Ex Parte Lenzi et al

Patent Trial and Appeal Board

Mar 31, 2017

13821296 (P.T.A.B. Mar. 31, 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.
13/821,296 03/18/2013 Sandra Lenzi CDS0290US2 7111
23413 7590 04/04/2017
TANTOR TOT RTTRN T T P
EXAMINER
20 Church Street DEES, NIKKI H
22nd Floor
Hartford, CT 06103 ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
04/04/2017 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):
usptopatentmail@cantorcolbum.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SANDRA LENZI, SIMKIE KAR,
TASOULA A. MICHAELIDOU, JOAN E. HARVEY,
MATTHEW ALLEN BEAM, DEMETRIUS TORINO MCCORMICK,
SIMMAN WONG, JUNJIE GUAN, DEBORAH LEVENSON,
JUAN PABLO CAMPOMANES MARIN
Appeal 2016-001328
Application 13/821,296
Technology Center 1700
Before PETER F. KRATZ, KAREN M. HASTINGS, and
ELIZABETH M. ROESEL, Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s Final Rejection of claims 1-15, 17, 19-21, and 36-41. We have
jurisdiction pursuant to 35 U.S.C. § 6.
Appellants’ claimed invention is directed to a chewing gum
composition wherein first, second and third flavor compositions release
sequentially upon mastication.
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Application 13/821,296
Claim 1 is illustrative and reproduced below:
1. A chewing gum composition, comprising
a gum base and at least one first, second and third flavor
composition
wherein
the at least one first flavor composition begins to release
from the chewing gum composition when the chewing gum
composition is masticated, wherein the at least one first flavor
composition is an unencapsulated or free flavor,
the at least one second flavor composition begins to
release after the at least one first flavor composition has begun to
release, wherein the at least one second flavor composition is a
particulate flavor composition, and
the at least one third flavor composition releases after the
second flavor composition begins to release, wherein the third
flavor composition comprises a particulate delivery system
comprising a polymeric encapsulating material, at least one
tensile strength modifying agent comprises at least one fat, said
at least one fat is present in an amount up to 5% by weight of the
at least one third flavor composition, and a flavor and having a
particle size distribution of at least 80% of particles greater than
425 pm and at least 80% of particles less than 1000 pm and a
tensile strength of at least 10, 000 psi.
The Examiner maintains the following grounds of rejection:
Claim 41 stands rejected under 35 U.S.C. § 112, second paragraph as
being indefinite for failing to particularly point out and distinctly claim
thesubject matter which the applicant regards as the invention.1
1 The Examiner withdrew the 35 U.S.C. § 112, second paragraph rejection as
to claims 1-15, 17, 19-21, and 36^40 (App. Br. 11). However the 35 U.S.C.
§ 112, second paragraph rejection of claim 41 was not withdrawn in the
Examiner’s Answer; consequently, it remain as being maintained as
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Claims 1-15, 17, 19, 20, and 36—41 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Ogawa (US 3,795,744; iss.
Mar. 5, 1974; “Ogawa”) in view of Boghani (US 2005/0112236 Al; pub.
May. 26, 2005; “Boghani”).
Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Ogawa in view of Boghani and Galopin (US
2008/0300314 Al; pub. Dec. 4, 2008; “Galopin”).
We summarily affirm the non-contested rejection of claim 41 under
35 U.S.C. § 112, second paragraph.
Obviousness Rejections
Appellants’ arguments fail to uncover reversible error in either of the
Examiner’s obviousness rejections (App. Br. 3-8). It follows that we shall
sustain the latter rejections based on the fact findings and reasoning set forth
by the Examiner (Final Act. 6-16; Ans. 2-17). Our reasoning follows.
Appellants argue the rejected claims together as a group with respect
to the first stated rejection with the exception of dependent claims 38, 40 and
41. We select claim 1 as the representative claim for claims 1-15, 17, 19,
20, and 36-39 subject to the first stated rejection and we consider dependent
claims 38, 40 and 41 separately to the extent separately argued.
Appellants do not specifically dispute that Ogawa, as found by the
Examiner, teaches or suggests a chewing gum product having three different
flavors or more that can be enjoyed successively during the
chewing/mastication period (App. Br. 3-5). Rather, Appellants argue, in
indicated in the Advisory Action of March 24, 2015 (Advisory Act. 2; see
Final. Act. 5).
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essence, that the combined teachings of the applied prior art do not teach or
suggest a chewing gum composition having a third flavor composition with
a tensile strength value of at least 10,000 psi, modified with a tensile
strength modifying agent comprising at least one fat in an amount up to 5
weight percent of the third flavor composition, and having 80 percent of the
particles sized greater than 425 pm, wherein the third flavor composition
releases after the second flavor composition begins releasing, as required by
claim 1 (App. Br. 3-8).
However, the Examiner finds that (Ans. 2-3):
Ogawa et al. teach a chewing gum composition
comprising a gum base and at least a first, second and third
flavor compositions wherein the first, second and third flavor
compositions release sequentially (claim 1; Abstract; col. 1
lines 45-53). In Example 4, the pine oil (first flavor) is not
encapsulated (i.e. unencapsulated or free). The first flavor (i.e.
pine oil) is considered to begin to release upon mastication of
the chewing gum. The second flavor of Ogawa is taught to be
encapsulated to form particles, it is considered to comprise
a particulate flavor delivery system (e.g. Example 2). The
subsequent flavors, including the third flavors, are taught to be
encapsulated or otherwise incorporated with a high molecular
weight compound such that the flavors release over time (col. 1
lines 45-53).
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Moreover, the Examiner has determined that (Ans. 3):
Regarding the particle size, Ogawa et al. teach that the
flavor particles are preferably less than 20 mesh (i.e. 841 pm)
(col. 3 lines 28-34). Ogawa et al. do not specifically teach that
at least 80% of the particles are greater than 425 pm. However,
as the claimed range falls within the preferred range of Ogawa
et al., having at least 80 % of the particles greater than 425 pm
and 80% less than 1000 pm is considered to be prima facie
obvious based on the teachings of Ogawa et al. Having a
particle size distribution in the claimed range would have been
expected to continue to provide a suitably flavored gum
according to the invention of Ogawa et al.
As Ogawa et al. teach that their chewing gum has flavors
which are successively [released] during the chewing period
(e.g. Examples; col. 1 lines 45-53), the chewing gums of
Ogawa et al. are considered to have separate and distinct flavor
intensities as claimed.
Ogawa et al. is silent as to the third flavor delivery
system comprising an encapsulating agent and tensile strength
modifying agent in an amount as claimed.
The Examiner turns to Boghani for teaching or suggesting “a
particulate delivery system comprising a polymeric encapsulating material,
at least one tensile strength modifying agent comprising a fat in an amount
of up to 5% by weight of the flavor composition and a tensile strength of at
least 10,000 psi (Table 1- Delivery System 4)” that can be used in chewing
gums for encapsulating flavors and may be employed with other
encapsulated flavors to provide flavors/active ingredients that have different
release rates (Ans. 3—4; Boghani ]fl[ 36, 37, 39).
The Examiner maintains that it would have been obvious to one of
ordinary skill in the art at the time of the invention “to have included the
encapsulated flavor of Boghani et al., having a fat content and tensile
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strength as claimed, for inclusion in the chewing gum of Ogawa et al.” and
with a reasonable expectation of success of providing a desired flavor
release profile (Ans. 4). This is so, according to the Examiner, because both
applied references teach or suggest varying the release properties, upon
chewing, of the flavors (encapsulated or not) employed in the chewing gum
to provide for the desired flavor release {id.).
Concerning representative claim 1 and/or claim 41, Appellants argue,
in essence, that the combined teachings of the applied prior art do not teach
or suggest a chewing gum composition having a third flavor composition
with a tensile strength value of at least 10,000 psi, modified with a tensile
strength modifying agent comprising at least one fat in an amount up to 5
weight percent of the third flavor composition (or up to 4 weight percent of
one or more vegetable oils, claim 41), and having 80 percent of the particles
sized greater than 425 pm, wherein the third flavor composition releases
after the second flavor composition begins releasing, as required by claim 1
and/or claim 41 (App. Br. 3-8).
