Ex Parte Levi

Board of Patent Appeals and Interferences

Nov 24, 2006

10305577 (B.P.A.I. Nov. 24, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte GUY LEVI
____________

Appeal 2007-0211
Application 10/305,577
Technology Center 1700
____________

Decided: November 24, 2006
____________

Before KIMLIN, TIMM, and GAUDETTE, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1, 2, 4-6, 8-13, and 16-
20. Claim 1 is illustrative:
1. A w/o/w emulsion comprising:

(a) a primary phase comprising a water-in-oil emulsion; and

(b) an external aqueous phase,

Appeal 2007-0211
Application 10/305,577

2
the w/o/w emulsion has an amount of water in the primary phase (W1)
and in the external aqueous phase (W2), and an amount of acidulant in
the primary phase (A1) and in the external aqueous phase (A2)
wherein W1 > W2 and A1 > A2 and further wherein the primary
phase comprises an emulsifier having an HLB of less than about 9 and
the w/o/w emulsion has a viscosity from about 10,000 to about
150,000 cps.

The Examiner relies upon the following references as evidence of
obviousness:
Schwartz US 4,447,464 May 8, 1984
Izzo US 4,882,187 Nov. 21, 1989

Henry G. Schwartzberg, Physical Chemistry of Foods, 264-65 (Inst. of Food
Technologists ed., 1992).

Appellant’s claimed invention is directed to a water-in-oil-in-water
emulsion (w/o/w emulsion). The emulsion comprises a primary phase
comprising a water-in-oil emulsion and an external aqueous phase. The
amounts of water and acidulant are greater in the primary phase than in the
external aqueous phase. Also, the primary phase comprises an emulsifier
having an HLB of less than about 9 and the w/o/w emulsion has a viscosity
within the recited range.
According to Appellant and the prior art, when less fat is used in an
emulsion for reduced-fat food, water and water soluble thickening agents
replace the fat, but make the emulsion more susceptible to toxic
microbiological growth. To combat such growth more acidulant is required
which, unfortunately, tends to produce an acidic or sour taste. According to
Appellant, the claimed w/o/w emulsion displays excellent stability and is
free of a sour taste.
Appeal 2007-0211
Application 10/305,577

3
Appealed claims 1, 2, 4-6, 8-13, and 16-28 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Izzo in view of Schwartzberg
and Schwartz.
Appellant does not provide separate substantive arguments for the
various claims on appeal (re-stating the features of the independent claims
does not qualify as a substantive argument). Accordingly, all the appealed
claims stand or fall together with claim 1.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner
that the claimed subject matter would have been obvious to one of ordinary
skill in the art within the meaning of Section 103 in view of the applied prior
art. Accordingly, we will sustain the Examiner’s rejection.
Appellant does not dispute that Izzo, like Appellant, discloses a w/o/w
emulsion for a low-fat food from which “no sour taste is perceived” (Izzo,
col. 9, ll. 48-49). Also, we agree with the Examiner that Izzo fairly teaches a
class of w/o/w emulsions that includes those having more acidulant in the
primary, dispersed phase than in the aqueous phase. In relevant part, Izzo
teaches that the emulsion may comprise 80 % of the primary phase A and 20
% of the aqueous phase B (Izzo, col. 7, ll. 41-44), and discloses that aqueous
phase b, which is similar in composition to aqueous phase B, contains an
amount of acid that is relatively small despite its low pH (Izzo, col. 6, ll. 10
et seq. and col. 9, ll. 41-43). Accordingly, we are satisfied that one of
ordinary skill in the art would have found it obvious to formulate a low-fat
food comprising a w/o/w emulsion having more acidulant in the primary
phase in view of the Izzo disclosure.
Appeal 2007-0211
Application 10/305,577

