Ex Parte Meyer

Patent Trial and Appeal Board

Feb 27, 2018

14476913 (P.T.A.B. Feb. 27, 2018)

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.
14/476,913 09/04/2014 Jeffery M. Meyer P/6264-2 8531
2352 7590 03/01/2018
OSTROLENK FABER LLP
1180 AVENUE OF THE AMERICAS
NEW YORK, NY 10036-8403
EXAMINER
GEORGE, PATRICIA ANN
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
03/01/2018 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):
pat @ ostrolenk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFERY M. MEYER1
Appeal 2017-003683
Application 14/476,9132
Technology Center 1700
Before JEFFREY T. SMITH, JAMES C. HOUSEL, and JANE E.
INGLESE, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the final rejection of
claims 1-3 and 5-11. We have jurisdiction under 35 U.S.C. § 6.
Appellant’s invention relates generally to a dry spice/herb mixture for
mixing with food. (Spec. ^ 1). Claim 1 illustrates the subject matter on
appeal and is reproduced from the Claims Appendix to the Brief.
1. A dry spice/herb mixture for admixing with a food, the
dry spice/herb mixture comprising:
1 Jeffery M. Meyer is identified as the inventor of the appealed application.
2 According to the Appeal Brief, the real party in interest is CJ’s Premium
Spices LLC. See (App. Br. 1).
Appeal 2017-003683
Application 14/476,913
(a) a plurality of base ingredients including celery seeds, garlic
granules, onion powder, paprika, and turmeric;
(b) sugar, wherein said sugar comprises at least five times the
combined weight of the celery seeds, garlic granules, onion
powder, paprika and turmeric; and
wherein the percentage weights of said plurality of base
ingredients in said dry spice/herb mixture including celery
seeds, garlic granules, onion powder, paprika and turmeric and
of said sugar are, respectively .5 - 3.0; .5 - 3.0; .1 - 3.0; .1 -
3.0; .1-1.0; and 50 - 60.
Appellant (see generally App. Br.) requests review of the following
rejections under 35 U.S.C. § 103(a):
(I) claims 1-3, 5 and 11 rejected as unpatentable over the combined
teachings of Mager (WO 2012/006080 Al, pub: Jan. 12, 2012) in view of
Kitchen Garden Gal of Chowhound, http://www.chowhound.com, last
visited Mar. 17, 2017; Richelle et al. (US 2008/0193505 Al, pub: Aug. 14,
2008); Mannering, Using Herbs and Spices,
http://extension.udel.edu/factsheets/using-herbs-and-spices/print/, last visited
Mar. 17, 2016; FL: Cheesy Herb Crackers, Family Living: Hooray for
Snacks & Leisure Arts, Leisure Arts-Cooking, p.l 1 (2011); DeSmidt et al.
(US 2006/0034995 Al, pub: Feb. 16, 2006); Busch et al. (US 2010/0104733
Al, pub: Apr. 29, 2010), Zhang et al.(CN 102150729 A. pub:Aug. 17,
2008); Zhang et al. 2 (US 2007/0286912 Al, pub. Dec. 13, 2007); and
Memphis Dust: A Magical Spice Rub,
http://www.huffmgtonpost.com/craig-goolwyn/memphis-dust-magical, last
visited: July 8, 2016 (HP);
(II) claim 6 rejected as unpatentable over the prior art cited in the
rejection of claims 1-3, 5 and 11, and further in view of SRS, Food Storage:
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Application 14/476,913
Storing Herbs and Spices for Long Term Storage,
http://selfreliantschool.com/food-storage-storing-herbs-and-spices-for-long-
term-storage/, last visited: Mar. 17, 2016;
(III) claims 7-9 rejected as unpatentable over the prior art cited in the
rejection of claims 1-3, 5 and 11, and further in view of WHF, The World’s
Healthiest Foods Mustard Seeds, http://web.archive.org/20020820065318,
last visited, Mar. 17, 2016, WHF2, The World’s Healthiest Foods Dill
Weed, Dried, http://web.archive.org/20020825065603, last visited, Mar. 17,
2016 WHF3, The World’s Healthiest Foods Parsely,
http://web.archive.org/2002082007119, last visited, Mar. 17, 2016; and
(IV) claim 10 rejected as unpatentable over the prior art cited in the
rejection of claims 1-3, 5 and 11 and further in view of WHF, WHF2,
WHF3, Hiron et al. (US 2004/000595, Al, pub: Jan. 8, 2004), BA, bon
appetite, Dry Rub, http://www.bonappetit.com/recipe/dry-rub, last visited,
Mar. 17, 2016 and Villota et al., (US 5,508,053 iss: Apr. 16, 1996). (Final
Act. 20-27).
OPINION3
Upon consideration of the evidence in this appeal record in light of the
respective positions advanced by the Examiner and Appellant, we determine
that Appellant has not identified reversible error in the Examiner’s
determination that the subject matter recited in claims 1-3 and 5-11 would
3 Appellant presents arguments for independent claim 1. (App. Br. 7-10).
Appellant’s arguments presented addressing rejections III and IV are
substantially the same as those presented in addressing rejection I. (See
generally App. Br.). We limit our initial discussion to independent claim 1
which we select as representative of the rejected claims.
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Application 14/476,913
have been obvious to one of ordinary skill in the art within the meaning of
35 U.S.C. § 103(a). Accordingly, we sustain rejections I-IV.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner’s
reasoned analysis and application of the prior art, as well as the Examiner’s
cogent and thorough disposition of the arguments raised by Appellant.
Accordingly, we will adopt the Examiner’s reasoning as our own in
sustaining the rejection of record, and we add the following for emphasis
only.
The complete statement of the rejections on appeal appear in the Final
Office Action. (Final Act. 2—14).
Rejections I, III and IV
The Examiner found Mager teaches nutritional compositions
comprising a spice/herb mixture comprising seasonings and sugar for
admixing with a food. Mager discloses the nutritional compositions are
suitable for oral nutritional supplements and tube-feed formulations. (Mager,
col. 1 11. 17-24). While Mager fails to teach all the claimed ingredients in
the spice/herb mixture, we concur with the Examiner that the additionally
cited references establish the obviousness of incorporating the recited
components in a nutritional composition (spice/herb mixture). For instance,
Kitchen Garden teaches granulated or dried minced garlic and onion are not
wet and harsh tasting; and Richelle teaches the suitability of forming dry
spice/herb mixtures for admixing with food. (Final Act. 10-12). The
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Application 14/476,913
Examiner further determined that Mannering teaches varying the amounts of
dry herbs and spices to vary the taste/flavor. (Final Act. 13).
Accordingly, based on the collective teachings of the applied prior art,
we are in full agreement with the Examiner that it would have been obvious
for one of ordinary skill in the art to formulate a dry spice/herb mixture
containing the recited components for their art-recognized properties.
According to Appellant, the claimed invention is directed to a dry
spice/herb mixture which—when applied to a food product—results in that
food product having a creamy taste and good mouth feel. (App. Br. 5 citing
Spec. ^ 2). Appellant argues:
[Cjombining ingredients in food recipes cannot be dismissed on
the basis of a broad assertion that combining any or all known food
ingredients is obvious. A proper §103 analysis requires a discussion
of the issue of what ingredients are being combined, why, how much
of each ingredient is included, and the purpose of it all. Here, in
amended claim 1, very specific ranges for each of the ingredients and
their amounts relative to each other and to the sugar ingredient are
carefully and clearly specified.
(App. Br. 5).
Appellant argues that the Examiner has cited nine references in the
rejection and that there is no motivation or suggestion to combine the
teachings of the references. (App. Br. 5).
Appellant’s arguments substantially address the prior art cited in the
rejection individually. The prior art cited by the Examiner establishes
ingredients utilized in spice/herb mixtures are known to persons of ordinary
skill in the art. Manifestly, the number of references cited in a rejection may
be mandated by the number of conventional ingredients recited in a rejected
claim. Moreover, as stated by Alan Swan in the Declaration, signed June 21,
2016, “Spice/herb mixtures for mixing with foods, are not novel, per se.
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Application 14/476,913
Hundreds of such spice/ herb mixtures have been introduced in the art over
the years for making all kinds of foods including potato salad.” (Declaration
^ 3). It is well settled that it is a matter of obviousness for one of ordinary
skill in the art to combine conventional ingredients in a food product, and to
determine their optimum amounts, in the absence of evidence that the
ingredients coact or cooperate in a manner to produce an unexpected result.
