Ex Parte Aldred et al

Patent Trial and Appeal Board

Aug 15, 2016

13503411 (P.T.A.B. Aug. 15, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/503,411 05/07/2012
201 7590 08/17/2016
UNILEVER PATENT GROUP
800 SYLVAN A VENUE
ENGLEWOOD CLIFFS, NJ 07632-3100
FIRST NAMED INVENTOR
Alexander Aldred
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
F3520USw 8985
EXAMINER
LONG, LUANA ZHANG
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/17/2016 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
pair_unilever@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALEXANDER ALDRED and
DOROTHY MARGARET CHAMBERLAIN 1
Appeal2015-001566
Application 13/503,411
Technology Center 1700
Before BRADLEY R. GARRIS, BEYERL YA. FRANKLIN, and
JEFFREY W. ABRAHAM, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner's
decision rejecting claims 1-13. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
1 Conopco Inc. d/b/a Unilever is identified as the real party in interest. Br. 3.
Appeal2015-001566
Application 13/503,411
Appellants claim a process for producing a frozen confectionary
product comprising preparing a mix of ingredients having a total solids
content of from 5 to 25% and containing from 0.2 to 2.0 weight percent of
one or more stabilizers, freezing the mix to form frozen particles in a
fragmented icemaker comprising a refrigerated barrel and a screw auger, and
dosing the frozen particles into a frozen composition (sole independent
claim 1 ). In a narrower embodiment, the frozen particles are inclusions
having a chewy texture (dependent claim 13).
A copy of representative claims 1 and 13, taken from the Claims
Appendix of the Appeal Brief, appears below.
1. A process for producing a frozen confectionery product
comprising a frozen composition which contains
inclusions in the form of frozen particles, the process
compnsmg;
(i) preparing a mix of ingredients having a total solids
content of from 5 to 25% and containing from 0.2
to 2.0 wt% of one or more stabilisers;
(ii) optionally pasteurising and I or homogenising and I
or ageing the mix;
(iii) freezing the mix to form frozen particles in a
fragmented ice maker comprising a refrigerated
barrel and a screw auger; and
(iv) dosing the frozen particles into a frozen
composition.
13. The process according to claim 1 wherein the frozen
particles are inclusions having a chewy texture.
Under 35 U.S.C. § 103(a), the Examiner rejects as unpatentable:
claims 1-12 over Ferguson et al. (US 2008/0171113 Al, pub. July 17,
2008) ("Ferguson") in view of Bums et al. (US 2008/0131575 Al, pub. June
5, 2008) ("Bums") and Google Groups (Google Groups, A Chocorific
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Appeal2015-001566
Application 13/503,411
Delurk (Oct. 24, 2001)) as evidenced by Strauss (US 4,569,209, iss. Feb. 11,
1986) (Final Action 3-1 O);
claims 1-12 over Aldred (US 2008/0131574 Al, pub. June 5, 2008)
("Aldred") in view of Ferguson and Google Groups as evidenced by Strauss
(id. at 11-16);
claims 1-7 and 10-12 over an alternative interpretation of Aldred in
combination with Strauss (id. at 17-18); and
claim 13 over the references applied in the above rejections of claim 1
and as evidenced by Webster's Third New International Dictionary(© 1993)
definition of"chewy" (id. at 10-11, 16-17, and 18-19).
The Examiner also provisionally rejects claims 1-13 on the ground of
nonstatutory obviousness-type double patenting as unpatentable over certain
claims of copending application 11/998,671 or copending application
12/420,854, respectively, in view of Ferguson and Bums (id. at 20-36).
We summarily sustain the provisional rejections of claims 1-13 on the
ground of nonstatutory obviousness-type double patenting because the
merits of these rejections have not been disputed by Appellants (Br. 8).
In contesting the § 103 rejections, Appellants do not present separate
arguments specifically directed to dependent claims 2-12 (id. at 5-8).
Therefore, claims 2-12 will stand or fall with their parent independent claim
1.
We sustain the§ 103 rejections for the reasons stated by the Examiner
in the Final Action and in the Answer with the following comments added
for emphasis.
Appellants' arguments against the§ 103 rejections are not persuasive
because they do not address with any reasonable specificity the Examiner's
findings and rationales in support of the obviousness conclusions.
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Appeal2015-001566
Application 13/503,411
For example, concerning the rejection of claim 1 based on Ferguson,
Appellants' sole argument is:
The Office points to no suggestion by Ferguson et al. to
use particular levels of stabilizers for chewiness, nor to use
particular levels of stabilizers for chewiness and additionally to
process the confection by freezing the confection to form frozen
particles in a fragmented ice maker comprising a refrigerated
barrel and a screw auger.
(Br. 5).
However, as correctly explained by the Examiner, Ferguson expressly
teaches stabilizer concentrations within the claim 1 range such that
Ferguson's frozen particles inherently would possess a chewy texture as
evinced by Specification paragraphs 5, 20, and 39 (see, e.g., Ans. 36). 2
Furthermore, Appellants do not even address, and therefore cannot show
error in, the Examiner's conclusion that it would have been obvious to
provide the process of Ferguson with a fragmented icemaker of the type
defined by claim 1 and taught by Bums as evidenced by Strauss.
Appellants contend that the Examiner has engaged in impermissible
hindsight by relying on their Specification as evidence that the frozen
particles of Ferguson inherently would have a chewy texture (Br. 7).
Appellants' contention is not well taken. The Examiner does not rely
on an unknown property (i.e., a chewy texture) of Ferguson's frozen
particles for a teaching necessary to support the proposed combination of
references, but rather relies on the Specification as evidence that a chewy
texture necessarily is possessed by the frozen particles of both claim 13 and
2 We emphasize that a chewy texture is required by dependent claim 13 but
not independent claim 1.
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Appeal2015-001566
Application 13/503,411
Ferguson. See In re Kao, 639 F.3d 1057, 1070 (Fed. Cir. 2011) ("This is not
a case where the Board relied on an unknown property of prior art for a
teaching. Rather, Maloney' s express teachings render the claimed
controlled release oxymorphone formulation obvious, and the claimed 'food
effect' adds nothing of patentable consequence.").
Appellants' arguments regarding the rejections based on Aldred (Br.
6-7) are similarly deficient in that they fail to address the other references
applied in these rejections or the Examiner's findings and rationales in
support of the obviousness conclusions.
For the reasons given by the Examiner and emphasized above,
Appellants do not reveal error in the§ 103 rejections advanced in this
appeal.
The decision of the Examiner is affirmed.
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.
§ l.136(a)(l )(iv).
AFFIRMED
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