Kraft Foods R&D, Inc.

Patent Trials and Appeals Board

May 28, 2021

2020003527 (P.T.A.B. May. 28, 2021)

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.
14/851,655 09/11/2015 Klaus Kempter CDS0970US 4161
23413 7590 05/28/2021
CANTOR COLBURN LLP
20 Church Street
22nd Floor
Hartford, CT 06103
EXAMINER
GEORGE, PATRICIA ANN
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
05/28/2021 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):
usptopatentmail@cantorcolburn.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KLAUS KEMPTER and UWE MARDER
Appeal 2020-003527
Application 14/851,655
Technology Center 1700
Before TERRY J. OWENS, LINDA M. GAUDETTE, and
KAREN M. HASTINGS, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL1

The Appellant2 appeals under 35 U.S.C. § 134(a), from the
Examiner’s decision rejecting claims 1, 2, 8, 9, 12, 18, and 19.3
We REVERSE.

1 The following documents are of record in this appeal: Specification filed
September 11, 2015 (“Spec.”); Non-Final Office Action dated March 20,
2019 (“Non-Final Act.”); Appeal Brief filed October 1, 2019 (“Appeal Br.”);
and Examiner’s Answer dated December 31, 2019 (“Ans.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. The
Appellant identifies the real party in interest as Intercontinental Great
Brands LLC. Appeal Br. 2.
3 We have jurisdiction under 35 U.S.C. § 6(b).

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CLAIMED SUBJECT MATTER
The invention relates to “an individually packaged cream-cheese
laminate comprising first and second outer cream-cheese layers and a filling
layer interposed therebetween.” Spec. 3:4–6. According to the Specification
“the present inventors have found that increasing the protein content of the
cream-cheese and including certain additives enables the cream-cheese to be
co-extruded with a filling.” Id. at 3:28–31. The Specification states:
“Surprisingly, it has been found that such cream-cheese remains firm for
prolonged periods at the high temperatures required in the manufacturing
process. The product is not sticky and can readily be peeled from the thin
sheets which form the packaging.” Id. at 3:31–34.
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. An individually packaged, extruded cream-cheese
laminate in the form of a flat sheet comprising
first and second outer cream-cheese layers and a filling
layer interposed therebetween,
wherein a middle of the flat sheet has a thickness of 6
mm or less,
wherein the filling layer is of a constant thickness,
wherein said thickness is 4 mm or less,
wherein the first and second outer cream-cheese layers
consist of a cream cheese,
wherein the cream-cheese comprises one or more
stabilisers selected from the group consisting of gelatine,
xanthan gum, carrageenan, locust bean gum, citrate, and
mixtures of two or more thereof,
wherein the stabilisers are present in an amount of from 1
to 5 wt% by weight of the cream-cheese, and

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wherein the cream-cheese has a solids content of from 35
to 60 wt% and a protein content of from 6 to 20 wt% based on
the weight of the cream-cheese.
Appeal Br. 10 (Claims App.).
REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Davis US 4,324,804 Apr. 13, 1982
Yamaguchi US 5,882,704 Mar. 16, 1999
Marder US 2012/0141633 A1 June 7, 2012
Crest Japan Company
“CJC”
JP 309122.1 Jan. 24, 2003
Hundred Machinery
Enterprise Co. “HM”
Encrusting/Extrusion
Machine
Mar. 11, 2006
Land O Lakes Land O Lakes Co-Jack
Colby Jack Natural
Cheese, 3/4 oz. 10
count
Jan. 5, 2014
REJECTIONS
1. Claims 1, 2, 8, 9, 12, 18, and 19 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Marder, CJC, HM, Yamaguchi, and Davis.
Non-Final Act. 4.
2. Claim 12 is rejected under 35 U.S.C. § 103 as unpatentable
over Marder, CJC, HM, and Land O Lakes. Non-Final Act. 10.
OPINION
The Examiner made the following findings: Marder discloses a
coextruded cheese laminate (Marder ¶ 8) comprising first and second outer
process cheese layers having a gel-type texture and a filling layer having a
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cream or paste-like texture (id. ¶ 11). Final Act. 4–5. CJC discloses a layered
cheese product in which the outer layer comprises a cream cheese (CJC
¶ 12). Final Act. 6. CJC discloses that the product is made using the same
machine used for making bean paste cakes (CJC ¶ 14), and HM discloses
that bean paste cakes are made with an extrusion machine. Final Act. 6. The
ordinary artisan would have modified Marder’s first and second outer layers
to include cream cheese “because CJC illustrates that the art finds the use of
cream cheese as being suitable for similar intended uses, including methods
of making layered cheese products having outer layers of cheese.” Id.
The Appellant argues that the ordinary artisan would not have had a
reasonable expectation of success in replacing Marder’s first and second
outer layers of processed cheese with cream cheese. See Appeal Br. 6. The
Appellant explains that Marder requires extrusion temperatures of at least
60 °C to obtain a thin cheese laminate having thin outer layers, while CJC
forms a much thicker cream cheese outer layer and discloses that the cream
cheese must be held at 2 °C to prevent the cream cheese from sticking to the
machinery during manufacture of the cheese product. Id.
Responsive to the Appellant’s argument, the Examiner states:
“[T]here is nothing in Marder that teaches away from a thicker product
being made. Marder merely teaches one way, not the only way to extrude
food products. Also, the claims are toward a product, not a process.” Ans.
16. As discussed below, the Examiner’s response does not adequately
address the Appellant’s argument. Accordingly, we are persuaded of
reversible error in the Examiner’s obviousness conclusion.
First, even if Marder’s preference for a “6 mm or less” product
thickness (Marder ¶ 16) is not a teaching away from a thicker product (Ans.
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16), the relevant inquiry is whether the ordinary artisan would have had a
reasonable expectation of success in modifying Marder’s first and second
outer layers to include cream cheese while retaining a flat product shape
having a middle “thickness of 6 mm or less” as required by claim 1. As
argued by the Appellant, CJC discloses an extruded product in which “[t]he
core process cheese is a spherical shape with a diameter of about 30 mm,
[and] the outer layer cream cheese has a thickness of about 8 to 30 mm.”
CJC ¶ 17 (emphasis added).
Second, although the Examiner is correct in stating that there are
different ways to extrude food products (Ans. 16), Marder discloses that to
“obtain[] thin slices, the process cheese and/or the filling are extruded in a
liquid and/or hot state . . . . Preferably, the process cheese is extruded at a
temperature 65° C. or more . . . . The preferred extrusion temperature for the
filling is 65° C” (Marder ¶ 22). By contrast, CJC discloses that “it is
essential to maintain the core process cheese and the outer-layer cream
cheese at 70 ° C. and 2 ° C., respectively,” to avoid the cream cheese from
adhering to the bean paste machine which effects not only machine
operation but also product quality. CJC ¶ 15; see also id. ¶ 17 (“in
manufacturing, high-temperature process cheese was wrapped around by
cold cream cheese”). In other words, the Examiner has not fully addressed
the Appellant’s argument that the ordinary artisan would not have had a
reasonable expectation of success in achieving a cheese laminate having a
thickness of 6 mm or less using cream cheese as the outer layers given
Marder’s teaching that extrusion temperatures of 60° C or higher are
necessary to obtain a 6 mm or less product thickness and CJC’s teaching that
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an outer cream cheese layer must be held at 2° C to achieve an acceptable
product and avoid equipment problems.
Finally, we disagree with the Examiner’s characterization of the
Appellant’s argument as directed to unclaimed process limitations. See Ans.
15–16. Rather, as explained above, the arguments relating to differences in
processing temperatures are relevant to the issue of whether the ordinary
artisan would have had a reasonable expectation of success in achieving an
extruded laminate comprising first and second outer cream-cheese layers and
a filling layer interposed therebetween, having the claimed thickness.
For the above reasons, we are persuaded of reversible error in the
Examiner’s rejection of claim 1 and its dependent claims 2, 8, 9, 12, 18, and
19 over Marder, CJC, HM, Yamaguchi, and Davis. We are also persuaded of
reversible error in the Examiner’s separate rejection of claim 12 over
Marder, CJC, HM, and Land O Lakes. This rejection is based on the same
unsupported reasoning discussed above. See Final Act. 11. In addition, as
argued by the Appellant (see Appeal Br. 8), the Examiner has not shown that
claim 1, from which depends from claim 12 depends, is obvious over the
combination of Marder, CJC, HM, and Land O Lakes, i.e., the Examiner’s
rejection of claim 1 also relies on Yamaguchi and Davis (see Non-Final Act.
7–8).

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DECISION SUMMARY

Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2, 8, 9,
12, 18, 19
103 Marder, CJC, HM,
Yamaguchi, Davis
1, 2, 8, 9, 12,
18, 19
12 103 Marder, CJC, HM,
and Land O Lakes
12
Overall
Outcome

1, 2, 8, 9, 12,
18, 19

REVERSED