Emmi Martikainen et al.

Patent Trials and Appeals Board

Jun 25, 2020

13394608 - (D) (P.T.A.B. Jun. 25, 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.
13/394,608 03/27/2012 Emmi Martikainen GPK-227-183 1758
23117 7590 06/25/2020
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
MORNHINWEG, JEFFREY P
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
06/25/2020 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):
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 EMMI MARTIKAINEN and JANNE UUSI-RAUVA
____________

Appeal 2018-007398
Application 13/394,608
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, JEFFREY R. SNAY, and
BRIAN D. RANGE, Administrative Patent Judges.

SNAY, 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 rejecting claims 1–10, 12–18, and 20–22. 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. Appellant identifies Valio Ltd. as the real party in interest. Appeal
Br. 3.
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Application 13/394,608

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BACKGROUND
The invention relates to cheesemaking. Spec. ¶ 1. According to the
Specification, reducing salt or fat content in ripened cheese product can
negatively affect taste and texture. Id. ¶ 9. Adding milk- or whey-based
minerals, or a biologically active peptide, prevents taste defects and off-
tastes caused by reduction of salt or fat. Id. ¶ 22. Claims 1 and 10 read as
follows:
1. A method for improving organoleptic properties of a ripened
cheese having a water content of a fat-free portion in a range of
49% to 69%, a sodium content of at most 0.3% (w/w), and a fat
content of at most 30% (w/w), comprising a step of adding milk-
and/or whey-based minerals and/or one or more biologically
active peptides to a milk raw material.

10. A ripened cheese having a water content of a fat-free portion
in a range of 49% to 69%, which contains milk- and/or whey-
based minerals and which has a sodium content of at most 0.3%
(w/w) and a fat content of at most 17% (w/w), or if the fat content
is more than 17% to 30%, the proportion of saturated (hard) fat
is at most 33%.
Appeal Br. 28, 29 (Claims Appendix). Claim 13 is directed to a method for
making ripened cheese which includes salting with milk- and/or whey-based
minerals. Claim 22 recites a method including adding milk- and/or whey-
based minerals and/or biologically active peptide to a milk raw material.
Each remaining claim on appeal depends from claim 1, 10, or 13.

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REJECTIONS
I. Claims 1–3, 5, 9, 10, 21, and 22 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over St-Gelais2, Al-Otaibi3, and Lefier4.
II. Claims 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over St-Gelais, Al-Otaibi, Lefier, and Harju5.
III. Claims 6–8 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over St-Gelais, Al-Otaibi, Lefier, and van der Burg-
Koorevaar6.
IV. Claims 13–18 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over St-Gelais, Al-Otaibi, Lefier, admitted prior art, and Van Leeuwen7.
V. Claim 20 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over St-Gelais, Al-Otaibi, Lefier, and Kosikowski8.

OPINION
Rejection I: obviousness over St-Gelais, Al-Otaibi, and Lefier
With regard to rejection I, Appellant argues only claim 10 and states
that claim 10 may be considered representative of the appealed claims.

