Ex Parte Collins et al

Patent Trial and Appeal Board

Sep 28, 2017

13869409 (P.T.A.B. Sep. 28, 2017)

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.
CELAY.00758 7201
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
13/869,409 04/24/2013
110933 7590
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
09/28/2017
Ellis COLLINS
09/28/2017 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 ELLIS COLLINS, VINCENT ALLEN ELDER,
DAVID BRIAN EMERSON, TERRY MOROS, and
RAYFORD THOMAS SMITH
Appeal 2016-006570
Application 13/869,409
Technology Center 1700
Before CHUNG K. PAK, JENNIFER R. GUPTA, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1—6. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
1 In this decision, we refer to Appellant’s Specification filed April 24, 2013
(“Spec.”), the Final Office Action mailed August 12, 2015 (“Final Act.”),
the Appeal Brief filed October 14, 2015 (“Appeal Br.”), the Examiner’s
Answer mailed April 19, 2016 (“Ans.”), and the Reply Brief filed June 17,
2016 (“Reply Br.”).
2 Appellant is the Applicant, which, according to the Appeal Brief, is Frito-
Lay North America, Inc. Appeal Br. 2.
Appeal 2016-006570
Application 13/869,409
The subject matter on appeal relates to a method for reducing
acrylamide formation in the production of molasses. Spec. 12. According
to the Specification, acrylamide has especially been found primarily in
carbohydrate food products that have been heated or processed at high
temperatures and, while not detrimental to humans, its presence in food
products is especially undesirable at elevated levels. Id. at || 4—5. The
claimed invention reduces the presence of acrylamide in molasses by
controlling the pH of the molasses prior to heating to a temperature above
about 120°C. Id. at 17. Claim 1, reproduced below from the Claims
Appendix of the Appeal Brief, is illustrative of the claims on appeal.
1. A method of reducing acrylamide formation during heat
treatment of molasses, said method comprising the steps of:
adding a food grade acid to said molasses until said
molasses comprises a pH between 4.0 and 5.0; and
heating said molasses after said adding step to a
temperature above about 120°C.
Appeal Br. 22 (Claims Appendix).
REJECTIONS
Rejection 1: Claims 1, 2 and 6 stand rejected under pre-AIA
35 U.S.C. § 103(a) as unpatentable over Zenzes (US 2,435,248, issued
February 3, 1948) (“Zenzes”) in view of William McGlynn, The Importance
of Food pH in Commercial Canning Operations, Food and Agricultural
Products Research and Technology Center Oklahoma State University,
https://web.archive.Org/web/20051217050318/http://pods.dasnr.okstate.edu/
docushare/dsweb/Get/Document-962/FAPC-l 18web.pdf (“Food Tech Fact
Sheet”) (Final Act. 2-4);
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Rejection 2: Claims 3—6 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Zenzes in further view of Sterling K. Long, et
al., Florida Citrus Molasses as a Fermentation Substrate, 15 Applied
Microbiology 1091—1094 (© 1967 American Society for Microbiology)
(“Long”), Sabina Maza Gomez, Rum Aroma Descriptive Analysis, The
Department of Food Science at Louisiana State University, i—145 (2002)
(“Gomez”), C.G.A. Davies et al., The Maillard Reaction Application to
Confectionery Products, Department of Food Science and Nutrition
University of Minnesota, 1—33 (1997) (“Davies”), Donald S. Mottram et al.,
Acrylamide is formed in the Maillard Reaction, 419 Nature Magazine 448—
449 (2002),
http://www.nature.com/nature/joumal/v419/n6906/full/419448a.html
(“Mottram”), Kim et al., Reducing Acrylamide in Fried Snack Products by
Adding Amino Acids, 70 J. of Food Science C354—358 (© 2005 Institute of
Food Technologists) (“Kim”), and Elder (US 2005/0118322 Al, published
June 2, 2005) (“Elder”) (Final Act. U-6);
Rejection 3: Claim 2 stands rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Zenzes in view Long, Gomez, Davies,
Mottram, Kim, and Elder, and further in view of M.Y. Jung et al., A Novel
Technique for Limitation of Acrylamide Formation in Fried and Baked Corn
Chips and in French Fries, 68 J. of Food Science 1287—1290 (© 2003
Institute of Food Technologies) (“Jung”), and Per Rydberg et al.,
Investigations of Factors that Influence the Acrylamide Content of Heated
Foodstuffs, 51 J. of Agricultural and Food Chemistry 7012—7018 (© 2003
American Chemical Society) (“Rydberg”) (Final Act. 6—7);
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Application 13/869,409
Rejection 4: Claims 1—6 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over Musher (US 2,282,785, issued May 12, 1942)
(“Musher”) in view of Jung, Rydberg, Long, Gomez, Davies, Panhorst
(US 2003/0077362 Al, published April 24, 2003) (“Panhorst”), Mottram,
Kim, and Elder (Final Act. 7—11); and
Rejection 5: Claims 1—6 stand rejected under pre-AIA 35 U.S.C.
§ 103(a) as unpatentable over in view of Davies in view of Panhorst, Jung,
Rydberg, Long, Gomez, Mottram, Kim, and Elder (Final Act. 11—14).
DISCUSSION
Upon consideration of the evidence on this record and each of
Appellant’s contentions, we find that the preponderance of evidence
supports the Examiner’s conclusion that the subject matter of Appellant’s
claims is unpatentable over the applied prior art. We sustain the Examiner’s
§103 rejections essentially for the reasons set out by the Examiner in the
Final Action and Answer. We add the following.
Rejection 1
Appellant argues the claims subject to the first ground of rejection in
three separate groups: (1) claim 1 (Group I), (2) claim 2 (Group II), and
claim 6 (Group III). Appeal Br. 6—12. Accordingly, we limit our discussion
to these groups of claims.
Zenzes discloses a process for producing maple flavored sugar and
table syrup as well as jellies having new and novel flavor characteristics.
Zenzes 1:1—6. The Examiner finds that Zenzes teaches reacting a sugar
composition containing original and refined non-sugar impurities (e.g.,
molasses) with an acid until the composition has a pH of 4.7 to 5.8 before
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heating the sugar composition to a temperature greater than 240° F. Final
Act. 2—3 (citing Zenzes 2:13—16, 8:9—21). The Examiner relies on Food
Tech Fact Sheet for teaching that molasses has a pH of 5—5.5. Final Act. 3;
Food Tech Fact Sheet 118—7.
Group I: Claim 1
Appellant argues that column 8, lines 9 through 14 of Zenzes does not
teach adding a food grade acid to molasses until the molasses comprises a
pH between 4.0 and 5.0. Appeal Br. 8. In addition, Appellant argues that
Zenzes does not specifically teach reducing acrylamide in any foodstuffs, let
alone in molasses particularly. Id. at 6. Appellant also argues that, to arrive
at the claimed method, one of ordinary skill in the art would need to choose
to treat molasses instead of original non-sugar impurities, to use a
temperature of around 5 -C higher than the disclosed temperature, to acidify
molasses to a pH of 4.0 to 5.0, and acidity before, rather than during, heat
treatment. Id. at 8. According to Appellant, it is only through impermissible
hindsight knowledge of the present invention that the Examiner can choose
and combine the various individual features to arrive at the method recited in
claim 1. Id. at 11. Further, Appellant argues that there is no reasonable
expectation that the skilled person would make all the various feature
choices noted above because the skilled artisan could not have reasonably
predicted such combination of the noted feature choices would have any
influence at all on the formation of acrylamide. Id. at 9.
Appellant’s arguments are not persuasive of reversible error. The
Examiner has not resorted to hindsight knowledge to choose and combine
various disclosures of Zenzes. Rather, the Examiner relies on the teachings
and suggestions of the Zenzes reference itself. As noted above, Zenzes
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teaches a sugar composition containing refined non-sugar impurities (e.g.,
molasses) that may be acid reacted to a pH of 4.7 to 5.8 before heating to a
temperature in excess of 240 -F (about 116 -C). Final Act. 2—3;
Zenzes 2:13—16, 8:9—21. Based on this, the Examiner determines that,
because Zenzes teaches acidifying molasses to a pH range that overlaps the
recited pH range and teaches subsequently heating molasses to a temperature
that encompasses the recited temperature range, there is a reasonable basis
for one skilled in the art to expect the acid treatment and heating
temperatures of the method of Zenzes to reduce the formation of acrylamide
expected to otherwise form during heat treatment of the molasses absent the
acid treatment. Final Act.3; Ans. 5; Zenzes 8:9—21. Appellant has not
adequately explained why the combined acid treatment and heating step of
Zenzes would not have resulted in reducing the formation of acrylamide as
claimed.
Appellant additionally argues that the data provided in Table 4 at
page 13 of their Specification demonstrates the criticality of the recited pH
range. Appeal Br. 13.
We have reviewed Appellant’s data but do not find them persuasive.
Table 4 of Appellant’s Specification compares the acrylamide concentration
of two molasses samples heated to a temperature above 120 -C—a sample
treated with citric acid and asparaginase (treated sample), and a sample that
was not treated with an acid or enzyme (untreated sample). Spec. 13 (133).
As Appellant’s claim 1 does not require adding asparaginase, the treated
sample in Appellant’s Table 4 is not commensurate in scope with the claims.
In addition, Appellant has not provided a comparison with Zenzes, the
closest prior art, which teaches treating molasses with acid prior to heating.
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Although the results in Table 4 demonstrate that the treated sample had less
acrylamide formation than the untreated sample (Spec. 13 (134), Appellant
does not provide sufficient evidence to support the assertion that the
reduction would have been unexpected. See In re Geisler, 116 F.3d 1465,
1470-71 (Fed. Cir. 1997) (reiterating that unexpected results must be
established by factual evidence and that an attorney’s statement is
insufficient to establish unexpected results).
Group II: Claim 2
Claim 2 depends from claim 1, and requires that the pH after adding
food grade acid to the molasses “is between 4.3 and 4.7.”
Appellant argues that Zenzes prefers acidifying molasses to a pH of
4.9 to 5.1 (Zenzes 7:75), and thus teaches away from the subject matter
recited in claim 2. Appeal Br. 11—12.
“[T]he fact that a specific [embodiment] is taught to be preferred is
not controlling, since all disclosures of the prior art, including unpreferred
embodiments, must be considered.” Merck & Co. v. Biocraft Labs., Inc.,
874 F.2d 804, 807 (Fed. Cir. 1989). Although Zenzes teaches that it is
preferred to acidify molasses to a pH between 4.9 and 5.1, Zenzes also
teaches acidifying molasses to a pH between 4.7 and 5.8 before the
composition is subjected to high temperature treatments. Zenzes 7:69—74,
10:44—66. Appellant directs us to no portion of Zenzes that supports
Appellant’s assertion that the preference to acidify molasses to a pH between
4.9 and 5.1 necessarily limits Zenzes’ broader disclosure noted above. Thus,
Appellant’s argument is not persuasive of reversible error in the rejection of
claim 2.
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Group III: Claim 6
Claim 6 recites “A food product coating comprising molasses made
according to the method of claim 1.”
Appellant argues that Zenzes teaches a method of preparing a sugar
composition, but does not specifically mention a food product coating which
includes molasses. Appeal Br. 12.
Appellant’s argument is not persuasive of reversible error. Zenzes
teaches that its method produces maple flavored sugar compositions and
table syrup as well as jellies having new and novel flavor characteristics, all
of which could be used as a food product coating. Zenzes 1:1—6.
Accordingly, we affirm the Examiner’s rejection of claims 1, 2, and 6
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over Zenzes for the
reasons set out by the Examiner and given above.
Rejection 2
Appellant argues the claims subject to the second ground of rejection
in three separate groups: (1) claim 3 (Group IV), (2) claim 6 (Group V), and
claim 4—5 (Group VI). Appeal Br. 12—13. Accordingly, we limit our
discussion to these groups of claims. We refer to the Examiner’s Final Action
for a statement of the rejection. Final Act. 4—6.
Group IV: Claim 3
Claim 3 depends from claim 1 and further requires “adding
asparaginase or lysine to said molasses” after the food grade acid is added.
Appellant argues that none of the references relied upon by the
Examiner disclose that asparaginase or lysine is added after the addition of
food grade acid. Appeal Br. 13.
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We find this argument unavailing. As the Examiner notes, Elder
teaches that acrylamide is formed from the presence of amino acids, for
example asparagine, and reducing sugars. Final Act. 4; Ans. 10; Elder 17.
Further, Elder teaches that adding asparaginase and lysine prior to heating
reduces the formation of acrylamide in fabricated food products. Elder
36, 72, 130; Final Act. 4—5; Ans. 10. Elder also teaches using a
combination of acrylamide-reducing agents (e.g., citric acid, asparaginase,
and lysine) to achieve increasingly lower levels of acrylamide in foods.
Elder 11 107, 125, 153; Final Act. 5. Thus, Elder’s disclosure would suggest
to one skilled in the art to add the asparaginase and lysine before or after
addition of the food grade acid. Appellant’s argument does not address
these teachings by Elder in the rejection presented by the Examiner.
Group V: Claim 6
Appellant’s argument that none of the references relied upon by the
Examiner mention a food coating comprising molasses made according to
the method claim 1 is not persuasive. As discussed above with regard to
Rejection 1, Zenzes teaches that its method produces maple flavored sugar
compositions and table syrup as well as jellies having new and novel flavor
characteristics all of which could be used as a food product coating.
Zenzes 1:1—6.
Group VI: Claims 4—5
Claim 4 indirectly depends from claim 1 and requires adding
asparaginase to the molasses after the addition of the food grade acid.
Claim 5 indirectly depends from claim 1 and requires adding asparaginase
and lysine to the molasses after the addition of the food grade acid.
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Appellant argues that the Examiner has not properly considered the
data provided in Table 5 at page 14 of their Specification. Appeal Br. 13.
According to Appellant, the data demonstrate that the order in which citric
acid and enzyme are added is critical to maximize the reduction of
acrylamide in molasses. Id. Appellant contends that the reduction is
“unexpected.” Id.
Appellant’s arguments are not well-taken. The Examiner has
considered the data in Table 5 of Appellant’s Specification but does not find
them persuasive in demonstrating non-obviousness of the claimed subject
matter because, as well stated by the Examiner, the data shows that
acrylamide formation was reduced when citric acid is added before or after
the enzyme when compared to the control. Ans. 12. Although Appellant’s
Specification states that adding citric acid before asparaginase is more
“efficient” in reducing acrylamide as compared with adding asparaginase
enzyme before citric acid or adding citric acid alone (Spec. 136), the
evidence in the record is insufficient to show that the order of addition for
the citric acid and the enzyme is critical or produces an unexpected result.
In re Burhans, 154 F.2d 690, 692 (CCPA 1946) (where a combination of
prior art suggests the claimed process, reordering the steps is not patentable
absent proof in the record that the order of performing the steps produces a
new and unexpected result.).
Accordingly, we affirm the Examiner’s prior art rejection of claims 3—
6 for the reasons set out by the Examiner and given above.
Rejection 3
Appellant’s argument that Zenzes’ teaching at column 9, lines 57
through 64 of further acidifying its maple flavored product, which includes
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molasses, to a pH of between 2.8 and 3.5 teaches away from acidifying
molasses to a pH of “between 4.3 and 4.7,” as recited in claim 2 is not
persuasive. “The prior art’s mere disclosure of more than one alternative
does not constitute a teaching away from any of these alternatives because
such disclosure does not criticize, discredit, or otherwise discourage the
solution claimed in the . . . application.” In re Fulton, 391 F.3d 1195, 1201
(Fed. Cir. 2004). At column 9, lines 57—60, Zenzes teaches that its maple
flavored product is acidified to a pH of between 4.7 and 5.8. Appellant
directs us to no portion of Zenzes that supports Appellant’s assertion that the
preference for a maple syrup having a pH between 2.8 and 3.5 necessarily
limits Zenzes’ broader disclosure noted above.
Accordingly, we affirm the Examiner’s prior art rejection of claim 2
for the reasons set out by the Examiner and given above.
Rejection 4
Appellant argues the claims subject to the fourth ground of rejection
in two separate groups: (1) claims 1, 2, and 6 (Group VIII), and
(2) claims 3—5 (Group IX). Appeal Br. 16—18. Accordingly, we limit our
discussion to these groups of claims.
We refer to the Examiner’s Final Action for a statement of the
rejection. Final Act. 7—11.
Group VIII: Claims 1, 2, and 6
Appellant argues that Musher does not teach that the pH range and
temperature values used in its process are for reducing acrylamide formation
during heat treatment of molasses. Appeal Br. 17.
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Appellant’s argument is not persuasive of reversible error. The
Examiner finds, and Appellant does not dispute, that Musher teaches adding
acid to molasses to adjust the pH to 4 to 6.9, and then heating molasses to
temperatures greater than about 200 -F. Final Act. 8 (citing Musher 1,
11. 29-38 (left col.), 11. 18—29 (right col.)). The Examiner also finds, and
Appellant does not dispute, that Musher discloses that its finished product
containing molasses may be used for baking purposes and in the
manufacture of confectionary products. Final Act. 8 (citing Musher 1,
11. 36-40 (right col.)). Given that Musher’s product is used in food products,
the Examiner determines that it would have been obvious to one having
ordinary skill in the art to use a food grade acid in Musher’s process.
Concerning acrylamide formation, the Examiner also determines that,
because Musher teaches acidifying molasses to a pH range that overlaps the
recited pH range and teaches subsequently heating molasses to a temperature
that encompasses the recited temperature range, there is a reasonable basis
for one of ordinary skill in the art to reasonably expect that Musher’s process
would reduce the formation of acrylamide expected to otherwise form
during heat treatment of the molasses absent the addition of the food grade
acid. Ans. 16. On this record, Appellant has not adequately explained why
the combined acid treatment and heating step of Musher would not have
resulted in reducing the formation of acrylamide as claimed.
Group IX: Claims 3—5
Claims 3—5 directly or indirectly depend from claim 1 and require that
asparaginase and/or lysine is added to molasses after adding the food grade
acid.
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Appellant argues that none of the references explain or suggest that
asparaginase or lysine should be added after the food grade acid and before
heating. Appeal Br. 18. Additionally, Appellant argues that the data in their
application demonstrate that adding asparaginase enzyme after adding the
food grade acid provides an unexpected improvement as compared with
adding the asparaginase enzyme before adding the food grade acid. Id.
As with Rejection 2, the Examiner relies on Elder as teaching that adding
asparaginase and lysine prior to heating reduces the formation of acrylamide
in fabricated food products. Final Act. 9; Ans. 10; Elder H 7, 9, 36, 72, 130.
We find this argument unavailing for the reasons presented in our
discussion of Rejection 2. We again reiterate that Elder’s disclosure of
adding asparaginase and lysine prior to heating reduces the formation of
acrylamide in fabricated food products, and combining acrylamide-reducing
agents (e.g., citric acid, asparaginase, and lysine) to achieve increasingly
lower levels of acrylamide in foods, would suggest to one skilled in the art to
add the asparaginase and lysine before or after addition of the food grade
acid. Elder 1136, 72, 125, 130.
