Andreas Manfred. Linsenmeier et al.

Patent Trials and Appeals Board

May 8, 2020

2019001607 (P.T.A.B. May. 8, 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.
14/025,813 09/12/2013 Andreas Manfred LINSENMEIER 3712036.03633 9283
29157 7590 05/08/2020
K&L Gates LLP-Nestec S.A.
P.O. Box 1135
Chicago, IL 60690
EXAMINER
TURNER, FELICIA C
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
05/08/2020 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):
USpatentmail@klgates.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREAS MANFRED LINSENMEIER,
FRANK ANDRE STORR, and MATHILDE HALLE

Appeal 2019-001607
Application 14/025,813
Technology Center 1700
Before CATHERINE Q. TIMM, JAMES C. HOUSEL, and
JANE E. INGLESE, Administrative Patent Judges.
TIMM, 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 1–6, 8–10, 32, and 33. 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 Nestec S.A.
Appeal Br. 1.
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Application 14/025,813

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CLAIMED SUBJECT MATTER
The claims are directed to a shelf stable, thick-textured, dairy-based,
solid nutritional food product. See, e.g., claims 1 and 33. Claim 1,
reproduced below with the limitations most at issue highlighted, is
illustrative of the claimed subject matter:
1. A method of making a shelf stable, thick-textured, dairy-
based, solid nutritional food product, the method comprising
the steps of:
mixing a dairy-based composition and a preparation
comprising hydrocolloids, causing a thickening of the
composition;
depositing the composition into packaging;
allowing post-thickening of the composition to occur,
thereby producing the solid food product;
wherein the thick-textured, dairy-based, solid nutritional
food product is thickened to a jellified texture and is shelf stable
at room temperatures in a range of from about 20°C to about
25°C for a period of at least three months; and
wherein the thick-textured, dairy-based, solid nutritional
food product comprises macronutrients and micronutrients that
are tailored to the nutritional needs of children in an age range
of from about 6 to about 36 months, the solid nutritional food
product having micronutrients added thereto whereby the solid
nutritional food product provides at least 15% of a child's daily
requirements for calcium, magnesium, and zinc.
Appeal Br. 19 (Claims Appendix) (emphasis added). Claim 33 differs from
claim 1 by requiring the thick-textured, dairy-based, solid nutritional food
product be “thickened to a texture/viscosity of curd” instead of “thickened to
a jellified texture.”
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Hoecker US 2,501,445 Mar. 21, 1950
Andon US 5,571,441 Nov. 5, 1996
Ashourian US 2004/0185161 A1 Sept. 23, 2004
Mercenier US 2012/0064051 A1 Mar. 15, 2012
Wiessel US 2012/0114625 A1 May 10, 2012

REJECTION
The Examiner maintains a rejection of claims 1–6, 8–10, 32, and 33
under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over Wiessel, as
evidenced by Hoecker, in view of Ashourian, Mercenier, and Andon.
OPINION
Appellant’s arguments focus on the rejection of claims 1 and 33.
Appeal Br. 9–17. Thus, we also focus on the rejection of those claims.
Appellant seeks to differentiate the method of claims 1 and 33 based
on the solid nature of the product produced and the particular amount of
thickening recited in the first wherein clause of the claims. Appeal Br. 9–17;
Reply Br. 4–9. Claim 1 requires the solid nutritional food product be
“thickened to a jellified texture.” Claim 33 requires it be “thickened to a
texture/viscosity of curd.”
There is no dispute that Wiessel discloses a method of making “a
shelf-stable fermented dairy product including a fermented dairy component,
a physical or chemical stabilizer, and a puree composition.” Compare Final
Act. 2, with Appeal Br. 10; see also Wiessel ¶ 15. “The fermented dairy
component can be, for example, dehydrated or fresh yogurt, sour cream,
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buttermilk, kefir, cheese, or a combination thereof.” Wiessel ¶ 15. As found
by the Examiner, and not disputed by Appellant, Wiessel suggests using a
hydrocolloid as the stabilizer. Compare Final Act. 2, with Appeal Br. 10; see
also Wiessel ¶¶ 20, 37. According to Wiessel, “[a] fermented dairy product
such as yogurt is very susceptible to protein coagulation when heated
following the fermentation process.” Wiessel ¶ 5. Wiessel stabilizes the
protein by coating it with, for instance, a suitable hydrocolloid pectin.
Wiessel ¶ 37. Wiessel adds the stabilizer to the fermented dairy component
under shear at a temperature of 33–65 °F, homogenizes the mixture at 33–
165 °F, adds a puree composition, and heat processes to sterilize at 185–
240 °F. Wiessel ¶ 35. According to Wiessel, stabilization “allows the shelf-
stable fermented dairy mixture to be heated to sterilization temperatures
(e.g., above 185° F.) without coagulating the protein thereby resulting in a
smooth textured fermented dairy product.” Wiessel ¶ 37.
Wiessel does not specifically state that the product is solid or that the
product is deposited in packaging and post-thickened. Thus, the Examiner
turns to Ashourian for teachings of thickening and packaging. Final Act. 3.
The Examiner also relies on Hoecker for evidence that a mixture of dairy-
based components and hydrocolloid thicken on cooling. Final Act. 3–4.
Appellant contends that the teachings of Ashourian cannot be
combined with the methods taught by any other references to arrive at the
claimed solid product that has a jellified texture or the texture/viscosity of
curd because Ashourian discloses a beverage product. Appeal Br. 11.
After considering the teachings of Ashourian along with Wiessel, we
determine the argument is not persuasive of reversible error. Ashourian’s
teachings are similar to those of Wiessel in a way that supports the
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Examiner’s findings. Ashourian, like Wiessel, teaches stabilizing a dairy-
based food product with a hydrocolloid stabilizer such as pectin. Ashourian
¶ 2. Like Wiessel, Ashourian mixes the pectin into the dairy component
(cold milk in Ashourian, fermented diary component in Wiessel) under
intense agitation before homogenizing and heating to sterilize. Ashourian ¶
28. Although Ashourian’s starting material is milk, and thinner than the
fermented dairy component of Wiessel, and Ashourian seeks to produce a
beverage, given the similarities in starting material (dairy-based components
and pectin) and processing, those of ordinary skill in the art would have
understood that the mechanism of stabilization with pectin is the same
whether the starting diary component is milk or fermented dairy
components. Wiessel further discloses that the method results in significant
viscosity increase. Wiessel ¶ 23; Tables 1–3. Wiessel evinces that the use of
fermented dairy components such as yogurt, sour cream, or cheese as a
starting material will result in a dairy-based product of increased viscosity.
The end product viscosity depends on the identity of the starting material.
For instance, using cheese as a starting material would result in a solid
product.
Also, the meaning of “solid” as used in the claims is not particularly
clear from Appellant’s Specification. The Specification does not describe the
product as solid, but as “thickened,” having a “thickened texture,”
“thickened to a jellified texture,” or having a “thick texture . . . similar to
that of high viscosity dairy products such as curd.” See, e.g., Spec. ¶¶ 1, 4,
21, 132, 183. Appellant’s method uses the same types of starting dairy
component (“yogurt, sour cream, buttermilk, kefir, sour milk, créme fraiche,
fermented cheese”) as Wiessel (“dehydrated or fresh yogurt, sour cream,
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buttermilk, kefir, cheese, or a combination thereof.”). Compare Spec. ¶ 7,
with Wiessel ¶ 15. The mechanism of thickening also appears to be the
same, i.e., interaction of the calcium ions, magnesium ions, or combinations
thereof in the dairy-based component with the hydrocolloids (pectin).
Compare Spec. ¶ 185, with Ashourian ¶ 20. Thus, a preponderance of the
evidence supports the Examiner’s finding that Wiessel teaches or suggests
forming a solid product using the method Wiessel describes.
Appellant further contends that the Examiner has not established that
a jellified texture of a solid food product is an inherent property of Wiessel’s
product. Appeal Br. 12–17; Reply Br. 8–9. We disagree. The similarities in
the starting materials and processing discussed above support the
Examiner’s finding of inherency. Hoecker provides further evidence that
post-thickening occurs after the product cools within the package to form a
solid product. Hoecker col. 6, ll. 24–33 (describing a packaged dairy-based
product made by a similar process to that of Wiessel that “thickens
considerably” and “sets in the container to a plastic, cohesive mass of
smooth and uniform texture, having little resistance to shearing as when
sheared by a spreading knife). “It is long settled that in the context of
obviousness, the ‘mere recitation of a newly discovered function or property,
inherently possessed by things in the prior art, does not distinguish a claim
drawn to those things from the prior art.’” Persion Pharms. LLC v. Alvogen
Malta Operations Ltd., 945 F.3d 1184, 1190 (Fed. Cir. 2019) (quoting In re
Oelrich, 666 F.2d 578, 581 (CCPA 1981)).
Appellant has not identified a reversible error in the Examiner’s
rejection.
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CONCLUSION
The Examiner’s decision to reject claims 1–6, 8–10, 32, and 33 is
affirmed.
DECISION SUMMARY
Claims 35 U.S.C. § Basis/References Affirmed Reversed
1–6, 8–10,
32, 33
103(a) Wiessel, Hoecker,
Ashourian,
Mercenier, Andon
1–6, 8–10,
32, 33

TIME PERIOD FOR RESPONSE
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