Ex Parte Grossbier et al

Patent Trial and Appeal Board

Oct 4, 2016

14181433 (P.T.A.B. Oct. 4, 2016)

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.
14/181,433 02/14/2014 Dustin Grossbier 37942-0006002 9893
26231 7590 10/06/2016
FISH & RICHARDSON P.C. (DA)
P.O. BOX 1022
MINNEAPOLIS, MN 55440-1022
EXAMINER
HEGGESTAD, HELEN F
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
10/06/2016 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):
PATDOCTC@fr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DUSTIN GROSSBIER, MARCELLO BERMEA,
and SAMBASIYA RAO CHIGURUPATI1
Appeal 2016-007146
Application 14/181,433
Technology Center 1700
Before GEORGE C. BEST, CHRISTOPHER L. OGDEN, and LILAN REN,
Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35U.S.C. § 134 from a rejection2 of claims
19, 21—35, and 37^42. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The real party in interest is identified as S & P INGREDIENT
DEVELOPMENT, LLC. (Appeal Brief, filed January 4, 2016 (“App. Br.”),
1.)
2 Final Office Action mailed July 22, 2015 (“Final Act.”).
Appeal 2016-007146
Application 14/181,433
CLAIMED SUBJECT MATTER
The claims relate to “to a low sodium salt composition that includes a
combination of sodium chloride and modified chloride salt, and the methods
of making it.” (Spec. 12.)3 Because “too much use [of salt] can result in
long term adverse health risks,” the disclosure seeks to provide a substitute
salt composition said to “have the same taste and appearance to salt, and are
easy and inexpensive to make.” {Id. ]Hf 3 and 7.)
Independent claims 19, 31, and 35, reproduced below, are illustrative
of the claimed subject matter:
19. A composition comprising homogeneous particles, the
homogeneous particles comprising 2.5 wt% to 80 wt% of a
chloride salt, 0.1 wt% to 5 wt% of a food grade acidulant, and 10
wt% to 25 wt% of a carrier.
31. A composition comprising:
a mixture comprising:
a first particulate material, wherein the first particulate
material is homogeneous and comprises a chloride salt, a food
grade acidulant, and a carrier; and
a second particulate material comprising sodium chloride,
wherein the first particulate material and the second particulate
material differ in composition.
35. A composition formed by a process comprising:
forming an aqueous mixture comprising a chloride salt, a
food grade acidulant, and a earner;
3 Application 14/181,433, A Low Sodium Salt Composition, filed February
14, 2014. We refer to the “’433 Specification,” which we cite as “Spec.”
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Application 14/181,433
heating the aqueous mixture to dissolve the chloride salt
in the aqueous mixture; and
drying the mixture to yield homogeneous particles,
wherein the homogenous particles comprise 2.5 wt% to 80 wt%
of the chloride salt, 0.1 wt% to 5 wt% of the food grade acidulant,
and 10 wt% to 25 wt% of the carrier.
App. Br. 11, 12—13 (Claims Appendix).
REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal are:
Halpem US 2,596,333
Zolotov US 5,853,792
Vasquez US 6,743,461 B1
Bakal US 2006/0024422 A1
REJECTIONS4
Claims 1—18, 20, 29, 36 have been cancelled. (Final Act. 2.)
Claims 19, 21—35, 37—42 are pending. (Id.)
Claims 19, 21—35, and 37^42 are rejected under 35 U.S.C. 103(a) as
being unpatentable over Vasquez in view of Zolotov, and Halpem. (Final
Act. 2/)
Claims 19, 21—35, and 37—42 are rejected on the ground of
nonstatutory double patenting as being unpatentable over claims 1—59 of
U.S. Patent No. 8,329, 236, claims 35—39 and 42 ofU. S. 7,989,016, and
claims 1—20 of US application 2013/0243924. (Ans. 11.)
May 13, 1952
Dec. 29, 1998
June 1,2004
Feb. 2, 2006
4 Examiner’s Answer mailed May 13, 2016 (“Ans.”).
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Application 14/181,433
Claim 25 stands rejected under “New Grounds of Rejection” as being
unpatentable over Vasquez in view of Zolotov, Halpem, and Bakal. (Id. at
12.)
OPINION
Findings of fact throughout this Opinion are supported by a
preponderance of the evidence of record.
The dispositive issue in this appeal is whether the Examiner has
shown that “homogeneous particles” having the recited components are
present in or would have been obvious in view of the applied prior art.
It is undisputed that Vasquez discloses “a sodium-free composition
containing calcium chloride, and potassium chloride and citric acid.” (See
