Ex Parte Dwivedi

Patent Trial and Appeal Board

Mar 10, 2017

12256101 (P.T.A.B. Mar. 10, 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.
12/256,101 10/22/2008 Basant K. Dwivedi 18166-021 4577
32137 7590 03/14/2017
PATENT DOCKET CLERK
COWAN, LIEBOWITZ & LATMAN, P.C.
114 WEST 47th STREET
21st FLOOR
NEW YORK, NY 10036
EXAMINER
BADR, HAMID R
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
03/14/2017 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):
sxd@cll.com
ram@cll.com
dxo@cll.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BASANT K. DWIVEDI
Appeal 2015-001157
Application 12/256,101
Technology Center 1700
Before PETER F. KRATZ, MARK NAGUMO, and JAMES C. HOUSEL,
Administrative Patent Judges.
Opinion for the Board filed by Administrative Patent Judge KRATZ.
Opinion Concurring filed by Administrative Patent Judge NAGUMO.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1—66. Oral argument was made during
a Hearing conducted on December 12, 2016. We have jurisdiction pursuant
to 35 U.S.C. § 6.
Appellant’s claimed invention is directed to a method for
manufacturing a food product having a center including substantial moisture
content, a barrier layer around the center, and an outer layer including
probiotic cultures and a product food comprising such components.
Claim 1 is illustrative and reproduced below:
1. A process of manufacturing a food product having probiotic
cultures that is stable at room temperature for a substantial period of time,
comprising the steps of:
combining a plurality of ingredients to produce a slurry;
cooking the slurry to produce a center for the food product, the center
having a substantial moisture content;
applying a barrier layer to the center of the food product, the barrier
layer adapted to substantially prevent migration of moisture from the center
of the food product;
applying an outer layer over the barrier layer applied to the center of
the food product, the outer layer containing probiotic cultures; and
allowing the center of the food product to cool to substantially room
temperature prior to applying the outer layer.
The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Coyle et al.
Gaonkar et al.
Dalziel et al.
Mattson
US 6,528,102 B1
US 2004/0253347 Al
US 2006/0068019 Al
US 2007/0160589 Al
Mar. 4, 2003
(“Coyle”)
Dec. 16, 2004
(“Gaonkar”)
Mar. 30, 2006
(“Dalziel”)
July 12, 2007
The Examiner maintains the following ground of rejection:
Claims 1—66 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Coyle in view of Mattson, Gaonkar, and Dalziel.
We reverse the stated rejection. Our reasoning follows.
The Examiner bears the initial burden of presenting a prima facie case
establishing the non-patentability of the rejected claims. In re Oetiker, 977
F.2d 1443, 1445 (Fed. Cir. 1992).
The Examiner’s obviousness rejection is premised on a modification
of Coyle based on the combined teachings of the applied references.
Coyle is directed to a fruit based snack product that is made by a co-
deposition/co-extrusion process wherein “the extruder seals the center within
the jacket material” (Coyle, col. 2,11. 1—29).
As found by the Examiner, Coyle (Rl) teaches, inter alia, that: (a) the
center material can be made with ingredients including “fruit juices and/or
puree, com symp, com starch, gelatin, pectin, acidulents, colors and flavors,
buffers, vitamins, preservatives, and nutrients” and which center material
would include a substantial moisture content (Final Act. 2—3; Coyle, col. 2,1.
65—col. 3,1. 5; col. 3,11. 59—66, col. 4,11. 50-51) and (b) the jacket shell may
comprise yogurt or licorice and the jacket encapsulates the center filling
(Final Act. 3; Coyle, col. 1,11. 57—66, col. 8, Example 1).
The Examiner finds that Coyle fails to describe that the jacket (outer)
layer of Coyle’s product includes probiotic cultures (Final Act. 3).1
Furthermore, the Examiner determines that Coyle fails to expressly teach
applying a moisture barrier layer to the center filling; consequently, Coyle
does not teach providing for the application of the outer (jacket) layer
containing probiotics over such an intermediate barrier layer as, for instance,
required by claim 1 (Final Act. 5).2
1 In this regard, Appellant specifies that “[pjrobiotics are defined as live
microorganisms that beneficially affect the host upon ingestion by
improving the balance of the intestinal microflora” (Spec. 13).
