CHR. HANSEN A/S

Patent Trials and Appeals Board

Dec 1, 2020

2020003261 (P.T.A.B. Dec. 1, 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.
14/649,444 06/03/2015 Jean-Paul POIGNAND 030427-0206 2427
22428 7590 12/01/2020
FOLEY & LARDNER LLP
3000 K STREET N.W.
SUITE 600
WASHINGTON, DC 20007-5109
EXAMINER
MCCLAIN-COLEMAN, TYNESHA L.
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
12/01/2020 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):
ipdocketing@foley.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEAN-PAUL POIGNAND, PASCAL LANCIAUX,
MARION PIQUET, EMILIEN LANGEVIN, GILLES DIDELOT,
JEAN-MARIE ODINOT, and MARC FAIVELEY1
____________

Appeal 2020-003261
Application 14/649,444
Technology Center 1700
____________

Before ROMULO H. DELMENDO, CHRISTOPHER C. KENNEDY, and
MONTÉ T. SQUIRE, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 3–14, 19, and 20. An oral hearing was held on
November 17, 2020. We have jurisdiction under 35 U.S.C. § 6(b). 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. The Appellant identifies the real party in interest as “Chr.
Hansen A/S.” Appeal Br. 3.
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BACKGROUND
The subject matter on appeal relates to methods for “continuous
inoculation from frozen concentrated ferments requiring neither incubation,
preculture or activation which have a potential health risk, nor interruption
of the inoculation process during production.” E.g., Spec. 1:5–8; Claim 1.
The Specification describes the use of bacterial cultures to inoculate, for
example, cheeses and milks. Spec. 5:11–15. Claim 1 is reproduced below
from page 19 (Claims Appendix) of the Appeal Brief:
1. A process for inoculating thawed concentrated ferments into a
food product, comprising:
providing frozen concentrated ferments in a container, wherein
the frozen concentrated ferments have been stored in the
container at a temperature of from -20 to -70°C,
thawing the frozen concentrated ferments contained in the
container with a microwave device or a water bath device to
obtain thawed concentrated ferments in liquid form in the
container, and
after completion of the thawing, continuously injecting the
thawed concentrated ferments in liquid form from the container
into a flow of liquid being inoculated into the food product,
thereby inoculating the thawed concentrated ferments into the
food product.
REJECTIONS ON APPEAL
The claims stand rejected under 35 U.S.C. § 103 as follows:
1. Claims 1, 4, 7–14, 19, and 20 over Kringelum (US 2001/0049132
A1, published Dec. 6, 2001) and Odinot2 (FR 2873384, dated July 21, 2004).

2 The Examiner relies on WO 2006/008245 A1, published January 26, 2006,
as an English language equivalent. We do the same.
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2. Claim 3 over Kringelum, Odinot, and Yamaguchi (US 4,856,563,
issued Aug. 15, 1989).
3. Claims 5 and 6 over Kringelum, Odinot, and Blomme3 (WO
2004/048253 A1, published June 10, 2004).
ANALYSIS
The Appellant argues the claims as a group. We select claim 1 as
representative, and the remaining claims on appeal will stand or fall with
claim 1.
After review of the cited evidence in the appeal record and the
positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner’s rejection of
claim 1. Accordingly, we affirm the rejection for reasons set forth below, in
the Final Action dated May 16, 2019, and in the Examiner’s Answer.
The Examiner finds that Kringelum discloses the use of frozen
microbial cultures (frozen concentrated ferments) to inoculate milk. Ans. 4.
The Examiner finds that Kringelum discloses storing cultures in bags
at -50°C until use. Id. The Examiner finds that Kringelum does not
specifically disclose how its frozen cultures are used, i.e., the thawing and
injecting steps of claim 1. Id.
The Examiner, however, finds that Odinot discloses a device for
continuous injection of frozen starter cultures into a liquid fermentation
medium. Id. at 5. The Examiner finds that Odinot discloses a thawing
container comprising a heating means (e.g., water jacket), and that Odinot

3 The Examiner relies on US 2006/0110512 A1, published May 25, 2006, as
an English language equivalent. We do the same in this decision.
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discloses that “[t]he culture in liquid form proceeds through an outlet
opening . . . to feed into a circuit for continuously feeding of the
fermentation medium to be inoculated into a fermentor.” Id. The Examiner
determines that it would have been obvious to use Kringelum’s starter
cultures with the apparatus of Odinot “with the expectation of successfully
and continuously inoculating ferments into a liquid to be inoculated into a
food product.” Id. at 6.
The Appellant first argues that, because Kringelum is concerned with
preparing a starter culture from a stock inoculum material, rather than
preparing a finished food product, “Kringelum is directed to an entirely
different type of process from the claimed methods.” Appeal Br. 10–11;
Odinot Decl. dated Jan. 22, 2019, ¶¶ 5–7.
That argument is not persuasive of reversible error in the rejection.
Kringelum expressly discloses that its cultures may be used in “the food,
feed or pharmaceutical industry.” Kringelum at Abstr.; see also id. ¶ 2
(similar), ¶ 41 (referencing dairy and cheese), ¶ 46 (referencing cheese,
yoghurt, and milk). Kringelum discloses that its “commercial starter
culture” may be “packed in order to be shipped to the fermentation
industry,” and that “conventional process steps” may be used. Id. ¶ 46. The
record shows that it was well known to freeze microbial cultures prior to
distribution and use. E.g., Kringelum at, e.g., ¶¶ 3, 25, 68, 82, 119;4 Odinot
at, e.g., Title, Abstr., 1:19–22 (noting that bacterial cultures “are normally

