Ex Parte Kamper et al

Patent Trial and Appeal Board

Jun 17, 2014

12212149 (P.T.A.B. Jun. 17, 2014)

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.
12/212,149 09/17/2008 SUSAN L. KAMPER 7054US 9801
7590 06/17/2014
John A. O'Toole
P.O. Box 1113
Minneapolis, MN 55440
EXAMINER
WILLIAMS, LELA
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
06/17/2014 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 SUSAN L. KAMPER, FERN A. PANDA, and
DANIEL R. GREEN
________________

Appeal 2012-011923
Application 12/212,149
Technology Center 1700
________________

Before CHUNG K. PAK, TERRY J. OWENS, and JEFFREY T. SMITH,
Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) from Examiner’s
rejection of claims 1–9. We have jurisdiction under 35 U.S.C. § 6(b).
The Invention
Appellants claim a foam aerated confection. Claim 1 is illustrative:
1. An aerated confection in the form of a foam, comprising:
a heterogeneous continuous phase including a structured
amorphous material;
wherein the heterogeneous continuous phase include [sic,
includes] about 40% – 85%; [sic] of saccharides, soluble fibers
or polyols;
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wherein the heterogeneous continuous phase includes a
multiplicity of crystals distributed evenly throughout;
wherein the heterogeneous continuous phase includes
about 1% – 35% by weight (dry weight basis) of a nonhydrated
polysaccharide filler ingredient in the form of discrete particles
evenly distributed throughout the heterogeneous continuous
phase having a mean particle size distribution of less than
150 microns; and,
wherein the structured amorphous material includes
about 0.1% – 10% of a structuring component;
a discontinuous phase in the form of a multiplicity of gas cells;
a density of 0.1 to l g/cc; and
a moisture content of 1% – 30%.

The References
Zietlow et al. (Zietlow’355) US 6,197,355 B1 Mar. 6, 2001
Zietlow et al. (Zietlow’216) US 6,207,216 B1 Mar. 27, 2001
Zietlow et al. (Zietlow’460) US 6,432,460 B1 Aug. 13, 2002
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows:
claims 1–9 over Zietlow’460 and claims 1–8 over Zietlow’216 in
view of Zietlow’355.
OPINION
We affirm the rejection over Zietlow’460 and reverse the rejection
over Zietlow’216 in view of Zietlow’355.
Rejection over Zietlow’460
Claims 1–6 and 8
Appellants’ claim 1 requires a foam aerated confection comprising a
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heterogeneous continuous phase including about 40–85% saccharides,
soluble fibers, or polyols.
Zietlow’460 discloses a foam aerated confection comprising
about 50–95% saccharide (col. 3, ll. 55–56).
Appellants argue that “Zietlow ‘460 is not concerned with making a
reduced sugar confection at all” (Br. 5).
Zietlow’460’s saccharide content range of about 50–95% overlaps
Appellants’ range of about 40–85% saccharides, soluble fibers, or polyols
and, therefore, would have rendered amounts within the overlapping range
prima facie obvious to one of ordinary skill in the art. See In re Geisler, 116
F.3d 1465, 1469–70 (Fed. Cir. 1997); In re Boesch, 617 F.2d 272, 276
(CCPA 1980); In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974).
Appellants’ claim 1 requires about 1–35 wt% nonhydrated
polysaccharide filler in the form of discrete particles which are evenly
distributed throughout the heterogeneous continuous phase and have a mean
particle size distribution of less than 150 microns. Appellants state that the
polysaccharide filler is starch and that to prevent the starch from hydrating
and gelatinizing when added to sugar syrup, thereby increasing the sugar
syrup’s viscosity and possibly giving it an unusable taffy–like consistency,
the starch must be added after the sugar syrup has been concentrated (Spec.
¶¶ 37–38).
Zietlow’460 adds about 1–4% foam structuring agent, which can be a
modified starch, to concentrated cooled sugar syrup (col. 12, ll. 6–13).
Appellants argue that “the structuring agent is preferably a gelatin and
is certainly ‘dissolved or dispersed in a suitable carrier, preferably water’”
(App. Br. 7).
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Zietlow’460 states that “[f]or products to be marketed in North
America, the preferred structuring agent is gelatin” (col. 12, ll. 13–14) and
that “[t]he foam–structuring agent can be dissolved or dispersed in a suitable
carrier, preferably water” (col. 12, ll. 16–17). Zietlow’460, however, is not
limited to products marketed in North America, and the “can be” in “can be
dissolved or dispersed in a suitable carrier” indicates that the carrier is
optional. Nor is Zietlow’460 limited its preferred embodiments. See In re
Kohler, 475 F.2d 651, 653 (CCPA 1973); In re Mills, 470 F.2d 649, 651
(CCPA 1972); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Instead, all
disclosures therein must be evaluated for what they would have fairly
suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d 961,
965 (CCPA 1966). Thus, Zietlow’460 would have fairly suggested, to one
of ordinary skill in the art, about 1–4% of a modified starch foam structuring
agent which is not in a carrier or is in a carrier other than water and which,
because it is added to a concentrated cooled sugar syrup (col. 12, ll. 6–13), is
in the form of nonhydrated discrete particles.
Zietlow’460 adds about 0.01–25% of a nutritional additive, which can
be dispersed on a particulate carrier such as starch, to concentrated cooled
sugar syrup (col. 12, ll. 6–13, 35–48; col. 12, l. 66 – col. 13, l. 10). Because
the sugar syrup to which the starch is added has been concentrated, the
starch is in the form of nonhydrated discrete particles. That particle form
further is indicated by Zietlow’460’s disclosure that the starch is in
particulate form in the final product (“the form of fine dry powders allows
for incorporation with minimal impact on texture of the finished products”
(col. 13, ll. 14–16)). The “particle size [is] such that 90% has a particle size
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of less than 150 microns, preferably 100 µm or most [sic] less in size”
(col. 6, ll. 32–37).
Appellants argue, in reliance upon Philip K. Zietlow’s Affidavit
Submitted under 37 C.F.R. 1.132, that Zietlow’460’s filler is not in the form
of discrete particles (App. Br. 8).
Affidavit Submitted under 37 C.F.R. 1.132 is deficient in that it
merely states that “hydrated cornstarch, such as the type of cornstarch which
may be utilized in accordance with my ‘460 patent, loses its particle identity
and is not distributed as discreet particles” (p. 1) and does not address the
above–discussed disclosures of starch which is added to concentrated cooled
sugar syrup and, therefore, is not hydrated.
Accordingly, we are not persuaded of reversible error in the rejection
of claims 1–6 and 8 over Zietlow’460.
Claims 7 and 9
Appellants argue that Zietlow’460 would not have suggested a starch
particle size of 25microns or less (claim 7) or 50 microns or less (claim 9)
(App. Br. 9–10).
Those particle sizes would have been fairly suggested to one of
ordinary skill in the art by Zietlow’460’s disclosure of a seeding step starch
carrier–particle size of preferably 100 µm or less (col. 6, ll. 32–37; col. 13,
ll. 9–10).
Hence, we are not convinced of reversible error in the rejection of
claims 7 and 9 over Zietlow’460.
Rejection over Zietlow’216 in view of Zietlow’355
Zietlow’216 discloses a foam aerated confection comprising about
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1–15% topical cornstarch to control stickiness (col. 1, ll. 8–9; col. 3, ll. 60–
64). “Some quantity of cornstarch is incorporated into the composition as a
consequence of this usage of cornstarch” (col. 3, ll. 64–66).
Zietlow’355 discloses a foam aerated confection comprising a
powered starch anti–sticking agent (col. 1, ll. 8–9; col. 5, ll. 34–36).
Examiner argues that neither Zietlow’216 nor Zietlow’355 discloses
that the starch is hydrated (Ans. 9).
Examiner has not established that Zietlow’216’s or Zietlow’355’s
topical starch meets Appellants’ claim requirement of discrete particles
evenly dispersed throughout the heterogeneous continuous phase.
We therefore reverse the rejection over Zietlow’216 in view of
Zietlow’355.
DECISION/ORDER
The rejection of claims 19 under 35 U.S.C. § 103 over Zietlow’460
is affirmed. The rejection of claims 1–8 over Zietlow’216 in view of
Zietlow’355 is reversed.
It is ordered that 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).

AFFIRMED

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