Berend Jan. Arends et al.

Patent Trials and Appeals Board

Sep 17, 2019

14359133 - (D) (P.T.A.B. Sep. 17, 2019)

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.
14/359,133 05/19/2014 Berend Jan Arends 039159.00059 4267
68543 7590 09/17/2019
Arent Fox LLP
555 West Fifth Street
48th Floor
Los Angeles, CA 90013
EXAMINER
ZILBERING, ASSAF
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
09/17/2019 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):
patentdocket@arentfox.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BEREND JAN ARENDS,
CHRISTIAAN MICHAEL BEINDORFF,
ALBERT JAN BEZEMER, and TEUNIS DE MAN1
____________

Appeal 2018-007784
Application 14/359,133
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, CHRISTOPHER C. KENNEDY, and
MICHAEL G. MCMANUS, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This case is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–3, 5–11, and 13. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 The Appellant is the Applicant, Unilever BCS US, Inc., which is also
identified as the real party in interest. See App. Br. 2. The Appellant states
that UNILEVER BCS US, INC., is a member of the Unilever Group headed
by Unilever N.V. and Unilever PLC, and that “Unilever has announced that
its spreads business, to which the current application relates, is being sold to
KKR pending regulatory matters.” App. Br. 3.
Appeal 2018-007784
Application 14/359,133

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BACKGROUND
The subject matter on appeal relates to processes for preparing edible
fat-continuous spreads such as margarine. E.g., Spec. 1:5–11; Claim 1.
Claim 1 is reproduced below from page 10 (Claims Appendix) of the Appeal
Brief:
1. Process for the preparation of an edible fat-continuous spread
comprising a water phase and at most 45 wt. % of fat using
liquid oil and a fat powder comprising structuring fat,
comprising the steps of:
a. providing a mixture comprising the water-phase and the fat
powder, a water-continuous slurry is formed by dispersing
the fat powder in the water-continuous phase;
b. subjecting said mixture to at least a partial vacuum;
c. mixing the mixture prepared at step ‘b’ to provide a fat-
continuous spread,
wherein the liquid oil may be added to the mixture at any of
steps ‘b’, or ‘c’ or when added in parts in any combination at
steps ‘b’ and ‘c’.
REJECTIONS ON APPEAL
The claims stand rejected under 35 U.S.C. § 103(a) as follows:
1. Claims 1–3, 6–11, and 13 over Barendse (WO 2006/087091 A2,
published Aug. 24, 2006);
2. Claim 5 over Barendse and Münüklü (P. Münüklü et al., Particle
formation of edible fats using the supercritical melt micronization process
(ScMM), 43 J. Supercritical Fluids 181 (2007)).
ANALYSIS
The Appellant argues the claims as a group. We select claim 1 as
representative, and the remaining claims will stand or fall with claim 1.
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Application 14/359,133

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After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner’s rejections.
Accordingly, we affirm the rejections for reasons set forth below, in the
Final Action, and in the Examiner’s Answer. See generally Final Act. 2–7;
Ans. 3–8.
The Examiner finds that Barendse teaches a process nearly the same
as that of claim 1, but that Barendse’s process involves first mixing fat
powder with oil, and then mixing with water, rather than first mixing fat
powder with water, and then mixing with oil, as required by claim 1. Final
Act. 3–4. In other words, the Examiner finds that the processes are the same
except for the sequence of mixing the ingredients. However, the Examiner
determines:
[I]t would have been obvious to a skilled artisan to form the fat
continuous spreads following the order of steps recited in the
claims as the order of steps recited in the claims is an obvious
variant of the order of steps of forming the fat continuous
spreads disclosed in Barendse. As set forth in MPEP §2144.04,
selection of any order of performing process steps, or mixing
ingredients, is prima facie obvious in the absence of new or
unexpected results.
Id.
In the Appeal Brief, the Appellant first points out that Barendse
discloses that its fat powder/oil mixture may be mixed with either water or a
solid phase. App. Br. 8 (“Barendse is not limited to dispersing water in the
fat phase which is made from the oil and solid structuring fat; it can disperse
a solid into the fat phase.”).
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Application 14/359,133

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Even accepting that as accurate, that is not indicative of reversible
error in the Examiner’s rejection because the fact that Barendse’s fat
powder/oil mixture may be mixed with a solid does not detract from
Barendse’s disclosure of mixing the fat powder/oil mixture with water.
The Appellant next argues that Barendse adds water to a fat
powder/oil mixture, whereas the claims require adding oil to a fat
powder/water mixture. App. Br. 8–9.
Even accepting that as accurate, that argument is unpersuasive of
reversible error in the Examiner’s rejection because it fails to address the
Examiner’s determination that simply rearranging the sequence of steps, or
the sequence in which ingredients are mixed, is prima facie obvious. See
Final Act. 3–4; see also In re Burhans, 154 F.2d 690, 692 (CCPA 1946); see
also In re Gibson, 39 F.2d 975, 976–77 (CCPA 1930) (selection of any order
of mixing ingredients is prima facie obvious). The burden of showing that
unexpected results rebut the prima facie case of obviousness rests with the
Appellant, In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996), and the
Appellant has not shown that unexpected results support a conclusion of
nonobviousness in this case.
In the Reply Brief, the Appellant for the first time addresses the
Examiner’s sequence-of-steps obviousness rationale and also raises a
separate argument concerning the Examiner’s rejection of claim 5. We
decline to consider those arguments because they are untimely, and the
Appellant has not attempted to show good cause for presenting them for the
first time in the Reply Brief. See 37 C.F.R. § 41.41(b)(2).
We affirm the Examiner’s rejections.
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Application 14/359,133

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CONCLUSION
In summary:
Claims Rejected Basis Affirmed Reversed
1–3, 5–11, 13 § 103(a) 1–3, 5–11, 13
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED