Ex Parte Gutknecht et al

Patent Trial and Appeal Board

Dec 29, 2016

13341434 (P.T.A.B. Dec. 29, 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.
FFl 1001USU 6686
EXAMINER
GWARTNEY, ELIZABETH A
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
13/341,434 12/30/2011
78298 7590
Jay M. Brown
JAY BROWN LAW FIRM
P.O. Box 1407
Cary, NC 27512
12/29/2016
Jon R. Gutknecht
12/29/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte JON R. GUTKNECHT
and JOHN B. OVITT
Appeal 2016-000921
Application 13/341,434
Technology Center 1700
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellants1 appeal from the
Examiner’s decision finally rejecting claims 16—35. We have jurisdiction
over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
1 The real party in interest is stated to be Franklin Foods Holdings Inc.
(Appeal Br. 3).
Appeal 2016-000921
Application 13/341,434
Claim 16 is illustrative of the claimed subject matter (emphasis added
to highlight key limitations):
16. A curd cheese made by a process that comprises:
forming a milk-plant fat composition including a first amount
of a milk composition that includes milk fat and milk protein and
including a second amount of a plant fat composition that
includes plant fat, the milk-plant fat composition having a
concentration by weight of total solids selected as being within a
range of between about 17% and about 21%;
inoculating the milk-plant fat composition with lactic acid-
producing bacteria;
culturing the lactic acid-producing bacteria in the milk-plant
fat composition; and
separating the milk-plant fat composition;
thereby forming a curd cheese and a whey composition;
wherein the curd cheese includes the milk-plant fat
composition as having a first concentration by weight of the milk
protein and as having a second concentration by weight of
combined fats including the milk fat and the plant fat; and
wherein a ratio of the first concentration divided by the
second concentration is within a range of between about .19 and
about .26; and
wherein the curd cheese has a concentration by weight of
total solids being within a range of between about 51% and
about 43%).
(Appeal Br. 15; Claims App.)
The Examiner maintains the rejection of claims 16—35 under 35
U.S.C. § 103(a) as unpatentable over Brooks et al. (US 2008/0160133 Al,
published July 3, 2008) (hereinafter “Brooks”).
Appellants make substantive arguments in support of the patentability
of all claims based on limitations present in independent claim 16 (see
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Application 13/341,434
generally Appeal Br. 5—14; Reply Br. 2 4). Accordingly, our discussion
will focus on the obviousness rejection of claim 16. Claims 16—35 stand or
fall together. 37 C.F.R. § 41.37(c)(l)(iv).
ANALYSIS
Rejection of claims 16—35 under 35 U.S.C. § 103(a)
Upon consideration of the evidence on this record and each of
Appellants’ contentions, we find that the preponderance of evidence on this
record supports the Examiner’s conclusion that the subject matter of
Appellants’ claims is unpatentable over the applied prior art. We sustain the
Examiner’s § 103 rejection essentially for the reasons set out by the
Examiner in the Answer. We add the following for emphasis.
The Examiner found Brooks teaches or suggests all of the limitations
of claim 16 including a cream cheese food product made by combining less
than about 20% of a fat source (e.g., milk and vegetable), less than 20% of a
whey (i.e., milk) protein source, and at least about 60% moisture from a
water or milk source. Ans. 2 (citing Brooks 12, 14, 20; Figure 1). Based
on these disclosures, the Examiner further found that Brooks’ curd cheese
composition teaches a ratio of milk protein and milk-plant fat in a range that
overlaps the claimed range. Id. at 6. According to the Examiner, it would
have been obvious for the ordinary skilled artisan “to have adjusted, within
the disclosed concentration range, the amount of the fat source and whey
protein source to obtain the claimed ratio of milk protein to combined fats[,]
including milk fat and plant fat[,] within a range of between about 0.19 and
about 0.26 . . . .” Id. at 3.
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Appeal 2016-000921
Application 13/341,434
Appellants argue that claim 16 recites the following result-effective
variables: (a) the process step of forming a milk-plant fat composition
wherein the ratio of milk protein to milk-plant fat ranges from about 0.19 to
about 0.26; and (b) the process step of forming the curd cheese having a
concentration by weight of total solids ranging from between about 51 % to
about 43%. Appeal Br. 7—9. Appellants further argue that Brooks does not
recognize the result-effective variables recited in claim 16. Id. at 10—11.
Appellants conclude that because the Examiner “does not point to a prior art
teaching in Brooks of a process that includes all of the recited elements of
Appellants’] independent claim 16, there is no yrima facie showing of
obviousnessId. at 11.
We are unpersuaded by these arguments and agree with the
Examiner’s determination of obviousness. As noted by the Examiner,
because Brooks discloses: (i) a product comprising less than about 20% of a
fat source and less than 20% of a whey (i.e., milk) protein source; and (ii) a
product wherein the fat source includes combinations of milk fat and
vegetable (i.e., plant) fat, one of ordinary skill in the art could have selected
either any ratio of milk protein to milk-plant fat or any concentration by
weight of total solids, including the claimed ranges for each. Ans. 6; see
also id. at 2 (citing Brooks Tflf 12, 14, 20; Figure 1). Our reviewing court has
“consistently held that even a slight overlap in range establishes a prima
facie case of obviousness.” See In re Peterson, 315 F.3d 1325, 1329 (Fed.
Cir. 2003).
Moreover, even though the Examiner does not base the rejection on
grounds that Brooks suggests optimizing the ratio of milk protein to milk-
plant fat, Ans. 6, “[a] recognition in the prior art that a property is affected
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Application 13/341,434
by the variable is sufficient to find the variable result-effective.” In re
Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012). Here, the
fact that Brooks discloses component-amounts, including amounts of milk
protein and combined milk and plant fats, which reasonably results in a ratio
of milk protein to milk-plant fat overlapping the claimed range, evinces a
recognition by Brooks that a property, such as texture and spreadability, of
Brooks’ whey-based cream cheese is affected by the component-amount
variables. See, e.g., Brooks 137 (“The whey-based cream cheese products
have surprisingly firm texture and spreadability for products with such low
amounts of casein, high amounts of moisture, and low amounts of fat.”). For
this reason, the record reflects that the component-amount variable and,
therefore, the milk protein:milk-plant fat ratio variable of Brooks is an art-
recognized result-effective variable.
Likewise, we arrive at the same conclusion that the concentration by
weight of total solids variable of Brooks is an art-recognized result-effective
variable for substantially similar reasons.
It is further well settled that, generally speaking, it would have been
obvious for an artisan with ordinary skill to develop workable or even
optimum ranges for result-effective parameters. In re Boesch, 617 F.2d 272,
276 (CCPA 1980); In reAller, 220 F.2d 454, 456 (CCPA 1955); In re
Woodruff, 919 F.2d 1575, 1577—78 (Fed. Cir. 1990) (where the difference
between the claimed invention and the prior art is some range, the applicant
must show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range).
Appellants have not adequately explained why one skilled in the art
would not have, using no more than ordinary creativity, adjusted Brooks’:
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Application 13/341,434
(i) ratio of milk protein to milk-plant fat to be within the claimed ratio; and
(ii) solids concentration to be between about 51% and about 43%,
particularly in light of Brooks’ disclosure of its respective component-
amounts.
Appellants argue the data presented in the Specification show the
criticality of the claim limitations because: (i) when the claimed ratio is
about 0.26 or the curd cheese has a concentration by weight of water less
than about 49%, the curd cheese product texture tends to be dry, grainy,
hard, or rubbery, Reply Br. 8—9, and (ii) when the claimed ratio is below
0.19 or the curd cheese has a concentration by weight of water more than
about 57%, the curd cheese product texture tends to be soft and runny.
Reply Br. 9. According to Appellants, this data clearly show that these
parameters must be present in the curd composition in order for it to be
creamy and have a smooth texture. Id. at 8.
We are unpersuaded by these arguments.
As pointed out by the Examiner, “it is not clear that the[se] results are
unexpected.” Ans. 6. We discern no reversible error in the Examiner’s
determination that one of ordinary skill in the art would have understood that
as fat content increases and solids or milk protein decreases, the texture of
cheese would be less firm, whereas increasing the solids or milk protein
while decreasing fat content would cause the texture of cheese to become
drier. We have no doubt that varying the amounts of milk protein and
combined milk and plant fats within the claimed ratio or ensuring the solids
concentration to be between about 51% and about 43%, to produce a creamy
and smooth texture, would have been within the level of ordinary creativity
in the art based on the applied prior art of Brooks. See Perfect Web Techs.,
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Appeal 2016-000921
Application 13/341,434
Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329 (Fed. Cir. 2009) (“We therefore
hold that while an analysis of obviousness always depends on evidence that
supports the required Graham factual findings, it also may include recourse
to logic, judgment, and common sense available to the person of ordinary
skill that do not necessarily require explication in any reference or expert
opinion.”).
On this record, Appellants have not adequately shown, much less
explained, why the evidence relied upon establishes the criticality of the
endpoints in ranges for the claimed ratio of milk protein and milk-plant fat
or the claimed concentration by weight of total solids.
Accordingly, we affirm the Examiner’s prior art rejection of claims
16—35 under 35 U.S.C. § 103(a) for the reasons given above and presented
by the Examiner.
DECISION
The Examiner’s decision 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. § 1.136(a)(1).
ORDER
AFFIRMED
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