Ex Parte BURMESTER et al

Patent Trial and Appeal Board

Feb 23, 2016

13091796 (P.T.A.B. Feb. 23, 2016)

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