Ex Parte Judge

Patent Trial and Appeal Board

Mar 30, 2017

13699764 (P.T.A.B. Mar. 30, 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.
13/699,764 11/26/2012 David John Judge F3534USw 8338
201 7590 04/03/2017
UNILEVER PATENT GROUP
800 SYLVAN AVENUE
ENGLEWOOD CLIFFS, NJ 07632-3100
EXAMINER
CHAWLA, JYOTI
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
04/03/2017 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):
patentgroupus @ unilever. com
pair_unilever@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID JOHN JUDGE
Appeal 2016-005686
Application 13/699,764
Technology Center 1700
Before ADRIENE LEPIANE HANLON, MICHAEL P. COLAIANNI, and
MONTE T. SQUIRE, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-005686
Application 13/699,764
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1—9. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellant’s invention is directed to ice confections that do not suffer
from unwanted foaming during production (Spec 1:4—5).
Claim 1 is illustrative:
1. An ice confection comprising at least 0.025 wt % gelatin, and
further comprising locust bean gum and xanthan gum wherein the total
amount of locust bean gum in combination with xanthan gum is at least 0.05
wt% of the ice confection and wherein the weight ratio of locust bean gum
to xanthan gum is from 4:1 to 1:4.
Appellant appeals the following rejection:
Claims 1-9 are rejected under 35 U.S.C. § 103(a) as unpatentable over
Griffin (US 4,832,976 pat. May 23, 1989) in view of Lawrence (US
5,387,427 pat. Feb. 7, 1995).
Appellant’s argument focuses on the subject matter of claim 1 only
(App. Br. 5—8). Claims 2—9 will stand or fall with our analysis of the
rejection of claim 1.
FINDINGS OF FACT & ANALYSIS
Appellant argues that there is no reason to combine Lawrence’s ratio
of locust bean gum (LBG) to xanthan gum with Griffin’s ice confection
because Lawrence teaches that the LBG:xanthan gum ratio is used as a
substitute for gelatin (App. Br. 6). Appellant contends that Lawrence’s gum
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Appeal 2016-005686
Application 13/699,764
combination is meant to simulate gelatin, so it is unclear why one of
ordinary skill in the art would have used such a gelatin substitute in Griffin’s
composition that includes gelatin. Id.
Contrary to Appellant’s argument, the Examiner finds that one of
ordinary skill would have combined Lawrence’s LBG:xanthan gum ratio
with Griffin as a partial substitute for gelatin (Ans. 4). Appellant does not
contest or otherwise show reversible error in the Examiner’s finding. Indeed,
Griffin teaches using a combination of LBG and xanthan gum (col. 2,11. 58—
62). Based on the teachings of Griffin and Lawrence, we agree with the
Examiner that proposed combination of the teachings of Griffin and
Lawrence would have been obvious.
Appellant alleges that the evidence in the Specification evinces an
unexpected decrease in foaming by using the LBG:xathan gum ratio (App.
Br. 7). Appellant contends that the Examiner cites no authority for
requiring that the unexpected result needs to be recited in the claim. Id.
Although Appellant refers to data concerning experiments in the
Specification that allegedly show reduced foaming, Appellant has not
explained how the data shows unexpected results as it is Appellant’s burden
to do. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972) (“burden of showing
unexpected results rests on he who asserts them”).
Moreover, the Examiner finds that once the substitution of
Lawrence’s LBG:xanthan gum ratio is used as the LBG/xanthan gum
combination in Griffin’s ice confection, the decrease in foaming would have
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Appeal 2016-005686
Application 13/699,764
flowed naturally therefrom (Ans. 6). Appellant does not contest this finding
by the Examiner.
On this record, we affirm the Examiner’s § 103 rejection over Griffin
and Lawrence.
DECISION
The Examiner’s decision is affirmed.
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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