Ex Parte Mattie

Patent Trial and Appeal Board

Jun 24, 2014

13030996 (P.T.A.B. Jun. 24, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte DAVID MATTIE
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Appeal 2012-012557
Application 13/030,996
Technology Center 1700
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Before CHARLES F. WARREN, BEVERLY A. FRANKLIN, and
CHRISTOPHER M. KAISER, Administrative Patent Judges.

KAISER, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal under 35 U.S.C. § 134 from the decision of the
Primary Examiner finally rejecting claims 1-16. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.

OPINION

Appellant’s invention is directed to “formulations for frozen slush
drinks containing . . . plant extracts.” Spec. 1, ll. 8-9.
Claim 1, reproduced below, is representative of the appealed subject
matter:
1) A frozen slush drink consisting of:
Appeal 2012-012557
Application 13/030,996

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a) water,
b) at least one sugar selected from glucose, sucrose, fructose,
maltose and other naturally occurring higher molecular weight
sugars,
c) tea plant extract flavoring,
d) carboxymethylcellulose, and,
e) xanthan gum, guar gum and locust bean gum.
Claims App., Appeal Br. 17.
At the time of the Final Rejection, claims 1-16 were pending. Final
Rej. 1. The Examiner rejected claims 1-6 and 9-14 under 35 U.S.C. § 103(a)
as obvious over both the combination of Dunn,1 Nayyar,2 Mihajlovic,3
Syfert,4 Igoe,5 and Wang6 and the combination of Dunn, Nayyar, Mihajlovic,
Syfert, Igoe, and Fukuoka.7 Final Rej. 2-16. The Examiner also rejected
claims 7, 8, 15, and 16 under 35 U.S.C. § 103(a) as obvious over both the
combination of Dunn, Nayyar, Mihajlovic, Syfert, Igoe, Wang, and
Arbuckle8 and the combination of Dunn, Nayyar, Mihajlovic, Syfert, Igoe,
Fukuoka, and Arbuckle. Id. at 17-33.
We sustain each of the above rejections based on the findings of fact,
conclusions of law, and rebuttals to arguments which are well expressed by
the Examiner in the Final Rejection, the Advisory Action, and the Answer.
The following comments are added for emphasis.

1 Dunn, US 3,073,703, issued Jan. 15, 1963.
2 Nayyar et al., US 5,853,785, issued Dec. 29, 1998.
3 Mihajlovic, US 2003/0215548 A1, published Nov. 20, 2003.
4 Syfert et al., US 4,748,033, issued May 31, 1988.
5 ROBERT S. IGOE & Y.H. HUI, DICTIONARY OF FOOD INGREDIENTS 69-72, 84,
154 (3d ed. 1996).
6 Wang, CN 1108895 A, published Sept. 27, 1995.
7 Fukuoka, JP 62257344 A, published Nov. 9, 1987.
8 Arbuckle, US 3,479,187, issued Nov. 18, 1969.
Appeal 2012-012557
Application 13/030,996

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Appellant argues that the particular combination of ingredients
claimed produces the unexpected and surprising “result of a stable tea
flavored frozen slush drink.” Appeal Br. 9. Appellant notes that “leaving
out any single ingredient made an unacceptable product” and that “[t]here is
nothing in the reference[s] cited that would have rendered this result
predictable.” Id. For the reasons provided in the Answer, we agree with the
Examiner that there is insufficient evidence to show that the claimed
invention produces unexpected results over the prior art. Ans. 4-5. In
addition, we note that, even to the extent that the experimental results
reported in Appellant’s Specification, Spec. 8-11, show that the claimed
invention is an improvement over the prior art, there is no evidence as to
what improvement a person of ordinary skill in the art would have expected
from the claimed combination of ingredients or what additional
improvement beyond an expected result was demonstrated by the claimed
invention. See Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir.
2007) (“any superior property must be unexpected to be considered as
evidence of non-obviousness”). Appellant’s arguments that the
experimental results were unexpected and surprising are not a substitute for
such evidence. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
The decision of the Examiner 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.

AFFIRMED

cdc