Ex Parte Huynh et alDownload PDFPatent Trial and Appeal BoardJan 26, 201811793755 (P.T.A.B. Jan. 26, 2018) Copy Citation 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. 11/793,755 06/21/2007 Kim Uyen Huynh 9367-94409-01 6959 24197 7590 01/30/2018 KLARQUIST SPARKMAN, LLP 121 SW SALMON STREET SUITE 1600 PORTLAND, OR 97204 EXAMINER POPA, ILEANA ART UNIT PAPER NUMBER 1633 NOTIFICATION DATE DELIVERY MODE 01/30/2018 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): docketing @klarquist.com AS CChair @klarquist. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KIM UYEN HUYNH and FRANCOIS CORMIER Appeal 2017-005489 Application 11/793,7551 Technology Center 1600 Before RICHARD M. LEBOVITZ, ULRIKE W. JENKS, and DEVON ZASTROW NEWMAN, Administrative Patent Judges. LEBOVITZ, Administrative Patent Judge. DECISION ON APPEAL This appeal involves claims directed to a dry particulate coloring agent composition comprising a water-insoluble matrix and a labile dye or pigment produced by an extrusion process. The Examiner rejected the claims as unpatentable under 35 U.S.C. § 103. We have jurisdiction under 35 U.S.C. § 6(b). The § 103 rejection is affirmed. 1 The Appeal Brief (“Appeal Br.”) lists Colarome, Inc. as the real-party-in- interest. Appeal Br. 2. The application Specification is referred to as “the ’755 Specification” in this Decision. Appeal 2017-005489 Application 11/793,755 STATEMENT OF THE CASE Appellants appeal from the Examiner’s rejection of claims 1—5, 8—10, 12, 13, 15, 18, 30—32, 46, 49-54, 56, 57, and 59-62. The claims stand rejected as unpatentable under pre-AIA 35 U.S.C. § 103(a) as obvious over van Lengerich (U.S. Pat. No. 6,500,463, iss. Dec. 31, 2002) (“van Lengerich”), A. Maga & C. H. Kim, Stability of Natural Colourants (Annatto, Beet, Paprika, Turmeric) During Extrusion Cooking, 23 Lebensmittel-Wischenchaft & Technologie, 427-32 (1990) (“Maga”), Marsland (U.S. Pat. Pub. No., 2003/0091698 Al, pub. May 15, 2003) (“Marsland”), and Winning et al. (WO 97/26802, pub. July 31, 1997) (“Winning”). Examiner’s Answer 2—3 (“Ans.”). Claim 1, the only independent claim on appeal, is reproduced below (indentations added for clarity): 1. A dry particulate coloring agent composition comprising: (a) a water-insoluble matrix, said matrix comprising at least 70% by weight of extruded water-insoluble proteins, based on the total weight of said matrix and a moisture content of about 5 % to about 10% by weight, based on the total weight of said matrix; and (b) an encapsulate dispersed in said matrix, said encapsulate comprising a labile dye or pigment; wherein said water-insoluble matrix has a lightness value that enables expression of colors of said encapsulated labile dye or pigment; wherein said labile dye or pigment has improved stability to light, heat and/or oxygen-related changes within said composition as a result of the extrusion process; wherein said extrusion process comprises forming a melt with said encapsulate and said water-insoluble matrix, 2 Appeal 2017-005489 Application 11/793,755 cooling said melt throughout said extrusion process to minimize undesirable browning of said matrix, thereby producing an extrudate, and drying said extrudate to a moisture content of about 5% to about 10% by weight, based on the total weight of said matrix, thereby producing a dried extrudate being sufficiently brittle to enable dry milling or grinding of same to a particle size of less than 150 microns. REJECTION Claim 1 is directed to a “coloring agent.” The agent comprises: (a) a water-insoluble matrix and (b) an encapsulate dispersed in the matrix that comprises a labile dye or pigment. The (a) water-insoluble matrix comprises (1) at least 70% by weight of extruded water-insoluble proteins and (2) a moisture content of about 5% to about 10% by weight. Claim 4 recites that the (a) water-insoluble matrix is rice protein; claim 5 recites that the (a) water-insoluble matrix is soy protein. The composition is produced by an extrusion process that comprises the following steps: (1) forming a melt with said encapsulate and the water-insoluble matrix, (2) cooling said melt throughout said extrusion process to minimize undesirable browning of said matrix, thereby producing an extrudate, and (3) drying the extrudate, thereby producing a dried extrudate being sufficiently brittle to enable dry milling or grinding of same to a particle size of less than 150 microns. 3 Appeal 2017-005489 Application 11/793,755 The Examiner found that van Lengerich describes a process for making an extruded composition comprising a labile agent and (a) matrix in the recited amount and moisture of claim 1. Ans. Marsland was also cited by the Examiner for its teaching of an extruded food composition. Id. at 5. The Examiner found that van Lengerich and Marsland describe encapsulating labile agents, but not a labile dye or pigment as in (b). Id. at 5. The Examiner found that Maga describes a dye that is heat labile and concluded it would have been obvious to one of ordinary skill in the art to encapsulate the dye by van Lengerich’s process, which is described as suitable for heat-sensitive (labile) agents. Id. The Examiner further relied on Winning to meet the claimed size limitation of less than 150 microns, finding that Winning describes the advantages of decreasing particle size. Id. at 6. Is Maga incompatible with van Lengerich? The Examiner cited Maga for its teaching that melt extrusion is not suitable to encapsulate heat-labile dyes, such as beet red extract. Ans. 5. The Examiner found that because van Lengerich teaches its “method as being suitable to incorporate heat-labile agents, one of skill in the art would have reasonably expected that van Lengerich’s method could be used to encapsulate heat-labile dyes.” Id. Appellants’ contention that Maga is incompatible with van Lengerich because of the high “cooking temperatures” described in it (Appeal Br. 7, 12—13) ignores the Examiner’s rationale that it would have been obvious to use van Lengerich’s low temperature method to avoid the problems with heat-labile dyes identified in Maga. Because Maga identified the problem 4 Appeal 2017-005489 Application 11/793,755 with using the heat labile beet red extract, one of ordinary skill in the art would have had a reason, as found by the Examiner, to utilize van Lengerich’s method which expressly teaches its process is for heat-sensitive components (van Lengerich, col. 4,11. 44—51). Consequently, Appellants’ argument is unpersuasive. Does the claim preamble of a “coloring agent composition ” distinguish the composition from the cited prior art? Appellants contend that none of the cited publications teach or suggest a “coloring agent composition” as claimed. Appeal Br. 7. Appellants contend, based on dictionary definitions, that a coloring agent is “an additive that is used to impart/modify color.” Id. at 7. Appellants distinguish van Lengerich on this basis, asserting that “color” is only mentioned in van Lengerich as an “additional component” and not as a “main” component. Id. at 8. Appellants also state that van Lengerich does not specifically disclose a labile dye or pigment as claimed. Id. Appellants state that the final product of van Lengerich is not a colorant as claimed, but rather its “goal” is to achieve controlled releases of pharmaceutically or nutritionally active components, such as enzymes or live microorganisms. Id. at 9. Appellants state that van Lengerich’s process is for encapsulating agents to be released and that such release is an undesirable property of the claimed coloring agents because it would lead to “bleeding” and that the claimed coloring agent “perform their function (i.e., improve/alter the visual aspects of a 5 Appeal 2017-005489 Application 11/793,755 product, such as a food product) without being released from their encapsulation matrix.” Id. at 10. The issue with respect to this argument is whether the recitation of “coloring agent composition” in the preamble of claim 1 distinguishes the composition from van Lengerich. We begin with legal principles. “[I]f the body of the claim ‘sets out the complete invention,’” the preamble is not ordinarily treated as limiting the scope of the claim. Schumer v. Lab. Comput. Sys., Inc., 308 F.3d 1304, 1310 (Fed. Cir. 2002) (quoting Bristol-Myers Squibb Co. v. Ben Venue Labs., Inc., 246 F.3d 1368, 1373 (Fed. Cir. 2001)). However, the preamble is regarded as limiting if it recites essential structure that is important to the invention or necessary to give meaning to the claim.” Bicon, Inc. v. Straumann Co., 441 F.3d 945, 951 (Fed. Cir. 2006). In this case, the claim body contains express limitations reciting the components of the claimed composition, including a dye or pigment which imparts the “color” to the composition. Appellants assert that dye or pigment must be a “main” component of the composition, but the body of claim 1, where the dye/pigment is recited, does not mention a specific amount. While the claim is reasonably interpreted to require that the composition be colored as a result of comprising the dye or pigment, we have not been directed to adequate evidence that the claim requires that the claimed composition’s only purpose is to be used as a “colorant.” The term “coloring agent composition” is not defined in the ’755 Specification nor does it even appear in it. It is clear from reading the ’755 Specification that the claimed composition can include agents in addition to the dye or pigment, such as medicinal compounds, vitamins, and food supplements. 