In re Levin, 178 F.2d 945, 948 (CCPA 1949). While Appellant argues the
amount of the various herbs/species specified in claim 1 “provides very
unique quantities and ingredient ratios and those quantities affect not only
the taste but also the consistency and mouth-feel as well.” (App. Br. 7). In
the present case, Appellant has not directed us to any evidence that the
claimed ingredients combined to form a product having unexpected
properties. Nor has Appellant argued that the claimed ingredients in the
recited amounts achieve an unexpected result with respect to the method of
preparation. Accordingly, the prima facie case of obviousness established
by the Examiner stands unrebutted.
We are further unpersuaded by Appellant’s arguments that the prior
art does not render obvious utilizing sugar in an amount at least 5 times as
much as the combined amount of the celery seeds, garlic granules, onion
powder, paprika, and turmeric. (App. Br. 7). While the cited prior art does
not disclose a range that explicitly overlaps or includes Appellant’s
particular claimed range for the content of sugar, the prior art does disclose a
general teaching of spices and herbs including sugar restricting them as to
the amount. (See e.g. Mager and Richelle). The Federal Circuit has held,
that “where the general conditions of a claim are disclosed in the prior art, it
is not inventive to discover the optimum or workable ranges by routine
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Application 14/476,913
experimentation.” In reAller, 220 F.2d 454, 456 (CCPA 1955); see also In
re Peterson, 315 F.3d 1325, 1330 (“The normal desire of scientists or
artisans to improve upon what is already generally known provides the
motivation to determine where in a disclosed set of percentage ranges is the
optimum combination of percentages.”). This principle is particularly true
for ingredients in food products. See In re Levin, 178 F.2d at 948 .
Appellant argues the Alan Swan Declaration, submitted pursuant to
37 CFR §1.132, establishes the product of the present invention is very well
received and is developing ever-growing commercial success. (App. Br. 5).
The Swan Declaration including the Exhibits A-D is insufficient
evidence to establish commercial success. In re Huang, 100 F.3d 135, 140
(Fed. Cir. 1996) (Appellant must offer proof that the asserted commercial
success occurred in the relevant market and “that the sales were a direct
result of the unique characteristics of the claimed invention—as opposed to
other economic and commercial factors unrelated to the quality of the
patented subject matter.”); Geo. M. Martin Co. v. Alliance Machine Systems
Int’lLLC, 618 F.3d 1294, 1304 (Fed. Cir. 2010) (“The commercial success
of a product is relevant to the non-obviousness of a claim only insofar as the
success of the product is due to the claimed invention.”) The declaration
does not indicate that the product sales information for any one of the 3
identified CJ’s Premium Spices product were a result of the claimed dry
spice/herb mixture. The Declaration fails to explain that the sales were the
result of the unique characteristics of the claimed invention. The
Declaration has also failed to identify the marketing and advertising
conditions utilized for sales of this product.
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In addition, the Declaration does not provide any other evidence
establishing the increased sales of CJ’s Premium Spices product, and
establishing that sales of the CJ’s Premium Spices product resulted directly
from the merits of the claimed dry spice/herb mixture. In this regard, as
discussed above, the Swan Declaration does not indicate the market in which
the CJ’s Premium Spices product containing the claimed dry spice/herb
mixture was sold. Even assuming that this was the case, the Declaration
does not indicate the level of sales of the CJ’s Premium Spices product in
the dry spice/herb product market, or the actual market share of the CJ’s
Premium Spices product in a given market. The Declaration does not
indicate how this compares to other products in the dry spice/herb product
market. The Declaration also does not specify the extent of advertisement
employed for the CJ’s Premium Spices product, i.e., below, above, or
identical to a given industry norm.
Rejection II
Appellant argues “[t]he SRS reference is hardly relevant to the overall
combination that is the subject of claim 6. Claim 6 is not directed to a dry
canning process which is a special process involving an oven.” (App. Br. 9).
We are not persuaded by Appellant’s arguments. The prior art cited
by the Examiner establishes it was known to use sealed bags for storing
food. Consequently, a person of ordinary skill in the art would have
reasonably expected the recognized techniques for storing items in sealed
bags would have been suitable for storing a mixture of spices and herbs.
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Application 14/476,913
For the reasons stated above, and the reasons presented by the
Examiner, we sustain the rejections of claims 1-3 and 5-11 under 35 U.S.C.
§ 103(a).
ORDER
The rejections of claims 1-3 and 5-11 under 35 U.S.C. § 103(a) are
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
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