Ex parte Bakshi et al.

Board of Patent Appeals and Interferences

Aug 31, 1999

08380255 (B.P.A.I. Aug. 31, 1999)

Application for patent filed January 30, 1995. 1
According to appellants, this application is a continuation of
Application No. 08/105,005 filed August 11, 1993, now
abandoned.
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 27
UNITED STATES PATENT AND TRADEMARK OFFICE
__________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________
Ex parte AMARJIT S. BAKSHI and LAKHO L. KHATRI
__________
Appeal No. 1997-0527
Application No. 08/380,2551
__________
ON BRIEF
__________
Before GARRIS, PAK and SPIEGEL, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.
DECISION ON APPEAL
Appeal No. 1997-0527
Application No. 08/380,255
In claim 11, “the stabilizer” lacks antecedent basis. 2
This informality should be corrected in any further
prosecution that may occur.
2
This is a decision on an appeal from the final rejection
of claims 1 through 17 and 32 through 42 which are all of the
claims remaining in the application.2
The subject matter on appeal relates to a method for
making a reduced fat nut butter product comprising the steps
of combining from about 30% to about 75% of a nut paste with
from about 15% to about 45% of one or more water-soluble, non-
fat dry solid, intimately mixing the combination by passing it
through an extruder mixer and then homogenizing the mixture.
This appealed subject matter is adequately represented by
independent claim 1
which reads as follows:
1. A method for making a reduced fat nut butter product
comprising the steps of:
(a) combining
from about 30% to about 75% of a nut paste,
from about 15% to about 45% of one or more water-
soluble, non-fat dry solid,
from about 0% to about 10% of an added edible oil,
from about 0% to about 30% of at least one water-
insoluble non-fat dry solid, and
Appeal No. 1997-0527
Application No. 08/380,255
3
from about 0% to about 3% emulsifier, where the
percentages are weight percentages based on the total weight
of the nut butter product;
(b) intimately mixing the combination by passing it
through an extruder mixer simultaneously with the generation
of free nut oil; and then
(c) homogenizing the mixture under a pressure of at
least about 4,000 psig.
Appeal No. 1997-0527
Application No. 08/380,255
4
The references relied upon by the examiner as evidence of
obviousness are:
Richardson et al. (Richardson) 2,302,574 Nov. 17,
1942
Dzurik et al. (Dzurik) 3,619,207 Nov. 9,
1971
Avera 4,728,526 Mar. 1,
1988
Yokoyama et al. (Yokoyama) 4,814,195 Mar. 21,
1989
Mange et al. (Mange) 4,839,193 Jun. 13,
1989
Wong et al. (Wong) 5,079,027 Jan. 7,
1992
According to the Examiner's Answer, claims 1 through 11,
13 through 17, and 32 through 42 are rejected under 35 U.S.C.
§ 103 as being unpatentable over Mange in view of Dzurik,
Avera and Richardson and further in view of Wong, and claim 12
is correspondingly rejected over these references and further
in view of Yokoyama.
We will not sustain either of the above noted rejections.
All of the claims on appeal require mixing the
combination of from about 30% to about 75% of a nut paste and
from about 15% to about 45% of one or more water-soluble, non-
fat dry solid, by passing it through an extruder mixer and
then homogenizing the mixture under a pressure of at least
Appeal No. 1997-0527
Application No. 08/380,255
5
about 4,000 psig. From our perspective, the examiner has
failed to establish a prima facie case of obviousness with
respect to this claimed feature. More specifically, the
examiner has advanced on this appeal no convincing explanation
as to why the applied references would have suggested mixing
nut paste and dry solid in the aforementioned concentrations
by way of an extruder mixer.
We recognize that certain references, such as Mange and
Wong, disclose mixing various ingredients in an extruder.
Similarly, certain references, such as Dzurik and Wong,
disclose adding a water-soluble, non-fat dry solid to a nut
material. However, the examiner has not pointed out any
disclosures in the applied references which, in our view,
would have suggested mixing in an extruder the combination of
a nut paste and from about 15% to about 45% of one or more
water-soluble, non-fat dry solid as required by the appealed
claims.
Instead, with regard to the above noted dry solid
concentration feature, the examiner simply alleges that “[i]t
would have been obvious . . . to add particular ingredients in
the required amounts” (Answer, page 4) and that “[t]he
Appeal No. 1997-0527
Application No. 08/380,255
6
particular amounts of ingredients are seen as being adjustable
by one of ordinary skill in the art” (Answer, page 5). Such
assertions, in the absence of evidentiary support by the
applied prior art, are simply inadequate to establish a prima
facie case of obviousness. We appreciate that the examiner,
in her response to the argument section of the Answer refers
to Mange's disclosure regarding the maximum sugar content of
almond paste confectionary in general. However, this specific
disclosure and indeed the Mange patent generally lack a
teaching or suggestion of mixing a paste with sugar or other
such material in dry solid form and in the concentration
required by the appellants' claims. Indeed, as correctly
pointed out in the Brief, it is at best speculative as to
whether the saccharose added at the beginning of Mange's
process would be in the here claimed form of a dry solid much
less in the here claimed concentration.
In light of the foregoing, it is our determination that
we cannot sustain the examiner's § 103 rejection of claims 1
through 11, 13 through 17, and 32 through 42 as being
unpatentable over Mange in view of Dzurik, Avera and
Richardson and further in view of Wong or her § 103 rejection
Appeal No. 1997-0527
Application No. 08/380,255
7
of claim 12 as being unpatentable over these references and
further in view of Yokoyama.
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Application No. 08/380,255
8
The decision of the examiner is reversed.
REVERSED
BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHUNG K. PAK )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
CAROL A. SPIEGEL )
Administrative Patent Judge )
bae
Appeal No. 1997-0527
Application No. 08/380,255
9
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