2 Daniel St-Gelais et al., Production of Low-Fat Cheddar Cheese from Low
and High Mineral Retentate Powders and Different Fractions of Milkfat
Globules, 7 Int’l Dairy J. 733–41 (1997) (“St.-Gelais”).
3 Mutlag M. Al-Otaibi and R. Andrew Wilbey, Effect of chymosin reduction
and salt substitution on the properties of white salted cheese, 16 Int’l Diary
J. 903–9 (2006) (“Al-Otaibi”).
4 WO 9015541, published December 27, 1990.
5 Matti Harju, Milk sugars and minerals as ingredients, 54 Int’l J. of Dairy
Tech. 2 (2001) (“Harju”).
6 US 2007/0054352 A1, published March 8, 2007.
7 US 4,965,078, issued October 23, 1990.
8 US 3,975,544, issued August 17, 1976.
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Appeal Br. 10. We focus our remarks on Appellant’s arguments concerning
claim 10.
Claim 10 concerns a ripened cheese containing milk- or whey-based
minerals and having a specified water, fat, and sodium content. Relevant to
Appellant’s arguments on appeal, the Examiner finds St-Gelais discloses a
ripened cheese that meets all of the recitations of claim 10 except that St-
Gelais does not teach sodium content of at most 0.3% (w/w). Final Act. 5.
The Examiner finds Lefier teaches it was known to produce cheese having
sodium content of less than about 0.05%. Id. at 6. The Examiner also finds
Al-Otaibi teaches adding whey-based minerals improves organoleptic
properties of cheese having reduced sodium.
Appellant principally argues that the references relied upon in the
rejection are directed to different types of cheese, and that one skilled in the
art would know that properties from different cheeses cannot be simply
combined without significantly affecting organoleptic properties, such as
taste and mouthfeel. Appeal Br. 7. Appellant contends Al-Otaibi’s
substation of whey minerals for table salt applies to manufacture of soft,
white salted cheese, like feta, and St-Gelais is directed to manufacture of
cheddar cheese using a different salting process. Id. at 13–14. See also id.
at 17 (“A person having ordinary skill in the art would not have applied Al-
Otaibi’s teachings relating to a soft cheese (like feta) to a harder cheese (like
St-Gelais’s cheddar or the recited cheese with the particularly recited
moisture on a fat-free basis).”). Appellant also argues that one skilled in the
art would not have predicted that acceptable organoleptic properties could be
achieved in a reduced salt cheese. Appeal Br. 12 (“[T]here is no reason to
believe that reducing the sodium content of St-Gelais’s cheddar cheese could
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or would result in a cheese with acceptable organoleptic properties.”); id. at
20 (“Furthermore, based on the teachings of St-Gelais, Al-Otaibi, and Lefier,
a person having ordinary skill in the art would not have been able to predict
that the recited cheese could have acceptable organoleptic properties.”); id.
at 21 (“If the amount of NaCl were to be still further reduced (as required by
the rationale of the obviousness rejection), a person having ordinary skill in
the art would have great difficulty in predicting the organoleptic properties
of the cheese.”). See also Reply Br. 3 (“[T]he cheesemaker would not have
expected that acceptable organoleptic properties of the cheese could be
obtained by simply employing whey salts as a substitute for NaCl.”).
Having considered the evidence presented, including Appellant’s
arguments, we are not persuaded of reversible error.
First, Appellant does not point to any recitation in the claims that
would require a particular organoleptic characteristic. Unclaimed features
cannot impart patentability to claims. In re Hiniker Co., 150 F.3d 1362,
1369 (Fed. Cir. 1998).
Moreover, even if reducing sodium in St-Gelais’ cheese were
expected to unpredictably affect taste or texture, as Appellant suggests, a
tradeoff of one advantage (health benefits) for another (taste and texture) is
not persuasive of reversible error in the Examiner’s obviousness
determination. See Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165
(Fed. Cir. 2006) (“[A] given course of action often has simultaneous
advantages and disadvantages, and this does not necessarily obviate
motivation to combine.”).
That St-Gelais and Al-Otaibi exemplify different types of cheese does
not preclude one of ordinary skill from applying the collective teachings of
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those references. As the Examiner explains, “[t]he motivation for
combining the references lies in the dual health benefits of providing a
cheese that has low levels of both fat and sodium. That the two cheeses in
the references are cheddar and feta does not require combining production
techniques that are specific to those two types of cheeses.” Ans. 15–16.
Here, St-Gelais discloses adding milk-based minerals in producing low-fat
cheese. St-Gelais 740 (Conclusion). Al-Otaibi recognizes a health-related
need for reduced sodium cheese. Al-Otaibi 903 (“Many people on sodium
restricted or health-oriented diets avoid cheese consumption because of its
high sodium content.”). Lefier teaches cheese having sodium at levels
within the recited range for health benefits. Lefier 4 (identifying low-
sodium cheese as having a sodium content of less than about 50 mg relative
to 100 g of cheese). As outlined above, a preponderance of the evidence
supports the Examiner’s finding that one of ordinary skill in the art would
have had a reason to reduce sodium in St-Gelais’ cheese to a level within the
recited concentration range.
Appellant also argues that Lefier teaches that substantial amounts of
potassium and calcium can provide an unacceptable bitter taste, and that
mineral compositions exemplified in the Specification and in St-Gelais
include potassium and calcium. Appeal Br. 23–25. This argument is not
persuasive of reversible error. Claim 10 neither requires nor precludes either
potassium or calcium. And, as noted above, an expectation that reduction of
sodium in the cheese of St-Gelais could negatively affect taste or texture
would not, alone, negate the evidence of record that such reduction in
sodium would have been beneficial and desired. See Medichem, S.A. v.
Rolabo, S.L., 437 F.3d at 1165.
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For the foregoing reasons, Appellant has not persuasively
demonstrated reversible error in the Examiner’s obviousness determination
with regard to claim 10. As mentioned, Appellant does not separately argue
any other claim. Rejection I is sustained.
Rejections II–V
Appellant does not separately argue any of Rejections II–IV. These
rejections, therefore, as sustained for the reasons set forth above in
connection with Rejection I.

CONCLUSION
The Examiner’s decision rejecting claims 1–10, 12–18, and 20–22 is
affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 5, 9,
10, 21, 22
103(a) St-Gelais,
Al-Otaibi, Lefier
1–3, 5, 9,
10, 21, 22

4 103(a) St-Gelais,
Al-Otaibi, Lefier,
Harju
4
6–8, 12 103(a) St-Gelais,
Al-Otaibi, Lefier,
van der Burg-
Koorevaar
6–8, 12
13–18 103(a) St-Gelais,
Al-Otaibi, Lefier,
Van Leeuwen
13–18
20 103(a) St-Gelais, 20
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Al-Otaibi, Lefier,
Kosikowski
Overall
outcome
1–10, 12–
18, 20–22

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED