Lundberg, Brock M.

Patent Trials and Appeals Board

Jul 30, 2020

14684400 - (D) (P.T.A.B. Jul. 30, 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.
14/684,400 07/02/2015 Brock M. Lundberg 601.021US1 4777
97462 7590 07/30/2020
Mark A. Litman & Associates, P.A.
7001 Cahill Road, Ste. 15A
Edina, MN 55439
EXAMINER
CHAWLA, JYOTI
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
07/30/2020 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BROCK M. LUNDBERG
Appeal 2019-005377
Application 14/684,400
Technology Center 1700
Before CATHERINE Q. TIMM, JEFFERY T. SMITH, and
BEVERLY A. FRANKLIN, Administrative Patent Judges.

FRANKLIN, 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 1–5, 13–15, and 18–23. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Fiberstar Bio-
Ingredient Technologies, Inc. Appeal Br. 3.
Appeal 2019-005377
Application 14/684,400

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CLAIMED SUBJECT MATTER

Claim 1 is illustrative of Appellant’s subject matter on appeal
and is set forth below:
1. A mixture consisting essentially of active probiotic agents
stabilized by at least 1% by weight of highly refined cellulose
fiber material with respect to the probiotic agents.
Appeal Br. (Claims Appendix).

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Lundberg US 2008/0193590 Al Aug. 14, 2008
Rudolph et al. US 2009/0162322 Al June 25, 2009

THE REJECTION
Claim 1–5, 13–15, and 18–23 are rejected under 35 U.S.C. § 103 as
obvious over Rudolph in view of Lundberg.
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
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the alleged error in the examiner’s rejections.”). Upon consideration of the
evidence and each of the respective positions set forth in the record, we find
that the preponderance of evidence supports Appellant’s position in the
record. Accordingly, we reverse the Examiner’s rejection on appeal
essentially for the reasons presented by Appellant as discussed below.
The Examiner’s rejection is set forth on pages 3–7 of the Answer. The
Examiner relies upon Rudolph for teaching active probiotic agents (Abstract
and ¶¶ 4 and 9) and stabilized cellulose fiber material (Abstract and ¶ 5).
Ans. 3.
The Examiner states that Rudolph does not specifically designate the
cellulose as “highly refined cellulose”. Ans. 3. The Examiner states that the
term “highly refined cellulose” is well known in the art. The Examiner
states that the instant Specification does not provide a specific definition of
this term. Ans. 3. The Examiner relies upon Lundberg for teaching the
known meaning of this term, and determines that the disclosed types of
celluloses of Rudolph are within the types identified in Lundberg.
Lundberg, ¶ 57. Ans. 3. The Examiner concludes that Rudolph therefore
teaches highly refined cellulose. Ans. 3.
Appellant argues, inter alia, that the Examiner is incorrect that
Rudolph teaches highly refined cellulose. Appellant argues that Rudolph
teaches two cellulose ethers, and that this is in sharp contrast with a
probiotic stabilized by a highly refined cellulose. Appeal Br. 9–10.
Appellant reiterates this line of argument beginning on page 2 of the Reply
Brief, wherein the Appellant states:
The Examiner’s Answer and the basis for multiple rejections over the
Rudolph reference focus upon an attempt to characterize the
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chemically modified celluloses disclosed in Rudolph as a highly
refined cellulose or an equivalent thereto. The Examiner asserts that
the term is broad enough to include the term “highly refined
cellulose” in a mixture as an equivalent of a COMBINATION of two
specific chemically modified polymers used as a coating (encapsulant)
for probiotics. That is both clear legal error and factual error.

Appellant also states on pages 4–5 of the Reply Brief:
The major import of this knowledge of the meaning of “highly refined
cellulose” in the art and other general technologies is to establish the
fact that both the term, its properties and industrial uses are different
from the materials used in Rudolph, chemically modified cellulose,
and in all evidence in Rudolph a combination of two SPECIFIC
chemically modified cellulose polymers. This evidences the fact
that the term highly refined cellulose (generically) recited in the
claims of Appellant cannot be ignored in evaluating evidence of
obviousness.

We are persuaded by this line of argument. The Specification
provides sufficient description of “highly refined cellulose”. The
Specification discloses that an aspect of the instant technology is to show the
benefits of using highly refined cellulose, and especially Citri-Fi™ fiber
additives (often referred to herein as “CF”) as a prebiotic, alone or in
combination with probiotics products for its support and stabilizing benefits,
especially as an prebiotic agent to assist with administration of probiotics in
the treatment or prevention of conditions in patient. Spec., p. 8, ll. 20–24.
The Specification also discloses (on pages 15–16) the following:
Highly refined cellulose materials (HRC materials) are well known in
the literature and are disclosed, for example, in US Patent Application
No.: 11/440,603, filed May 25, 2006, which is in turn a continuation-
in-part of U.S. Patent Application Serial No. 11/165,430, filed June
30, 2005, titled “REDUCED FAT SHORTENING, ROLL-IN, AND
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SPREADS USING CITRUS FIBER INGREDIENTS,” which is a
continuation-in-part of U.S. Patent Application Serial No. 0/969,805,
filed 20 October 2004, and titled “HIGHLY REFINED
CELLULOSIC MATERIALS COMBINED WITH
HYDROCOLLOIDS,” which is a continuation-in-part of U.S. Patent
Application Serial No. 10/288,793, filed Nov. 6, 2002, titled
“HIGHLY REFINED FIBER MASS, PROCESS OF THEIR
MANUFACTURE AND PRODUCTS CONTAINING THE
FIBERS.” The enzymatically modified highly refined cellulose fibers
of US Patent Application Serial No. 12/958,118, filed 1 December
2010 are also useful in the practice of the present technology, and that
application is incorporated herein by reference in its entirety.
Issued U.S. Patents of the inventor such as U.S. Patent Nos.
8,399,040; 7,582,213; 7,094,300; and 6,506,435 are also incorporated
by reference in their entirety.

According to the above cited U.S. Patent Application Serial No.
13/914,181 (Lundberg), the probiotic may also be accrued within a
unique proprietary thickening agent described therein. That thickening
composition may be made by a process of forming a highly refined
cellulose and hydrocolloid product by, in order: a) providing a wet
supply of natural, unrefined organic fibers, b) introducing a
hydrocolloid to the supply of natural, unrefined organic fibers to form
a mixture, c) shearing the mixture to refine the natural, unrefined
organic fibers into highly refined cellulose blended with
the hydrocolloid; and co-drying the highly refined cellulose blended
with the hydrocolloid to form a highly refined cellulose fiber product
having at least 10% by total weight of insoluble fiber. The
hydrocolloid may be, for example, a base of guar, xanthan,
carrageenan, or carboxymethyl cellulose.

The resulting product is a high parenchymal refined cellulose fiber
additive product having a high parenchymal content fiber reagent that
has organic fiber plant mass comprising at least 30% by weight of all
fiber mass as parenchymal fiber mass and a hydrocolloid bound to the
fiber during shearing of an unrefined cellulose fiber mass during
formation of a highly refined cellulose mass as a high
parenchymal fiber additive product having at least 10% by total
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weight of insoluble fiber. The product may also be described as a
highly refined citrus fiber product comprising citrus fiber co-sheared
and co-dried with at least 0.5% by weight hydrocolloid and
comprising at least 10% by weight of insoluble citrus fiber. The high
parenchymal fiber additive product may be based on a primary cell
wall or parenchymal fiber product having at least 50% by weight of
the fiber content of the natural, unrefined organic fibers as unbleached
primary cell wall fiber or parenchymal fiber co-sheared and co-dried
with at least 0.5% by weight of the parenchymal additive as
hydrocolloid and the parenchymal fiber additive comprising at least
10% by weight of insoluble citrus fiber. The organic fiber mass
comprises highly refined cellulose microfibers derived from organic
fiber plant mass comprising at least 30% by weight of all fiber mass
as parenchymal fiber mass, the highly refined cellulose product
having a water retention capacity of at least bout 5 g H.sub.20/g dry
highly refined cellulose product, and the highly refined cellulose
microfibers have a water retention capacity of at least 5 g H20/g dry
highly refined cellulose product and the and the product further
comprises less than 50% of the fiber and/or colored content of the
fiber unbleached. The product may have the organic fiber mass of at
least 50% by weight of fiber mass from organic products selected
from the group consisting of sugar beets, citrus fruit, carrots, grapes,
tomatoes, chicory, potatoes, pineapple, apples and cranberries and at
least 80% of the organic fiber mass may be derived from fruit and root
cell mass.

A highly refined cellulose thickening or carrying composition for use
with the present technology product comprising microfibers derived
from organic fiber plant mass formed by shearing and physically may
be in a non-refined natural, organic cellulosic fiber into the highly
refined cellulosic fiber in the presence of at least one hydrocolloid
present in a weight ratio of at least 1:10, hydrocolloid/microfiber, the
highly refined cellulose product displaying a viscosity at a 1% by
weight concentration in water at 1 revolution per minute of at least
20,000 centipoise at 20°C. The organic fiber plant mass may contain
material from at least 50% by weight of fiber mass from organic
products selected from the first group consisting of sugar beets, citrus
fruit, carrots, grapes, tomatoes, chicory, potatoes, pineapple, apples
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and cranberries and wherein at least 80% of the organic mass is
derived from fruit and root cell mass of the first group. Another
description of a method for refining cellulosic material from the fruit
and Oplant materials for use in the practice of the present technology
may include: soaking raw material from organic fiber plant
mass comprising at least 50% by weight of all fiber mass as
parenchymal fiber mass in an aqueous solution with less than 1%
NaOH; draining the raw material and allowing the raw material to sit
for sufficient time to enable cells in the raw material to open cells and
expand the raw material into an expanded fiber product, the soaking
producing soaked raw materials; and refining the soaked raw material
to produce refined material by shearing the soaked raw materials in
the presence of at least 10% by weight of hydrocolloid with respect to
the weight of the organic fiber plant mass; and then drying the
sheared mixture of highly refined cellulosic fiber and hydrocolloid.

In view of the above, it cannot be said that Appellant’s Specification
does not identify what is meant by the claim phrase “highly refined
cellulose”. Also, it is noted that the construction applied for the disputed
claim term must be consistent with the Specification. In re ICON Health
and Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). See also, Medrad
Inc. v. MRI Devices Corp., 401 F.3d 1313, 1319 (Fed. Cir. 2005) (“We
cannot look at the ordinary meaning of the term . . . in a vacuum. Rather, we
must look at the ordinary meaning in the context of the written description
and the prosecution history.”)(internal citations omitted). As such, we agree
with Appellant that the Examiner’s interpretation of this claim phrase is
overly broad. Because the claim phrase “highly refined cellulose” has not
been properly interpreted, an element of the claim has not been properly
addressed in the rejection.
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Furthermore, Appellant argues that present claim 1 requires a mixture.
Appeal Br. 9. Appellant argues that Rudolph teaches that the cellulose
material is in the form of a coating that coats the probiotic, and that this is
not a mixture as recited in claim 1 for the reasons presented on pages 7–11
of the Appeal Brief.
In response, the Examiner states that claim 1 is directed to a product
which is a combination or mix of more than one component, and not to a
specific method of achieving said combination or mix, and the product
as claimed is a mixture containing probiotic with refined cellulose (cellulose
being a prebiotic). Ans. 7. However, Appellant does not argue the method
of achieving the mixture, but argues that Rudolph uses a coating of two
different cellulose ethers and coats the probiotic, which is not a mixture of a
cellulose material and the probiotic within the meaning of this claim term.
As pointed out by Appellant in the Reply Brief, “mixture” is a physical
description and not a process limitation. Reply Br. 6. The Examiner has not
resolved this issue in the record (e.g., how is a coating upon a component a
mixture of the coating and the component?).
In view of the above, we reverse the rejection.
CONCLUSION
We reverse the Examiner’s decision.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Reversed Affirmed
1–5, 13–15,
18–23
103 Rudolph,
Lundberg
1–5, 13–15,
18–23

REVERSED