4
Moreover, although Izzo may not specifically describe the claimed
distribution of acidulant, as argued by Appellant at page 11 of the Brief, it is
well settled that where patentability is predicated upon a change in a
condition of a prior art composition, such as a change in concentration or the
like, the burden is on the applicant to establish with objective evidence that
the change is critical, i.e., it leads to a new, unexpected result. In re
Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In
re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955). In the
present case, Appellant has proffered no objective evidence that w/o/w
emulsions within the broad scope of the appealed claims, having only
slightly more acidulant in the primary phase than the aqueous phase,
produce unexpected results with respect to stability, sour taste, or any other
property. Appellant provides no comparison between emulsions within the
scope of the appealed claims and emulsions fairly taught by Izzo. Indeed,
the present specification characterizes the present invention as “a w/o/w
emulsion wherein at least about 50 % by weight of the total acidulant
utilized in the w/o/w emulsion is present in the primary phase” (Spec. 2, last
sentence). Also, the Specification relates that “[i]n yet another preferred
embodiment, the concentration of free hydrogen for the acid employed is
greater in the external aqueous phase” (Spec. 7, last ¶, emphasis added). In
addition, Examples 1 and 2 of the Specification have more acid in the
external phase (6.4 weight % vinegar) than in the primary phase (2.0 weight
% vinegar). Hence, the Specification would seem to allay any suggestion
regarding the criticality of having more acidulant in the primary phase,
particularly the slight excess of acidulant encompassed by the appealed
claims.
Appeal 2007-0211
Application 10/305,577

5
As for the claimed emulsifier having an HLB of less than about 9, we
fully concur with the Examiner that Schwartzberg evidences the obviousness
of utilizing such emulsifiers in food compositions, particularly in w/o
emulsions. Appellant has not asserted, let alone established with objective
evidence, that the claimed class of emulsifiers produces unexpected results.
Appellant also contends that the product of Izzo is a solid with butter-
like properties, whereas the claimed emulsion has a viscosity, at ambient
temperature, that is “flowable like a sauce, salad dressing or mayonnaise”
(Br. 10, last ¶). However, the Examiner properly cites Schwartz as evidence
that at 75oF, ambient temperature, margarine has a viscosity of 16,000 to
18,000 centipoise, which range is directly within the considerably broader
claimed range. Since ambient or room temperature is considered in the art
to be within 65-85oF (Schwartz, col. 3, ll. 17-18), it is reasonable to
conclude that the food product of Izzo has a viscosity within the claimed
range at ambient temperature. Manifestly, it is well known that butter left
out of the refrigerator at room temperature acquires a consistency, or
viscosity, like a sauce or salad dressing.
Appellant states that it may readily be gleaned from Examples 1-5 of
the Specification that “the w/o/w emulsion unexpectedly displays excellent
stability characteristics and is free of a sour taste” (Br. sentence bridging pp.
5-6). However, Appellant has not established on this record that the
Specification data would be considered truly unexpected by one of ordinary
skill in the art, especially in light of Izzo’s disclosure that the product is free
of a sour taste. In re Merck & Co., 800 F.2d 1091, 1099, 231 USPQ 375,
381 (Fed. Cir. 1986). Significantly, Appellant has offered no analysis of the
data but has apparently left it to our perusal. Suffice it to say, it is not within
Appeal 2007-0211
Application 10/305,577

6
the province of this Board to analyze an applicant’s specification data, in the
first instance, and interpret it in a light that is most favorable to the
applicant. Appellant is reminded that the burden of showing unexpected
results rests on the party asserting them. In re Klosak, 455 F.2d 1077, 1080,
173 USPQ 14, 16 (CCPA 1972).
In conclusion, based on the foregoing, the Examiner’s decision
rejecting 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)(I)(iv)(2005).

AFFIRMED

hh

UNILEVER INTELLECTUAL PROPERTY GROUP
700 SYLVAN AVENUE
BLDG. C2 SOUTH
ENGLEWOOD CLIFFS, NJ 07632-3100