Bloom Holdings, LLC

Patent Trials and Appeals Board

Nov 26, 2021

2021000416 (P.T.A.B. Nov. 26, 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.
15/356,213 11/18/2016 Mark Ashton Zeller 002151-0000US 2063
148043 7590 11/26/2021
Loomis, Ewert, Parsley, Davis & Gotting PC
124 W. Allegan
Suite 700
Lansing, MI 48933
EXAMINER
RIOJA, MELISSA A
ART UNIT PAPER NUMBER
1764
NOTIFICATION DATE DELIVERY MODE
11/26/2021 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):
mmurshak@loomislaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK ASHTON ZELLER, RYAN HUNT,
and ROBERT FALKEN
Appeal 2021-000416
Application 15/356,213
Technology Center 1700
Before TERRY J. OWENS, CHRISTOPHER C. KENNEDY, and
SHELDON M. MCGEE, Administrative Patent Judges.
MCGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 4, 6, 21–25, and 30–34. We have
jurisdiction. 35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as BLOOM HOLDINGS, LLC. Appeal
Br. 3.
Appeal 2021-000416
Application 15/356,213
2
CLAIMED SUBJECT MATTER
The claims are directed to foam compositions containing a liquid
carrier, between 0.1% to 70% algae biomass by weight of the liquid carrier,
and a foaming ingredient.
Independent claim 1, reproduced below, is illustrative of the claimed
subject matter:
1. An algae-derived foam composition for use in the production
of an article of manufacture, the algae-derived foam composition
comprising:
(a) a liquid carrier operable for forming a foamed material;
(b) an algae biomass that includes protein incorporated
into the liquid carrier within a loading range from about 0.1% to
about 70% algae biomass by weight, wherein the algae biomass
is provided as a dried algae powder having an average particle
size of about 50 to 100 microns; and
(c) a foaming ingredient in an amount sufficient for
foaming the algae-derived foam composition to a density in a
range from 1 to 400 kg/m3.

Appeal Br. 22 (Claims Appendix).
OPINION
Because Appellant focuses its arguments on sole independent claim 1,
we limit our discussion to this claim. Dependent claims 4, 6, 21–25, and
30–34 fall with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner undisputedly finds that Ramesh teaches a foam
composition according to claim 1 including an organic filler, but does not
specifically teach that the organic filler can be an algae biomass. Final Act.
3. To address this difference between Ramesh and claim 1, the Examiner
turns to Scheer which the Examiner undisputedly finds teaches an algae
biomass used as a filler in a thermoplastic polymer composition. Id. The
Examiner finds, and Appellant does not dispute, that Scheer’s algae biomass
Appeal 2021-000416
Application 15/356,213
3
is reasonably expected to contain protein. Id. at 3–4. The Examiner finds
that Scheer teaches that incorporating an algae-based product into
petroleum-based products such as thermoplastic polymers “can help to
reduce dependence on fossil fuels and reduce global warming.” Id. at 4
(citing Scheer ¶ 39). The Examiner determines that the skilled artisan would
have found it obvious to combine the teachings of Ramesh and Scheer to
achieve this benefit. Id. at 4.
Appellant argues that the skilled artisan would not have been
motivated to incorporate Scheer’s algae biomass into Ramesh’s foam and
asserts that the applied prior art “teach away from their combination as they
would render the other unsatisfactory for their intended purpose.” Appeal
Br. 10. Specifically, Appellant argues that combining Scheer’s algae-based
biomass into Ramesh’s foam would not achieve the sound dampening
quality sought by Ramesh. Id. at 11. In support of its arguments, Appellant
relies on a Declaration filed under 37 C.F.R. § 1.132 from inventor Mark
Ashton Zeller,2 asserting that the Examiner did not consider this evidence.
Id. at 11–15.
We are unpersuaded by these arguments. First, we disagree with
Appellant’s repeated assertion that the Examiner failed to consider the Zeller
Declaration (Appeal Br. 12–15) because the Examiner discusses the contents
of the Zeller Declaration at length in the Answer.3 Ans. 9–12. And while

2 The relevant Declaration for purposes of this appeal is the Zeller
Declaration dated March 20, 2020 (“Zeller Decl.” or “Zeller Declaration”).
The Zeller Declaration dated June 25, 2019 deals with prior art references
that are not before us.
3 It was not possible for the Examiner to consider the contents of the Zeller
Declaration dated March 20, 2020 in the Final Action dated January 21,
2020.
Appeal 2021-000416
Application 15/356,213
4
we agree with Appellant that the Zeller Declaration did not solely contain
opinion testimony as the Examiner’s Answer suggests (Ans. 10), we find no
fault in the Examiner’s overall conclusion that “the declaration does not
provide a sufficient showing that the incorporation of algae in a
thermoplastic foam renders the foam unsuitable for sound dampening
applications.” Ans. 12.
We have separately reviewed the Zeller Declaration and find it
insufficient to demonstrate that the skilled artisan would not have been
motivated to combine the disclosures of Ramesh and Scheer. See In re
American Acad. of Science Tech Ctr., 367 F.3d 1359, 1368 (Fed. Cir. 2004)
(“The Board has broad discretion as to the weight to give to declarations
offered in the course of prosecution . . . [and] is entitled to weigh the
declarations and conclude that the lack of factual corroboration warrants
discounting the opinions expressed in the declarations.”). Here, we observe
that Ramesh allows for particle concentrations as low as 5 “weight parts per
hundred weight parts thermoplastic polymer in which the polymers are
dispersed.” Ramesh ¶ 37. Appellant has not persuasively argued, much less
established with objective evidence, that including algae biomass particles at
Ramesh’s lowest concentration would yield a foam with insufficient voids to
achieve improved sound dampening. See Zeller Decl. ¶ 7 (testifying that
“[s]ound dampening foams require a foam with many voids” and that “the
more voids, the better the sound dampening characteristics”). Rather, the
inventor-declarant makes a broad sweeping assertion, devoid of
corroborating objective evidence, that using an algae biomass in Ramesh’s
foam––presumably in any amount––“would not result in the desired sound
dampening benefits sought by Ramesh.” Zeller Decl. ¶ 10. Such
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Application 15/356,213
5
unsupported assertions are entitled to little weight in the obviousness
analysis. In re American Acad. of Science Tech Ctr., 367 F.3d at 1368.
Also, as the Examiner correctly observed (Ans. 12), the testimonial
evidence was provided by the inventor of this application and is thus entitled
to less weight than testimony submitted by a disinterested party. Zeller
Decl. ¶ 1; see In re McKenna, 203 F.2d 717 (CCPA 1953) (noting that “ex
parte affidavits must, of course, be closely scrutinized and weighed with
care” and stating “that an affidavit by an applicant or co-applicant as to the
advantages of his invention is less persuasive than one made by a
disinterested person.”). Therefore, on balance, the Zeller Declaration is
insufficient to establish that the skilled artisan would not have been
motivated to combine the disclosures of Ramesh and Scheer.
We furthermore do not agree with Appellant’s repeated contention
that the applied prior art teaches away from the claimed subject matter and
that the prior art combination would render either reference unsatisfactory
for its intended purpose. Appeal Br. 10–20. “[I]n general, a reference will
teach away if it suggests that the line of development flowing from the
reference’s disclosure is unlikely to be productive of the result sought by the
applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). As discussed
supra, Appellant has not shown that Ramesh’s foam with algae biomass
particles in the lowest allowed concentration would not dampen sound.
Also, Ramesh does not criticize or discredit inclusion of organic fillers such
as an algae biomass in its foam product. See In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004) (finding that the prior art did not teach away when it
did “not criticize, discredit, or otherwise discourage the solution claimed.”).
Indeed, Ramesh is open to organic filler particles other than those expressly
disclosed. Ramesh ¶ 45 (listing “organic fillers (e.g., nut shells, rice hulls,
Appeal 2021-000416
Application 15/356,213
6
cornmeal, wood flour)” as exemplary particle materials) (emphasis added);
see Adv. Act. 4 (“It is noted that Ramesh et al. does not place any particular
limitations on the kinds of particles used or their characteristics, so long as
they have a particle size in the range of about 5 to about 300 microns . . .
[which] is achievable in algae, as is evidenced by Scheer.”).
Appellant also argues that Scheer fails to disclose a foam composition
having the claimed density. Appeal Br. 17–18. That argument lacks merit,
however, because the Examiner relies on Ramesh, not Scheer, for this
limitation. Final Act. 3; Ans. 14.
Therefore, because Appellant has not identified reversible error in the
Examiner’s rejection, we sustain it.
CONCLUSION
The Examiner’s rejection is affirmed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s) / Basis Affirmed Reversed
1, 4, 6, 21–
25, 30–34
103 Ramesh, Scheer 1, 4, 6, 21–
25, 30–34

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