Symrise AG

Patent Trials and Appeals Board

Sep 29, 2020

15163971 - (D) (P.T.A.B. Sep. 29, 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.
15/163,971 05/25/2016 Jenny WEISSBRODT 1507-158 2699
28249 7590 09/29/2020
DILWORTH & BARRESE, LLP
Dilworth & Barrese, LLP
1000 WOODBURY ROAD
SUITE 405
WOODBURY, NY 11797
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
09/29/2020 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):
usptomail@dilworthbarrese.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JENNY WEISSBRODT,
ALEXANDER DIRING, ERIC GRUBER,
BURGHARD RABE, CHRISTOPHER SABATER,
and WALTER BRÖCKEL
____________

Appeal 2019-006152
Application 15/163,971
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
DEBRA L. DENNETT, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) the final rejections of
claims 14–35.1 We have jurisdiction over the appeal. 35 U.S.C. § 6(b).
We AFFIRM IN PART.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies Symrise AG as the real party in interest
(Appeal Br. 2).
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STATEMENT OF THE CASE
Appellant’s invention is directed to large agglomerate particles, which
are obtained by spray-drying agglomeration (Spec. ¶ 2). The Specification
describes that large agglomerate particles are an important product for use in
the foodstuff sector (id. ¶ 4). The Specification describes that large
agglomerate particles may be added to teabags as flavorings to round off the
taste profile (id.).
Claim 14 is representative of the subject matter on appeal (emphasis
added):
14. A method for producing agglomerate particles having a
mean size of greater than 200 μm, said method comprising the
steps of:
(i) producing pulverulent particles by means of a spray-
drying process, wherein a feed liquid is sprayed by a feed liquid
atomizer into a spray-drying segment located at an upper region
of a spray-drying agglomeration device and dried in the spray-
drying segment to obtain pulverulent particles,
(ii) spraying the pulverulent particles with a binder
liquid, in an integrated fluidized bed in the spray-drying
agglomeration device, which bed is situated in a lower region
of the spray-drying agglomeration device, in which region the
pulverulent[]particles of the spray-drying segment from step (i)
is sprayed with the binder liquid by means of a nozzle or
atomizer construction mounted at a bottom of the fluidized bed,
the particles being constantly kept in motion and whirled
up during production.
Appeal Br. 23 (Claims App.).
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The Examiner maintains the following rejections:
1. Claims 14, 16, 18–29, and 31–33 are rejected under 35 U.S.C.
§ 103 as unpatentable over Kai2 et al. (US 2005/0158443 A1;
published July 21, 2005, “Kai”), in view of Nielsen (WO
2007/124745 A1; published Nov. 8, 2007) (Final Act. 2–4).
2. Claims 15, 17, 34, and 35 are rejected under 35 U.S.C. § 103 as
unpatentable over Kai, in view of Nielsen, and further in view of
Uhlemann et al. (US 5,213,820; issued May 25, 1993, “Uhlemann”)
(Final Act. 4–5).
3. Claim 30 is rejected under 35 U.S.C. § 103 as unpatentable
over Kai, in view of Nielsen, and further in view of Seyffert et al. (US
5,955,036; issued Sept. 21, 1999, “Seyffert”) (Final Act. 5).
Appellant offers separate arguments in support of independent claim
14, and dependent claims 15, 28, 30, and 35 (see generally Appeal Br. 10–
21). Each of these claims will be discussed separately.
FINDINGS OF FACT & ANALYSIS
A. Rejection of claims 14, 16, 18–29, and 31–33 as unpatentable over the
combination of Kai and Nielsen.
1. Claim 14
With respect to claim 14, the Examiner’s findings and conclusions
regarding Kai and Nielsen are located on pages 2–4 of the Final Office
Action. The Examiner finds that Kai’s method for producing agglomerate

2 As both Appellant and the Examiner refer to this reference as “Kai,” which
is the first name of the first inventor listed in this reference, we do the same.
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particles would have rendered obvious each step and limitation of the
method recited in independent claim 14, except that Kai does not disclose
the structure of the device used to produce the particles (Final Act. 2–3).
The Examiner finds Nielsen discloses a device for spray-drying
agglomeration of particles (id. at 3). Figure 1 of Nielsen, as reproduced
below, illustrates an agglomeration apparatus in which a fluid bed is
positioned in a lower part of a spray drying chamber:

Nielsen’s figure 1 illustrates an agglomeration apparatus, including
drying chamber 1, upper cylindrical part 2, lower downward tapering frusto-
conical part 3, atomizer 4, drying gas inlet 5, perforated plate 9, plenum 10,
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fluidization gas inlet 11, and nozzles 12 (Nielsen 10:1–11:11). According to
the Examiner, Nielsen’s figure 1 depicts the claimed device comprising:
a chamber (drying chamber 1 . . . ) contain[ed] in an upper
region[,] a spray drying segment ( . . . upper cylindrical part 2
with dry air introduction 5) in which a feed liquid atomizer ( . . .
atomizer 4) is placed . . . and []in a lower region ( . . . directly
below frusto-conical part 3) an integrated fluidized bed (. . . bed
8 including perforated plate 9 and plenum 10), the fluidized bed
further containing []a nozzle or atomizer construction for
spraying a binder liquid ( . . . nozzles 12 . . . ).
Final Act. 3 (citing Nielsen 10:5–15; 11:11–18; Fig. 1).
The Examiner finds “Kai discloses that the most favorable technique
is the use of a combined spray-drier/fluidized bed system, where the powder
from the spray drier is directly granulated” (Final Act. 3). The Examiner
determines that it would have been obvious for one of ordinary skill in the
art at the time of the invention to have used Nielsen’s known agglomeration
apparatus to carry out Kai’s method (id.).
Appellant argues that Nielsen’s agglomeration apparatus does not
teach or suggest that nozzles 12 are “mounted at a bottom of the fluidized
bed,” as recited in claim 14 (Appeal Br. 11). In particular, Appellant argues
the Specification’s figure 4 depicts “that the nozzles Z2 are . . . located
above the dashed line[,] which is the lower plenum of the device” (id. at 12).
Appellant distinguishes the Specification’s nozzles placement with Nielsen’s
figure 7, which purportedly shows that nozzles 12 “are mounted
significantly below the surface of the plenum (9) . . . and thus, not at the
bottom of the fluidized bed” (id. at 13; see also Reply Br. 2). Appellant
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concludes that the Examiner has not established a prima facie case of
obviousness (Appeal Br. 15).
We are not persuaded by these arguments.
The Examiner reasonably interprets the “mounted at a bottom of the
fluidized bed” language recited in claim 14 as encompassing the placement
of nozzle 12 in Nielsen’s figures (Ans. 7 (explaining that a “bottom is
interpreted as a bottom region” generally)). Appellant’s assertion that “the
plenum sets the ‘bottom’ of a fluidized bed” is based only on two figures in
the Specification (Appeal Br. 12). See In re Van Guens, 988 F.2d 1181,
1184 (Fed. Cir. 1993) (“[L]imitations are not to be read into the claims from
the specification.”). Therefore, we agree with the Examiner that Nielsen
teaches or suggests that nozzles 12 are “mounted at a bottom of the fluidized
bed” within the meaning of claim 14.
Therefore, Appellant’s arguments are insufficient to convince us of
reversible error in the Examiner’s rejection of claim 14. Appellant argues
claims 14, 16, 18–27, 29, and 31–33 as a group (Appeal Br. 9–15; 22).
On this record, we sustain the Examiner’s § 103 rejection as to claims
14, 16, 18–27, 29, and 31–33.
2. Claim 28
With respect to claim 28, the Examiner’s findings and conclusions
regarding Kai and Nielsen are located on pages 3–4 of the Final Office
Action.
Claim 28 is set forth below (emphasis added):
28. The method of Claim 14, wherein the agglomerate
particles are between 700 µm and 1000 µm in size.
Appeal Br. 24 (Claims App.).
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The Examiner finds that Kai’s method for producing agglomerate
particles results in particles having an average size of 50–600 µm (Final Act.
2). The Examiner finds that Kai does not teach or suggest the requisite size
range for agglomerate particles as recited in claim 28 (id. at 3). The
Examiner, however, determines that
[c]haracteristics such as flowability, dusting and bulk weight
are optimizing parameters in the production of agglomerated
particles and such variable are result-effective and can readily
be determined by one skilled in the art through routine
experimentation to obtain the most optimum properties. It
would have been obvious to one skilled in the art to form large
sizes as an obvious matter of choice.
Id. at 3–4.
Appellant argues that the Examiner has failed to demonstrate that
either Kai or Nielsen discloses the agglomerate particle size range of 700–
1000 µm (Appeal Br. 15–16).
In response, the Examiner finds that because Nielsen discloses the
desire for “larger” particles, a person of ordinary skill in the art would have
been led to increase the size of Kai’s particles to a larger size (Ans. 8 (citing
Nielsen 6:5–7)). The Examiner finds Nielsen teaches that larger particles
avoid problems associated with dust during the handling of agglomerate
particles (Ans. 8–9).
Appellant, however, asserts that Nielsen’s “reference to ‘larger’
particles . . . is a completely relative term, that has no objective, much less
numerical significance” (Reply Br. 2). Appellant, moreover, argues that
Nielsen’s desire for such particles is satisfied by agglomerate “particle
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sizes[,] which are larger than fine particles [and] . . . are not identified in
size” (id. at 2–3).
Appellant’s arguments are persuasive.
It is well understood that “[r]ejections on obviousness grounds cannot
be sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (quoting In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006)). To
establish a prima facie case of obviousness, the Examiner must show that
each and every limitation of the claim is described or suggested by the prior
art or would have been obvious based on the knowledge of those of ordinary
skill in the art. In re Fine, 837 F.2d 1071, 1074 (Fed. Cir. 1988).
In this instance, the Examiner has not shown that Nielsen’s desire for
particle sizes larger than fine particles, in view of Kai’s 50–600 µm
particles, teaches or suggests “agglomerate particles []between 700 µm and
1000 µm in size” (claim 28) (emphasis added). We agree with Appellant
that Nielsen’s teachings lack sufficient direction to reasonably suggest
increasing Kai’s agglomerate particle size to a range that renders the claimed
range obvious (Reply Br. 2–3). Moreover, Kai prefers smaller particles (i.e.,
between 50 and 600 mm, more preferably between 150 to 400 mm) than
those recited in the claim (Kai ¶ 38). Given Nielsen’s amorphous size
increase suggestion and Kai’s teaching for smaller particles outside the
claimed range, the Examiner’s conclusion that the disputed particle size
range limitation is met by the applied prior art is reversibly erroneous (see
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Ans. 8–9). Thus, the Examiner has not established a prima facie case of
obviousness based upon articulated reasoning with rational underpinnings.
On this record, we do not sustain the Examiner’s § 103 rejection as to
claim 28.
B. Rejection of claims 14, 16, 18–29, and 31–33 as unpatentable over the
combination of Kai and Nielsen.
a. Claim 15
With respect to claim 15, the Examiner’s findings and conclusions
regarding Kai, Nielsen, and Uhlemann are located on pages 4–5 of the Final
Office Action.
Claim 15 is set forth below (emphasis added):
15. The method of Claim 14, wherein the spray-drying
agglomeration device comprises a dam construction which is
integrated in the fluidized bed and which is placed in front of an
escape opening to a zigzag classifier or an external fluidized
bed.
Appeal Br. 23 (Claims App.).
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The Examiner finds that “Nielsen discloses a dam construction (Figs.
4 and 5; partition walls 14 and 16) for regulating the product amount” (Final
Act. 3). The Examiner’s annotated Figure 5 is reproduced below:

The Examiner’s annotated Figure 5 illustrates a partially transparent
view of Nielsen’s fluid bed, including partition wall 16 and radial outlet 15,
positioned in the lower part of a spray drying chamber (Ans. 9; see also
Nielsen 9:16–17; 9:22–25). The Examiner finds that because wall 16’s
distal side “is in front of []outlet 15” (Ans. 10), Nielsen discloses or suggests
“a dam construction which is integrated in the fluidized bed and which is
placed in front of an escape opening to a zigzag classifier or an external
fluidized bed,” as recited in claim 15 (emphasis added).
Appellant contends that Nielsen’s wall 16 is not a dam and would
have been ineffective at keeping particles constantly in motion and whirled
up during production, as required by parent independent claim 14 (Appeal
Br. 19). Appellant, however, has not presented evidence other than attorney
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argument that Nielsen’s wall 16 would have been incapable of such function
(id.).
Appellant argues that Nielsen’s wall 16 is not “in front of” outlet 15
within the meaning of the term because figure 4 depicts that wall 16 is “at
some significant distance from the opening” 15 (id. at 18 (citing Nielsen Fig.
4; https://www.definitions.net/definition/in%20front%20of)). Appellant
argues that Nielsen’s wall 16 is not a dam (Appeal Br. 19), but would have
actually guided particles to outlet 15 (Reply Br. 3). Appellant distinguishes
Nielsen’s wall 16 from the instant dam, which prevents articles from
escaping (id.).
We are not persuaded by these arguments because the Specification
provides that “[t]he dam serves to adjust the fill level of the fluidized bed
and to regularly discharge the particles and to adjust the residence time of
the particles in the fluidized bed” (Spec. 7:19–21). In our view, the
ordinarily skilled artisan would have viewed Nielsen’s wall 16 as amenable
to these functions. Moreover, Appellant’s proffered definition for “in front
of” (see Appeal Br. 18 (defining the disputed term as meaning “[a]t or near
the front part of (something)”) does not require that the dam construction is
“directly in front and not at some distance” from an escape opening (Reply
Br. 3). Therefore, we agree with the Examiner that Nielsen’s figures 4 and 5
reasonably teach or suggest “a dam construction . . . which is placed in front
of an escape opening” within the meaning of claim 15.
Therefore, Appellant’s arguments are insufficient to convince us of
reversible error in the Examiner’s rejection of claim 15. Appellant argues
claims 15, 17, and 34 as a group (Appeal Br. 16–20).
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On this record, we sustain the Examiner’s § 103 rejection as to claims
15, 17, and 34.
b. Claim 35
With respect to claim 35, the Examiner’s findings and conclusions
regarding Kai, Nielsen, and Uhlemann are located on pages 4–5 of the Final
Office Action.
Claim 35 is set forth below (emphasis added):
35. The method of claim 15, wherein the dam construction is
such that a fine dust generated during spray drying and
agglomeration is returned to the headspace by means of a zig
zag classifier.
Appeal Br. 25 (Claims App.).
Appellant contends that Nielsen’s wall 16 would not have provided
the requisite function “due to the multiple walls set out” in wall 16, “which .
. . do not permit a recycling of the particles back up into the headspace of the
device” (Appeal Br. 19). Appellant, however, has not presented evidence
other than attorney argument that Nielsen’s wall 16 would have been
incapable of providing claim 35’s recycling function (id.). As the Examiner
notes, the presently claimed recycling feature is accomplished by the zigzag
classifier (Ans. 11; see also Spec. 7 (describing that “the zigzag classifier . . .
in the device according to the invention assumes the role of an air classifier,”
i.e., “a mechanical separation method” of particles.)). There is no dispute
that Uhlemann discloses or suggests returning fine dust “to the headspace by
means of a zig zag classifier,” as recited in claim 35 (Ans. 11; Appeal Br.
20).
On this record, we sustain the Examiner’s § 103 rejection of claim 35.
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C. Rejection of claim 30 as unpatentable over the combination of Kai,
Nielsen, and Seyffert.
With regard to claim 30, the Examiner’s findings and conclusions
regarding Kai, Nielsen, and Seyffert are located on page 5 of the Final
Office Action.
Claim 30 is set forth below (emphasis added):
30. The method of claim 14, wherein the fluidized bed has a
temperature in the range of from 5°C to 90°C.
Appeal Br. 25 (Claims App.).
The Examiner finds that Kai in view of Nielsen does not disclose the
temperature recited in claim 30 (Final Act. 5). The Examiner, however,
finds that Seyffert’s process for agglomeration of sensitive substances
utilizes a fluidized bed temperature of 20–80 °C (id.). The Examiner
determines that it would have been obvious for one of ordinary skill in the
art at the time of the invention to have “follow[ed Seyffert’s] guideline . . .
for the temperature in the fluidized bed since both Kai and Seyffert are
directed to agglomeration of substances using [a] fluidized bed” (id.).
Appellant speculates that “what might work in” Seyffert’s
agglomeration device “would not [have] necessarily be[en] expected to work
in” Nielsens’ spray-drying agglomeration device (Appeal Br. 20–21)
(emphasis added). Appellant argues that the Examiner’s proposed
modification “may very likely make the particles excessively dry and defeat
the desire of moist particles in the invention of Nielsen” (id. at 21)
(emphasis added).
Because Appellant has not presented evidence other than speculative
attorney argument that implementing Seyffert’s fluidized bed temperatures
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would have defeated Nielsen’s desire for moist particles (id. at 20–21), we
determine that Appellant’s arguments to be without persuasive merit.
On this record, we sustain the Examiner’s § 103 rejection of claim 30.
CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
14, 16, 18–
29, 31–33
103 Kai, Nielsen 14, 16, 18–
27, 29, 31–33
28
15, 17, 34,
35
103 Kai, Nielsen, Uhlemann 15, 17, 34, 35
30 103 Kai, Nielsen, Seyffert 30
Overall
Outcome
14–27, 29–35 28
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED IN PART