Ex Parte Chaudhry et al

Board of Patent Appeals and Interferences

Jun 1, 2011

11127714 (B.P.A.I. Jun. 1, 2011)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/127,714 05/12/2005 Prerna Chaudhry 6163US 6823
30173 7590 06/01/2011
GENERAL MILLS, INC.
P.O. BOX 1113
MINNEAPOLIS, MN 55440
EXAMINER
BADR, HAMID R
ART UNIT PAPER NUMBER
1781
MAIL DATE DELIVERY MODE
06/01/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte PRERNA CHAUDHRY,
MAEVE C. MURPHY, CAROLINE M. FRANKE, and
JOANA A. MONTENEGRO
________________

Appeal 2010-002909
Application 11/127,714
Technology Center 1700
________________

Before BRADLEY R. GARRIS, BEVERLY A. FRANKLIN, and
LINDA M. GAUDETTE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL

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Application 11/127,714

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Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision1 finally rejecting claims 1-13, 15, 16, and 23-28 under 35 U.S.C.
§ 112, first paragraph, and under 35 U.S.C. § 103(a) as unpatentable over
Fleury2 in view of Tamime.3, 4, 5 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellants’ arguments in support of patentability are based on
limitations found in claim 1, the sole independent claim, which is
reproduced below from the Claims Appendix to the Appeal Brief:
1. A method of producing a cultured dairy product,
comprising the steps of:
A. providing a heat treated dairy base mix;
B. inoculating the heat treated dairy base mix with a
starter culture to form an inoculated dairy base mix;
C. fermenting the inoculated dairy base mix to provide a
cultured dairy base mix;
D. cooling the cultured dairy base mix to a temperature
of about 0º C to about 5º C (41º F) to arrest fermentation;
E. finishing the cultured dairy base mix to provide a final
cultured dairy product;

1 Final Office Action mailed Feb. 6, 2009 (“Final”).
2 US 5,820,903 issued Oct. 13, 1998.
3 A.Y. TAMIME & R.K. ROBINSON, YOGHURT SCIENCE AND TECHNOLOGY 16
(Pergamon Press 1985).
4 Appeal Brief filed July 6, 2009 (“Br.”).
5 The Examiner has withdrawn the final rejection of claims 1-13, 15, 16, and
23-28 under 35 U.S.C. § 112, second paragraph, as indefinite. (Examiner’s
Answer mailed Sept. 25, 2009 (“Ans.”), 2.)
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wherein substantially all preservative(s), carbohydrate
sweetening agent(s) and stabilizer(s) present in the final
cultured dairy product are added to the cultured dairy base mix
after completion of the fermenting step.

Rejection under 35 U.S.C. § 112, first paragraph
The Examiner maintains the Specification lacks support for the claim
1 limitation requiring that “‘substantially all’ preservative(s) and stabilizer(s)
present in the final cultured dairy product are added to the cultured dairy
base mix after completion of the fermentation step.” (Ans. 3.) In support of
the rejection under 35 U.S.C. § 112, first paragraph, the Examiner notes that
the Specification only explicitly discloses “the elimination of preservative(s)
in the pre-fermentation process” and the “admixing [of] about 0.2-1.2%
stabilizer(s) into the cultured dairy product.” (Ans. 8 (quoting Spec. ¶
[0027] and ¶ [0053] (emphasis added)).)
According to the Specification:
it has been found that the post fermentation addition of
carbohydrate sweetening agent(s), preservative(s), and other
ingredients such as stabilizer(s) that have generally been added
in the pre-fermentation process provides a customizable
cultured dairy base, thereby reducing the number of base
formulations needed to produce a variety of yogurt products
and decreasing the operational problems such as scheduling,
capacity, product quality, and overuse associated with having
numerous dairy base formulations.

(Spec. ¶ [0030].) The Specification also explains that a drawback of adding
carbohydrate sweetening agents and preservatives prior to fermentation is
that they “have inhibitory effects on the fermentation times of cultured dairy
products, thereby increasing the fermentation times of the cultured dairy
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products production process.” (Spec. ¶ [0025].) The invention is thus
directed to “elimination or reduction of carbohydrate sweetening agent(s)”
and “elimination of preservative(s) in the pre-fermentation process.” (Spec.
¶¶ [0026-0027].) The Specification refers to “[e]liminating the carbohydrate
sweetening agent(s) substantially, as opposed to only removing a portion of
the carbohydrate sweetening agent(s).” (Spec. ¶ [0039].)
The test for sufficiency of a written description is whether the
disclosure “clearly allow[s] persons of ordinary skill in the art to recognize
that [the inventor] invented what is claimed.” Ariad Pharms., Inc. v. Eli
Lilly & Co., 598 F.3d 1336, 1351 (Fed. Cir. 2010) (en banc) (quoting Vas–
Cath Inc. v. Mahurkar, 935 F.2d 1355, 1562-63 (Fed. Cir. 1991)). “The
‘written description’ requirement must be applied in the context of the
particular invention and the state of the knowledge.” Capon v. Eshhar, 418
F.3d 1349, 1358 (Fed. Cir. 2005).
Appellants argue, and we agree, that one of ordinary skill in the art,
upon review of the Specification in its entirety, would “immediately
recognize that Appellants were in possession of the concept not only of
addition of all . . . [carbohydrate sweetening agents, preservatives and
stabilizers] after completion of the fermenting step, but that [a] benefit
would be achieved if substantially all of these ingredients were added after
completion of the fermenting step.” (Br. 12.) Specification ¶ [0026] refers
to “elimination or reduction of carbohydrate sweetening agent(s).” In
discussing the carbohydrate sweetening agent, Specification ¶ [0039]
indicates that reduction refers to “removing a portion” while elimination
means “substantially” eliminating. In our view, one of ordinary skill in the
art would similarly understand from the Specification that eliminating the
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preservatives and stabilizers from the pre-fermentation process, or adding
these components to the cultured dairy base mix, refers to the addition of
“substantially all preservative(s), . . . and stabilizer(s) present in the final
cultured dairy product . . . to the cultured dairy base mix after completion of
the fermenting step” (claim 1).
Accordingly, we reverse the rejection of claims 1-13, 15, 16, and 23-
28 under 35 U.S.C. § 112, first paragraph.

Rejection under 35 U.S.C. § 103(a)
Appellants do not dispute that Fleury discloses a method of making
yogurt as recited in claim 1, steps A-E. (See Br. 14-15.) Appellants further
agree Fleury teaches the addition of preservatives, carbohydrate sweetening
agents, and stabilizer, but maintain Fleury does not teach adding
“substantially all” of these components “after the completion of the
fermenting step” as recited in the claim 1 wherein clause. (Id.)
Appellants disagree with the Examiner’s findings (see generally, Ans.
6-7 and 10-12) that Tamime teaches “adding substantially all of the
preservative(s), carbohydrate sweetening agent(s) and stabilizer(s) present in
the final cultured dairy product to the cultured dairy base mix after
completion of the fermenting step, as required in the present claims.” (Br.
15 (emphasis omitted).)
With respect to the addition of carbohydrate sweetening agents,
Appellants argue that “Tamime only teaches adding a large portion of sugar
to the finished, cooled fermented product in the special case of highly
sweetened frozen yogurt.” (Br. 15.) Appellants’ argument is not supported
by Tamime’s disclosure which states: “[i]t is now almost universal practice
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to add preserves and similar materials to the finished yoghurt, for the
presence of carbohydrates in the basic mix can inhibit the growth of the
yoghurt organisms” (p. 33).
Appellants argue that Tamime teaches away from the use of any
preservatives. Appellants’ arguments are not supported by Tamime which
discloses that in some countries, e.g., the United Kingdom, preservatives are
not permitted in “natural yoghurt,” but are permitted in fruit yogurt, since
the preservatives present in the fruit which is added to the yogurt are carried-
over into the blend (p. 41). (See also, Fleury col. 7, ll. 52-54 (“In the
manufacture of Swiss-style yogurt, a fruit flavoring is blended substantially
uniformly throughout the yogurt after fermentation is complete but prior to
packaging.”).)
A prima facie case of obviousness is established where the Examiner
demonstrates that the invention is nothing more than the predictable result of
a combination of familiar elements according to known methods. KSR Int’l.
Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007); Rolls-Royce, PLC v. United
Technologies Corp., 603 F.3d 1325, 1338 (Fed. Cir. 2010)(“If a person of
ordinary skill, before the time of invention and without knowledge of that
invention, would have found the invention merely an easily predictable and
achievable variation or combination of the prior art, then the invention likely
would have been obvious.”).
In our view, the facts and reasons relied on by the Examiner in the
Answer provide a reasonable basis for concluding that the ordinary artisan
would have been motivated to modify Fleury’s method based on Tamime’s
disclosure, such that “substantially all of the preservative(s), carbohydrate
sweetening agent(s) and stabilizer(s) present in the final cultured dairy
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product are added to the cultured dairy base mix after completion of the
fermenting step” as recited in appealed claim 1. As demonstrated in the
above paragraphs, Appellants’ arguments are not supported by the evidence
of record. Accordingly, Appellants have not persuaded us of error in the
Examiner’s obviousness determination. Therefore, we sustain the rejection
of claims 1-13, 15, 16, and 23-28 under 35 U.S.C. § 103(a) as unpatentable
over Fleury in view of Tamime.
The Examiner’s decision to reject claims 1-13, 15, 16, and 23-28 is
affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED

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