2020001729 (P.T.A.B. Jun. 2, 2021)

CONOPCO, INC., D/B/A UNILEVER

Patent Trials and Appeals BoardJun 2, 2021

2020001729 (P.T.A.B. Jun. 2, 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. 15/111,967 07/15/2016 Phillippa JUDGE F3657USw 4583 201 7590 06/02/2021 UNILEVER PATENT GROUP 700 SYLVAN AVENUE Floor A4 ENGLEWOOD CLIFFS, NJ 07632-3100 EXAMINER BEKKER, KELLY JO ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 06/02/2021 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): patentgroupus@unilever.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PHILLIPPA JUDGE, GEORGE SIMEONOV MARINOV, JOHN TURNER MITCHELL, and ANN-MARIE WILLIAMSON Appeal 2020-001729 Application 15/111,967 Technology Center 1700 Before CATHERINE Q. TIMM, LINDA M. GAUDETTE, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING1 Appellant2 filed a request for rehearing under 37 C.F.R. § 41.52 (“Request”) of our decision dated March 9, 2021 (“Decision”), affirming the rejections of claims 1, 3, and 5–11 under 35 U.S.C. § 103. 1 This Decision includes citations to the following documents: the Specification filed July 15, 2016 (“Spec.”); the Appeal Brief filed September 20, 2019 (“Appeal Br.”); the Decision dated March 9, 2021 (“Dec.”); and the Request for Rehearing filed May 10, 2021 (“Req. Reh’g”). 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Conopco, Inc. d/b/a Unilever, which is a member of the Unilever Group of companies headed by Unilever N.V. in Rotterdam and Unilever PLC in London. Appeal Br. 3. Appeal 2020-001729 Application 15/111,967 2 Requests for Rehearing are limited to matters overlooked or misapprehended by the Panel in rendering the original decision. See 37 C.F.R. § 41.52(a) (2019). An appellant may not rely upon new evidence or new arguments except as permitted by § 41.52 paragraphs (a)(2) though (a)(4). Id. We have considered the Request and determine that Appellant has not persuasively identified any points that were misapprehended or overlooked by the Panel that resulted in error in the original Decision. DISCUSSION Appellant argues that the Panel misapprehended Appellant’s evidence set forth in Figure 3 of the Specification, which “demonstrate[s] the advantages of the order of addition recited in claim 1.” See Req. Reh’g 2–3. We have reconsidered Appellant’s evidence presented in Figure 3 in Appellant’s present application, but remain unpersuaded that the Examiner reversibly erred in concluding that claims 1, 3, and 5–11 would have been obvious over the cited references. Even if results shown in Figure 3 compare slushes where pectin is added before or after ice crystal formation, it is not clear from Appellant’s Specification whether the difference in characteristics shown in Figure 3 is a result of a processing difference rather than the order of addition of the ingredients. That is, it appears the “pre-addition” slushes were prepared by adding okra pectin to the slush barrel before ice crystal formation and then freezing (i.e., using high shear), whereas the “post-addition” slushes were prepared by adding okra pectin to the slush after ice formation and stirring to mix (i.e., using low shear). Compare, e.g., Spec. 17, ll. 15–18 (describing placing the slush concentrate in the slush machine barrel and initializing the Appeal 2020-001729 Application 15/111,967 3 barrel rotation with viscosity set to 4 (maximum setting) and the barrel cooling set to freezing mode (on maximum cooling rate)), with Spec. 18, ll. 1–3 (describing adding okra pectin to a slush and stirring to mix the ingredients), and Spec. 4, ll. 11–12 (describing “low shear” as mixing ingredient (d), e.g., okra pectin, into a slush after ice formation); see also Spec. 21, ll. 9–13 (explaining the difference in sensorial effect “could indicate that okra pectin is shear sensitive”). CONCLUSION The Decision has been reconsidered, but, for the reasons set forth above, the Request is denied with respect to making changes to the final disposition of the rejections therein. DECISION SUMMARY Outcome of Decision on Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted 1, 3, 5–9, 11 103 GFC, Masuda, Hunan 1, 3, 5–9, 11 1, 3, 5–9, 11 103 GFC, Masuda, Yuan 1, 3, 5–9, 11 1, 3, 5–11 103 GFC, Masuda, Hunan, Villagran 1, 3, 5–11 1, 3, 5–11 103 GFC, Masuda, Yuan, Villagran 1, 3, 5–11 Overall Outcome 1, 3, 5–11 Final Outcome of Appeal after Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 5–9, 11 103 GFC, Masuda, Hunan 1, 3, 5–9, 11 Appeal 2020-001729 Application 15/111,967 4 1, 3, 5–9, 11 103 GFC, Masuda, Yuan 1, 3, 5–9, 11 1, 3, 5–11 103 GFC, Masuda, Hunan, Villagran 1, 3, 5–11 1, 3, 5–11 103 GFC, Masuda, Yuan, Villagran 1, 3, 5–11 Overall Outcome 1, 3, 5–11 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). DENIED