6 Appeal 2017-005489 Application 11/793,755 ’755 Spec. 28, 29, 31, 65, 119 (original claims 10 and 36). Consistently, the claim utilizes the term “comprising” and therefore does not exclude the presence of other active agents that would restrict from only being useful as a coloring agent. Thus, the evidence does not support Appellants’ contention that van Lengerich is distinguishable from the claimed colorant because it is a composition for the controlled release of pharmaceutical and nutritional components and not a “colorant.” (Appeal Br. 9). With respect to Appellants’ argument that van Lengerich’s process is for encapsulating agents to be released and that such release is an undesirable property of the claimed coloring agents (Appeal Br. 9—10), the ’755 Specification specifically teaches that a “benefit” of its encapsulation process using insoluble proteins is that it enables release of active agent after ingestion (’755 Spec. Tflf 28, 31), the same objective Appellants attributed to van Lengerich. Appellants’ disparagement of “bleeding” when the encapsulated material is released (Appeal Br. 10) would clearly be irrelevant because the “release” occurs once the composition is ingested. Appellants have not established that color bleeding would occur in van Lengerich’s composition prior to its being ingested. Consequently, we find this argument unavailing. Appellants’ argument that the color in van Lengerich is only incidental ignores the fact it is known to utilize pigments and dyes in extruded compositions as established by Maga (Maga 427) and admitted by Appellants in the ’755 Specification (’755 Spec. 13). 7 Appeal 2017-005489 Application 11/793,755 Does van Lengerich describe a water-insoluble matrix in the claimed amounts? The Examiner found that van Lengerich describes a composition with “at least one plasticizable, matrix-forming material” such as wheat and wheat gluten. Ans. 3 (citing van Lengerich, col. 6,11. 18—20). The Examiner also cited the following disclosure from van Lengerich (Ans. 3): The plasticizable matrix material . . . may be a plasticizable biopolymer such as a carbohydrate, such as a modified or pregelatinized starch or cyclodextrin, or polymer such as polyvinylpyrrolidone or other non-hydrophobic polymers such as copolymers of N-vinylpyrrolidone (NVP) and vinylacetate, polyvinyl alcohol, cellulose esters, cellulose ethers, and polyethylene glycol, pentosans, hydrocolloids such as carragenan, alginates, or gum arabic, wheat gluten, such as vital wheat gluten or isolated gluten, vegetable or dairy proteins such as protein from soy or milk, and mixtures thereof. Exemplary starches which may be used in the present invention are modified starches or pregelatinized starches derived from com, wheat, rice, potato, tapioca, or high amylose starch. Sources of starch which may be used also include flours from grains such as com, wheat, dumm wheat, rice, barley, oat, or rye, and mixtures thereof. van Lengerich, col. 8,1. 66-col. 9,1. 16 (emphasis added). The ’755 Specification discloses that wheat gluten, soy, and rice proteins can constitute the water-insoluble matrix (’755 Spec. 30, 58), the same proteins that appear in van Lengerich’s list cited by the Examiner and reproduced above. Appellants contend that the list also contains water-soluble polymers, but do not deny, nor provide evidence to the contrary (Appeal Br. 14), that the list in van Lengerich cited by the Examiner includes an insoluble protein matrix as claimed, including several of the same proteins described in the 8 Appeal 2017-005489 Application 11/793,755 ’755 Specification as suitable. Because van Lengerich describes all the proteins in the list as suitable plasticizer material, we find that each entry would have been an obvious choice. Indeed, Appellants admit that the examples disclosed by van Lengerich comprises water-insoluble protein as part of the matrix. Appeal Br. 17. As to the claimed amount of insoluble matrix, the Examiner cited column 10, line 66—column 11, line 9 of van Lengerich for establishing that water-insoluble protein could comprise 75% or 90% the amount of the matrix. Ans. 3. These amounts were apparently calculated based on the total amounts of at least one plasticizable matrix material and the non- plasticizable matrix material present in the composition. The claim requires “a water-insoluble matrix, said matrix comprising at least 70% by weight of extruded water-insoluble proteins.” With respect to the amounts listed in van Lengerich, Appellants do not challenge the Examiner’s findings discussed above, but rather argue that “broad assertions and speculations” are not a disclosure of the claimed invention and that “van Lengerich seems to extrapolate far beyond the experimental results disclosed therein.” Appeal Br. 15, 17. Appellants argue that that there is no experimental data on the amounts cited by the Examiner and encompassed by the claims because all the examples “are far below the percent of water-insoluble protein presently claimed.” Id. at 17. This argument is not persuasive. The teaching of a prior art publication is not limited to its preferred embodiments. Pfizer v. Apotex, Inc., 480 E.3d 1348, 1370 (Led. Cir. 2007). “[T]he fact that a specific [embodiment] is taught to be preferred is not controlling, since all disclosures of the prior art, including unpreferred embodiments, must be 9 Appeal 2017-005489 Application 11/793,755 considered.” Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (alteration in original) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA 1976)). Thus, while the specific examples in van Lengerich utilize lower amounts than those claimed, this disclosure does not negate the broader, admitted, disclosure that higher amounts can be used. Would it have been unpredictable that the claimed composition could be extruded? Appellants contend that “unless experimentally tested, the results of an extrusion are difficult to predict.” Appeal Br. 18. Appellants state: It is well known in the art, that extrusion is an empirical process that depends on a number of process parameters, such as the composition of the material to be extruded and its solubility, whether forming a “melt” is desirable (which requires sufficient temperature/shearing/pressure), and whether active cooling of the extrudate throughout the extrusion is necessary. Unless experimentally tested, changes in one of these parameters may dramatically and unexpectedly affect the physicochemical properties of the final extruded product. Appeal Br. 17. The evidence provided by Appellants is that the structure and texture that results from extrusion of different ingredients and feed materials are difficult to predict and are based on empirical knowledge. Appeal Br. 18— 21. We have reviewed this evidence but are not persuaded it establishes that the Examiner erred. First, we note that Appellants did not establish or provide evidence the claims require a specific structure or texture. Claim 1 recites, that after drying the extruded material, it is “sufficiently brittle to enable dry milling or grinding of same to a particle size of less than 150 microns.” Appellants 10 Appeal 2017-005489 Application 11/793,755 did not provide evidence that such feature or other inherent or recited characteristics of the claimed composition requires a specific structure or texture that would be unpredictable to achieve. Thus, while Appellants have provided evidence regarding the predictability of the extrusion process, they have not established that the claims require a specific structure or texture that would have been unpredictable to achieve. Secondly, the evidence establishes that extrusion processing was well known in the art. For example, in its Background section, van Lengerich describes numerous publications that disclose extrusion processing (van Lengerich, col. 1,1. 50-col. 4,1. 21). The cited Maga, Marsland, and Winning publications also describe extrusion processes, (cites) The publications cited by Appellants to support their unpredictability argument (Appeal Br. 18—21) also provide evidence that, despite such alleged unpredictability, extrusion was still used successfully to make products. Fellows, published in 2000, for example, observes that extrusion “has gained in popularity” and provides numerous examples of successfully extruded foods. Fellows (2000) 295.2 Fellows also describes parameters that influence the texture of the extruded food: The composition of the feed material, its moisture content and particle size all influence the viscosity of the product in the extruder. From equations (14.1) and (14.2) below, it can be seen that viscosity is a crucial factor that determines the operating conditions of the extruder and hence the product quality. Different types of feed material produce completely different products when the same operating conditions are used in the same extruder. This is because of differences in the type and 2 Peter J. Fellows, Food Processing Technology: Principles and Practice, Parts 1—4, 294—308 (2000). Appellants’ Evidence Appendix B(8). 11 Appeal 2017-005489 Application 11/793,755 amounts of starch, proteins, moisture and other added ingredients (for example oil or emulsifier), which result in different viscosities and hence different flow characteristics. Similarly, addition of acids to adjust the pH of the feed material causes changes to starch gelatinisation and unfolding of protein molecules. This in turn changes the viscosity and hence the structure and strength of the extruded product. Differences in sugar content or pH also produce variations in colour due to different extents of Maillard browning reactions. Id. at 296. Fellows also discloses operating parameters for different types of extruders. Id. at 300 (Table 14.2). Thus, a preponderance of the evidence establishes that extrusion was a well-known method in the art that had been used successfully to make desired products. While it may be correct that some empirical experimentation was needed to obtain a product with the desired properties, the art as evidenced by Fellows, van