Ex Parte Qvyjt

Patent Trial and Appeal Board

Dec 10, 2015

12345011 (P.T.A.B. Dec. 10, 2015)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/345,011 12/29/2008 Fernando Qvyjt
201 7590 12/14/2015
UNILEVER PATENT GROUP
800 SYLVAN A VENUE
AG West S. Wing
ENGLEWOOD CLIFFS, NJ 07632-3100
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.
7103
EXAMINER
LATHAM, SAEEDA MONEE
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
12/14/2015 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):
patentgroupus@unilever.com
pair_unilever@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte FERNANDO QVYJT 1
Appeal2014-002510
Application 12/345,011
Technology Center 1700
Before BRADLEY R. GARRIS, JAMES C. HOUSEL, and N. WHITNEY
WILSON, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellant appeals from the Examiner's
rejections under 35 U.S.C. § 103(a) of independent claims 1, 20, and 23 as
unpatentable over Zawistowski (US 2005/0175745 Al, pub. Aug. 11, 2005)
in view ofNutriStrategy (NutriStrategy© Software, Fats, Cooking Oils and
Fatty Acids (2005), accessed online:
http://www.nutristrategy.com/fatsoils.htm) and remaining dependent claims
1 Conopco, Inc. d/b/a Unilever is identified as the real party in interest. App.
Br. 3.
Appeal2014-002510
Application 12/345,011
2, 3, 5-8, 10-16, 18, 19, 21, 22, 24, and 25 as unpatentable over
Zawistowski in combination with NutriStrategy or other prior art. We have
jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
Appellant claims a fat-continuous coating comprising phytosterol
and/or phytostanol (independent claims 1, 20, and 23).
A copy of representative claim 1, taken from the Claims Appendix of
the Appeal Brief, appears below.
1. A fat-continuous coating comprising:
a) from 20-50 wt% of a lipid base including triglyceride fat and a
phytosterol and/or phytostanol structurant,
b) said coating having a moisture content of less than 1 wt%,
c) said coating having 28 wt% or less saturated fatty acid moieties,
said phytosterol and/or phytostanol providing structure to the coating
d) said coating comprising 1-50 wt% total sugars and having a
viscosity of from 10-25 mPas.
Appellant's arguments are directed to the independent claims of
which claim 1 is representative (Br. 5-7). Therefore, the dependent claims
will stand or fall with their parent independent claims.
For the reasons given below, we sustain the§ 103 rejections advanced
in this appeal.
The Examiner finds, and Appellant does not dispute, that Zawistowski
discloses a chocolate composition comprising the ingredients and
concentrations required by claim 1 (Final Action 3 (citing i-f 186) ). The
Examiner also finds, and Appellant does not dispute, that "chocolate is used
[in the prior art] to flavor coatings" (id. at 8). Based on these findings, the
Examiner concludes that "it would have been obvious to one of ordinary
2
Appeal2014-002510
Application 12/345,011
skill to have used the chocolate composition of Zawistowski for coatings"
(id.).
Appellant concedes that Zawistowski discloses using phytosterols as a
coating for food (Br. 6 (citing i-f 73)) but argues "this is by no means the
same thing as saying that Zawistowski contemplates coatings as recited in
the present invention" (id.). Regarding the paragraph 186 disclosure cited
by the Examiner, Appellant points out that the chocolate pieces of this
disclosure comprise a center with phytosterol/phytostanol ingredients and an
outer shell without such ingredients and argues "this appears to suggest that
the outer portion of the product should be without phytosterol" (id. at 7).
Appellant concludes by arguing "the Office has failed to put forward a
prima facie case of obviousness of a coating comprising phytosterol
structurant as recited in the present claims" (id.).
Appellant's arguments do not show error in the Examiner's
obviousness conclusion. The individual disclosures of paragraphs 73 and
186 may not explicitly teach the coating of claim 1. However, the combined
teachings of these paragraphs would have suggested using the
phytosterol/phytostanol-containing chocolate composition of Zawistowski's
paragraph 186 as a coating, particularly in light of the Examiner's
undisputed finding that it was known in the prior art that chocolate is used to
flavor coatings. 2
The decision of the Examiner is affirmed.
2 For completeness, we emphasize that Appellant describes prior art (WO
2007 /024770) wherein phytosterol-fortified cocoa powder is used as a
flavored coating for food products (Spec. 5-6).
3
Appeal2014-002510
Application 12/345,011
TIME PERIOD
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
kmm
4