Ex Parte Bramley et alDownload PDFPatent Trial and Appeal BoardSep 27, 201714130356 (P.T.A.B. Sep. 27, 2017) Copy Citation 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. 14/130,356 12/31/2013 Allan Sidney Bramley F3575USW 7332 201 7590 09/29/2017 UNILEVER PATENT GROUP 800 SYLVAN AVENUE ENGLEWOOD CLIFFS, NJ 07632-3100 EXAMINER AXTELL, ASHLEY ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 09/29/2017 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 ALLAN SIDNEY BRAMLEY and SARAH JANE MAYES Appeal 2017-003635 Application 14/130,356 Technology Center 1700 Before ADRIENE LEPIANE HANLON, GEORGE C. BEST, and JENNIFER R. GUPTA, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL A. STATEMENT OF THE CASE The Appellants filed an appeal under 35 U.S.C. § 134 from an Examiner’s decision finally rejecting claims 1—3 and 5—11. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. The claimed subject matter is directed to a frozen confectionery product that includes a gel coating. The Appellants disclose that frozen confectionery products comprising a jelly-like coating, including a jelly coating that can be peeled off a Appeal 2017-003635 Application 14/130,356 frozen confection core, are known. Spec. 1,11. 9—13. In the case of the peelable jelly coating, the Appellants disclose that “it can be difficult to peel the jelly coating away from the frozen confection core without part of the coating sticking to the core and/or the coating breaking up into small pieces.” Spec. 1,11. 13—15. The Appellants disclose that they have “found that the removability of the gel from the frozen confection core can be improved by including an ice structuring protein in the frozen confection core.” Spec. 1,11. 18—19. Representative claim 1 is reproduced below from the Claims Appendix of the Appeal Brief dated September 25, 2015 (“Br.”). The limitation at issue is italicized. 1. A frozen confectionery product comprising a core of a frozen confection, which is at least partially coated with a gel, characterized in that the core of frozen confection comprises an ice structuring protein (ISP) in an amount of from 0.0001 wt% to 0.05 wt%. Br. 8. The Examiner maintains the following rejections on appeal: (1) claims 1—3 and 5—11 under 35 U.S.C. § 103(a) as unpatentable over Best et al.1 in view of Lindner et al.2; and (2) claims 7 and 8 under 35 U.S.C. § 103(a) as unpatentable over Best in view of Lindner, and further in view of Wang.3 B. DISCUSSION The Examiner finds Best discloses a frozen confectionery product as recited in claim 1 with the exception of an ice structuring protein in the frozen confection core. More specifically, the Examiner finds Best discloses a product comprising a 1 US 6,548,097 Bl, issued April 15, 2003 (“Best”). 2 US 2005/0129810 Al, published June 16, 2005 (“Lindner”). 3 CN 200976814, dated November 21, 2007 (“Wang”). 2 Appeal 2017-003635 Application 14/130,356 frozen water ice confection core and an external gel layer made with a poly-anionic gelling hydrocolloid. Final 2.4 In one embodiment of the invention, Best describes a “Twisted Composite Water Ice Stick Bar with Gel.”5 Best, col. 9,1. 59—col. 10,1. 14 (Best Example 7); see also Final 2 (referring to Best Example 7). The Examiner finds that an object of Best’s invention is to “solve problems associated with hydrocolloid and thermal degradation (of the gel component), such as failure to control ice crystal growth leading to products that suffer heat shock damage.” Final 2—3 (citing Best, col. 3,11. 35—37). The Examiner finds Lindner discloses a water ice confection, such as a plurality of discrete spheres or beads, containing an ice structuring protein. Final 3; Lindner 135. The Examiner finds that “[i]ce structuring proteins are known in the art to protect frozen confections from thermal degradation, such as failure to control ice crystal growth (i.e. recrystallization).” Final 3. The Examiner finds: Since both Best et al. and Lindner et al. are in the same field of endeavor such as frozen confectionary products, and both references disclose solutions to prevent frozen confections from deforming, one of ordinary skill in the art would have been motivated to substitute the water ice composition in the product of Example 7 taught by Best et al. with the water ice composition taught by Lindner et al. to prevent thermal degradation of the water ice portion of the product [in Best], Final 3 (emphasis added). The Examiner also finds “[t]he function of the ice structuring protein is to prevent the beads [in Lindner] from becoming too soft, sticking together, sintering and deforming.” Final 3^4. Thus, the Examiner finds “[o]ne of ordinary skill in 4 Final Office Action dated April 23, 2015. 5 Best discloses that the confection in Example 7 comprises an external gel. Best, col. 9,11. 61-67. 3 Appeal 2017-003635 Application 14/130,356 the art would have been further motivated to modify the water ice composition [in the core] of Best et al. with the water ice composition of Lindner et al. to create more distinct layers by preventing the water ice portion from becoming too soft and deforming.” Final 4. The Appellants argue that Lindner does not disclose adding an ice structuring protein to the frozen confection core of a composite product. Br. 5—6; see also Lindner 136 (disclosing a composite product comprising a core of ice cream, that lacks an ice structuring protein, coated in a layer of water ice that contains an ice structuring protein). The Appellants also argue that “it is not apparent how Best et al.’s recognition of, and/or solution to, a problem with gels concerning ice crystal growth would lead one of ordinary skill to add ice structuring protein to the frozen confection core of a gel coated product.” Br. 6. In response, the Examiner finds: [S]ince Best et al. already acknowledges that failure to control ice crystal growth in a frozen confection can lead to products that suffer heat shock damage (thermal degradation) and was already concerned with preventing the failure to control ice crystal growth in one layer of a frozen confection [i.e., the gel coating] that in improving upon the prior art product of Best et al. one of ordinary skill in the art would have been prompted to seek out methods of controlling ice crystal growth in another layer of the frozen confection (water ice component) [e.g., the frozen confection core]. Ans. 3 (emphasis added).6 Best discloses that ice crystal growth is a problem in the gel portion of the frozen confection. See, e.g., Best, col. 3,11. 41—48 (disclosing that thermal degradation leads to the creation of adhesiveness wherein such stickiness or 6 Examiner’s Answer dated September 6, 2016. 4 Appeal 2017-003635 Application 14/130,356 gumminess renders the product difficult to unwrap). The Examiner does not direct us to any portion of Best disclosing that ice crystal growth is a problem in other layers of Best’s frozen confection, including the frozen water ice confection core. Thus, absent the Appellants’ disclosure, there would have been no reason to add an ice structuring protein to the core of Best’s frozen confection. The Examiner does not rely on Wang to cure the deficiency in the § 103(a) rejection of claim 1, identified above. See Final 6. Therefore, the § 103(a) rejections on appeal are not sustained. C. DECISION The Examiner’s decision is reversed. REVERSED 5 Copy with citationCopy as parenthetical citation