14089368 (P.T.A.B. Sep. 26, 2017)

Ex Parte Miljkovic et al

Patent Trial and Appeal BoardSep 26, 2017

14089368 (P.T.A.B. Sep. 26, 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. 14/089,368 11/25/2013 Dusan Miljkovic 100700.0024US4 2784 I49344 7590 09/28/2017 T Tmhera 7.insp.r T T P EXAMINER 1920 Main Street Suite 750 Irvine, CA 92614 YOO, HONG THI ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 09/28/2017 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): rdean@umbergzipser.com patents @ umbergzipser.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DUSAN MILJKOVIC, BRAD DUELL, and VUKOSAVA MILJKOVIC Appeal 2017-002011 Application 14/089,368 Technology Center 1700 Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and N. WHITNEY WILSON, Administrative Patent Judges. BEST, Administrative Patent Judge. DECISION ON APPEAL The Examiner rejected claims 16—20 of Application 14/089,368 under 35 U.S.C. § 103(a) as obvious. Final Act. (Apr. 4, 2016). Appellants1 seek reversal of the § 103(a) rejection pursuant to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6. For the reasons set forth below, we reverse. 1 VDF Futureceuticals, Inc. is identified as the applicant and real party in interest. Appeal Br. 2. Appeal 2017-002011 Application 14/089,368 BACKGROUND The ’368 Application describes food products prepared from quick- dried coffee cherries, which are substantially devoid of mycotoxins. Spec. 3:17—20. Such mycotoxins are typically present in substantial quantities in ripe coffee cherries. Id. at 3:11—13. Sub-ripe coffee cherries are quick-dried to prevent production of mycotoxins from any fungi, molds, and/or yeast that have colonized the coffee cherry. Id. at 4:20—25. Claim 16 is representative of the ’368 Application’s claims and is reproduced below from the Claims Appendix to the Appeal Brief: 16. A low-mycotoxin extraction mixture, comprising: a non-aqueous solvent and a plurality of quick-dried whole coffee cherries dried within 48 hours after harvest or portions thereof, wherein the portion of the quick-dried coffee cherry is pulp, and wherein the non-aqueous solvent is selected from the group consisting of an alcoholic solvent and carbon dioxide; and wherein the plurality of quick-dried whole coffee cherries or portions thereof or the low-mycotoxin extraction mixture exhibits mycotoxin levels without mycotoxin detoxification that are below 20 ppb for total aflatoxins, below 5 ppm for total fumonisins, below 5 ppm for total vomitoxins, and below 5 ppb for total ochratoxins. Appeal Br. 27 (Claims App.). 2 Appeal 2017-002011 Application 14/089,368 REJECTION On appeal, the Examiner maintains the following rejection: 1. Claims 16—20 under 35 U.S.C. § 103(a) as unpatentable over the combination of Miljkovic2 and Illy.3 Answer 3. DISCUSSION The Examiner relies on Illy in part for the rejection made under 35 U.S.C. § 103(a). Answer 3-13. Appellants argue that Illy is not prior art under 35 U.S.C. § 103(a) because the present ’368 Application is entitled to the benefit of the earlier filing date of Application PCT/US03/11950, filed April 16, 2003. Reply Br. 2; see also Spec 1. According to Appellants, there are two editions of Illy: (i) one published in 1995 as Espresso Coffee, the Chemistry of Quality, Reply Br. 2 (citing Exhibit C to the Reply Brief); and (ii) another published in 2005 as Espresso Coffee, the Science of Quality. Reply Br. 2 (citing Exhibit B to the Reply Brief). Appellants contend that “the Examiner erroneously provided 1995 as the date of publication” for the relied upon edition of Illy, but the cited reference was actually published in 2005.4 Reply Br. 2 (citing Exhibit A to 2 US 2002/0187239 Al, published Dec. 12, 2002. 3 Illy et al., Espresso Coffee, The Science of Quality, 163—164 (Elsevier Academic Press 1995) (hereinafter “Illy”). 4 Although Appellants did not present this argument in their Appeal Brief, we determine that Appellants have shown good cause for not having done so. See 37 C.F.R. § 41.41(b)(2). We agree with Appellants that: (i) they initially “had no reason to question the [1995] publication date” provided by the Examiner and (ii) “the publication date cannot be refuted from the copy of the [Illy] reference provided, because the copyright page is illegible.” Reply Br. 2—3 (citing Exhibit B p.2 to the Reply Brief). 3 Appeal 2017-002011 Application 14/089,368 the Reply Brief). Appellants’ argument is persuasive because the 1995 edition of Illy lacks the section “3.11.11.1 Mycotoxins,” which the Examiner found to disclose mycotoxin minimization by quick drying. Reply Br. 2 (citing Exhibit C to the Reply Brief); see Answer 2. Furthermore, Appellants correctly argue that the Examiner’s cited page 163 for the 1995 edition is actually the beginning of section 8.4, titled “The espresso machine.” Reply Br. 2 (citing Exhibit C to the Reply Brief). Accordingly, Appellants’ argument that the Examiner’s relied upon edition of Illy was published in 2005 is supported by a preponderance of the evidence. Therefore, Illy is not prior art under 35 U.S.C. § 103(a). Thus, we reverse the rejection of claims 16—20. We express no opinion regarding Appellants’ other arguments for reversal of the rejection of claims 16—20. CONCLUSION For the reasons set forth above, we reverse the obviousness rejection based upon the combination of Miljkovic and Illy. REVERSED 4