Lengerich, Maga, and the publications cited by Appellants (Appeal Br. 18—21) indicate that parameters and properties of feed ingredients had been identified that affect texture and therefore provide guidance on how to make a successful composition with the recited components. The fact that some experimentation is necessary does not preclude a finding of obviousness because absolute predictability is not the hallmark of obviousness. In re Kubin, 561 F.3d 1351, 1360 (Fed. Cir. 2009). In Pfizer v. Apotex, the court acknowledged that there was a degree of unpredictability in the prior art. Pfizer, 480 F.3d at 1364. However, the court concluded that “obviousness cannot be avoided simply by a showing of some degree of unpredictability in the art so long as there was a reasonable probability of success.” Id. In this case, Appellants have not 12 Appeal 2017-005489 Application 11/793,755 established that one of ordinary skill in the art would have expected that the extrusion process would fail when the recited extrusion process was performed on a “water-insoluble matrix, said matrix comprising at least 70% by weight of extruded water-insoluble proteins” and “an encapsulate dispersed in said matrix, said encapsulate comprising a labile dye or pigment.” The claim does not require a specific texture or structure as long as when it is dried it is “sufficiently brittle to enable dry milling or grinding of same to a particle size of less than 150 microns” and “the dye or pigment has improved stability to light, heat and/or oxygen related changes within said composition.” As to the latter limitation, the Examiner expressly found that van Lengerich teaches that the “process of encapsulating by extrusion at room temperature enhances the stability of the labile agent to heat and results in shelf-stable particles” (Ans. 3), a fact not disputed by Appellants. Do the product-by-process claims distinguish the composition from one made by van Lengerich’s process? Claim 1 is a product-by-process claim because the product is claimed as a product of an extrusion process comprising forming a melt, cooling the melt throughout the extrusion process, and then drying the extrudate. A product-by-process limitation defines a product in terms of how it is made. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1315 (Fed. Cir. 2006). “[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself.” In re Thorpe, 111 F.2d 695, 697 (Fed. Cir. 1985). Consequently, when comparing the claimed dry particulate coloring agent composition to the prior art, we must determine whether the recited extrusion process steps 13 Appeal 2017-005489 Application 11/793,755 impart a structure or characteristic to the product that distinguishes it from products made by other processes. The PTO has the initial burden of providing a rationale to show that the product produced by van Lengerich’s extrusion process would produce the same product that is claimed. The Examiner initially found that van Lengerich describes a product produced at low temperature (meeting the “cooling” aspect of the claimed extrusion process) with the same water- insoluble protein and moisture content within the parameters of the claimed product, and thus found it would have been reasonably expected that the product would have the same properties as the product produced by the recited extrusion process. Ans. 4. The Examiner acknowledged that van Lengerich’s process differed from the claimed process, e.g., in not producing a melt as required by the claims, but the Examiner reasoned that van Lengerich’s process was carried out at low temperatures and thus would have avoided undesirable browning as required by the claim. Ans. 8. Furthermore, the Examiner found that the ’755 Specification disclosed that the low temperature and low moisture content minimized the undesirable Maillard reaction, and that van Lengerich’s temperature and moisture content met these limitations, providing further evidence that the products would be the same. Id. at 9. The Examiner’s rationale for finding that a product produced by van Lengerich’s process would produce a product with the same characteristics as claimed is logically and sufficiently factually supported. Consequently, we find that the Examiner reasonably shifted the burden to Appellants to show that the claimed product is different from produced by van Lengerich’s process. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (“Where, as 14 Appeal 2017-005489 Application 11/793,755 here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product.”). Appellants contend that forming a melt as required by the product-by process steps “results in greater color homogeneity of the extrudate, and thus of the particulate coloring agent composition presently claimed” and “cooling the melt throughout the extrusion process minimizes undesirable browning of the matrix.” Reply Br. 3. However, Appellants did not provide evidence or scientific reasoning that the recited melt process and subsequent cooling step would produce a product with any greater homogeneity or less browning as compared to a product made by van Lengerich’s process, which also cools its product with low moisture content (van Lengerich, col. 25,11. 