Ex Parte Burmester et alDownload PDFPatent Trial and Appeal BoardFeb 23, 201613091796 (P.T.A.B. Feb. 23, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/091,796 04/21/2011 Sabina Silvia Haenel BURMESTER 201 7590 02/25/2016 UNILEVER PATENT GROUP 800 SYLVAN A VENUE AG West S. Wing ENGLEWOOD CLIFFS, NJ 07632-3100 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. F3443US2 5283 EXAMINER BEKKER, KELLY JO ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 02/25/2016 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 SABINA SIL VIA HAENEL BURMEISTER, FLORENCE CLOTILDE CAGNOL, ANDREW RICHARD COX, and ANDREW BAXTER RUSSELL Appeal2014-004625 Application 13/091,796 Technology Center 1700 Before JEFFREY T. SMITH, KAREN M. HASTINGS, and MICHAEL P. COLAIANNI, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE This is an appeal under 35 U.S.C. § 134 from a final rejection of claims 17, 19-21, 23, and 24. We have jurisdiction under 35 U.S.C. § 6. Appellants' invention is directed to a process for producing a frozen aerated product. App. Br. 3. Claim 23 is illustrative of the subject matter on appeal and is reproduced below: 23. A process for producing a frozen aerated product comprising the steps of: Appeal2014-004625 Application 13/091,796 a) providing a mixture of a sugar, a stabilizer and at least 0.0001 wt% of a hydrophobin added in isolated form based on the total product; b) aerating the mixture to create at least 25% overrun wherein at least 65% of the gas bubbles have a diameter of less than 20µm; c) adding at least 0.05 wt% of a surfactant based on the total product to the aerated mixture during or following step (b) and mixing; and d) wherein the mixture is frozen during or after step (b) and has a larger percentage of bubbles having a diameter of less than 20µm compared to the same product produced the same way except where the surfactant is added prior to aeration step (b). Appellants (App. Br. 2) request review of the Examiner's rejection of claims 17, 19-21, 23, and 24 under 35 U.S.C. § 103(a) as unpatentable over Jonas (US 4,012,533, issued March 15, 1977), Berry (EP 1 623 631 Al, published February 8, 2006) and \Vindhab et al., (US 2005/0037110 .,A .. l, published February 17, 2005). 2 Appeal2014-004625 Application 13/091,796 OPINION After review of the respective positions provided by Appellants and the Examiner, we AFFIRM for the reasons presented by the Examiner and add the following. The subject matter of independent claim 23 is directed to a process for producing a frozen aerated product by adding hydrophobin prior to and a surfactant during or following the aeration of a mixture forming the aerated frozen product. Appellants' present specific arguments only for independent claim 23 and do not present separate arguments for claims 17, 19-21, and 24. See Appeal Brief, generally. Accordingly, we limit our discussion to independent claim 23. Claims 17, 19-21, and 24 stand or fall with claim 23. In addition, a discussion ofWindhab is unnecessary for disposition of the present appeal because the Examiner did not rely upon this reference to address the addition of hydrophobin to the aerated food product. The Examiner found Jonas teaches a process for producing a frozen aerated product by adding surfactants such as milk proteins to an aerated product mixture of stabilizers and sweeteners. Final Act. 2-3; Jonas Abstract, col. 3, 11. 11-53, col. 5, 11. 13-30, 49-61, col. 6, 11. 42-60, col. 7, 11. 43-52. The Examiner found Jonas does not disclose adding hydrophobin in isolated form to the food product. Final Act. 3--4. The Examiner found Berry teaches of a process of making an aerated food product comprising hydrophobin in isolated form to provide high foamability and good foam stabilization properties. Final Act. 4; Berry Abstract, ,-i,-i 3, 27, 31, 32, 39. Berry discloses the hydrophobin can be added prior to or during aeration of 3 Appeal2014-004625 Application 13/091,796 the product. Berry ii 10. The Examiner determined it would have been obvious to one of ordinary skill in the art to incorporate Berry's hydrophobin in the product of Jonas for the benefits disclosed by Berry. Final Act. 4. Appellants argue Jonas does not teach adding a surfactant to the aerated mixture during or following aeration. App. Br. 4. Instead, Appellants argue Jonas discloses adding the surfactant (milk protein) prior to aeration. App. Br. 4-5; Jonas Examples 1-3; col. 7, 11. 43-52, col. 9, 11. 55- 60, col. 12, 11. 45-53. We are unpersuaded by these arguments. As noted by the Examiner, Jonas discloses making an aerated frozen product by adding a protein emulsion having known surfactants, such as milk proteins, to a fat emulsion after the fat emulsion has been aerated (whipped). Ans. 7; Jonas col. 3, 11. 11-64, col. 5, 11. 13-61. Appellants have not adequately explained how the subject matter of independent claim 23 is different from this disclosure in Jonas. Appellants argue that Berry or the rest of the cited art do not recognize the claimed order of addition of hydrophobin first and subsequently another surfactant and of the effect of adding a surfactant following or during aeration on the bubble size distribution for the claimed process. App. Br. 5. We are also unpersuaded by Appellants' arguments. As noted above, the Examiner found Jonas discloses adding a surfactant to a mixture during or following aeration. Final Act. 2; Ans. 7; Jonas col. 3, 11. 11-64, col. 5, 11. 13-61. The Examiner found Berry discloses the use of hydrophobin to make aerated food products with high foamability and good foam stabilization properties. Final Act. 4; Ans. 8; Berry Abstract, ii 3. Moreover, Berry 4 Appeal2014-004625 Application 13/091,796 discloses inhibiting bubble coarsening in an aerated food product by adding hydrophobin to the food product prior to and/or during aeration of the product. Berry iJ 10. Thus, the Examiner has established a reasonable basis to conclude that the claimed invention would have been obvious over the prior art cited. Final Act. 4; Ans. 9-10. That is, the Examiner determined that one of ordinary skill in the art would have been led to the known technique of Berry of using hydrophobins prior to aeration to inhibit bubble coarsening in aerated food products in the process of Jonas with the reasonable expectation of successfully making an aerated product for public consumption. Thus, on this record, Appellants have not adequately explained why one skilled in the art would not have been capable of adapting the method of Jonas to include Berry's step of adding hydrophobin prior to aeration of a mixture and before addition of a surfactant after aeration of the mixture. Appellants argue the Examples in the Specification show surprising results by the claimed process in substantially improving small gas bubble size distribution. App. Br. 6. The burden of showing unexpected results rests on the person who asserts them. Appellants may meet their burden by establishing that the difference between the claimed invention and the closest prior art was an unexpected difference. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). The unexpected results must be established by factual evidence, and attorney statements are insufficient to establish unexpected results. See In re Geisler, 116 F.3d 1465, 1470-71 (Fed. Cir. 1997). Further, a showing of unexpected results supported by factual evidence must be reasonably commensurate in scope with the degree of protection sought by the claims 5 Appeal2014-004625 Application 13/091,796 on appeal. Jn re Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); Jn re Clemens, 622 F.2d 1029, 1035 (CCPA 1980). We are unpersuaded by this evidence as well and agree with the Examiner's determination that the examples in the Specification are not commensurate in scope with the instant claims. Ans. 11. Moreover, only Example 3 adds surfactant after aeration of a mixture. Spec. 24. This Example contains 0.1 % by weight of hydrophobin and 5% by weight of surfactant (skimmed milk). Id. at 15. Appellants have not adequately explained why the single example comprising a composition with a single amounts for the hydrophobin and the surfactant is representative of the entire scope of the range of amounts of hydrophobin (at least 0.0001 %) and surfactant (at least 0.05 %) encompassed by independent claim 23. In addition, Appellants showing in the Specification does not provide a comparison with prior art compositions, much less the closest prior art (Jonas). On this record, Appellants have not adequately shown, much less explained, why the evidence relied upon would have been unexpected by one of ordinary skill in the art or is reasonably commensurate in the scope with the claims. Accordingly, we affirm the Examiner's prior art rejection of claims 17, 19-21, 23, and 24 for the reasons presented by the Examiner and given above. ORDER The Examiner's prior art rejection of claims 17, 19-21, 23, and 24 is affirmed. 6 Appeal2014-004625 Application 13/091,796 TIME PERIOD No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a )(1 ). AFFIRMED 7 Copy with citationCopy as parenthetical citation