PEPSICO, INC.

Patent Trials and Appeals Board

Dec 1, 2021

2021004627 (P.T.A.B. Dec. 1, 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.
15/761,389 03/19/2018 Damian BROWNE 3711.8930002 1253
134769 7590 12/01/2021
Sterne, Kessler, Goldstein & Fox P.L.L.C.
1100 New York Avenue, N.W.
Washington, DC 20005
EXAMINER
HEGGESTAD, HELEN F
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
12/01/2021 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):
ajgardel@sternekessler.com
e-office@sternekessler.com
tdurkin@sternekessler.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAMIAN BROWNE, YUAN FANG, and NAIJIE ZHANG
__________

Appeal 2021-004627
Application 15/761,389
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and
LILAN REN, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 appeals under 35 U.S.C. § 134 the non-final rejection of
claims 70–98. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellant’s invention is directed to a sweetening composition
comprising a stevioside composition and rebaudioside D (Spec. ¶ 1).
Claim 70 is illustrative:
70. A stevioside/rebaudioside D complex.

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 PepsiCo, Inc.
(Appeal Br. 3).
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Appellant appeals the following rejection:
Claims 70–98 are rejected under 35 U.S.C. § 103 as unpatentable over
Prakash et al. (US 2015/0017284 A1, pub. Jan. 15, 2015) in view of
Markosyan et al. ‘426 (US 9,029,426 B2, iss. May 12, 2015), Markosyan
‘366 (WO 2013/036366 A1, pub. Mar. 14, 2013), and CN ‘325 (CN
102894325, pub. Jan. 2013).

