Ex Parte Harris et al

Patent Trial and Appeal Board

Oct 3, 2016

13392969 (P.T.A.B. Oct. 3, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/392,969 03/15/2012
23413 7590 10/05/2016
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
FIRST NAMED INVENTOR
Lawrence William Harris
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.
CDS0221US 7108
EXAMINER
DEES, NIKKI H
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
10/05/2016 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAWRENCE WILLIAM HARRIS,
GAELLE MADELEINE CLAUDETTE BUFFET, and
PAUL D. SOPER
Appeal2015-004995
Application 13/392,969
Technology Center 1700
Before: KAREN M. HASTINGS, A VEL YN M. ROSS, and
BRIAND. RANGE Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner's
final rejection of claims 32-36 and 38--48. We have jurisdiction under
35 U.S.C. § 6(b).
1 In our Decision below we refer to the Specification filed February 28, 2012
(Spec.), the Final Office Action appealed from mailed April 25, 2014 (Final
Act.), the Appeal Brief filed November 11, 2014 (Appeal Br.), and the
Examiner's Answer mailed February 4, 2015 (Ans.).
2 Appellants identify the real party in interest as Intercontinental Great
Brands L.L.C. Appeal Br. 2.
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We AFFIRM.
STATEMENT OF CASE
The claims are directed to a gum base composition. Claims Appendix
at Appeal Br. 15. Specifically, the Specification explains that the
compositions of the instant invention relate to a "chewing gum base [that]
contributes to the ability of the chewing gum compositions and products to
degrade overtime after chewing." Spec. 1. Claim 32, reproduced below, is
illustrative of the claimed subject matter:
32. A gum base composition comprising:
a) a hydrophilic precursor component compnsmg
hydrolysable units, wherein the hydrophilic precursor
component comprises a polymer or a salt thereof; and wherein
the polymer or salt thereof is selected from a copolymer of
methyl vinyl ether and maleic anhydride and/or a salt thereof;
and
b) an elastomer;
wherein:
i) the hydrophilic precursor component compnsmg
hydrolysable units has an average molecular weight of at least
about 1,500,000 Daltons; and
ii) the hydrophilic precursor component comprising
hydrolysable units has an average particle size from about 100
µm to about 1 mm.
Claims Appendix at Appeal Br. 15.
REJECTIONS 3
The Examiner maintains the following rejections:
3 The Examiner withdraws a prior rejection of claim 43 under 35 U.S.C.
§ 112 i-fl as failing to comply with the written description requirement. Ans.
11.
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A. Claims 32-36 and 38--48 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Soper4 in view of
Lavoie. 5 Final Act. 5.
B. Claims 32-36 and 38--48 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Soper in view of
Inoue. 6 Id. at 9.
Appellants appeal the rejections of claims 32-36 and 38--48.
Appellants argue independent claim 32 and dependent claim 44 as separate
groups but do not separately argue dependent claims 33-36, 38--43, and 45-
48. Appeal Br. 3-9. We therefore similarly select claim 32 (Group I) and
claim 44 (Group II) as representative claims for resolving the issues on
appeal. See 37 C.F.R. §41.37 (c)(l)(iv)(2014).
OPINION
Group I (Claims 32-36, 38, 40--43, 48)
Rejection A- Obvious in over Soper in view of Lavoie
In rejecting claim 32 (among others) as obvious, the Examiner finds
that Soper teaches a gum base that comprises an elastomer and a Gantrez
AN-169 polymer, with the polymer having a molecular weight of about
2,000,000 Daltons. Final Act. 5. The Examiner finds that Soper teaches
hydrophilic precursor components that contribute to the degradation of the
chewing gum but acknowledges that Soper is "silent as to the hydrophilic
4 Soper et al., US 2007/0104829 Al, published May 10, 2007 (hereinafter
"Soper")
5 Lavoie et al., WO 2004/064544 Al, published August 5, 2004 (hereinafter
"Lavoie").
6 Inoue et al., US 5,206,010, issued April 27, 1993 (hereinafter "Inoue").
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precursor component having a particle size as claimed." Id. But, the
Examiner finds that Lavoie, "teach [es] encapsulated particles having a
particle size ranging from 50nm to 10 mm in size (p. 11 lines 30-33), with
specific examples being approximately 20 to 200 µm (e.g. Example 1 )." Id.
And, because the "claimed range falls within the broad range of Lavoie and
overlaps the range in the Examples of Lavoie et al. the claimed particle size
is considered to be prima facie obvious." Id.
Appellants present four arguments in support of their contention that
claims 32-36, 38, 40-43, and 48 are not rendered obvious by Soper in view
of Lavoie. Appeal Br. 3-5. Appellants begin by arguing that Soper "does
not teach or suggest each of the claimed components as claimed in the
orientation as claimed." Appeal Br. 3. Specifically, Appellants complain
that Soper does not teach copolymers having a "large average particle size
from about 100 µm to about I mm as presently claimed." Id. Appellants
contend that polymers having a higher molecular weight and larger particle
size possess superior results, i.e., "better chewing gum degradation
properties." Id. 3--4.
Appellants' arguments do not apprise us of reversible error by the
Examiner. Appellants' arguments are directed to the teachings of Soper
alone and fail to address the combined teachings of Soper and Lavoie as
presented by the Examiner. "Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references." In re Merck & Co., 800 F.2d
1091, 1097 (Fed. Cir. 1986). "The test for obviousness is what the
combined teachings of the references would have suggested to those having
ordinary skill in the art." In re Keller, 642 F.2d 413, 425 (CCPA 1981).
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With respect to the "superior results" portion of this argument, and as
the Examiner finds (Ans. 11-13), the teachings in the Specification are not
commensurate in scope with the claims for multiple reasons: (1) claim 1
does not limit the amount of hydrophilic precursor component, the examples
comprise 1.5% by weight of the chewing gum of the Gantrez polymer (Spec.
3 5), but the weight of the hydrophilic precursor component of the gum base
is not reported in the experimental data; (2) the elastomer content of the gum
base in the experimental data is not reported but ranges from 5% to 95% by
weight of gum base in claim 41; (3) claim 1 requires a particle size from
about 100 µm to about 1 mm but the specification compares particle sizes
less than 30 µm with a particle size of about 425 to 850 µm (Spec. 37); and
( 4) it is unclear what Gantrez polymer is used to support the experimental
data. Appellants do not dispute or identify any error in these findings by the
Examiner. We therefore adopt these findings as fact. Cf In re Kunzmann,
326 F.2d 424, 425 n.3 (CCPA 1964) (a finding not shown by the Appellant
to be erroneous may be accepted as fact).
Next, Appellants contend that "nowhere does Lavoie et al. teach
encapsulating a polymer or a salt thereof such as the presently claimed
copolymer of methyl vinyl ether and maleic anhydride and/or a salt thereof."
Appeal Br. 4. Appellants explain that, according to Lavoie, "[t]he
encapsulated core can be acids, bases, effervescent couples, and mixtures
thereof." Id. Thus, Appellants argue that "[t]he core does not include
polymers such as presently claimed." Id.
Appellants do not persuade us of reversible error. Appellants again
attack Lavoie individually, and not as part of the combined teachings of
Soper and Lavoie, as presented by the Examiner. Merck & Co., 800 F.2d at
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1097. In addition, Appellants' argument does not address the rejection as
presented by the Examiner. Lavoie, as the secondary reference, was used to
teach the particle size of the materials (Final Act. 5 and Ans. 13) and not an
encapsulated polymer core-which claim 1 does not require.
Third, Appellants urge that Lavoie, "directed to a powdered beverage
and not a chewing gum" and "not concerned with improv[ing] degradation
of chewing gum composition after being masticated," is non-analogous art.
Appeal Br. 4.
Appellants do not convince us of reversible error. Art is non-
analogous unless it is: (1) from the same field of endeavor as the claimed
invention; or (2) reasonably pertinent to the particular problem faced by the
inventor. In re Bigio, 381F.3d1320, 1325 (Fed. Cir. 2004). Art is
"reasonably pertinent" when it would "logically commend itself' to an
inventor's attention in considering his problem. In re Icon Health and
Fitness, Inc., 496 F.3d 1374, 1379-80 (Fed. Cir. 2007) (citing In re Clay,
966 F.2d 656, 658-59 (Fed. Cir. 1992)). Here, Soper incorporates Lavoie by
reference and directs attention to Lavoie teachings as an example of
materials useful in preparing chewing gum base compositions. Soper, i-f261.
Thus, Soper itself recognizes that Lavoie is analogous art.
And fourth, Appellants contend that the combined teachings of Soper
and Lavoie do not render the instant claims obvious as Appellants "clearly
show unexpected superior results" associated with having "an average
molecular weight of at least 1,500,000 Daltons" and "an average particle
size from about 100 um to about I mm," as claimed. Appeal Br. 5.
Appellants direct attention to the examples appearing in the Specification at
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pages 35 through 38. For the reasons discussed above (see supra pp. 4--5),
we are not persuaded of reversible error.
Rejection B - Obvious in over Soper in view of Inoue
In addition to the findings above with respect to Soper (see supra pp.
3--4 ), the Examiner further finds that Inoue teaches a polymer for use in
chewing gum that includes copolymers of methyl vinyl ether and maleic acid
ester. Final Act. 9. The Examiner finds these polymers have a particle size
of between 75 to 500 µm. Id. As explained by the Examiner, "[t]he size of
the particulate polymer is taught to provide the chewing gum with a
'pleasant feeling' and provide a cleaning effect (col. 1 lines 6-14),"
therefore, one of skill in the art would have found it obvious to reduce the
particle size of the polymers in Soper to provide "chewing gums with a good
mouthfeel as taught by Inoue." Id. at 9-10.
Appellants present three reasons in support of their contention that
claims 32-36, 38, 40--43, and 48 are not rendered obvious by Soper in view
of Inoue. Appeal Br. 5---6. Appellants restate their first argument above-
that Soper "does not teach or suggest each of the claimed components as
claimed in the orientation as claimed." Appeal Br. 5. For the same reasons
discussed above (see supra pp. 4--5), we are not persuaded of reversible
error.
Second, Appellants argue that Inoue "does not teach or suggest teach
of the claimed components as claimed in the orientation as claimed." Id. at
5. Specifically, Appellants contend that the claimed methyl vinyl ether and
maleic anhydride copolymers are not taught by Inoue. Id. at 6. Further,
Appellants argue that Inoue does not teach "the particle size for the binder
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compounds" and Inoue does not "encapsulate polymers such as those
claimed herein." Id.
Appellants do not convince us of reversible error. Appellants again
attack Inoue individually, and not as part of the combined teachings of Soper
and Inoue. Merck & Co., 800 F.2d at 1097. Appellants' argument does not
address the rejection as presented by the Examiner. Inoue, as a secondary
reference, is used by the Examiner to teach "the particle size of the materials
known to be included in chewing gums to provide a 'pleasant feeling' and
cleaning effect (Ans. 14) and not to teach an encapsulated polymer core or
the specific copolymer included in the hydrophilic precursor. Moreover,
Appellants' argument that Inoue "does not give the particle size of the
binder compounds," but rather the size of the "granule[] (the mixture of the
powder particles and the water-insoluble binder) (Appeal Br. 6.), is of no
consequence because the claimed hydrophilic precursor component is
drafted using "comprising" language. By utilizing the open-ended
transitional word, "comprising," Appellants signal unrecited substances also
may be present in the hydrophilic precursor component. MagSil Corp. v.
Hitachi Global Storage Techs., Inc., 687 F.3d 1377, 1383 (Fed. Cir. 2012)
("Open claim language, such as the word 'comprising' as a transition from
the preamble to the body of a claim, 'signals that the entire claim is
presumptively open-ended."' (citing Gillette Co. v. Energizer Holdings, Inc.,
405 F.3d 1367, 1371 (Fed. Cir. 2005))). Therefore, components other than
the polymer may be present in the hydrophilic precursor having the claimed
particle size.
Third, Appellants urge that the combination of Inoue and Soper do not
render the claimed gum base obvious because the Specification shows
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unexpected results achieved through the instant invention. Appeal Br. 6.
For the reasons discussed above (see supra pp. 4--5), Appellants have not
shown reversible error.
Group II (Claims 44-47)
Claim 44 additionally requires that the "hydrophilic precursor
component is at least partially encapsulated or dispersed within a barrier
material." Claims Appendix at Appeal Br. 16.
Rejection A- Obvious in over Soper in view of Lavoie
In addition to the findings above (see supra p. 3--4), the Examiner
further finds "Soper et al. teach a gum base comprising a hydrophilic
precursor comprising hydrolysable units (i.e. Gantrez polymer) and an
elastomer [0026-0029]. As the hydrophilic precursor is mixed in the gum
base, it is considered to be dispersed in a barrier material to meet claim 44."
Final Act. 8. The Examiner also explains that, because Soper "teaches the
encapsulation of agents capable of degrading an elastomer" and because
Soper recognizes the hydrophilic precursor components "contribute to the
degradation of the chewing gum [0264] ... it is considered obvious to
encapsulate the hydrophilic precursor components." Id. at 5.
Appellants present six reasons in support of their contention that
claims 44--4 7 are not rendered obvious by Soper in view of Lavoie. Appeal
Br. 7-11. Appellants first argue that the claimed hydrolyzable units,
"compris[ing] a polymer or a salt thereof," are different from the degrading
agent of Soper in both structure and function. Id. at 8-9. Appellants argue
that the claimed polymeric hydrolyzable units that are encapsulated are very
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different from the encapsulated degrading agent, namely, one is a polymer
and one is not. Id. at 9. And, Appellants urge that hydrolyzable units of the
instant invention function "to attract water which promotes hydrolysis that
degrades the chewing gum product, whereas the function of the degrading
agents described in paragraphs [0257]-[0259] of the reference is to degrade
the elastomer in the chewing gum product which will in tum degrade the
chewing gum product." Id.
Appellants' arguments are not persuasive of reversible error. As the
Examiner notes (Ans. 15), Appellants' argument that the claimed
hydrolyzable units are very different in structure from Soper's degrading
agent is not persuasive because it does not address the reasoning relied upon
by the Examiner. The Examiner does not compare the claimed hydrolyzable
units to Soper's degrading agent, but rather to Gantrez AN-169 copolymer
(see Soper i-f442). Final Act. 5. Moreover, Soper expressly teaches the same
hydrophilic precursor component as claimed by Appellants. Compare
Soper, i-f2 l 5 ("Examples of hydrophilic precursor components include, for
example, copolymers of methyl vinyl ether and maleic anhydride, and salts
thereof' with Claims Appendix at Appeal Br. 10 ("wherein the polymer is
selected from a copolymer of methyl vinyl ether and maleic anhydride
and/or a salt thereof'). For the same reason, Appellants argument that the
claimed hydrolyzable units differ in function from the degrading agent of
Soper, must also fail.
Second, Appellants contend Lavoie "does not teach or suggest each of
the claimed components as claimed in the orientation as claimed." Appeal
Br. 9. Appellants explain that, according to Lavoie, "[t]he encapsulated core
can be acids, bases, effervescent couples, and mixtures thereof." Id. Thus,
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Appellants argue that "[t]he core does not include polymers such as
presently claimed." Id.
The arguments presented by Appellants do not convince us of
reversible error. Appellants again attack Lavoie individually, and not as part
of the combined teachings of Soper and Lavoie. Merck & Co., 800 F.2d at
1097. In addition, Appellants argument does not address the rejection as
presented by the Examiner. The Examiner relies on Lavoie to teach the
particle size of the materials (Final Act. 5 and Ans. 13) and not an
encapsulated polymer core. As the Examiner notes, claim 44 requires that
the hydrophilic precursor material be at least partially encapsulated or
dispersed within a barrier material. Ans. 16. Thus, claim 44 does not
require encapsulation where dispersion within a barrier material exists.
Examiner relies on Soper to disperse a hydrophilic precursor material within
a barrier material. Final Act. 8 and Ans. 16.
Third, as argued above, Appellants contend Lavoie is non-analogous
art and therefore, the combination of Soper and Lavoie cannot render the
instant claims obvious. Appeal Br. 9--10. For the reasons discussed above
(see supra p. 6), Appellants have not shown reversible error.
Fourth, Appellants urge that the Examiner's findings that because "the
hydrophilic precursor is mixed in the gum base, it is considered to be
dispersed in a barrier material to meet claim 44," is in error. Appeal Br. 10.
Appellants argue that "[t]his encapsulation or dispersion is in addition to the
later dispersing of the encapsulated hydrophilic precursor component in the
gum base" and that "[ t ]he present specification clearly differentiates this
barrier layer used in an encapsulation step from the later mixing into the
gum base." Id. Appellants argue that "[t]he gum base is not the claimed
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barrier layer." Id. And, as a result, Appellants argue there is not teaching or
suggestion in Soper to encapsulate high molecular weight and large particle
size polymers of maleic anhydride and methyl vinyl ether or salts thereof.
Id.
Appellants' arguments do not apprise us of any reversible error on the
part of the Examiner. Claim 44 requires only that the hydrophilic precursor
material be "at least partially encapsulated or dispersed within a barrier
material." Claims Appendix at Appeal Br. 16. Thus, claim 44 does not
require encapsulation where dispersion within a barrier material exists.
Examiner relies on Soper to teach dispersing a hydrophilic precursor
material within a barrier material. Final Act. 8 and Ans. 16. Appellants
admit that the hydrophilic precursor component is dispersed within the gum
base. Appeal Br. 10 ("This encapsulation or dispersion is in addition to the
later dispersing of the encapsulated hydrophilic precursor component in the
gum base." (emphasis added)). The Examiner also finds that the claimed
barrier material-made of "oils and fats, and hydrogenates and emulsions
thereof' (see claim 46, Claims Appendix at Appeal Br. 17}-is met by the
gum base of Soper which comprises hydrogenated vegetable oils. Final Act.
13. And, as the Examiner observes (Ans. 17), the claims do not require
encapsulation or dispersion step separate from and prior to mixing the
hydrophilic precursor in the gum base.
Furthermore, the Examiner separately reasons that Soper-
recognizing the hydrolysable units of the hydrophilic precursor component
are reactive (Soper, i-fi-1265 and 285-286) and also recognizing the
importance of keeping active agents isolated from conditions that may cause
premature degradation through the encapsulation of active agents (Id. at i-fi-1
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259--261 )--would lead one skilled in the art at the time to encapsulate the
hydrophilic precursor components as taught by the claimed invention. 7
Final Act. 5. Therefore, we find no reversible error.
Fifth, Appellants argue that the combination of Soper and Lavoie does
not "teach or suggest that any polymer or salt thereof can be encapsulated,
let alone the particular polymers claimed herein." Appeal Br. 10. Rather,
Appellants explain that Soper teaches encapsulation of chlorophyll and other
photosynthesizers which are different than the claimed polymers. 8 Id.
Appellants do no persuade us of reversible error by the Examiner. As
the Examiner points out (Ans. 17-18), encapsulation of the hydrophilic
precursor is not required by the claim 44-----only that partial encapsulation or
dispersion in a barrier material occur. Here, the Examiner correctly finds
that the hydrophilic precursor of Soper is dispersed within a barrier material
when it is mixed into the gum base of Soper. Final Act. 12.
And last, Appellants contend that polymers have been used as
encapsulating agents but not as the subject material to be encapsulated.
