Ex Parte Van Horsen et al

Patent Trial and Appeal Board

Mar 18, 2016

11992554 (P.T.A.B. Mar. 18, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111992,554 03/25/2008 Dirk Simon Hendrikus Van Horsen
201 7590 03/22/2016
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.
F7857USw 9100
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
03/22/2016 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 DIRK SIMON HENDRIKUS VAN HORSEN,
HINDRIK HUIZINGA,
and CORNELIS LAURENTIUS SASSEN
Appeal2014-004129
Application 11/992,554
Technology Center 1700
Before ROMULO H. DELMENDO, JEFFREY T. SMITH, and
CHRISTOPHER L. OGDEN, 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 a final rejection of
claims 1-20. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
Appellants (see Appeal Brief, generally) request review of the
following rejection from the Examiner's Final Action, as revised in an
Advisory Action entered June 21, 2013:
Appeal2014-004129
Application 11/992,554
Claims 1-20 rejected under35 U.S.C. § 103(a) as unpatentable over
Brug (EP 1419699 Al, published May 19, 2004). 1
OPINION
After review of the respective positions provided by Appellants and
the Examiner, we AFFIRM the Examiner's prior art rejection of claims 1-20
for the reasons presented by the Examiner. 2 We add the following for
emphasis.
Appellants' invention is directed to a hardstock fat having at least 80
wt% saturated fatty acids, wherein the amount of H3mixed triglycerides is
between 45 and 60 wt%, and wherein the amount of H2Xmixed triglycerides is
at least 10 wt%. The hardstock fat is suitable for low fat high poly
unsaturated fatty acids (PUP A) spreads. Spec. 2-3. Claim 1 is illustrative
of the subject matter on appeal and is reproduced below:
1. Hardstock fat having an amount of saturated fatty acids of at
least 80 wt%,
• wherein the amount of H3mixed triglycerides is between 45 and
60 wt%, H3mixed being a group of triglycerides consisting of
triglycerol esters of 3 H fatty acids wherein H is a saturated fatty
acids having a length of C16 and/or C18, wherein the triglycerol
ester is composed of two different fatty acids;
• wherein the amount of H2Xmixed triglycerides is at least 10 wt%,
H2Xmixed being a group of triglycerides consisting of H2M
1 A complete statement of the Examiner appealed rejection appears in the
Final Action 2-5, as revised in the Advisory Action in which claims 19 and
20, submitted and entered after Final Action, were also rejected.
2 Appellants argue the claims 1-7 and 9-16 together as a group and argue
claims 8 and 17-20 together as another group. App. Br. 5-7. Accordingly,
we select independent claims 1 and 17 as representative of the subject matter
before us on appeal.
2
Appeal2014-004129
Application 11/992,554
triglycerides and H20 triglycerides, wherein H2M triglycerides
are triglycerol esters with two H fatty acid and one M fatty acid
wherein M is a saturated fatty acid of a length of C 12 and/ or C 14,
and wherein H20 triglycerides are triglycerol esters with two H
fatty acid and one 0 fatty acid wherein 0 is a unsaturated fatty
add of a length of C 18, wherein the H2M and H20 triglycerides
are composed of three different fatty acids;
•and wherein a combined amount of saturated fatty acids having
a length of C 12 and/ or C 14 is from 12 to 24 wt%.
The Examiner found Brug teaches that the composition comprises a
hardstock fat component having at least 15% H3 triglycerides having 3
saturated fatty acids of 16 or more carbon atoms. The Examiner found Brug
teaches the triglycerides can comprise saturated fatty acids of carbon length
of 10-14 atoms and an unsaturated fatty acid with a carbon length of 16-20
carbon atoms. (Final Act 2-3; Brug 9 and 13). The Examiner found the
ranges for the carbon atoms in the triglycerides described by Brug would
encompass the length for the unsaturated fatty acid and saturated fatty acid
required by the claimed invention. (Final Act 2-3).
Brug teaches it is preferred that the amount of saturated fatty acids of
16 or more carbon atoms) is between 60 and 7 5% wt based on total amount
of fatty acids and the amount of unsaturated fatty acids of any suitable chain
length) is between 20 and 45% wt based on total amount of fatty acids.
(Brug 15).
Appellants argue the levels of H3 for the exemplified formulations of
Brug do not come close to 45% and these are not specifically mixed H3 and
provides no teaching of the levels of saturated fatty acids having a length of
C12 and C14. (App. Br. 6).
3
Appeal2014-004129
Application 11/992,554
Appellants' argument is not persuasive of reversible error in the
Examiner's rejection. A reference is available for all that it teaches to a
person of ordinary skill in the art and is not limited to the exemplified
embodiments. In re Inland Steel Co., 265 F.3d 1354, 1361 (Fed. Cir. 2001);
Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989).
The Examiner correctly found that Brug discloses that the composition can
comprise at least 15% of H3 triglycerides (triglyceride of 3 saturated fatty
acids of 16 or more carbon atoms. (Brug 13). Brug discloses that the
composition contains between 20 and 45% wt based on total amount of fatty
acids of unsaturated fatty acids of any suitable chain length. (Brug 15).
These disclosures encompass the claimed invention. Moreover, a person of
ordinary skill in the art would have sufficient skill to select the appropriate
amount of fat (triglyceride) to be incorporated into various food products.
Further, we note that the Appellants have not directed us to evidence
established the criticality of the hardstock composition required by the
appealed claims. The apparent lack of criticality of the claimed range
supports the Examiner's overall conclusion of obviousness. Cf In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) ("The law is replete with
cases in which the difference between the claimed invention and the prior art
is some range or other variable within the claims .... [I]n such a situation,
the applicant must show that the particular range is critical, generally by
showing that the claimed range achieves unexpected results relative to the
prior art range.") (citations omitted); In re Aller, 220 F .2d 454, 456 (CCP A
1955) ("[W]here 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
experimentation.").
4
Appeal2014-004129
Application 11/992,554
Regarding claim 17 Appellants argue the Examiner has not identified
evidence to establish that Brug's fat would have been suitable for hard stock
fat in margarine. (App. Br. 7).
Appellants' arguments lacks persuasive merit. A person of ordinary
skill in the art would have recognized that hardstock fats/triglycerides were
suitable for use in margarine. This is supported by the references cited in the
present record. 3 Thus, we determine that one of ordinary skill in the art is
imputed with the knowledge regarding the suitability of utilizing hardstock
fats for margarine.
Accordingly, we affirm the Examiner's prior art rejection of claims 1-
18 under 35 U.S.C. § 103(a) for the reasons presented by the Examiner and
given above.
ORDER
The Examiner's prior art rejection of claims 1-20 under 35 U.S.C. §
10 3 (a) is affirmed.
3 It is axiomatic that admitted prior art in an applicants' specification may
be used in determining the patentability of a claimed invention, In re
Nomiya, 509 F.2d 566, 570-71(CCPA1975), and that consideration of the
prior art cited by the Examiner may include consideration of the prior art
found in applicants' specification, In re Davis, 305 F.2d 501, 503 (CCPA
1962); cf In re Hedges, 783 F.2d 1038, 1039--40 (Fed. Cir. 1986).
5
Appeal2014-004129
Application 11/992,554
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
6