FINDINGS OF FACT & ANALYSIS
We review the appealed rejection for reversible error based on the
arguments and evidence presented by Appellant. 37 C.F.R.
§ 41.37(c)(1)(iv); 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) (explaining that even if the Examiner had failed to make a prima
facie case, “it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”).
Appellant argues the subject matter of claim 70 only (Appeal Br. 8).
Accordingly, claims 71–98 will stand or fall with our analysis of the
rejection of claim 70.
The Examiner’s findings and conclusions regarding Prakash,
Markosyan ‘426, Markosyan ‘366 and CN ‘325 are located on pages 5–11 of
the Non-Final Action. The Examiner determines claim 70 recites a complex
of stevioside and rebaudioside D but the claim does not exclude other
rebaudiosides (Non-Final Act. 5). The Examiner finds that Prakash and the
other applied references teach that various insoluble rebaudiosides can be
made more soluble by heating, which would have formed a complex (Non-
Final Act. 5). The Examiner finds Markosyan ‘366 teaches a method of
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making a highly soluble stevia sweetener comprising rebaudioside D with
other rebaudiosides and steviosides by solubilizing the rebaudiosides and
steviosides in water and heating to form a concentrated solution that is spray
dried to form a powder (Non-Final Act. 5). The Examiner finds Markosyan
‘366 teaches the steviol/glycoside can be rebaudioside D and stevioside
among others (Non-Final Act. 5). The Examiner finds Markosyan ‘366
teaches heating the mixture of water and rebaudiosides/steviosides to
between 110 to 150°C for a time of 0 to 120 minutes (Non-Final Act. 6).
The Examiner finds CN ‘325 teaches a composite sweetener made by
combining rebaudioside D and stevioside with rebaudioside A to improve
the taste of an existing sweetener (Non-Final Act. 6). The Examiner
concludes it would have been obvious to combine stevioside and
rebaudioside D to improve the sweetness profile of an existing sweetener
such as rebaudioside A as taught by CN ‘325 and Prakash that combines
rebaudioside D and rebaudioside M with heating to form a more soluble
sweetener (Non-Final Act. 6). The Examiner finds that heating the
rebaudioside/stevioside mixture to form a complex would have been obvious
in light of the Markosyan references and Prakash that teach heating to form a
more soluble rebaudioside sweetener (Non-Final Act. 6).
Appellant argues none of the applied references teach or suggest a
sweetener having a complex formed by rebaudioside D and stevioside
(Appeal Br. 9). Appellant refers to the Declaration of Dr. Damian Browne (
“the Browne Declaration”) filed in the record on September 3, 2019 (Appeal
Br. 10). Appellant contends that the Browne Declaration states that a
stevioside/rebaudioside D complex cannot be prepared by simply mixing
stevioside and rebaudioside D in water (Appeal Br. 12). Appellant argues
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that Example 11 of the Specification supports Dr. Browne’s statement in
showing that simply mixing stevioside and rebaudioside D does not result in
forming a complex, but heating a mixture does result in forming a complex
(Appeal Br. 12). Appellant argues that examples 14 and 15 of the
Specification support that the resulting stevioside/rebaudioside D complex
differs in terms of solubility and structure from a simple mixture of
stevioside/rebaudioside D (Appeal Br. 13). Appellant argues that claim 70 is
a product claim and the Examiner’s findings regarding the prior art’s heating
a mixture containing rebaudioside D and stevioside is misplaced in the
obviousness analysis (Appeal Br. 14). Appellant argues the Examiner’s
rejection based on impermissible hindsight (Appeal Br. 14). Appellant
argues the Examiner’s analysis regarding the prior art’s heating a
stevioside/rebaudioside D mixture fails to address that the prior art does not
teach forming a complex (Appeal Br. 15, 17). Appellant argues Markosyan
‘426 teaches mixing rebaudioside D with a non-glycoside fraction of stevia
(i.e., materials other than steviol glycoside) (Appeal Br. 17–18). Appellant
argues that the claimed complex is not inherently formed by processes
disclosed in Prakash and Markosyan ‘426 (Appeal Br. 20). Appellant
contends the Examiner fails to provide any evidence as to why the claimed
complex would necessarily be made following the processes disclosed by
Prakash and Markosyan ‘426 (Appeal Br. 20).
Appellant argues that Prakash and Markosyan ‘426 teach processes
that differ significantly from the processes disclosed in Appellant’s
Specification (Appeal Br. 21). Specifically, Appellant contends that Prakash
subjects mixtures of rebaudioside M to high pressure and temperatures of up
to 121°C, lowers and maintains the temperature at 100°C and then spray
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dries (Appeal Br. 21). In contrast, Appellant’s disclosed process mixes
stevioside and rebaudioside D at lower temperatures (i.e., up to 75°C) and at
ambient pressures using different concentrations of stevioside and
rebaudioside D (Appeal Br. 21). Appellant argues there is no reasonable
expectation based on the teachings of the references that a
stevioside/rebaudioside D complex would form absent hindsight (Appeal Br.
23).
Contrary to Appellant’s arguments, the Examiner finds that Prakash
teaches in paragraph 652 heating a mixture of rebaudioside M, rebaudioside
D and stevioside to a temperature of 121°C (Ans. 12). The Examiner finds
that Appellant’s Specification does not provide a definition of the term
complex other than reciting the process used to form the complex (i.e.,
heating to about 18°C to about 75°C )(Ans. 12). The Examiner finds
Appellant’s Specification does not indicate a length of time for the heat
treatment so that the rebaudioside/stevioside mixture could have been
exposed for a shorter period of time at the higher temperature (i.e., 121°C)
(Ans. 12). We find that Appellant’s Specification further describes that the
temperature used to form the stevioside/rebaudioside D complex is “at least
about 75°C” (Spec. ¶ 124). The temperature to form the complex is broad
and includes Prakash’s disclosed 121°C. Other than heating the
stevioside/rebaudioside mixture to a temperature, there is little more
disclosure of how the complex is formed. Appellant concedes as much in
the statement that the reaction conditions to form the complex are “heating a
suspension of rebaudioside D and stevioside to a sufficient temperature to
induce complexation.” (Appeal Br. 10). Therefore, the Examiner reasonably
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looks to the method disclosed to determine whether a “complex” forms in
the prior art.
In this case, the Examiner finds that Prakash teaches heating a mixture
comprising rebaudioside D and stevioside to a temperature of 121°C (Non-
Final Act. 4–5). Prakash’s temperature falls within the range recited in
Specification paragraph 124. Therefore, it is reasonable to find that
Prakash’s mixture that includes stevioside/rebaudioside D would have
formed a complex. The substantial identity in the process and materials used
to make the sweeteners, shifts the burden to Appellant to show a difference
between Prakash’s sweetener and the complex recited in claim 70. In re
Best, 562 F.2d 1252, 1255 (CCPA 1977). Appellant argues that Prakash
uses different materials and a higher pressure than used by Appellant
(Appeal Br. 21). However, the claim does not exclude other materials as
found by the Examiner (Non-Final Act. 5). Prakash teaches in paragraph
652 that the rebaudioside/stevioside mixture is placed in an airtight pressure
vessel placed in a thermostatted oil bath. Prakash does not teach that the
pressure vessel is operated at high pressure as argued by Appellant. In fact,
Prakash does not appear to disclose the pressure in the vessel (¶ 652).
Appellant does not direct us to where Prakash teaches using a particular
pressure that could be considered high pressure.
Regarding the presence of rebaudioside M and other rebaudiosides in
Prakash’s composition, claim 70 does not exclude the presence of additional
rebaudiosides in the mixture that forms the complex (i.e., product). Claim
70 only requires a “stevioside/rebaudioside D complex.” Indeed, the
Specification discloses that mixtures of rebaudiosides can be used with no
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affect in forming the stevioside/rebaudioside D complex (¶¶ 133, 233). The
claims are not limited in the way Appellant argues.
Appellant argues that Markosyan ‘426 is directed to methods of
improving rebaudioside D solubility by preparing it in amorphous form, not
complexing it (Appeal Br. 22). Appellant argues Markosyan ‘426 does not
teach mixing the rebaudioside D with any other steviol glycoside, much less
stevioside (Appeal Br. 17). Appellant contends that Markosyan ‘426 would
not inherently produce the complex (Appeal Br. 22). Appellant argues
Markosyan ‘366 is silent regarding the capability of rebaudioside D to
complex with stevioside (Appeal Br. 18). Appellant argues Markosyan ‘366
teaches mixing rebaudioside D with rebaudiosides A or B, not stevioside
(Appeal Br. 18). Appellant argues Markosyan ‘366 forms a supersaturated
solution that crystallizes upon cooling, not a complex as claimed (Appeal Br.
19). Appellant contends that CN ‘325 teaches forming a mixture of steviol
glycosides, including stevioside and rebaudioside D (Appeal Br. 19).
Appellant argues the Browne Declaration states that CN ‘325’s aqueous
solutions do not form complexes (Appeal Br. 19).
Contrary to Appellant’s arguments, the Examiner relies on the
Markosyan ‘426 and Markosyan ‘366 to show heating a rebaudioside D
composition to improve its solubility and that mixing rebaudioside D with
stevioside was known (Non-Final Act. 5–6). The Examiner relies on CN
‘325 to teach that rebaudioside D can be used with stevioside to make a
composite sweetener (Non-Final Act. 6). In other words, the Examiner
relies primarily on Prakash as teaching the complex of claim 70. Markosyan
‘426, Markosyan ‘366 and CN ‘325 are used as references regarding
knowledge in the art concerning rebaudioside D and its combination with
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other steviol glycosides such as stevioside in making sweeteners with better
aqueous solubility (Non-Final Act. 4–6). Therefore, Appellant’s arguments
regarding the references not teaching rebaudioside D/stevioside complex
formation is misplaced because the Examiner relies on the similarities
between Prakash’s and Appellant’s disclosed process as the basis for
concluding that Prakash’s process would have resulted in a rebaudioside
D/stevioside complex (Non-Final Act. 4–5; Ans. 11–12).
Appellant argues that Examples 8 and 11 in the Specification
demonstrate unexpected results (Appeal Br. 24–25). Appellant contends that
Example 8 shows that Appellant discovered that rebaudioside D and
stevioside can form a stable complex and solubility of the complex provides
up to an 80-fold improvement in rebaudioside D solubility (Appeal Br. 24).
Appellant argues that the complex can be isolated as a powder and has
increased solubility of rebaudioside D up to 2.5% (Appeal Br. 24).
Appellant argues that the increase in solubility reflects a new property
dissimilar to known properties of stevioside and rebaudioside D (Appeal Br.
24). Appellant argues none of the references report a solubility for
rebaudioside D of up to 2.5% (Appeal Br. 25).
Appellant’s unexpected results allegations are not persuasive because
Appellant fails to explain the relevance of the data to the subject matter of
claim 70. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (noting that the
burden of analyzing and explaining data to support nonobviousness rests
with Appellants); see also, In re Borkowski, 505 F.2d 713, 718 (CCPA
1974) (it is the Appellants’ burden to decipher declaration evidence and
explain its content). Claim 70 does not recite any solubility property or
amount. Appellant refers to but does not explain how the evidence in
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Specification examples 8 and 11 evince unexpected results as it has the
burden to do. Id. In fact, claim 70 recites no limitations on ratio of
stevioside to rebaudioside D in the complex. Accordingly, the evidence in
Specification Examples 8 and 11 that are directed to particular ratios of
stevioside to rebaudioside D are not commensurate in scope with the breadth
of claim 70 (Spec. ¶¶ 230–231, 239–240). We find that Prakash teaches
sweetener compositions having improved water solubility of about 0.3% or
greater (¶ 79). Prakash teaches a preference solubility range from 0.3% to
5% (¶ 79). Prakash’s example disclosed in paragraph 652 has an improved
water solubility of 0.8% (¶ 653). Appellant has not compared the complex
of claim 70 with the closest prior art Prakash. In re Burckel, 592 F.2d 1175
(CCPA 1979).
On this record, we affirm the Examiner’s 35 U.S.C. § 103 rejection of
claims 70–98 over Prakash in view of Markosyan ‘426, Markosyan ‘366 and
CN ‘325.
DECISION

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
70–98 103 Prakash,
Markosyan ‘426,
Markosyan ‘366,
CN ‘325
70–98

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED