2019006349 (P.T.A.B. Sep. 8, 2020)

CARGILL, INCORPORATED

Patent Trials and Appeals BoardSep 8, 2020

2019006349 (P.T.A.B. Sep. 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. 15/161,653 05/23/2016 Ben ALEXANDRE CGL07/0156-US-DIV[2] 7129 139867 7590 09/08/2020 CARGILL, INCORPORATED / SLW P.O. Box 5624 Minneapolis, MN 55440-5624 EXAMINER MCCLAIN-COLEMAN, TYNESHA L. ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 09/08/2020 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): patent_docketing@cargill.com slw@blackhillsip.com uspto@slwip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BEN ALEXANDRE, CATHARINA HILLAGONDA HOMSMA, LINSEN LIU, BRIAN SURRATT, and JOËL RENE PIERRE WALLECAN Appeal 2019-006349 Application 15/161,653 Technology Center 1700 Before CATHERINE Q. TIMM, BEVERLY A. FRANKLIN, and MERRELL C. CASHION, JR., 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 1–4 and 9. See Non-Final Act. 1. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 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 Cargill, Incorporated. Appeal Br. 2. Appeal 2019-006349 Application 15/161,653 2 CLAIMED SUBJECT MATTER The claims are directed to a method for making a gel-based dessert product. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method of forming a food product, comprising: homogenizing a combination consisting of citrus pulp fiber, an edible lipid, and water to form a homogenized combination that includes 1–20 parts by weight of the lipid for each part by weight of citrus pulp fiber, wherein homogenization is carried out using high pressure valve homogenization and wherein the homogenized combination is a water-in-oil emulsion; and drying the homogenized composition to form a dry blend system; and mixing the dry blend system with a sweetener, a starch, and at least one of water or milk to form a finished gel-based dessert product that comprises at least about 20 wt% water and has a viscosity of at least about 20,000 mPa*s at 20° C and 10 s-1. Appeal Br. 18 (Claims Appendix). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Aronson US 2005/0271790 A1 Dec. 8, 2005 Sakurada JP 2000-026884 A (as translated) Jan. 25, 2000 Vanhemelrijck WO 2007/003391 A1 Jan. 11, 2007 Appeal 2019-006349 Application 15/161,653 3 REJECTION The Examiner maintains the rejection of claims 1–4 and 9 under 35 U.S.C. § 103(a) as being unpatentable over Aronson in view of Sakurada and Vanhemelrijck. Non-Final Act. 3. OPINION The dispositive issue on appeal is: Has Appellant identified a reversible error in the Examiner’s finding of a suggestion within the prior art to homogenize the citrus pulp fiber, edible lipid, and water composition of Aronson and dry it before blending it with other ingredients to form a finished gel-based dessert product as required by claim 1? Appellant has identified such an error. Aronson teaches food additives that contain highly refined cellulose (HRC) fiber, an edible lipid (oil or fats), and water for use in flour- containing products such as baked or deep-fried foods. Aronson ¶¶ 3, 11. Reduced fat baked or deep-fried foods that maintain the taste and sensory qualities of the higher fat versions can be made with the food additive. Aronson ¶ 3. Appellant’s claims are directed to a method that forms a finished gel- based dessert product, which the Specification indicates includes traditional milk-based puddings, other dairy-based gel products such as yogurt and custards, and non-dairy counterparts. Spec. ¶ 15. Although Aronson mentions yogurts and dairy products (Aronson ¶ 12), Aronson is not directed to making such products and does not disclose or suggest using the HRC, lipid, and water composition Aronson discloses to form such products. The products Aronson forms with the HRC, lipid, and water composition are Appeal 2019-006349 Application 15/161,653 4 flour-based baked and fried foods. Indeed, Example 6, which the Examiner relies on, is directed to forming a reduced fat cake. Aronson ¶¶ 58, 60–62. The Examiner turns to Sakurada for a teaching of high pressure homogenizing edible lipid, water, and ingredients such as fiber and/or hemicellulose to form a water-in-oil emulsion and drying to form a dry blend system. Non-Final Act. 4. According to the Examiner, the suggestion for combining the teachings of Aronson and Sakurada comes from the similarities in the feedstocks and emulsion preparation. Non-Final Act. 4–5. But Sakurada’s method steps and goals are not similar enough to Aronson’s to support the Examiner’s finding of a suggestion to make the proposed modifications. Sakurada’s method is different. Aronson mixes HRC microfibers (citrus fiber), water, shortening, and sugar in a mixing bowl using a paddle mixer, and then, without a drying step, Aronson adds cake flour, sugar, dried milk, baking powder, baking soda, salt, and pre-gelatinized wheat starch, then water and other ingredients to form a cake batter that is baked to form a cake. Aronson ¶¶ 59–67. Sakurada is not directed mixing ingredients and baking to form a cake. Sakurada homogenizes an aqueous active substance with oil (Sakurada ¶ 16) to form a water-in-oil emulsion (Sakurada ¶ 12) that is dried to form a powder of active substance encapsulated by oil. Sakurada encapsulates the active substance to mask its taste and slowly release the active substance. Sakurada goals are different. Encapsulating the aqueous active substance in the oil reduces the bitter and astringent taste of the aqueous active substance and provides a sustained-release effect. Id. Sakurada dries the encapsulated aqueous active substance to obtain a powder that is more self-stable. Sakurada ¶¶ 3, 28. Sakurada does not use fiber as an additive Appeal 2019-006349 Application 15/161,653 5 meant to reduce fat in baked or fried goods. Although Sakurada lists dietary fiber or cellulose as one of the aqueous active substances that can be used, so can a myriad of other active substances (Sakurada ¶ 6), and it is not used to form an additive for forming baked or deep-fried foods, much less gel-based dessert products. The Examiner’s evidence fails to support a finding that the combination of prior art suggests homogenizing, drying, and mixing the ingredients recited in claim 1 to form a finished gel-based dessert with the moisture content and viscosity required by claim 1. Thus, we agree with Appellant that the Examiner’s finding of a suggestion to combine the teachings of Aronson and Sakurada to arrive at the process of Appellant’s claims does not have the required factual underpinning to establish obviousness. CONCLUSION The Examiner’s decision to reject claims 1–4 and 9 is REVERSED. DECISION SUMMARY Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 9 103(a) Aronson, Sakurada, Vanhemelrijck 1–4, 9 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). REVERSED