We have also reviewed the data presented in Appellant’s application,
but do not find them persuasive. As previously discussed, the data in
Table 5 at page 14 of Appellant’s Specification are insufficient to show that
the order of addition for the citric acid and the enzyme is critical or produces
an unexpected result.
Accordingly, we affirm the Examiner’s prior art rejection of claims 1—
6 for the reasons set out by the Examiner and given above.
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Rejection 5
Appellant argues the claims subject to the fifth ground of rejection in
two separate groups: (1) claims 1, 2, and 6 (Group X), and (2) claims 3—5
(Group XI). Appeal Br. 18—20. Accordingly, we limit our discussion to
these groups of claims.
Group X: Claims 1, 2, and 6
Appellant argues that the combined teachings of the cited art would
not have led one of ordinary skill in the art to add acid to molasses until the
molasses has a pH between 4.0 and 5.0, and then heat the molasses to a
temperature of above about 120 -C to reduce acrylamide formation during
heat treatment of molasses, as recited in the claimed method. See Appeal
Br. 19.
Appellant’s argument is not persuasive of reversible error. The
Examiner finds, and Appellant does not dispute, that Davies teaches that
molasses has Maillard reactivity when heated to above 100 -C. Final
Act. 12; Davies 8. As with Rejections 2 and 4, the Examiner again relies on
Long, Gomez, Davies, and Elder, as evidence that molasses comprises
reducing sugars, amino acids such as asparagine, and has Maillard reaction
activity (i.e., forms acrylamide when heated or processed at high
temperatures). Final Act. 12—14; ElderH 7, 9, 36, 130; Gomez 12;
Davies 8. The Examiner finds, and Appellant does not dispute, that Elder
teaches adding phosphoric acid prior to heating to reduce the formation of
acrylamide. Elder Abstract, and 1110. The Examiner finds, and Appellant
does not dispute, that Jung teaches that acrylamide formation is reduced with
a pH of 4.0 or 5.0. Jung 1289 (Fig. 4). Based on these disclosures, the
Examiner determines that one of ordinary skill in the art would have been
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led to lower the formation of acrylamide in molasses, as taught by Davies
and Elder, by adding a food grade acid such as phosphoric acid to a pH
between 4.0 and 5.0, as taught by Elder and Jung, before heating to a
temperature above 100 -C, as taught by Elder and Davies, to reduce the
undesirable acrylamide formation in molasses. See Final Act. 12—14. A
preponderance of the evidence supports the Examiner’s findings and
determinations. Thus, we are not persuaded of reversible error in the
Examiner’s rejection of claims 1, 2, and 6.
Group XI: Claims 3—5
Claims 3—5 directly or indirectly depend from claim 1 and require that
asparaginase and/or lysine is added to molasses after adding the food grade
acid.
Appellant argues that none of the references explain or suggest that
asparaginase or lysine should be added after acid and before heating.
Appeal Br. 20. Additionally, Appellant argues that the data in their
application demonstrates an unexpected improvement by adding
asparaginase enzyme after adding the acid as compared to adding enzyme
before adding the acid. Id.
Appellant’s arguments are similar to the line of arguments presented
for Rejection 2. We have addressed these arguments above and do not find
them persuasive for the reasons discussed above with regard to Rejection 2.
Regarding the data in Appellant’s Specification (e.g., Table 5), we do
not find the evidence persuasive for the reasons discussed above with regard
to Rejections 2 and 4.
Accordingly, we affirm the Examiner’s prior art rejection of claims 1—
6 for the reasons set out by the Examiner and given above.
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CONCLUSION
Accordingly, based on the totality of the appeal record, including due
consideration of Appellant’s arguments and evidence, we determine that the
preponderance of the evidence weighs most heavily in favor of obviousness
of the subject matter recited in claims 1—6 within the meaning of 35 U.S.C.
§ 103(a).
DECISION
For the above reasons, the Examiner’s decision to reject claims 1—6 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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