40-45), the same step identified by Appellants to avoid browning (Spec. 1110,68). See Ans. 7, 9. Appellants also contend that “it is clear from the specification that forming a melt is necessary to achieve proper protein texturization, which is a structural transformation resulting from the use of melt extrusion of a protein-rich matrix.” Reply Br. 3. This argument is unpersuasive since Appellants did not establish that van Lengerich’s method would produce a composition with a different structure from the claimed composition. While we recognize that Appellants have provided evidence that the melt step influences a composition’s texture, Appellants have not established that van Lengerich’s alternative process of utilizing plasticizer and low temperatures instead of melting (van Lengerich, col. 1,11. 22—27; Appeal Br. 5) would 15 Appeal 2017-005489 Application 11/793,755 lack such texture, particular when van Lengerich characterizes the extruded product as substantially homogenous (van Lengerich, col. 5,11. 19-23), uniformly distributed and dispersed on the molecular level: The process of the present invention advantageously at least substantially uniformly distributes, embeds, or encapsulates an active component in the matrix material. The encapsulation process enhances stability of the active component against moist heat during further processing of the encapsulated active component, such as during pelletizing or extrusion. The active components may be dispersed in the matrix material on a microscopic or molecular level. Active components which are dispersed on a molecular level may provide a higher bioavailability when released, as compared to their crystalline forms. van Lengerich, col. 8,11. 37-47. Do secondary considerations establish non-obviousness? Appellants contend that patents in Japan and Canada have been allowed, which “indicate that the Japanese and Canadian intellectual property offices believe that claims broader than those currently pending with the USPTO are novel and non-obvious.” Appeal Br. 25. This argument does not persuade that the present claims are patentable. First, the fact that claims have been allowed in other countries is not evidence of patentability in the USPTO because the legal standards and requirements may be different. Second, we note that the claims provided by Appellants for both Canada and Japan contain process claims that are not present in this current appeal. Appellants also contend that the claims are patentable because of unmet needs and commercial success. Appeal Br. 26. 16 Appeal 2017-005489 Application 11/793,755 To overcome a finding of obviousness by demonstrating commercial success, there must be a nexus between commercial success and the claimed features. Ormco Corp. v. Align Tech., 463 F.3d 1299, 1312 (Fed. Cir. 2006). “[I]f the commercial success is due to an unclaimed feature of the device, the commercial success is irrelevant.” Id. Appellants did not establish a nexus between the stated commercial success and the claims. Appellants also cited several publications in support of their argument for commercial success. The cited “Scott” publication3 refers to specific natural colors; the claims are not limited to such colors. Furthermore, Scott does not describe the claimed product-by-process steps. The “Gorton” publication describes the advantages of ‘“patented pigments are made by encapsulating natural dyes into a rice protein matrix by extrusion and micronizing the resulting extrudate in a fluid-bed air-jet mill.’” Gorton 65.4 However, the claims are not limited to such pigments, rice protein, or the process steps. In sum, while we have considered the evidence of secondary considerations, we conclude that it does not establish the patentability of the claims, particularly in view of the strong evidence of obviousness. 3 Caroline Scott-Thomas, Colarome’s plant-derived colors come to the States, https://www.foodnavigator-usa.com/Article/2009/12/10/ Colaromes- plant-derived-colors-come-to-the-States. Appellants’ Evidence Appendix, Evidence B(14). 4 Laurie Gorton, Natural Selection, Baking & Snack 64—65 (2012). Appellants’ Evidence Appendix, Evidence B(15). 17 Appeal 2017-005489 Application 11/793,755 SUMMARY The final rejection of claim 1 as obvious is affirmed. Dependent claims 2—5, 8—10, 12, 13, 15, 18, 30-32, 46, 49-54, 56, 57, and 59—62 were not argued separately and fall with claim 1, as acknowledged by Appellants. Appeal Br. 27; see also 37 C.F.R. § 41.37(c)(l)(iv). 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)(l)(iv). AFFIRMED 18 Copy with citationCopy as parenthetical citation