Ex Parte Bramley et al

Patent Trial and Appeal Board

Sep 27, 2017

14130356 (P.T.A.B. Sep. 27, 2017)

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”).
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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.
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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.
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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
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