4 An additional Kringelum reference identified by the Appellant on an
Information Disclosure Statement (WO 2005/003327 A1, published Jan. 13,
2005, see IDS dated Nov. 10, 2017) also discloses frozen starter cultures.
Kringelum ’327 at Abstr., ¶¶ 2, 14 (“Commercial starter cultures are
commonly . . . distributed as frozen cultures.”).
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supplied to the dairy industry either as frozen or freeze-dried cultures”). The
record also shows that known processes include the inoculation of “frozen
starter cultures” into food products such as milk. See, e.g., Odinot at 2:9–10,
5:8–11, 6:10; see also Odinot Decl. ¶ 7 (acknowledging that “Kringelum . . .
indicat[es] that [inoculation of its starter culture into a food product] is done
by conventional means”). Thus, even assuming that Kringelum’s primary
focus is on the cultures themselves, as opposed to the food product to which
they are added, a person of ordinary skill would have reasonably understood
that Kringelum discloses starter cultures suitable for use with known
inoculation processes and apparatuses, such as those disclosed by Odinot.
Cf. Appeal Br. 11 (“At most, Kringelum discloses how to obtain a starter
culture that could be used as a ferment in the claimed methods . . . .”).
The Appellant argues that the specific disclosures of Kringelum
concerning packing into bags and freezing relate to Kringelum’s “stock
inoculum material that is used to make starter cultures, not its finished starter
culture.” Appeal Br. 11 (emphasis omitted). Kringelum describes its “stock
inoculum material” as comprising “a concentrate of starter culture organism
cells to be propagated for direct inoculation of a cultivation medium.”
Kringelum at Abstr. As noted above, Kringelum refers to packing and
shipping its starter cultures, and to “conventional process steps,” and both
Kringelum and Odinot teach or suggest that it was well known in the art to
freeze microbial cultures, including starter cultures, prior to storage and use.
E.g., Kringelum at Abstr., ¶ 46, ¶ 68 (describing freezing of inoculum
material and storage at -50° C); Odinot at, e.g., Abstr. (referring to “frozen
starter cultures”), 1:19–22 (noting that bacterial cultures “are normally
supplied to the dairy industry either as frozen or freeze-dried cultures”).
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The Appellant also argues that claim 1 requires that the entire frozen
concentrated ferment be thawed before any of it is used to inoculate a food
product, and that Odinot begins injecting its ferment into a food product
before the ferment is completely thawed. Appeal Br. 12. The Appellant
asserts that this is so because Odinot’s thawing method (water jacket)
“provides a slower thawing than a microwave or water bath, as recited in the
claims.” Id. (citing Odinot Decl. ¶ 7). The Appellant argues that a person of
ordinary skill would not have been motivated to modify Odinot “so as to
start the continuous injecting only after completion of the thawing, because
the thawing process of Odinot is slow and takes so long to complete.” Id. at
13.
That argument is not persuasive. The Appellant’s argument largely
appears to hinge on the Appellant’s assertion that Odinot’s thawing method
(water jacket) “provides a slower thawing than a microwave or water bath,
as recited in the claims.” See Appeal Br. 12 (quoting Odinot Decl. ¶ 7). The
record, however, contradicts that assertion. Odinot discloses that,
“[t]ypically, the thawing time of a frozen starter culture is between 10 and
60 minutes.” Odinot at 7:30. The Appellant’s Specification discloses that,
“for a microwave device, the thawing time for the frozen concentrated
ferments is from 10 to 60 minutes,” and that “[t]he thawing time . . . using a
water bath . . . is from 15 to 300 minutes.” Spec. 4:6–9. Thus, the record
refutes the Appellant’s assertions concerning the speed of Odinot’s thawing
process.
To the extent that the Appellant argues that Odinot’s water jacket does
not fall within the scope of the term “water bath,” the Appellant provides no
meaningful support for any such assertion, particularly in view of the claim
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construction standard applicable to this proceeding. See In re ICON Health
& Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007) (broadest reasonable
interpretation consistent with the specification). In any event, Odinot more
broadly contemplates “heating means.” Odinot at 6:29. Kringelum
explicitly discloses that “thawing” of a similar microbial material (stock
inoculum material) “may be conducted by e.g. using a water bath or a
microwave apparatus.” Kringelum ¶ 25. Thus, even were we to agree with
the Appellant that Odinot’s water jacket falls beyond the scope of the term
“water bath,” the record establishes that water jackets, water baths, and
microwaves were known alternatives for thawing a microbial material, and
that they achieved comparable thaw times. See KSR Int’l Co. v. Teleflex,
Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements
according to known methods is likely to be obvious when it does no more
than yield predictable results.”).
As to the Appellant’s assertion that Odinot does not completely thaw
its frozen ferment before beginning its inoculation process, the Examiner
finds that “the transposition of process steps or the splitting of one step into
two, where the processes are substantially identical or equivalent in terms of
function, manner and result,” does not provide a patentable distinction in this
case. Final Act. 14–15 (citing Ex parte Rubin, 128 USPQ 440 (BPAI 1959);
see also see also In re Burhans, 154 F.2d 690, 692 (CCPA 1946)
(rearranging sequence of steps may be prima facie obvious); In re Gibson,
39 F.2d 975, 976–77 (CCPA 1930) (selection of any order of mixing
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ingredients is prima facie obvious). In the Appeal Brief, the Appellant fails
to address that rationale or otherwise identify error in it.5
In any event, Kringelum suggests complete thawing of a frozen
culture before use. See Kringelum ¶ 25. For example, in paragraph 25,
Kringelum discloses that “if the inoculum material is frozen, the material
may be thawed prior to being added to the cultivation medium.” Although
that disclosure specifically concerns Kringelum’s inoculum material, which
comprises a concentrate of Kringelum’s starter culture organism cells, see
id. at Abstr, it reasonably suggests that it was known in the art that frozen
microbial materials could be thawed before use. See id. Considering the
record as a whole, we find that the disclosures of the prior art reasonably
suggest to one of ordinary skill the use of a frozen microbial material either
during the thawing process or after the thawing process has completed.
KSR, 550 U.S. at 418 (“[T]he [obviousness] analysis need not seek out
precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.”); see also id. at 421 (“A
person of ordinary skill is also a person of ordinary creativity, not an
automaton.”). As noted above, the Appellant’s position that a person of
ordinary skill would not have waited to begin inoculation in Odinot until
“after completing of the thawing, because the thawing process of Odinot is
slow and takes so long to complete,” Appeal Br. 13, is unpersuasive in view