This argument is not persuasive of harmful error in the Examiner’s
obviousness rejection of representative claim 1 and/or dependent claim 41
for reasons as expressed by the Examiner in the rejection and in rebuttal
(Final Act. 6-13; Ans. 11-17).
As for the particle size limitation set forth in representative claim 1,
the Examiner has reasonably determined that Ogawa teaches using a
preferred particle size that is less than 20 mesh (i.e. 841 pm) for the polymer
(high molecular weight compound) that can be used for encapsulating or
coating flavors for enhancing flavor durability (delaying flavor release)
(Ans. 2-3; Ogawa, col. 1,11. 45-53, col. 3,11. 28-34). Ogawa teaches that
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the particle size can be varied for modulating the flavoring effect (col. 3,11.
31-34; consequently, the Examiner reasonably finds that providing particles
having a particle size distribution range that falls about and embraces
particles of a size within the preferred particle size range of Ogawa, such as
required by claim 1, would have been an obvious option to an ordinarily
skilled artisan seeking to modulate the flavoring effect (release) (Ans. 3,12-
13). Appellants have not established that the claimed particle size
distribution range yields anything other than expected results (App. Br. 6).
Regarding the tensile strength value range and the tensile strength
modulating agent (fat) as required by representative claim 1 or the oil as
required by claim 41, Appellants’ argument that Ogawa lacks a teaching
respecting the use of a tensile strength modulating agent and a tensile
strength, as required by claim 1 or claim 41, for the third flavor composition
is devoid of persuasive merit (App. Br. 6). This is so because the Examiner
relies on Boghani for teaching these claimed features (Ans. 3—4, 9, 14;
Boghani 36, 37, 39, 46 48, 97). Appellants’ argument that Boghani
doesn’t teach sequential release of three different flavor compositions
without articulating why that would have precluded the Examiner’s
proposed combination of Ogawa and Boghani suggests that Appellants are
merely arguing against the references individually, which, of course, lacks
merit in showing harmful error in the Examiner’s obviousness rejection
(App. Br. 6-7; see Ans. 13-16).
As for dependent claim 38 and apparently regarding the Examiner’s
proposed combination of Boghani with Ogawa, Appellants further contend
that the particle size teaching of Boghani is “opposite of the limitations of
claim 38” (App. Br. 7). However, Appellants do not articulate how
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Boghani’s teaching that the particle size is result effective (“desirably
selected according to the desire rate of release”) “is opposite of the
limitations of claim 38” (App. Br. 7; Boghani 50). Hence, this argument
does not persuade us of reversible error in the Examiner’s obviousness
rejection of claim 38 and/or representative claim 1.
As for dependent claim 40 and not withstanding Appellants’ opinion
and argument (App. Br. 6), we concur with the Examiner that one of
ordinary skill in the art would have found it obvious to furnish more than
one flavor to be released at a given time, such as employing a flavor used as
part of the first flavor composition to be released and a flavor used as part of
the third flavor composition to be released as part of the second flavor
composition in light of Ogawa’s suggestion of using a continual and
sequential release of flavors (Ans. 8-9).
Appellants’ argument against the Examiner’s separate rejection of
dependent claim 21 appears to be premised on the belief that Galopin is too
generic in scope so as to furnish a basis for selecting N-(4-
cyanomethylphenyl)-p-menthane carboxamide as a chewing gum flavor for
use in Ogawa (App. Br. 7-8). For the fact finding and reasons articulated
by the Examiner, Appellants’ argument does not persuade us of reversible
error in the Examiner’s separate rejection of claim 21 (Final Act. 13-14;
Ans. 9-10, 15-17; Galoping 49; Example 1).
Accordingly, we affirm the Examiner’s obviousness rejections.
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CONCLUSION/ORDER
The Examiner’s decision to reject the appealed claims 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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