoothie product of
Myfitnesspal would be air.
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Claim 24
Claim 24 further requires the milling step of claim 21 occur at a
pressure between 100 psi and 5,000 psi, a level of pressure not taught by
Myfitnesspal, and, thus, the Examiner turns to Berk. Final Act. 8.
The Examiner finds that Berk teaches that there are many types of
mixing devices and that the fundamental objective of mixing is to increase
the homogeneity of material in bulk and other objectives include changing
the texture. Final Act. 8. The Examiner further finds that, according to Berk,
homogenization involves the reduction in size of dispersed particles by the
action of shearing forces. Id. Berk supports the Examiner’s findings. Berk
§§ 7.1, 7.6.1.
The Examiner’s finds, and Appellant does not dispute, that high
pressure homogenizers that operate at pressures between about 3,000 psi to
about 10,000 psi were known in the art. Compare Final Act. 8, with Appeal
Br. 8, and Reply Br. 5. Based on this undisputed finding, the Examiner
concludes that it would have been obvious to one of ordinary skill in the art
to have used a high pressure homogenizer of the type known in the art to
blend the mixture of Myfitnesspal because “doing so would amount to
nothing more than using a known mixing device for the intended purpose of
obtaining a homogenous mixture wherein the particle size has been reduced
to change the texture (i.e. make less gritty and more creamy).” Final Act. 8.
In the Appeal Brief, Appellant’s only new argument against the
rejection of claim 24 is that Berk provides no motivation to alter the
blending conditions of Myfitnesspal. Appeal Br. 8. But Appellant’s
argument does not address the Examiner’s specifically articulated
motivation, which is based on using a known device for its known purpose.
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Such reasoning is sufficient to support obviousness. “The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.” KSR Int'l Co. v. Teleflex Inc.,
550 U.S. 398, 416 (2007).
In the Answer, the Examiner finds that the ordinary artisan is a home
cook using a blender. Ans. 11. In the Reply Brief, Appellant contends that
this finding illustrates an additional reason why claim 24 is patentable:
because high pressure homogenizers would not have been within the
purview of the home cook using a blender. Reply Br. 5. The problem is that
although the home cook is one ordinary artisan that can follow a recipe, so
too is an industrial food maker. The Examiner’s evidence supports a finding
that high pressure homogenizers, which operate at pressures of 3,000 to
10,000 psi, a range overlapping the 100 to 5,000 psi range of claim 24, were
known in the art for blending to obtain a homogeneous mixture. A
preponderance of the evidence supports the Examiner’s obviousness
conclusion.
CONCLUSION
The Examiner’s decision to reject claims 1–24 is AFFIRMED.
Appeal 2019-006357
Application 14/745,131

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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–23 103 Myfitnesspal,
Engelen, Darigold,
Bakshi, USDA
1–23
24 103 Myfitnesspal,
Engelen, Darigold,
Bakshi, USDA,
Berk
24
Overall
Outcome
1–24

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