Givaudan S.A.

Patent Trials and Appeals Board

Apr 23, 2020

14391764 - (D) (P.T.A.B. Apr. 23, 2020)

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.
14/391,764 10/10/2014 Frans Witteveen GIV.P30611 5097
23575 7590 04/23/2020
CURATOLO SIDOTI CO., LPA
24500 CENTER RIDGE ROAD, SUITE 280
CLEVELAND, OH 44145
EXAMINER
DEES, NIKKI H
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
04/23/2020 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):
docket@patentandtm.com
pair@patentandtm.com
sidoti@patentandtm.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FRANS WITTEVEEN

____________

Appeal 2019-004098
Application 14/391,764
Technology Center 1700
____________

Before JEFFREY T. SMITH, BRIAN D. RANGE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–3. We have jurisdiction under 35
U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Givaudan
S.A. Appeal Br. 3.
Appeal 2019-004098
Application 14/391,764

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The invention relates to a method of making an encapsulated flavor
that utilizes only materials of vegetable origin. Spec. 1. Claims 1 illustrates
the subject matter on appeal and is reproduced below:
1. A method of making an encapsulated flavour, comprising
the steps of
(i) emulsifying the flavour;
(ii) spraying the emulsified flavour on to a dry blend of
hydrocolloid and unhydrolysed pea protein while
applying high-shear agitation; and
(iii) continuing step (ii) until the resulting particles reach a
desired size; wherein the encapsulated flavour is gelatine-
free.

The Examiner maintains the following rejections from the Examiner’s
Final Office Action dated August 10, 2018 (Final Act. 2–6; Ans. 3–6):
I. Claims 1–3 rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Menzi (US 6,056,949, issued May 2, 2000) and
Boursier (US 2008/0226811, published September 18, 2008).

II. Claim 2 rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over Yan (US 2005/0067726, published March 31, 2005)
and Bouquerand (US 2008/0206325, published August 28, 2008).2

OPINION
After review of the respective positions the Appellant presents in the
Appeal and Reply Briefs and the Examiner presents in the Final Office
Action and the Answer, we AFFIRM the Examiner's prior art rejections for
the reasons the Examiner presents. Our reasoning follows.

2 The Examiner withdrew the rejection of claim 3 under this ground. Ans. 6.
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Rejection I (Claim 1) (35 U.S.C. § 103(a))
Appellant presents arguments for claim 1 and relies on these
arguments to address the rejection of claims 2 and 3. Accordingly, we select
claim 1 as representative of the claimed subject matter and decide the appeal
as to this rejection based on the arguments presented for claim 1.
Claim 1 recites a method of making an encapsulated flavor using a dry
blend of hydrocolloid and unhydrolyzed pea protein as a core material for
the flavorant.
We refer to the Examiner’s Final Office Action for a complete
statement of the rejection of claim 1. Final Act. 2–4.
Appellant argues that Menzi does not spray a flavorant onto the core
material (which functions as the flavorant carrier), as claimed, but instead
sprays the flavorant into a core material fluidized in a fluidized bed roto-
granulator. Appeal Br. 7–8. According to Appellant, Menzi sprays the
flavorant below the surface of the fluidized core material. Appeal Br. 8;
Menzi Figure 1, col. 1, ll. 60–64.
Appellant’s argument does not point to reversible error in the
Examiner’s determination of obviousness for the reasons presented by the
Examiner. Ans. 7–8.
Moreover, Appellant misapprehends Menzi’s disclosure. The relevant
portion of Menzi describes the following:
The novel process is characterized by spraying a
flavorant or odorant emulsion into a core material fluidized in
a fluidized bed rotor-granulator, the emulsion being sprayed
into the fluidized bed below the surface of the core material and
the emulsion being granulated in this manner.

