Ex Parte Doyle

Board of Patent Appeals and Interferences

Apr 23, 2010

10946348 (B.P.A.I. Apr. 23, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte THERESA DOYLE
____________

Appeal 2010-000088
Application 10/946,348
Technology Center 1700
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Decided: April 23, 2010
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Before EDWARD C. KIMLIN, ADRIENE LEPIANE HANLON, and
PETER F. KRATZ, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 1-9. Claims 10-25
have been withdrawn from consideration. Claim 1 is illustrative:
1. A mixture for producing a gel within a short time
period-without heating comprising:

a first component comprising:
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Application 10/946,348

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approximately 68 to 99% by weight water and
approximately 0.3 to 0.6 % by weight alginate; and

a separate second component comprising:

approximately 2 to 6% by weight calcium
glycerophosphate and approximately 6 to 11% by weight
calcium sequestering agent;

wherein the first and second components can be mixed to
form a gel.

The Examiner relies upon the following references as evidence of
obviousness:

Bourland 3,553,148 Jan. 5, 1971
Schmidt 4,603,054 Jul. 29, 1986
Speirs 5,356,654 Oct. 18, 1994
Sliter 5.404,922 Apr. 11, 1995

Igoe, Dictionary of Food Ingredients, 3rd Edition, Chapman and Hall 1996,
page 127.

Appellant’s claimed invention is directed to a mixture for producing a
gel comprising first and second components. The first component comprises
water and an alginate, and the second component comprises calcium
glycerophosphate and a calcium sequestering agent. The mixture produces a
gel without heating.
Appealed claims 1-9 stand rejected under 35 U.S.C. §112, first
paragraph, written description requirement. Claims 1-9 also stand rejected
under 35 U.S.C. § 112, second paragraph. In addition, the appealed claims
stand rejected under 35 U.S.C. § 103(a) as follows:
(a) claims 1, 2, 5, 7, and 9 over Speirs in view of Bourland,
(b) claims 3 and 4 over Speirs in view of Bourland and Sliter,
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(c) claim 6 over Speirs in view of Bourland and Schmidt, and
(d) claim 8 over Speirs in view of Bourland and Igoe.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s §103 rejection for essentially
those reasons expressed in the Answer. Also, since Appellant has not
argued the Examiner’s rejections under § 112, first and second paragraphs,
we will summarily affirm these rejections as well.
Speirs, like Appellant, discloses a mixture for producing a gel
comprising first and second components that are mixed together. One
solution, or component, comprises water and calcium sulphate dihydrate and
the second solution comprises water, sodium alginate and a calcium
sequestering agent. As recognized by the Examiner, Speirs includes the
calcium sequestering agent in the alginate-containing solution rather than in
the solution comprising the calcium salt. However, Appellant has not
refuted the Examiner’s reasoning that, since the sequestering agent does not
enter into reaction with either the alginate or calcium salt, it would have
been obvious for one of ordinary skill in the art to include the sequestering
agent in either the first or second solution.
As pointed out by the Examiner, it has generally been held that it is a
matter of obviousness for one of ordinary skill in the art to change the order
of addition of components to a composition in the absence of unexpected
results. In the present case, Appellant has set forth no particular advantage,
let alone the requisite supporting factual evidence, which results from
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introducing the sequestering agent to the mixture with the solution
comprising the calcium salt. Furthermore, Appellant has not refuted the
Examiner’s factual determination that the final mixtures produced by Speirs
and Appellant are essentially the same with the exception of the particular
low solubility calcium salt used (see page 15 of Answer).
Speirs teaches that a sparingly soluble calcium ion source should be
used in the mixture, and calcium phosphates and calcium sulphates are
mentioned as examples (col. 3, ll. 6-10). Speirs does not disclose the
presently claimed calcium glycerophosphate. However, as pointed out by
the Examiner, Bourland evidences that Appellant’s calcium
glycerophosphate was a known sparingly soluble salt used in gel-forming
mixtures. Consequently, we fully concur with the Examiner that it would
have been obvious for one of ordinary skill in the art to select calcium
glycerophosphate as the sparingly soluble salt in Speirs’ gel-forming
mixture. We find no merit in Appellant’s argument that Bourland is
nonanalogous art because Bourland is not directed to an alginate gel, but
rather, a thixotropic calcium gel. Bourland is cited simply as evidence that
calcium glycerophosphate was a known sparingly soluble salt, and that it
was used in a gel-forming environment. It is not necessary that Speirs and
Bourland have complete correspondence between their components to
support the conclusion that one of ordinary skill in the art would have
reasonably expected that calcium glycerphosphate would function
effectively as a sparingly soluble source of calcium ions in the Speirs
system.
Appellant also maintains that the gelling system of the present
invention produces a gel when the components are mixed together at
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ambient temperature without heating, whereas the system of Speirs
undergoes substantial gel formation when it is heated above a threshold
temperature. However, as explained by the Examiner, Speirs expressly
teaches that the disclosed gelling system will gel at ambient temperature if
the system is allowed to stand (see col. 2, ll. 25-29). Also, Speirs discloses
that it was known in the art that calcium alginate systems gel without heating
(col. 1, ll. 18-21), and that gel formation can be forestalled without heating if
the amounts of sequestrant and calcium ion are suitably chosen (col. 2, ll. 8-
14). Hence, Speirs evidences that it was known in the art that calcium
alginate systems may gel at room temperature, or upon heating, contingent
upon the concentrations of the sequestrant and calcium ion.
As a final point, we note that Appellant bases no argument upon
objective evidence of nonobviousness, such as unexpected results.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims 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)(i)(v).

AFFIRMED

kmm

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