Appeal Br. 11-12. "Thus, it can be surmised [according to Appellants] that
the prior art teaches away from the present invention that it teaches that
polymers are used as encapsulating agents in gum and not as the active
agents being encapsulated." Id.
Appellants' argument does not convince us of error. Appellants fail to
direct attention to any reference that discourages encapsulating polymeric
materials and instead relies upon unsupported assertions that "polymers have
7 In a parallel case (Appeal No. 2015-005042, involving Application No.
13/266,349) the Examiner further expands on this reasoning.
8 Appellants also argue over Stahl, a reference not relied upon by the
Examiner in the instant rejection. Appeal Br. 10-11.
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been used to encapsulate other materials but have not being [sic]
encapsulated in chewing gum compositions." Appeal Br. 11. From this,
Appellants "surmise" the prior art teaches away. Id. But, "[ s ]ilence does
not imply teaching away." Allergan, Inc. v. Apotex Inc., 754 F.3d 952, 964
(Fed. Cir. 2014); Syntex (US.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380
(Fed. Cir. 2005)("[a] prior art reference that does not specifically refer to
one element of a combination does not, per se, teach away."). And,
Appellants provide no evidence to support this assertion which is based
instead on unsubstantiated attorney argument. Such attorney argument has
low probative value. See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir.
1997). Attorney argument is not evidence. In re Pearson, 494 F.2d 1399,
1405 ( CCP A 197 4 ). Nor can such argument take the place of evidence
lacking in the record. Meitzner v. Mindick, 549 F.2d 775, 782 (CCPA 1977).
Therefore, we do not find Appellants' contention persuasive of reversible
error.
Rejection B - Obvious in over Soper in view of Inoue
Consistent with the findings above (see supra p. 9), the Examiner
finds that the hydrophilic precursor is mixed in a barrier material, i.e., the
gum base. Final Act. 12.
Appellants present five reasons in support of their contention that
claims 44--4 7 are not rendered obvious by Soper in view of Inoue. Appeal
Br. 12-14. Appellants repeat their first argument above-that Soper "does
not teach or suggest each of the claimed components as claimed in the
orientation as claimed." Appeal Br. 12. For the same reasons discussed
above (see supra pp. 9-10), we are not persuaded of reversible error.
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Second, Appellants repeat their argument above (see supra p. 10) that
Inoue "does not teach or suggest teach of the claimed components as
claimed in the orientation as claimed." Id. at 12. For the reasons outlined
above (see supra pp. 10-11), Appellants have not persuaded us of reversible
error by the Examiner.
Third, Appellants argue that the combination of Soper and Inoue does
not render the instant claims obvious because dispersing the hydrophilic
precursor within the gum base is not dispersing or encapsulating the
hydrophilic precursor component within a barrier material as taught by the
claims. Appeal Br. 13. Appellants' argument is duplicated above (see supra
p. 11 ). And, for the same reason, we do not find reversible error (see supra
pp. 12-13).
Fourth, Appellants reiterate their argument that "there is no suggestion
in either reference to encapsulate high molecular weight and large particle
size copolymers of any type for the reasons herein" (see supra p. 13).
Appeal Br. 13. Again, for the reasons outlined above (see supra p. 13), we
are not persuaded of reversible error.
Lastly, Appellants restate their argument presented above (see supra
p. 13}-that is, it can be surmised that the prior art teaches away from
encapsulating polymers because the prior art only uses polymers to
encapsulate other materials. Appeal Br. 13. For the reasons discussed above
(see supra pp. 13-14), Appellants do not convince us of reversible error.
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CONCLUSION
The Examiner did not err in rejecting claims 32-36 and 38--48 under
35 U.S.C. § 103(a) as being unpatentable over Soper in view of Lavoie.
The Examiner did not err in rejecting claims 32-36 and 38--48 under
35 U.S.C. §103(a) as being unpatentable over Soper in view of Inoue.
DECISION
For the above reasons, the Examiner's rejection of claims 32-36 and
3 8--48 is affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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