2 The Examiner does not identify and address each of the rejected
independent claims separately (see generally Ans. And Final Act.). Rejected
claims 1, 20, 36, 44, and 57 are independent claims (see Claims Appendix to
the Appeal Brief). However, all of the appealed claims require a method
and/or a product that includes a moisture barrier layer located between a
center material having a substantial moisture content and an outer layer
containing probiotic cultures/heat sensitive components. In particular,
independent claims 44 and 57 and several claims that depend from the latter
claims more broadly specify that the outer layer includes heat sensitive
The Examiner finds that Mattson (R2) teaches, inter alia, a probiotic-
containing food product including a “dry active probiotic culture dispersed
in a fully enveloping, substantially continuous fat based coating” such as
chocolate or chocolate substitutes, wherein “[t]he fat based coating also
protects the dry culture from moisture” (Final Act. 3^4; Mattson || 9, 13—
15, 19—22). The food product of Mattson is substantially solid at room
temperature, such as a food bar (Mattson || 9, 11). The Examiner finds that
Mattson lacks a description of a moisture barrier, as claimed by Appellant
(Final Act. 5).
The Examiner finds that Gaonkar (R3) teaches using “a moisture
barrier layer between layers in a multi-component food” wherein the layers
have different water activities (Final Act. 5; Gaonkar || 40, 47, 55, 78).
More completely, Gaonkar teaches a moisture release system that includes
both a moisture barrier layer and a moisture supply layer, wherein a water-
in-oil emulsion can be employed as the moisture supply layer (|| 17—21, 43—
47). Consequently, the Examiner’s reference to paragraph 47 of Gaonkar as
describing certain moisture barrier components is inaccurate (Final Act. 5;
see Gaonkar | 52). In paragraph 52, Gaonkar teaches that the moisture
barrier generally comprises an edible lipid or oil.
The Examiner finds that Dalziel (R4) discloses zein in a moisture
barrier coating, which coating may further contain flavoring agents or a taste
masking agent (Final Act. 5—6; Dalziel 69, 74, 165).
In maintaining the rejection, the Examiner urges that:
components. Independent method claims 1 and 44 require that the center of
the food product be allowed to cool to substantially room temperature prior
to applying the outer layer as a step in manufacturing the product.
To protect the probiotics from the migration of moisture from
the inside of the food product to the outside, it naturally flows
from the teaching of R3; to place a moisture barrier between the
two sections, i.e., the high moisture inner side and the coating
containing the probiotics. R4 discloses the use of proteins e.g.,
zein to construct moisture barrier around water sensitive
materials. Therefore, it would have been obvious to produce a
fruit snack having a high moisture center filling as disclosed by
R1 and further apply a moisture barrier or other moisture proof
materials to prevent the migration of moisture [from] the inner
filling to the outer coat, as taught by R3 and R4 and finally
apply a coating (envelope) comprising live probiotics as an
outer layer as disclosed by R2.
Final Act. 6; see Ans. 6—7.
However, the Examiner has not sufficiently articulated how and why
one of ordinary skill in the art would have been led to (1) modify the co-
deposition/co-extrusion production method/product of Coyle (Rl) wherein a
jacket/shell material 14 is deposited surrounding a candy/jam-like center
filling material 13 having a substantial moisture content to form a center-
filled snack confection product and where the co-extruder seals the center
filling material within the jacket so as to interpose a moisture barrier layer
between the two co-deposited layers of Coyle and (2) further modify Coyle
to include probiotic/heat sensitive cultures in the outer layer of Coyle based
on the additional applied teachings of Mattson (R2), Gaonkar (R3), and
Dalziel (R4).
In this regard, Appellant argues that (1) an ordinarily skilled artisan
would not have been motivated to modify Coyle’s co-extruded product for
accommodating probiotic cultures in the outer layer because the jacket
material is kept at a significantly higher temperature than a temperature
appropriate for the viability of probiotic cultures during Coyle’s co-extrusion
production method and (2) modifying Coyle’s snack product production
method by using reduced temperatures to preserve the viability of any
proposed heat sensitive probiotic cultures as a modification to Coyle would
change the principle of operation of Coyle’s co-extruded product production
method including the co-extrusion conditions taught therein (App. Br. 22—
23).
