Ex Parte MatteiDownload PDFPatent Trial and Appeal BoardJan 30, 201813734396 (P.T.A.B. Jan. 30, 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. 13/734,396 01/04/2013 Gianfranco Mattei G1919.0001/P001-A 2178 24998 7590 Blank Rome LLP 1825 EYE STREET NW Washington, DC 20006-5403 EXAMINER MOORE, WALTER A ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 02/01/2018 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): W ashingtonDocketing @ blankrome.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GIANFRANCO MATTEL Appeal 2017-005138 Application 13/734,396 Technology Center 1700 Before CATHERINE Q. TIMM, MONTE T. SQUIRE, and MERRELL C. CASHION, JR., Administrative Patent Judges. SQUIRE, Administrative Patent Judge. DECISION ON APPEAL1 2 Appellant appeals the Examiner’s final rejection of claims 1 and 3-9, which constitute all the claims pending in this application. 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant is the Applicant, S.p.A. Egidio Galbani, which, according to the Appeal Brief, is the real party in interest. App. Br. 2. 2 In our Decision, we refer to the Specification filed January 4, 2013 (“Spec.”); Final Office Action dated August 27, 2015 (“Final Act.”); Advisory Action dated March 7, 2016 (“Adv. Act.”); Appeal Brief filed June 29, 2016 (“App. Br.”); and Examiner’s Answer to the Appeal Brief dated December 14, 2016 (“Ans.”). Appeal 2017-005138 Application 13/734,396 The Claimed Invention Appellant’s disclosure relates to a method for preparing and packaging a pasta filata cheese, comprising a step of substantially dry packaging the pasta filata cheese, i.e., without preserving liquid, and heat packaging of the pasta filata cheese. Spec. 4, Abstract. Claim 1 is illustrative of the claimed subject matter on appeal and is reproduced below from the Claims Appendix to the Appeal Brief (key disputed claim language italicized and bolded): 1. A method for preparing and packaging a pasta filata cheese, comprising a step of packaging said pasta filata cheese, and wherein said packaging step includes substantially dry packaging said pasta filata cheese without preserving liquid, and thereby producing a package that contains said pasta filata cheese, and wherein said step of substantially dry packaging is carried out at a temperature higher than 50°C, and wherein said pasta filata cheese contained in said package has a moisture content of 62%. The References The Examiner relies on the following prior art references as evidence in rejecting the claims on appeal: Mauk US 3,692,540 Sept. 19, 1972 Vesely et al., (hereinafter “Vesely”) US 5,431,946 July 11, 1995 Dahlstrom et al., US 6,319,526 B1 (hereinafter “Dahlstrom”) Nov. 20, 2001 Rizvi et al., (hereinafter “Rizvi”) US 6,485,762 B1 Nov. 26, 2002 Bandirali EP 1 516 529 Al Mar. 23, 2005 Keeping Food Safe, Wisconsin Nutrition Education Program, University of Wisconsin-Extension Family Living Programs (2005) (hereinafter “Keeping Food Safe”). 2 Appeal 2017-005138 Application 13/734,396 The Rejections On appeal, the Examiner maintains the following rejections3: 1. Claims 1, 3, 9 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Dahlstrom in view of Mauk (“Rejection 1”). Ans. 2; Final Act. 5. 2. Claims 4-8 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Dahlstrom in view of Mauk as applied to claims 1,3, and 9 above, and in further of Rizvi, Bandirali, Vesely, and Keeping Food Safe (“Rejection 2”). Ans. 6; Final Act. 7. OPINION Having considered the respective positions advanced by the Examiner and Appellant in light of this appeal record, we affirm the Examiner’s rejections based on the fact finding and reasoning set forth in the Answer, Final Office Action, and Advisory Action, which we adopt as our own. We highlight and address specific findings and arguments below for emphasis. Rejection 1 Appellant argues claims 1, 3, and 9 as a group. App. Br. 3. We select claim 1 as representative and the remaining claims subject to this rejection stand or fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv). 3 The Examiner’s rejections under 35 U.S.C. § 112 previously set forth at pages 3^1 of the Final Office Action are withdrawn. Ans. 14; see also Adv. Act. 2. 3 Appeal 2017-005138 Application 13/734,396 The Examiner determines that the combination of Dahlstrom and Mauk suggests a method for packaging pasta filata cheese satisfying all of the steps of claim 1 and, thus, would have rendered claim 1 obvious. Ans. 2-6 (citing Dahlstrom, col. 2,1. 53, col. 5,11. 1-2, 55, col. 6,11. 39^10, 59, col. 7,1. 18, col. 9,11. 29-30; Mauk, col 1,11. 11, 33-34, 64-66, col. 5,11. 11-12, col. 6,11. 13-15, 18-19). Appellant argues that the Examiner’s rejection of claim 1 should be reversed because Dahlstrom does not disclose or suggest “wherein said packaging step includes substantially dry packaging said pasta filata cheese without preserving liquid” and “wherein said pasta filata cheese contained in said package has a moisture content of 62%,” as recited in the claim. App. Br. 4. In particular, Appellant contends that although Dahlstrom discloses a “curd” having a “finished moisture content of 20 to 80%, and most preferably 30 to 60 weight%” (Dahlstrom, col. 5,11. 1-2), the reference does not disclose or suggest a packaging process for a cheese that has a final moisture content in the range of about 20 to about 90 weight percent, and especially not for a moisture content in excess of 60%, as claimed. Id. at 3- 4. Appellant also argues that Dahlstrom teaches that the cheese moisture content preferably should not be more than 60%. App. Br. 5 (citing Dahlstrom, claim 127 of Reexamination Certificate). Appellant further argues that the moisture content range Dahlstrom discloses of from about 20% to about 90% is “so broad” that it would not have provided any meaningful information to one of ordinary skill in the art because “it covers the moisture contents of essentially all known cheeses.” App. Br. 3—4. 4 Appeal 2017-005138 Application 13/734,396 Appellant argues that, although Mauk refers to packaging dried mozzarella cheese without preserving liquid (see Mauk, col. 1,11. 64-66), the claimed invention does not relate to such dried cheese and neither Mauk nor Dahlstrom disclose or suggest a packaging process for a “very, wet, juicy cheese with a moisture content of 62%.” App. Br. 4. Appellant also argues that Mauk does not render the claims obvious because it “discloses any and all mozzarella cheese.” Id. at 4. We do not find Appellant’s arguments persuasive of reversible error in the Examiner’s rejection. On the record before us, we find that a preponderance of the evidence and sound technical reasoning supports the Examiner’s analysis and determination that the combination of Dahlstrom and Mauk suggests all of the limitations of claim 1, including a cheese having “a moisture content of 62%,” and the Examiner’s conclusion that the combination would have rendered the claim obvious. Ans. 2-6; Dahlstrom, col. 2,1. 53, col. 5,11. 1-2, 55, col. 6,11. 39^10, 59, col. 7,1. 18, col. 9,11. 29- 30; Mauk, col 1,11. 11, 33-34, 64-66, col. 5,11. 11-12, col. 6,11. 13-15, 18- 19. As the Examiner finds (Ans. 3), Dahlstrom discloses a method for packaging pasta filata cheese wherein the cheese is molten at a temperature range of 57.2°C-65.6°C, which overlaps the claimed range of higher than 50°C, and the finished cheese product is directly extruded into packaging while hot. Dahlstrom, col. 2,11. 52-53, col. 5,11. 54-55, col. 6,11. 38^10. As the Examiner finds (Ans. 4), the method Dahlstrom discloses neither requires nor suggests adding a preserving liquid before or after packaging the cheese. See col. 6,11. 29^12. 5 Appeal 2017-005138 Application 13/734,396 As the Examiner finds (Ans. 3), Dahlstrom discloses the curd having a moisture content between 20-80% and suggests a pasta filata cheese having a final moisture content of slightly less than 20% to slightly less than 80%. Dahlstrom, col. 5,11. 1-2, col. 6,11. 57-59, col. 7,11. 16-18, 34-35, 54-55, col. 9,11. 29-31. In particular, as the Examiner finds (Ans. 3), Example I of Dahlstrom discloses an embodiment in which a mozzarella cheese curd having a starting moisture content of “50.04%” resulted in a cheese having a final moisture content of “48.61%” (i.e., a 1.43% reduction in moisture content in converting from curd to cheese). Dahlstrom, col. 6,11. 57-59, col. 7,11. 16-18. Similarly, Example II of Dahlstrom discloses a second embodiment in which a mozzarella cheese curd having a starting moisture content of “49.0%” resulted in a cheese having a final moisture content of “47.22%” (i.e., a 1.78% reduction in moisture content in converting from curd to cheese). Id. at col. 7,11. 