5 The Appellant’s attempt to address that rationale in the Reply Brief is
untimely. See 37 C.F.R. § 41.41(b)(2). Even if it were timely, the Appellant
fails to persuasively explain why beginning inoculation during or after
thawing is patentably distinct in terms of function, manner, or result. See
Reply 4.
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of Odinot’s disclosed thaw times of 10–60 minutes, which the Appellant
fails to persuasively address.
The Appellant argues that the claims require inoculation of the
ferment to take place from “the same container” in which the ferment was
stored and thawed, and that Odinot’s Figure 2 shows “a further temperature-
controlled storage container is required in instances where the culture is
thawed prior to inoculating.” Appeal Br. 13–14.
That argument is unpersuasive because the prior art teaches or
suggests a single-container embodiment. See, e.g., Odinot Fig. 1 (thawing
container 1). It would have been obvious to a person of ordinary skill to
begin inoculation either during thawing or after thawing is complete, as set
forth above. See KSR, 550 U.S. at 418, 421; see also Ans. 17–18
(identifying benefits suggested by the prior art of using the same container
for storage and injection).
The Appellant argues that “the cited references do not provide any
reason to combine the methods of Kringelum and Odinot as claimed.”
Appeal Br. 15–16.
That argument is not persuasive. The Examiner’s proposed
combination involves the use of a known element (Kringelum’s starter
culture) according to its established function (inoculation of food products
such as milk) using known methods (i.e., water bath to thaw, continuous
injection into food product either during thaw or after thawing is completed).
Such combinations typically do not result in nonobvious subject matter. See
KSR, 550 U.S. at 418. The Appellant has not shown otherwise in this case.
See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the
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Board’s practice to require an applicant to identify the alleged error in the
examiner’s rejections . . . .”).
The Appellant argues that “the cited references fail to provide the
required expectation of success” because “Kringelum does not teach or
suggest using a microwave device or a water bath device to thaw
concentrated frozen ferment,” and because “Odinot purposefully discloses
gentle thawing methods . . . that provide slow thawing.” Appeal Br. 16.
That argument is unpersuasive. As set forth above, the record
establishes that microwaves, water baths, and water jackets were known
thawing methods, and the record does not support the Appellant’s contention
that Odinot’s thaw times would have been regarded as slow. The Appellant
provides no persuasive reason to believe that a person of ordinary skill in the
art would not have expected that Kringelum’s starter cultures could be
successfully used with Odinot’s methods and apparatus, or that a person of
ordinary skill in the art would not have expected Kringelum’s starter cultures
to function successfully if completely thawed before injection. See Jung,
637 F.3d at 1365.
We have carefully considered the Appellant’s arguments, and we are
not persuaded of reversible error in the Examiner’s rejection of claim 1.
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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § References Affirmed Reversed
1, 4, 7–14,
19, 20 103(a) Kringelum, Odinot
1, 4, 7–14,
19, 20
3 103(a) Kringelum, Odinot, Yamaguchi 3
5, 6 103(a) Kringelum, Odinot, Blomme 5, 6
Overall
Outcome
1, 3–14,
19, 20
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