Final Act. 2—3; see also App. Br. 3.) It is undisputed that Zolotov discloses
a composition having “the claimed ingredients except the carrier, in a
solution[.]” (See Ans. 14; see also App. Br. 3.) It is also undisputed that
Halpem discloses a process “to firmly attach [a] coating to the particles of
potassium chloride” so that the “coated particles” produced may resemble
sodium chloride in taste. (Halpem 2:15—21; see Final Act. 2—3; see also
App. Br. 3.)
Appellants argue that “one of ordinary skill in the art at the time of the
invention would not have sought to modify Vasquez to yield” the recited
“homogenous particles” because Halpem discloses a process to make
“coated particles.” (App. Br. 4 and 5.)5 Citing Halpem’s disclosure that “it
5 The ’433 Specification defines “homogenous” as “a substance that is
uniform throughout in composition.” (Spec. 172.) The definition expressly
excludes “heterogeneous mixtures that consist of two or more regions, or
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Application 14/181,433
is indispensable to form a homogeneous product consisting of individual
particles having an adhering surface coating,” Appellants argue that Halpem
teaches away from the “homogenous particles” recited in claim 19. {Id. at 5
(citing Halpem 3:55—57).)
The Examiner responds that the term “homogenous” “exclude[s]
coated products” and that “[t]he discussion as to ‘homogenous’ has been
removed.” (Ans. 15.) The Examiner does not address Appellants’argument
that Halpem as a whole teaches coated particles and thus teaches away from
homogenous particles. {Id.) The Examiner, however, maintains the
rejection “because Halpem was used to disclose that it was known to use
starch as a carrier in a salt substitute composition and that it was used in
solution.” {Id. at 14.) Reasoning that “[sjince all the ingredients were water
soluble” in the prior art, the Examiner concludes that “it would have been
obvious to make a composition containing water soluble ingredients”
without explaining why such a composition having “water soluble
ingredients”—not recited in claim 19—may relate to the recited
composition. {Id.)
The Examiner has “removed” the discussion regarding the term
“homogenous” recited in claim 19. {Id. at 15.) The Examiner has not
explained why “a composition containing water soluble ingredients” renders
obvious “homogenous particles” as recited. {Id. at 14.) The Examiner has
not pointed us to “some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.” KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007) (quoting In re Kahn, 441 F.3d
phases, that differ in properties” such as “mixtures having different layers
with each layer differing in properties.” {Id.)
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Application 14/181,433
977, 988 (Fed. Cir. 2006)). The obviousness rejection of claim 19 and
claims depend from claim 19 over Vasquez in view of Zolotov, and Halpem
is reversed.
For this reason, the obviousness rejection of claim 35 and its
dependent claims over Vasquez in view of Zolotov, and Halpem is reversed.
Appellants also argue that the Examiner reversibly erred in rejecting
claim 31 by “mischaracteriz[ing]” the claim as a product by process claim.
(App. Br. 7; see Final Act. 7.) Appellants argue that, contrary to the
Examiner’s finding, the limitation “wherein the first particulate material and
the second particulate material differ in composition” is not a process
limitation but a composition limitation. (App. Br. 7.) The Examiner does
not address this argument. The Examiner does not explain why claim 31,
reciting a composition having “a first” and “a second particular material,”
“wherein the first particulate material and the second particulate material
differ in composition” is a process claim. The rejection of claim 31 and its
dependent claims is reversed for this reason as well as the reason provided
with regard to claim 19 supra.
Appellants do not appeal the double patenting rejection and it is
therefore summarily affirmed.
DECISION
The Examiner’s obviousness rejection of claims 19, 21—35, and 37—42
is reversed.
The Examiner’s obviousness type double-patenting rejection of claims
19, 21—35, and 37-42 is affirmed.
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Appeal 2016-007146
Application 14/181,433
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l)(iv).
AFFIRMED
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