Ex Parte Iassonova et al

Patent Trial and Appeal Board

Mar 9, 2017

13395046 (P.T.A.B. Mar. 9, 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.
13/395,046 05/24/2012 Diliara Iassonova N00036US01 7025
38550 7590 03/13/2017
CARGILL, INCORPORATED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
EXAMINER
DUBOIS, PHILIP A
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
03/13/2017 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):
patent_docketing @ cargill. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DILLARAIASSONOVA and LINSEN LIU1
Appeal 2016-004221
Application 13/395,046
Technology Center 1700
Before BRADLEY R. GARRIS, JULIA HEANEY, and MICHAEL G.
McMANUS, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s
rejection under 35 U.S.C. § 103(a) of claims 2—10, 21, and 22 as
unpatentable over Marquez (Marquez et al., US 6,428,461 Bl, issued Aug.
6, 2002). We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 Cargill, Incorporated is identified as the real party in interest. Br. 3.
Appeal 2016-004221
Application 13/395,046
Appellants claim an edible fat comprising a combination of first and
second oils (independent claim 2) such as rapeseed oil and flaxseed oil
(remaining independent claim 7).
A copy of claim 2, taken from the Claims Appendix of the Appeal
Brief, appears below.
2. An edible, non-hydrogenated fat having an Oxidative Stability
Index at 110°C (OSI) of at least 25 hours, the fat comprising a combination
of:
35-90 wt% of a first oil having no more than 4 wt% ALA;
10-65 wt% of a second oil having at least 40 wt% ALA; and
an antioxidant.
Appellants do not present separate arguments specifically directed to
the dependent claims under rejection (Br. 11—12). Therefore, the dependent
claims will stand or fall with their parent independent claims of which claim
2 is representative.
We sustain the Examiner’s § 103 rejection for the reasons given in the
Final Action and the Answer with the following comments added for
emphasis.
The Examiner finds that Marquez discloses an edible fat having the
claimed properties but does not provide an example of the fat comprising a
combination of oils as claimed including rapeseed oil and flaxseed oil (Final
Action 4). However, the Examiner finds that Marquez teaches natural
sources of suitable polyunsaturated lipids for the edible fat include
vegetable, animal, and marine oils including flaxseed oil, canola oil (i.e.,
rapeseed oil), cod liver oil, and so forth {id. at 4—5 (citing Marquez col. 5,11.
2
Appeal 2016-004221
Application 13/395,046
40-45)). In light of these findings, the Examiner concludes that it would
have been obvious to provide the edible fat of Marquez in the form of
blended oils such as rapeseed oil and flaxseed oil {id. at 5).
Appellants argue that “a listing of a number of oils as set out in
Marquez would not lead a skilled person to the selected blend of the first and
second oils of the present invention” (Br. 11—12).
Appellants’ argument is not persuasive. As convincingly explained
by the Examiner, “it would have been obvious to combine these oils [i.e., the
oils disclosed by Marquez at col. 5,11. 40-45] in various amounts as they ah
contain Omega-3 chain polyunsaturated fatty acids, which are viewed as
highly attractive potential additives for food and dietary supplements” (Ans.
6). In the record before us, Appellants do not identify any error in the
Examiner’s explanation (i.e., no Reply Brief has been filed). Moreover, the
Examiner’s position is reinforced by Marquez’s express disclosure that
suitable omega-3 fatty acids include mixtures of EPA, DHA, and ALA
(Marquez col. 4,11. 38-49) wherein ALA is present in vegetable oils and
EPA and DHA are present in fish oils {id. at | bridging cols. 5—6).
The decision of the Examiner is affirmed.
No time period for taking any subsequent action in connection with
this appeal be may be extended under 37 C.F.R. § 1.136.
AFFIRMED
3