Ex Parte Aymard et al

Patent Trials and Appeals Board

Mar 19, 2019

14401035 - (D) (P.T.A.B. Mar. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/401,035 11/13/2014
109813 7590 03/19/2019
Fitch, Even, Tabin & Flannery, LLP
120 South LaSalle Street
Suite 2100
Chicago, IL 60603-3406
FIRST NAMED INVENTOR
Pierre Aymard
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
9378-133739-US 3518
EXAMINER
BADR, HAMID R
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
03/19/2019 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 PIERRE A YMARD and LENKA GRUNTORADOV A
Appeal 2018-005751
Application 14/401,035
Technology Center 1700
Before MICHAEL P. COLAIANNI, JEFFREY R. SNAY, and
DEBRA L. DENNETT, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 11, 12, and 15-26. We have jurisdiction under
35 U.S.C. § 6(b).
We reverse.
1 We cite to the Specification ("Spec.") filed November 13, 2014; Final
Office Action ("Final Act.") dated June 30, 2017; Appellant's Appeal Brief
("App. Br.") filed December 7, 2017; Examiner's Answer ("Ans.") dated
March 14, 2018; and Appellant's Reply Brief ("Reply Br.") dated May 14,
2018.
2 Appellant is Applicant, Generale Biscuit, which is identified in the Appeal
Brief as the real party in interest. App. Br. 3.
Appeal 2018-005751
Application 14/401,035
BACKGROUND
The subject matter on appeal relates to a food product comprising a
biscuit, a water-based filling, and an anhydrous filling containing live lactic
cultures. Spec. 1 :3---6. Claim 11 reads as follows:
11. A method for producing a food product comprising
a biscuit part and a filling part, the filling part including a
water-based filling and an anhydrous filling with live lactic
cultures, wherein the water-based filling and the anhydrous
filling are distinct, and wherein the anhydrous filling has a
lactic culture cell count per gram of the anhydrous filling of at
least 105 cfu/ g, the food product presenting a decay rate of the
lactic cultures of at most 0.25 log10 cfu/ g of anhydrous filling
per month, wherein the method comprises the following steps:
(a) providing a first biscuit forming at least a portion of
the biscuit part, presenting a water activity value lower than
0.15;
(b) depositing a water-based filling onto the first biscuit
presenting a water activity value lower than 0.45;
( d) depositing an anhydrous filling with live culture onto
the first biscuit or onto the first filling at a temperature of
between 37°C and 42°C;
wherein the water-based filling and the anhydrous filling
are separately deposited on the biscuit part and at different
temperatures, the deposition temperature of the water-based
filling being higher with the temperature of the water-based
filling being at least 45°C before depositing, and
wherein the method further comprises a cooling step ( c)
between steps (b) and ( d) until the first filling cools down to
4 7°C or lower before the anhydrous filling is deposited.
App. Br. 20 (Claims Appendix).
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Appeal 2018-005751
Application 14/401,035
REJECTIONS
Claims 11, 12, and 15-26 stand rejected under 35 U.S.C. § I03(a) as
unpatentable over Laurent3 and Slesinski. 4
OPINION
Claim 11 requires, inter alia, depositing a water-based filling onto a
biscuit, wherein the temperature of the water-based filling is at least 45°C
before depositing. Claim 11 further requires a step of cooling the deposited
water-based filling prior to depositing an anhydrous filling containing live
lactic cultures. Claim 26 includes these same recitations. Each remaining
claim on appeal depends from claim 11.
A dispositive issue in this case is whether the Examiner erred in
determining that it would have been obvious to one of ordinary skill in the
art to heat the water-based fruit filling disclosed in Slesinski prior to
depositing that filling onto a biscuit. Compare Final Act. ,r 26 ("[ A ]t this
water activity, a water-based fruit filling is not flowable at ordinary
temperatures ... therefore to improve handling (pumping), the water-based
filling should be heated." with, App. Br. 15 ("The Examiner has not cited to
anything to support such an allegation.").
The Examiner finds that Laurent discloses depositing a filling
containing live lactic cultures, but fails to disclose also depositing a water-
based filling. Final Act. ,r 17. The Examiner finds that Slesinski discloses
depositing fillings on a biscuit, including a water-based fruit filling,
preferably a low moisture fruit filling. Id. ,r,r 20, 21. The Examiner finds
3 Machine translation of FR 2 895 877 Al, published July 13, 2007.
4 US 2006/004593 8 Al, published March 2, 2006.
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Appeal 2018-005751
Application 14/401,035
that Slesinski teaches that each layer preferably exhibits a water activity in
the range of0.1 to 0.6. In light of the combined teachings of Laurent and
Slesinski, the Examiner determines it would have been obvious to modify
Laurent's process to include depositing an additional layer of a low moisture
water-based fruit filling. Id. ,r 27.
With regard to the claimed temperature of the water-based filling, the
Examiner states that a water-based fruit filling having a low level of water
activity "is not flowable at ordinary temperatures" and, for that reason,
"should be heated." Id. ,r 26. The Examiner also states that, "[d]ue to
differences in visco-elastic properties of the water-based and anhydrous
fillings, at about the same water activity, deposition of these layers would
have naturally been carried out at different temperatures." Id. ,r 27. "The
water-based filling is deposited at a higher temperature ( e.g., 45 C), and
cooled down to about 40C before the fat-based layer is deposited/contacted
on top of it." Id. However, as Appellant persuasively argues (App. Br. 15),
the Examiner does not point to any evidence in support of these otherwise
conclusory statements.
"[R ]ejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness." In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). Because the
Examiner's determination that it would have been obvious to heat a low
moisture fruit filling to the recited temperature prior to its deposition is
premised on conclusions reached without support of evidence, we are
persuaded of reversible error. Accordingly, we do not sustain the rejection
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Appeal 2018-005751
Application 14/401,035
of claims 11 and 26. We also do not sustain the rejection of dependent
claims 12 and 15-25 for the same reason.
DECISION
The Examiner's decision rejecting claims 11, 12, and 15-26 is
reversed.
REVERSED
5