34-35, 54-55. Accordingly, because Dahlstrom discloses only a slight reduction in the moisture content (e.g., 1-2%) upon converting from curd to cheese (see Dahlstrom, Examples I and II), we concur with the Examiner’s reasoning and finding (Ans. 4, 15-16) that, based on Dahlstrom’s teachings, one of ordinary skill in the art would have reasonably expected that Dahlstrom’s starting curd moisture content range of 20-80% would have resulted in a cheese having a final moisture content falling within the range of slightly less than 20% to slightly less than 80%, which encompasses the claimed moisture content of “62%.” See In re Petersen, 315 F.3d 1325, 1329 (Fed. Cir. 2003); see also In reAller, 220 F.2d 454, 456 (CCPA 1955) (“where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation”). 6 Appeal 2017-005138 Application 13/734,396 Moreover, Appellant has not proffered or directed us to any objective evidence in the record to suggest the criticality of the claimed moisture content or that a cheese having the claimed moisture content achieves unexpected results relative to the prior art. Peterson, 315 F.3d at 1330 (explaining that “the existence of overlapping or encompassing ranges shifts the burden to the applicant to show that his invention would not have been obvious”). Appellant’s argument that Dahlstrom’s claim 127 of the Reexamination Certificate teaches that the cheese moisture content preferably should not be more than 60% (App. Br. 5) is not persuasive because it misconstrues claim 127. Claim 127 of the Reexamination Certificate recites: 127. The process of claim 126 wherein the cheese has a final moisture content in the range of about 30 to 60 weight percent. Thus, contrary to what Appellant’s argument suggests, the claim does not teach that the cheese moisture content should not be more than 60%. Moreover, as the Examiner correctly points out (Ans. 15), even if Dahlstrom did teach or suggests a preferred range for the moisture content, such disclosure, without more, would not constitute a teaching away from the broader range Dahlstrom discloses. In re Susi, 440 F.2d 442, 445^16 (CCPA 1971) (disclosure of particularly preferred embodiments does not teach away from broader disclosure). We do not find Appellant’s argument regarding the moisture content in the prior art being too broad (App. Br. 4-5) as persuasive of reversible error for the well-stated reasons provided by the Examiner at page 17 of the Answer. In particular, we concur with the Examiner (Ans. 17) that 7 Appeal 2017-005138 Application 13/734,396 Appellant’s argument is misplaced because this is not the type of case where the prior art’s disclosed range is so broad as to encompass a very large number of possible distinct compositions analogous to the obviousness of a species when the prior art broadly discloses a genus. See, e.g., In re Baird, 16 F.3d 380, 383 (Fed. Cir. 1994). Rather, as the Examiner finds (Ans. 17), here, the prior art discloses only a single type of composition—pasta filata cheese—over the specified range of moisture content. Appellant’s arguments regarding the Mauk reference are not persuasive of reversible error for the reasons provided by the Examiner at pages 3-4 and 15-17 of the Answer. In particular, as the Examiner finds (Ans. 17), and as previously discussed above, Dahlstrom suggests a pasta filata cheese having a final moisture content that falls within the scope of claim 1 (Dahlstrom, col. 5,11. 1-2, col. 6,11. 57-59, col. 7,11. 16-18, 34-35, 54-55, col. 9,11. 29-31) and Mauk discloses a packaged pasta filata cheese having a final moisture content in the range of about 40% to about 60% (Mauk, col. 6,11. 34-36, 52-54). Appellant’s arguments reveal no reversible error in the Examiner factual findings in this regard. Attorney argument is not evidence. In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984). Appellant’s argument that the prior art does not disclose or suggest a packaging process for a “very, wet, juicy cheese” (App. Br. 4) is also not persuasive of reversible error because there are no such limitations recited in the claims. In re Van Geuns, 988 F.2d 1181, 1184-85 (Fed. Cir. 1993). Accordingly, we affirm the Examiner’s rejection of claims 1,3, and 9 under 35 U.S.C. § 103 as obvious over the combination of Dahlstrom and Mauk. 8 Appeal 2017-005138 Application 13/734,396 Rejection 2 Appellant does not present any additional substantive arguments in response to the Examiner’s Rejection 2, stated above. See App. Br. 6. Accordingly, based on the findings and technical reasoning provided by the Examiner and for the same reasons discussed above for affirming Rejection 1, we affirm the Examiner’s Rejection 2. DECISION/ORDER The Examiner’s rejections of claims 1 and 3-9 are affirmed. It is ordered that 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). AFFIRMED 9 Copy with citationCopy as parenthetical citation