In support of the arguments presented, Appellant explains how
Coyle’s co-production extrusion method is conducted at relatively high
temperatures as compared to the lower temperatures taught by Mattson to be
conducive for the preparation of a dry snack food containing viable probiotic
material in a coating (App. Br. 12—15).
Appellant argues that proposed modification of Coyle is inapposite to
the temperature requirements for the processing of the co-extruded jacket
material of Coyle, which is applied at a relatively high temperature for
purposes of the desired co-extrusion at a time in the process before the
center of the food product is allowed to cool to about room temperature
(App. Br. 12—21; Reply Br. 2—9; Coyle, col. 3,11. 29—38, Example 1, col. 8,
11. 18-47; Mattson H 9, 33, 52-57).
The Examiner appears to concur with Appellant’s argument that the
co-extrusion method and co-extruded product of Coyle should not be
substantially reconstructed by the proposed modification of Coyle (Ans. 11).
Hence, the Examiner further suggests that substantial reconstruction
of Coyle may not be required if “[t]he jacket of Coyle’s product can be
considered [as] a moisture barrier,” Coyle’s “final” product is cooled to set
the jacket/coating, and if another outermost coating comprising probiotics
were applied to Coyle’s cooled outer jacket layer (Ans. 11—12). According
to the Examiner, “[i]t logically flows from the teachings of these references
[(Coyle and Mattson)] that the probiotic coating can be applied to Coyle’s
cooled product” (Ans. 12).
However, the Examiner has not carried the burden to establish that
Coyle and Mattson together with the other applied references would have
taught or suggested to one of ordinary skill in the art that (1) the outer
coating layer (jacket 14) of Coyle would naturally serve as and should be
employed as an intermediate moisture barrier layer for the moisture-
containing candy/jam-like center filling material 13 of Coyle, and (2)
another coating layer that includes probiotics should be applied onto jacket
14 of Coyle (Reply Br. 12; Coyle, col. 1,11. 57—66, col. 2,1. 65—col. 3,1. 5,
col. 3,11. 59-66, col. 4 11. 29-32, 50- 52; col. 4,1. 59-col. 5,1. 9; col. 8
(Example 1); Mattson || 9, 11,13—17; 19—22, 33, 45; see Gaonkar | 52).
In particular, the Examiner has not articulated (1) how the jacket
material of Coyle corresponds to the lipid-containing moisture barrier of
Gaonkar and/or (2) why one of ordinary skill in the art would have been
prompted to add an additional outer layer as an enrobing layer for the cooled
soft candy product of Coyle, which candy already comprises a jacket layer
14 surrounding a jam-like or liquid-filled center 13 based on the disparate
teachings of Mattson concerning a substantially solid food product coating.
Nor has the Examiner otherwise furnished a credible rationale arising
out of the cited prior art that would have led one of ordinary skill in the art to
further process and coat the two-component snack co-extruded final product
of Coyle having a distinct center filling and a fruit snack material jacket by
applying a probiotic-containing outer coating for the jacketed candy of
Coyle based on the applied prior art teachings (Reply Br. 6—12; App. Br. 21—
26).
It follows that, on this appeal record, we reverse the Examiner’s
obviousness rejection.
CONCLUSION
The Examiner’s decision to reject the appealed claims is reversed.
REVERSED
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BASANT K. DWIVEDI
Appeal 2015-001157
Application 12/256,101
Technology Center 1700
Before PETER F. KRATZ, MARK NAGUMO, and JAMES C. HOUSEL,
Administrative Patent Judges.
NAGUMO, Administrative Patent Judge, concurring.
As argued by Appellants (App. Br. 22—23; Main Op. 5—6), the
Examiner has failed to come forward with any credible evidence that it
would have been obvious to modify the coextrusion process described by
Coyle by cooling the center of the food product to room temperature, as
required by representative claim 1. Such a modification would change the
principle of operation of Coyle, and is therefore beyond the bounds of
Obviousness under § 103. In reFritch, 972 F.2d 1260, 1265 n.12 (Fed. Cir.
1992) (“This court has previously found a proposed modification
inappropriate for an obviousness inquiry when the modification rendered the
prior art reference inoperable for its intended purpose. In re Gordon, 733
F.2d 900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984).”
I therefore concur in the judgment.