DSM IP ASSETS B.V.

Patent Trials and Appeals Board

Oct 28, 2021

2021000312 (P.T.A.B. Oct. 28, 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.
14/914,042 02/24/2016 Andrea BULBARELLO GPK-4662-3145 6879
23117 7590 10/28/2021
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
DEES, NIKKI H
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
10/28/2021 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREA BULBARELLO and GEORG STEIGER
Appeal 2021-000312
Application 14/914,042
Technology Center 1700

Before BEVERLY A. FRANKLIN, JEFFREY B. ROBERTSON, and
JAMES C. HOUSEL, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–6.2 See Appeal Br. 7. We have
jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 This Decision includes citations to the following documents:
Specification filed February 24, 2016 (“Spec.”); Final Office Action entered
October 9, 2019 (“Final Act.”); Appeal Brief filed June 8, 2020 (“Appeal
Br.”); Examiner’s Answer entered August 10, 2020 (“Ans.”), and Reply
Brief filed October 9, 2020 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies DSM IP Assets B.V. as the real party in interest.
Appeal Br. 3.
Appeal 2021-000312
Application 14/914,042

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CLAIMED SUBJECT MATTER
Appellant states the invention is to an iron fortified bouillon
concentrate that allows easy iron supplementation at low cost. Spec. 1, ll. 7–
13. Claim 1 is reproduced below, and is illustrative of the claimed subject
matter (Appeal Br. 19, Claims App.):
1. Bouillon concentrate comprising the following
ingredients in the following amounts, based on the total weight
of the bouillon concentrate:
5 to 30 wt.-% of fat,
30 to 70 wt.-% of sodium chloride,
10 to 45 wt.-% of monosodium glutamate,
0.015 to 10 wt.-% of ferric pyrophosphate,
7.1 to 40 wt.-% of a citrate buffer being: citric acid and
trisodium citrate in a weight ratio of citric acid to trisodium
citrate between 0.05 and 0.45,
wherein the sum of the weights of said ingredients in the
bouillon concentrate sum up to 90 to 100 wt.-%,
wherein the weight ratio of ferric pyrophosphate to said
citrate buffer is in a range from 0.005 to 1.5, and
wherein the bouillon concentrate has a water activity
lower than 0.65.
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Application 14/914,042

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Mehansho et al.
(“Mehansho”)
US 5,670,344 Sep. 23, 1997
Bortz et al.
(“Bortz”)
US 2006/0134227 A1 June 22, 2006
Nelson US 2009/0124572 A1 May 14, 2009
Smorenburg et al.
(“Smorenburg”)
WO 2009/068378 A1 June 4, 2009

REJECTION
The Examiner rejected claims 1–6 under 35 U.S.C. § 103 as being
unpatentable over Smorenburg, Bortz, Mehansho, and Nelson.
Final Act. 2–7.
OPINION
We limit our discussion to claim 1, which is sufficient for disposition
of this rejection.

The Examiner’s Rejection
In rejecting claim 1, the Examiner found that, inter alia, Smorenburg
discloses a bouillon concentrate having all the components in the
percentages recited in claim 1, with the exception of 7.1 to 40 wt.% citrate
buffer of citric acid and trisodium citrate in a weight ratio of citric acid to
trisodium citrate between 0.05 and 0.45. Final Act. 3–4.
The Examiner found Bortz discloses a method for enhancing iron
absorption in humans by administering an iron compound such as ferric
pyrophosphate in combination with an organic acid such as citric acid, citric
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acid salts, and combinations thereof. Final Act. 4. The Examiner found that
Mehansho discloses that ferric pyrophosphate is poorly absorbed from the
gut. Id. The Examiner found Nelson discloses that adding organic acid such
as citric acid to iron fortificants such as ferric pyrophosphate enhances the
availability of such fortificants. Id.
The Examiner concluded that it would have been obvious to have
included a bioavailability enhancement agent such as citric acid and citric
acid salt in the concentrate of Smorenburg to improve the bioavailability of
iron in the bouillon concentrate. Final Act. 4–5. The Examiner found also
that the prior art is silent as to trisodium citrate, but because the cation is a
spectator ion, it would have been obvious to have selected sodium, which is
ubiquitously known to be a food safe cation, as the cation for the citrate salt.
Id. at 5.
As to the ratio of citric acid to citrate salt recited in claim 1, the
Examiner concluded it would have been obvious to have provided the citric
acid/citrate salt “in a ratio suitable for forming a buffer that provided an
appropriate and palatable pH” for Smorenburg’s bouillon concentrate, where
Appellant had not demonstrated the recited ratio to be critical. Final Act. 5.

Appellant’s Arguments
Appellant argues Smorenburg does not disclose a citrate buffer of
citric acid and trisodium citrate would be useful in an iron-containing
bouillon concentrate. Appeal Br. 8. Appellant contends Bortz provides a
large listing of suitable organic acids and does not provide any indication
that ferric pyrophosphate and citric acid would be notable among the many
possible choices disclosed in Bortz. Id. at 9–10. Appellant argues none of
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the references disclose a buffer involving trisodium citrate or the recited
ratio of citric acid to citrate, which improves the bioavailability of iron. Id.
at 11. Appellant argues that the Examiner’s rationale for the obviousness
rejection in not found anywhere in the prior art. Reply Br. 5.

Discussion
We are persuaded by Appellant’s arguments. In particular, we agree
with Appellant that the Examiner has not provided sufficient support that the
recited weight ratio of citric acid to trisodium citrate between 0.05 and 0.45
would have been obvious as a result of “provid[ing] an appropriate and
palatable pH for the bouillon concentrate of Smorenburg.” Final Act. 5.
As pointed out by Appellant, none of the prior art discusses citrate
buffers including citric acid and trisodium citrate specifically in combination
with ferric pyrophosphate. In addition, Smorenburg does not disclose any
particular pH that would be suitable for a bouillon cube. The Specification
discloses bouillon with pHs ranging from 5.13 to 6. Spec. 11, l. 10–13, l.
25.
Bortz discloses that iron is soluble at low pH and ascorbic acid may
be used to keep iron soluble for absorption in the small intestine. Bortz ¶ 71.
Nelson discloses ferric pyrophosphate precipitates from aqueous solutions
having a pH above 3.5. Nelson ¶ 11. Mehansho discloses buffering agents
for ready-to-serve beverages including highly bioavailable sources of iron
where the buffering agent is included such that the resulting aqueous
solution has a pH in the range from about 3.0 to about 6.5. Mehansho, col.
4, ll. 49–65, col. 7, ll. 24–64. Mehansho expressly discloses problems with
the absorption from the gut of “inert” iron sources such as ferric
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pyrophosphate and discloses the use of other highly bioavailable iron
sources in combination with the buffering agent. Id. at col. 2, ll. 7–50.
Thus, Bortz and Nelson provide evidence that ferric pyrophosphate is
poorly absorbed and must be kept at pHs below 3.5 to prevent precipitation.
Although Mehansho discloses buffering systems in combination with iron
sources to provide a range of pHs, Mehansho specifically discusses
problems with the absorption of ferric pyrophosphate and Mehansho does
not disclose ferric pyrophosphate in the combinations of iron sources and
buffers disclosed therein.
Therefore, although there is some evidence on the record that the
amount of buffering agents may be adjusted to provide a suitable pH in
conjunction with iron sources, there is insufficient evidence in the record to
support the Examiner’s position that the pHs disclosed in the prior art as
necessary to solubilize ferric pyrophosphate would be consistent with “an
appropriate and palatable pH for the bouillon concentrate of Smorenburg,”
particularly where the Specification discloses pHs for bouillon are in the
range of 5.13 to 6 and Mehansho’s overlapping pH range of 3.0 to 6.5 is in
conjunction with ready-to-serve beverages that include “highly bioavailable
iron sources” and do not include ferric pyrophosphate.
As a result, we are of the view that there is insufficient evidence that
one of ordinary skill in the art would have arrived at providing the particular
citrate buffer including citric acid and trisodium citrate in the particular
weight ratio of 0.05 to 0.45 in the weight ratios of ferric pyrophosphate to
citrate buffer for the bouillon concentrate recited in claim 1. See KSR Int’l.
Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), quoting In re Kahn, 441 F.3d
977, 988 (Fed. Cir. 2006)(“‘[R]ejections on obviousness grounds cannot be
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sustained by mere conclusory statements; instead, there must be some
articulated reasoning with some rational underpinning to support the legal
conclusion of obviousness.’”).
Accordingly, we reverse the Examiner’s rejection of claims 1–6.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–6 103 Smorenburg, Bortz,
Mehansho, Nelson
1–6

REVERSED