Ex Parte Thorengaard

Patent Trial and Appeal Board

Apr 11, 2017

12377469 (P.T.A.B. Apr. 11, 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.
12/377,469 03/11/2009 Bitten Thorengaard PS4422066 6628
40401 7590 04/13/2017
Hershkovitz and Associates, PLLC
2845 Duke Street
Alexandria, VA 22314
EXAMINER
MCCLAIN-COLEMAN, TYNESHA L.
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
04/13/2017 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 @ hershkovitz .net
U S PTO @ hershkovitz. net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BITTEN THORENGAARD1
Appeal 2016-004247
Application 12/377,469
Technology Center 1700
Before BRADLEY R. GARRIS, DONNA M. PRAISS, and
CHRISTOPHER L. OGDEN, 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 claims 1, 2, 4—15, 18—20, 22—34, and
36—39 as unpatentable over Cherukuri (EP 446170 A2, pub. September 11,
1991) in view of Andersen (WO 2004/004479 Al, pub. January 15, 2004) or
alternatively over Andersen in view of Cherukuri. We have jurisdiction
under 35 U.S.C. § 6.
1 Gumlink A/S is identified as the real party in interest. App. Br. 3.
Appeal 2016-004247
Application 12/377,469
We AFFIRM.
Appellant claims a chewable confectionary composition and a
confectionary encapsulation delivery system comprising certain amounts of
a natural resin, a high intensity sweetener, and a polyvinyl acetate wherein
the encapsulation delivery system is a particulate system (independent
claims 1 and 33). In a particular embodiment, the encapsulation delivery
system comprises a delayed release encapsulation system releasing a certain
amount of high intensity sweetener at a certain rate (dependent claim 39).
A copy of representative claims 1 and 39, taken from the Claims
Appendix of the Appeal Brief, appears below.
1. A chewable confectionery composition having modified release, said
composition comprising
- a confectionery base,
-at least one confectionery ingredient, and
- at least one encapsulation delivery system comprising at least one high
intensity sweetener, at least one polyvinyl acetate and at least one natural
resin, wherein said encapsulation delivery system comprises a total amount
of the at least one natural resin in the range of 5-60% by weight, an amount
of the at least one high intensity sweetener in the range of 10-50% by
weight, and an amount of the at least one polyvinyl acetate in the range
of 15-85% by weight, and
wherein said encapsulation delivery system is a particulate system.
39. The confectionery composition according to claim 1, wherein said
encapsulation delivery system comprises at least one delayed release
encapsulation system releasing at least 25% of its high intensity sweetener
during the period from 6 minutes to 15 minutes of chewing the
confectionary composition.
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Appeal 2016-004247
Application 12/377,469
Appellant argues independent claims 1 and 33 together without
presenting separate arguments specifically directed to the dependent claims
(App. Br. 8—19) except for dependent claim 39 (id. at 18). Accordingly,
dependent claims 2, 4—15, 18—20, 22—32, 34, and 36—38 will stand or fall
with their parent independent claims, of which claim 1 is representative.
We will sustain the Examiner’s rejections for the reasons given in the
Final Action, the Answer, and below.
The Examiner finds that each of the applied references teaches or
would have suggested the subject matter defined by the independent claims
including a particulate encapsulation delivery system comprising a high
intensity sweetener, a polyvinyl acetate, and a natural resin except that
Cherukuri does not disclose the claimed resin amounts and Andersen does
not disclose the claimed sweetener amounts (Final Action 2-4).
Nevertheless, the Examiner concludes that it would have been obvious to
provide Cherukuri’s natural resin in the claimed amounts in view of
Andersen and to provide Andersen’s high intensity sweetener in the claimed
amounts in view of Cherukuri (id. at 4).
Appellant argues “common knowledge in this art has been established
in the present Application . . . [that] one of ordinary skill would have no
reasonable expectation that polyvinyl acetate would be useful together with
a natural resin (ester gum) in an encapsulation delivery system” (App. Br.
16; see also id. at 18). As support for this argument regarding common
knowledge, Appellant relies on the three Andersen Declarations of record
(i.e., filed 5 March 2013, 10 October 2013, and 30 June 2014) which discuss
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Appeal 2016-004247
Application 12/377,469
