Ex Parte Durand et alDownload PDFPatent Trial and Appeal BoardSep 27, 201612445674 (P.T.A.B. Sep. 27, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/445,674 0913012009 30678 7590 POLSINELLI PC (DC OFFICE) 1000 Louisiana Street Fifty-Third Floor HOUSTON, TX 77002 09/29/2016 FIRST NAMED INVENTOR Daniel Durand 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. 085151-532920 9999 EXAMINER WILLIAMS, LELA ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 09/29/2016 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): dcdocketing@novakdruce.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte DANIEL DURAND, JEAN-MARIE BOUVIER, GILLES MALLER, SCOTT MAXWELL, STEWART STEVENSON, STEVEN ROBERTS, and ALAIN BRISSET Appeal2015-004887 Application 12/445,674 Technology Center 1700 Before KAREN M. HASTINGS, MONTE T. SQUIRE, and BRIAND. RANGE, Administrative Patent Judges. RANGE, Administrative Patent Judge. DECISION ON APPEAL SUMMARY Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 2, 3, 5-10, 12-16, and 26-28. We have jurisdiction. 35 U.S.C. § 6(b). We AFFIRM. 1 According to the Appellants, the real party in interest is "CLEXTRAL." Appeal Br. 2. Appeal2015-004887 Application 12/445,674 STATEMENT OF THE CASE Appellants describe the present invention as relating to a method to make a porous powdered product such as powdered milk. Appeal Br. 6. 2 In particular, Appellants indicate that the present invention can produce an acceptable final product from a starting product having high viscosity. Spec. 14---6. Claim 26, reproduced below with emphasis on certain key recitations and some spacing added, is the only independent claim on appeal and is illustrative of the claimed subject matter: 26. A method for the production of a porous powdered product from at least one viscous and/or pulverulent starting product, the method comprising: a) preparing the starting product to have a viscosity greater than 100 mPa.s; then continuously b) mixing the prepared product with a gas in a thermomechanical treatment machine, configured to continuously carry out at least transport and mixing functions, with the gas injected into the thermomechanical treatment machine both without changing dry matter content of the prepared product and without exposing the prepared product to open air, so that the viscosity of the prepared product is lowered and porosity is initiated in the prepared product; c) transferring, both continuously and without being exposed to the open air, the prepared product into a static or dynamic aeration device from the thermomechanical treatment machine; d) further mixing the prepared product in the aeration device with a gas, which may be the same gas or a different gas from the gas of step b) and which is injected into the aeration device 2 In this decision, we refer to the Final Office Action mailed April 9, 2014 ("Final Act."), the Appeal Brief filed September 3, 2014 ("Appeal Br."), and the Examiner's Answer mailed January 28, 2015 ("Ans."). 2 Appeal2015-004887 Application 12/445,674 so as to intensify mixing between the gas and the prepared product to obtain an aerated mass; and e) spray drying the aerated mass to obtain the porous powdered product, wherein porous particles of the porous powdered product have a dry matter content of from 50 to 90% by weight and a particle size less than or equal to 3 mm. Sept. 19, 2014, Reply to Notification ofNon-CompliantAppeal Brief 4 (Appendix A-Claims on Appeal). REFERENCES AND REJECTION The Examiner relies upon the prior art below in rejecting the claims on appeal: Sjollema et al. (hereinafter "S j o llema") Durand et al. (hereinafter "Durand") Macinnes et al. (hereinafter "Macinnes") US 2,953,458 Sept. 20, 1960 US 8,268,378 B2 Sept. 18, 2012 US 2003/0008059 Al Jan. 9, 2003 On appeal, the Examiner maintains the rejection of claims 26, 2, 3, 5- 10, 12-16, 27, and 28 under 35 U.S.C. § 103 as unpatentable over Durand in view of Sjollema and Macinnes. ANALYSIS After having considered the evidence presented in this Appeal and each of Appellants' contentions, we are not persuaded that Appellants identify reversible error, and we affirm the Examiner's§ 103 rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. We review the appealed rejections for error based upon the issues identified by Appellants and in light of the arguments and evidence produced 3 Appeal2015-004887 Application 12/445,674 thereon. Cf Ax parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("it has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections")). Appellants do not separately argue claims 2, 3, 5-10, 12-16, 27, and 28. We therefore limit our discussion to the sole independent claim, claim 26. Claims 2, 3, 5-10, 12-16, 27, and 28 stand or fall with that claim. 37 C.F.R. § 41.37(c)(l)(iv) (2013). Appellants argue that claim 26 is distinguishable from Durand for four reasons. Appeal Br. 7. First, Appellants argue that Durand does not specify a starting prepared product having viscosity greater than 100 mPa.s. 3 Id. Durand, however, does teach a starting product "in the viscous state" having dry matter concentration "preferably between 65 and 75%." Durand 4:22- 27. Similarly, Maccines teaches a starting concentrated product with solids concentration from about 70% to about 85% solids by weight and having viscosity preferably between about 1,000,000 and 100,000,000 Pa.s. Maccines i-f 1 7. The Examiner finds that Maccines teaches that viscosity "is important to get a sufficiently stabilized foam, which does not collapse prior to drying." Final Act. 4-5; Maccines i-f 17. Thus, we agree with the Examiner that it would have been obvious, in light of the teachings of Durand and Maccines, to utilize a product having a viscosity far greater than 100 mPa.s (i.e., more than 0.1 Pa.s) in conjunction with Durand. Final Act. 4-5; Ans. 3. 3 The unit "mPa.s" is millipascal-second and is a measurement of dynamic viscosity. One pascal second equals 1000 millipascal-seconds. 4 Appeal2015-004887 Application 12/445,674 Second, Appellants argue that Durand is distinguishable from claim 26 because Durand "expressly teaches that it is necessary to add a determined amount of an additional product to the 'main' product treated .... " Appeal Br. 7-8. Claim 26, however, does not forbid such an addition. Ans. 3. Rather, claim 26 recites "mixing the prepared product with gas ... with the gas injected into the thermomechanical treatment machine both without changing dry matter content of the prepared product and without exposing the prepared product to open air .... " This recitation only requires that the mixing with injected gas not change dry matter content. The Examiner finds that the injection of gas does not change the dry matter content in Durand (Ans. 3), and Appellants do not provide any persuasive argument or direct us to sufficient evidence to the contrary. See also Durand Figs. 2 and 3 (indicating that additional powdered milk is introduced to the process only after the first overrun/mixing step). As another part of this second argument, Appellants also state that Durand does not disclose its E2 overrun step "as being implemented in a thermomechanical treatment machine." Appeal Br. 8. Durand, however, teaches air injection in the machine: Preferably, a gas such as, for example, an inert gas is injected at least during an overrun step E2 or E4. This injection of gas can be carried out solely during an overrun step or simultaneously during an overrun step and in the thermomechanical mixing machine. Durand 5:51-55. Thus, Appellants' second argument does not identify reversible error in the Examiner's findings and analysis in this regard. Third, Appellants argue that Durand does not move the mixture to an aerator and does not transfer product continuously and without being exposed to open air. Appeal Br. 9. Durand, however, teaches a continuous 5 Appeal2015-004887 Application 12/445,674 process. Final Act. 2; Durand 1: 17-20 ("The present invention relates to a method for the continuous preparation .... "). Durand teaches use of a vacuum-i.e., a process not exposed to open air. Ans. 4; Durand 3:4--5. The Examiner agrees that Durand does not explicitly teach use of a separate aerator, but the Examiner correctly concludes that use of a separate machine for aeration would have been obvious given Durand teaching the benefits of aeration. Ans. 4--5; Durand 5:50-65. We discern no reversible error in the Examiner's conclusion and factual findings in this regard. Fourth, Appellants argue that Durand does not teach use of spray drying producing fine particle sizes of less than or equal to 3 mm. Appeal Br. 9. The Examiner, however, correctly finds that spray-drying powdered beverages was "a known and common technique." Ans. 5; see also id. at 6. Indeed, the Sjollema and Macinnes references establish that spray drying was a well-known and typical method of producing a powdered beverage (for example, powdered milk) from prior to 1960 through at least 2002. Sjollema 1: 17 -24 (as of at least 1960, referring to "spray dried whole milk or skim milk" and how it is "well known" that such products may form lumps when mixed with water); Macinnes i-f 3 (stating in 2002 that "beverage powders are usually produced by spray-drying or freeze-drying a concentrated base liquor"). Although Appellants argue that Sjollema and Macinnes "teach away" from spray-drying (Appeal Br. 10-11), the references' discussion of disadvantages of spray-drying in certain contexts, without more, does not negate the obviousness of using such a "well known" technique for the function it is "usually" used for. KSR Intern. Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007) ("a court must ask whether the improvement is more than the predictable use of prior art elements according 6 Appeal2015-004887 Application 12/445,674 to established functions."); see also Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) ("a given course of action often has simultaneous advantages and disadvantages, and this does not necessarily obviate motivation to combine"). With respect to particle size, the Examiner finds that Macinnes teaches a particle size of about 0.5 mm to about 3 mm and concludes that a person of skill would have been motivated to reach this size with Durand "to ensure solubility of the powder during use." Ans. 6; see also Final Act. 4--5; Macinnes i-fi-f 14 (explaining its process relates in a product "that has good solubility"), 42 (explaining that final product would have dimensions "preferably in a range of 1 to 3 mm"), 49 (explaining that foam is "comminuted to a particle size of about 0.5 mm to about 3 mm"). We agree with these findings and with the Examiner's conclusion that achieving a particle size of less than 3 mm would have been obvious in light of the cited art. Appellants also argue that Sjollema teaches away from incorporating gas into a liquid product. Appeal Br. 10. We disagree. To the contrary, the Examiner correctly explains that incorporation of gas aids in expansion of the final powder. Ans. 5---6; Sjollema 1 :45-51. Although the gas may cause certain difficulties in the particular example referenced by Sjollema (an example that does not use spray drying), this does not constitute a teaching away from utilizing gas in conjunction with Durand. In re Gurley, 27 F .3d 551, 553 (Fed. Cir. 1994) ("A reference may be said to teach away when a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the reference, or would be led in a direction divergent from the path that was taken by the applicant."). 7 Appeal2015-004887 Application 12/445,674 We therefore sustain the Examiner's rejection of claims 2, 3, 5-10, 12-16, and 26-28 because the Examiner's findings and conclusions are supported by a preponderance of the evidence and Appellants have not established that the Examiner has reversibly erred. DECISION For the above reasons, we affirm the Examiner's rejection of claims 2, 3, 5-10, 12-16, and 26-28. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 8 Copy with citationCopy as parenthetical citation