Ex Parte Funda et al

Patent Trial and Appeal Board

Oct 17, 2016

13057205 (P.T.A.B. Oct. 17, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/057,205 05/02/2011
23117 7590 10/19/2016
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
ElgerFunda
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.
BHD-4662-1806 1695
EXAMINER
PRAKASH, SUBBALAKSHMI
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
10/19/2016 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ELGER FUNDA and KARIN LEUTHARDT
Appeal2015-004436
Application 13/057,205
Technology Center 1700
Before JEFFREY T. SMITH, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.
HASTINGS, 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 1 and 5-7. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
Appeal2015-004436
Application 13/057,205
Appellants' invention is best illustrated by independent claim 1,
reproduced below (emphasis added to highlight disputed features):
1. A process for preparing a dry powder of non-
hygroscopic powder-coated beadlets, which comprise a
hygroscopic broccoli plant extract, comprising:
(a) forming an aqueous solution of
(i) 40 wt.% - 70 wt.%, based on total weight of the
beadlets, of a hygroscopic broccoli plant extract, and
(ii) 25 wt.% - 50 wt.%, based on total weight of the
beadlets, of at least one starch and/ or starch derivate, and
(b) converting the solution into a dry powder of non-
hygroscopic powder coated beadlets having a size from 50 µm
to 1,000 µm by spray drying the solution into a fluidized bed of
a collecting powder thereby forming a coating in an amount of
5 wt.% - 20 wt.%, based on total weight of the beadlets, of the
powder on the beadlets, wherein
step (b) is practiced by atomizing the aqueous solution
into a spray zone of a spraying tower at a solution temperature
of from about l 5°C to about 80°C with hot atomizing air at a
temperature sufficient to provide a spray zone temperature of
about 60°C to about 120°C while fluidizing the fluidized bed of
powder within a bottom of the spraying tower with cold
fluidizing air at a ratio of hot atomizing air flow to cold
fluidizing air flow in a range of 1 :8 to 1 :4 to achieve a
temperature of the fluidized bed of powder of about 0°C to
about 40°C.
Appellants appeal the Examiner's rejection of claims 1 and 5-7 under
35 U.S.C. § 103(a) as unpatentable over Trophardy (WO 2007/054853 Al,
published May 18, 2007), Kiefer (US 5,486,363, issued January 23, 1996)
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Appeal2015-004436
Application 13/057,205
and Schaffner (WO 2004/062382 Al, published July 29, 2004). See Appeal
Brief, generally.
Appellants do not argue any claim separate from the other. See
Appeal Brief, generally. Accordingly, we select independent claim 1 as
representative of the subject matter before us on appeal and claims 5-7 stand
or fall with claim 1.
OPINION
We have reviewed each of Appellants' arguments for patentability.
However, we are in agreement with the Examiner that the subject matter of
representative claim 1 is unpatentable. Accordingly, we sustain the
Examiner's prior art rejection for the reasons explained in the Answer, and
we add the following primarily for emphasis.
Independent claim 1 is directed to a process for preparing a dry
powder of non-hygroscopic powder-coated beadlets from a solution
comprising a hygroscopic broccoli plant extract by atomizing the aqueous
solution. Br. 4.
We refer to the Examiner's Final Office Action of February 11, 2014
for a statement of the rejection of representative claim 1. Final Act. 2-6.
Appellants argue that Trophardy's Table 1 discloses spray drying
using (hot gas inlet) temperatures higher than the ones disclosed by
Schaffner as critical to evaporate water from the droplet. Br. 6-7;
Trophardy 5, 13-14. According to Appellants, it is surprising to use a spray
drying process with very low temperatures in the spray drying zone as
claimed (about 60°C to about 120°C) to form powder-coated beadlets
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Appeal2015-004436
Application 13/057,205
comprised of hygroscopic materials that are not sticky even though an
aqueous solution is employed for the purpose of spray-drying. Br. 7.
We find these arguments unavailing for the reasons presented by the
Examiner. Ans. 8-10. Moreover, we note that Appellants' representative
claim 1 does not require a specific hot gas inlet temperature. Instead,
Appellants' representative claim 1 only requires the use of "hot atomizing
air at a temperature sufficient to provide a spray zone temperature of about
60°C to about 120°C" (emphasis added). That is, the fact that Trophardy
may use hot gas at inlet temperatures higher than necessary for Schaffner is
not relevant to the subject matter of representative claim 1. As noted by the
Examiner, Trophardy discloses the use of hot air in the disclosed atomizing
process to provide a spray zone temperature of 50-180 °C, which
encompasses the claimed spray zone temperature. Ans. 8; Trophardy 14.
We also note that both Schaffner and Kiefer disclose methods of atomizing a
solution to form beadlets using hot gas at a temperature sufficient to provide
a temperature in the spray drying zone of about 60 °C to about 120 °C and of
20 °C to 170 °C, respectively, that also meet the claimed temperature range
in the spray drying zone. Schaffner 3; Kiefer col, 2, 11. 62-64. Further, as
noted by the Examiner, Kiefer discloses a process of atomizing an aqueous
solution containing an hygroscopic ingredient and a starch to produce dry,
free-flowing hygroscopic ingredient (choline chloride )-containing powders
where the hygroscopic ingredient (choline chloride) is protected against
atmospheric moisture. Final Act. 4; Kiefer col. 1, 11. 55-67, col. 2, 11. 62-67;
col. 3, 11. 35-52; col. 4, 11. 17-25 (Example 2). Given the disclosures above,
Appellants have not adequately explained how the claimed invention
distinguishes from the process taught by the cited art.
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Appeal2015-004436
Application 13/057,205
Appellants additionally argue the cited art does not disclose or suggest
a hygroscopic broccoli plant extract may be formed in the beadlets in the
manner claimed. Br. 8-9.
This argument is not persuasive. As noted by the Examiner,
Trophardy discloses a process for preparing non-hygroscopic powder coated
capsules that comprise extracts derived from plants (leaves, flowers, fruits,
roots, rhizomes, and stems). Ans. 3; Trophardy 8. Trophardy's disclosed
plant extract is generic for broccoli extracts. Appellants have not adequately
explained why one skilled in the art would not have appreciated that
Trophardy' s reference to plant extracts predictably includes broccoli extract.
Br. 8; no reply brief has been filed.
Therefore, we affirm the Examiner's prior art rejection of claims 1
and 5-7 under 35 U.S.C. § 103(a) for the reasons presented by the Examiner
and given above.
ORDER
The Examiner's prior art rejection of claims 1 and 5-7 under 3 5
U.S.C. § 103(a) is affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a)(l).
AFFIRMED
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