the column 4, lines 8—31, disclosure of the Bakal patent of record (i.e., U.S.
Patent No. 4,087,557 issued 2 May 1978) concerning ester gum such as
hydrogenated or dimerized ester gum and polyvinyl acetate (see, e.g., Reply
Br. 26-28).
Appellant fails to explain with any reasonable specificity why Bakal’s
disclosure of polyvinyl acetate and ester gum such as hydrogenated or
dimerized ester gum militates against the combination of polyvinyl acetate
and natural resin such as polyterpene resin as claimed by Appellant (see, e.g.
claim 4) and disclosed by each of Andersen (see, e.g. Andersen 4:15—17,
9:8—15, 29:6—19, and 30:7—20) and Cherukuri (see, e.g. Cherukuri 4:33 44,
6:42—50, and claim 14). The record before us including the respective
disclosures of Andersen and Cherukuri support a determination that one with
ordinary skill in this art would have reasonably expected the combination of
polyvinyl acetate and natural resin such as polyterpene to be successful as a
useful combination in a particulate encapsulation delivery system. Under
these circumstances, the argument under consideration lacks persuasive
merit.
Appellant also contends that “Cherukuri and Andersen, alone or in
combination, fail to disclose or suggest a particulate encapsulation delivery
system, much less the very specific encapsulation delivery system claimed
herein, comprising at least one high intensity sweetener, at least one
polyvinyl acetate and at least one natural resin” (App. Br. 10).
Appellant’s contention fails to reveal error in the Examiner’s finding
that Cherukuri discloses a delivery system (4:33—35) in powder or
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Appeal 2016-004247
Application 12/377,469
granulated (i.e., particulate) form (5:17—19) comprising polyvinyl acetate
(4:42-44), encapsulated sweetener for imparting high intensity sweetness
(5:53—54), and natural resin such as polyterpene (6:42—50 and claim 14).
Similarly, the contention shows no error in the Examiner’s finding that
Andersen’s system for controllably releasing or delivering flavor and
sweetness (3:26—31) comprises granules (i.e., particulates) (2:16—21),
encapsulated sweetener (3:1—3) including high intensity sweetener
encapsulated with another chewing gum component such as a resinous
compound (12:31—13:10), polyvinyl acetate (4:15—17, 9:8—15), and natural
resin (6:24—28) to facilitate flavor release (7:28—30).
Finally, Appellant argues that Cherukuri’s sweetener and polyvinyl
acetate ranges do not teach or suggest the corresponding independent claim
ranges (App. Br. 14). According to Appellant, for example, “[t]he about
30% to about 93% range of polyvinyl acetate in Cherukuri fails to suggest,
much less teach, the claimed 15-85% by weight of PVA recited in
Appellant’s encapsulation delivery system [of the independent claims]” {id.).
Appellant’s argument is not convincing. Cherukuri’s above ranges
overlap and therefore would have suggested the independent claim ranges as
correctly explained by the Examiner (Ans. 12—13 (citing In re Peterson, 315
F.3d 1325, 1329-30 (Fed. Cir. 2003))).
In summary, the arguments and evidence of record for and against
obviousness, on balance, support the Examiner’s conclusion that the subject
matter defined by the independent claims would have been obvious based on
the combined teachings of Cherukuri and Andersen.
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Application 12/377,469
In rejecting dependent claim 39, the Examiner determines that the
parameters affecting sweetener release rate are well understood and that it
would have been obvious to adjust the release rate for the high intensity
sweetener of Cherukuri or Andersen whereby at least 25% of the sweetener
is released during the period from 6 minutes to 15 minutes of chewing the
confectionary composition as claimed (Final Action 7—8).
Appellant contests the Examiner’s obviousness conclusion by stating
without embellishment “[tjhere is simply no teaching or suggestion of this
explicit claimed invention in any prior art” (App. Br. 18).
Appellant’s unembellished statement reveals no error in the
Examiner’s rejection of claim 39. On the other hand, obviousness is
supported by the fact that control of sweetener release is desired by both
Cherukuri (see, e.g., 5:17—24 and 5:45—47) and Andersen (see, e.g., 12:31—
13:10).
For the reasons stated above and given by the Examiner, we sustain
the § 103 rejections of claims 1, 2, 4—15, 18—20, 22—34, and 36—39 as
unpatentable over Cherukuri in view of Andersen or Andersen in view of
Cherukuri.
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(a).
AFFIRMED
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