Menzi col. 1, ll. 60–64 (emphasis added).
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One skilled in the art would understand this disclosure as describing
the spraying of the flavorant into the fluidized core material (flavorant
carrier). One skilled in the art would also understand from this disclosure
that the sprayed flavorant would deposit onto the fluidized core material.
See In re Fritch, 972 F.2d 1260, 1264–65 (Fed. Cir. 1992) (holding that a
reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom). Thus, like the claimed invention, Menzi
teaches spraying a flavorant onto a flavorant core material. Appellant has
not explained persuasively how the claimed spraying step distinguishes from
Menzi’s spraying step. Nor does Appellant direct us to any objective
evidence that distinguishes the claimed spraying step from Menzi’s.
Appellant argues that Menzi does not disclose or suggest
hydrocolloids as a core material. Appeal Br. 9–11; Reply Br. 5. According
to Appellant, the Examiner’s reliance on Menzi’s disclosure of pectin as a
disclosure of a hydrocolloid core material for the flavorant is misplaced
because Menzi erroneously classifies pectin as a sugar alcohol. Appeal Br.
9–10; Final Act. 3; see Menzi col. 2, l. 15. Appellant contends that one
skilled in the art would understand that Menzi mistaken characterization of
pectin as a sugar alcohol was intended to disclose another sugar alcohol.
Appeal Br. 10. Thus, Appellant contends that Menzi's inclusion of pectin is
not a broad disclosure of the class of “hydrocolloids” as a core material
because Menzi fails to disclose or suggest the term “hydrocolloid” at all in
describing the core material. Id.
Appellant’s arguments are unpersuasive of reversible error in the
Examiner’s determination of obviousness.
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Menzi lists a number of materials that can serve as the core material.
Among those listed are “a sugar alcohol such as isomaltol, or pectin.”
Menzi col. 2, ll. 14–15. We agree with the Examiner that one skilled in the
art would understand that Menzi’s recitation of available core materials lists
pectin as an alternative to a sugar alcohol and not as a sugar alcohol. Ans. 8.
Appellant has not directed us to any objective evidence supporting the
contention that Menzi mistakenly characterized pectin as a sugar alcohol.
Moreover, Appellant has not disputed the Examiner’s finding that pectin is a
hydrocolloid. See generally Appeal and Reply Briefs.
Appellant argues that the cited art fails to disclose or suggest that
either hydrocolloid or unhydrolyzed pea protein individually promotes the
ability to make an encapsulated flavor that is gelatin-free. Appeal Br. 12.
Appellant specifically argues that Boursier does not teach a pea protein,
much less an unhydrolyzed pea protein, as a core material for a flavorant.
Id. at 16. According to Appellant, Boursier teaches a pea protein designed
to be suitable for a cooking-extrusion operation, which is completely
different and unrelated to Appellant's method. Appeal Br. 14–15; Boursier
¶¶ 67, 68, 71–73, 86. Thus, Appellant contends that it would not have been
obvious to combine hydrocolloid and unhydrolyzed pea protein to promote
the noted ability and that, absent impermissible hindsight, there is no reason
to combine hydrocolloids and unhydrolyzed vegetable protein as claimed.
Id. at 13, 15–16.
Appellant’s arguments lack persuasive merit.
As the Examiner notes, Menzi provides for a broad spectrum of what
materials are acceptable as core materials (flavorant carrier). Ans. 9; Menzi
col. 2, ll. 6–10 (“The core material is a solid usually used for the
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manufacture of flavorant or odorant granulates and which is industrially
permitted or which is pharmaceutically usable, conveniently with particle
sizes of about 0.02 to about 3.0 mm, especially of 0.2 to about 1.5 mm,
diameter.”). Moreover, Menzi lists core materials including pectin
(hydrocolloid), hydrolyzed vegetable protein, and vegetable powder for the
manufacture of flavorants, including gelatine-free flavorants. Menzi col. 2,
l. 14, 20–25. Thus, based on Menzi’s disclosure of vegetable powder as a
core material, there is a reasonable basis for one skilled in the art to expect a
hydrocolloid and a vegetable powder, individually or in combination, to be
suitable as core materials for flavorants. There is also a reasonable basis for
one skilled in the art to expect that Boursier’s granulated pea composition
(vegetable powder) to be suitable as a core material for flavorants in view of
Menzi’s disclosure.
While Appellant focuses arguments on Menzi’s disclosure of
hydrolyzed vegetable protein (Appeal Br. 17), Appellant has not explained
why a hydrolyzed vegetable protein would perform any differently as a core
material than an unhydrolyzed vegetable powder.
Further, while Appellant argues that Boursier’s granulated pea
composition is designed to be suitable for a cooking-extrusion operation
(Appeal Br. 14–15), Appellant does not explain why this composition would
not have been capable of performing as an encapsulant flavorant core
material given Menzi’s disclosure.
Appellant’s contention that Boursier does not teach an unhydrolyzed
pea protein (Appeal Br. 16) is also unpersuasive because Appellant does not
point to any disclosure that Boursier hydrolyzes the pea composition. A
person of skill in the art, therefore, would have understood Boursier’s
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composition as being unhydrolyzed. Nor does Appellant direct us to any
objective evidence in support of this contention.
Accordingly, we find affirm the Examiners prior art rejection of
claims 1–3 for the reasons the Examiner presents and the reasons we give
above.
Rejection II (Claim 2) (35 U.S.C. § 103(a))
Claim 2 recites an encapsulated flavour, comprising flavour,
hydrocolloid and unhydrolyzed pea protein, wherein the encapsulated
flavour is gelatine-free.
We refer to the Examiner’s Final Office Action for a complete
statement of the rejection of claim 1. Final Act. 4–5.
Appellant argues that the encapsulated flavour of claim 2 differs
structurally from the prior art’s microcapsules because they are made by
different processes (coacervation process (prior art) v. classic spray-drying
(claim 2)). Appeal Br. 21–22. According to Appellant, Yan’s
microcapsules have multiple shells and the shell material in both the outer
and primary shells comprises a complex coacervate that is cross-linked with
a cross-linker. Appeal Br. 23. Appellant asserts that multiple shells cross-
linked with a cross-linker are absent in the claimed encapsulated flavor
particles. Appeal Br. 23; Spec. 5. Appellant also argues that Yan fails to
disclose or suggest the encapsulated flavor of claim 2 comprising flavour,
hydrocolloid and unhydrolyzed pea protein because the portion of Yan the
Examiner relies upon as a teaching of a “blend protein and hydrocolloid”
actually refers to polymer components of shell material, and not a core
material. Appeal Br. 23–24.
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Appellant’s arguments do not identify reversible error in the
Examiner’s determination of obviousness.
Claim 2 recites a product without any mention of how the product is
made. As the Examiner notes, Claim 2 does not recite the hydrocolloid and
unhydrolyzed pea protein as a blend or as being part of a core material or
method steps for making it. Ans. 14–15. All that claim 2 requires is a
gelatin-free encapsulated flavour comprising flavour, hydrocolloid and
unhydrolyzed pea protein. Appellant has not disputed that the cited art lacks
any of these components. Thus, Appellant has not distinguished the claimed
invention from the product of the cited art.
Appellant’s contention that Bouquerand does not teach an
unhydrolyzed pea protein (Reply Br. 8) is also unpersuasive because
Appellant does not point to any disclosure that Bouquerand hydrolyzes the
pea composition. Nor does Appellant direct us to any objective evidence in
support of this contention.
Appellant argues that Bouquerand’s disclosure of pea protein as a
hydrocolloid in a complex coacervation process does not cure the
deficiencies of Yan because Bouquerand’s particles comprise an active
ingredient which is encapsulated in one or more coacervated capsules that
are then further encapsulated in a glassy matrix. Appeal Br. 25; Bouquerand
Abstr., claim 27.
This argument lacks persuasive merit for the reasons the Examiner
presents. Ans. 14. Moreover, the Examiner relies on Bouquerand
principally for its teaching of pea protein/hydrocolloid as a suitable
combination for making encapsulated ingredients. Final Act. 5.
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At page 7 of the Reply Brief, Appellant addresses unexpected results.
Appellant, however, did not argue unexpected results to overcome prima
facie obviousness in the Appeal Brief. Appeal Br. 18 (“evidence of
unexpected results is not necessary”). We decline to address an unexpected
results argument that Appellant raises for the first time in the Reply Brief.
Moreover, even if we were to consider such an argument, Appellant has
failed to establish unexpected results because Appellant has not established
unexpected results reasonably commensurate with the scope of claim 1. For
example, Appellant has not explained why unexpected results are reasonably
expected regardless of the amount of emulsification or spraying applied.
Accordingly, we AFFIRM the Examiner's prior art rejection of claim
2 under 35 U.S.C. § 103 for the reasons the Examiner presents and we give
above.
Arguments not specifically addressed are deemed not persuasive for
the reasons the Examiner presents.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Basis Affirmed Reversed
1–3 103(a) Menzi, Boursier 1–3
2 103(a) Yan, Bouquerand 2
Overall
Outcome
1–3

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED