Ex Parte Mycock et al

Patent Trial and Appeal Board

Aug 23, 2017

13885744 (P.T.A.B. Aug. 23, 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.
13/885,744 05/16/2013 Gary Mycock F3547USw 1693
201 7590 08/25/2017
UNILEVER PATENT GROUP
800 SYLVAN AVENUE
ENGLEWOOD CLIFFS, NJ 07632-3100
EXAMINER
WILLIAMS, LELA
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/25/2017 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 GARY MYCOCK, ALISTAIR DAVID SMITH, and
HELEN JANE WOOLLEY
Appeal 2016-001381
Application 13/885,744
Technology Center 1700
Before CATHERINE Q. TIMM, ELIZABETH M. ROESEL, and
JENNIFER R. GUPTA, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF CASE
Pursuant to 35 U.S.C. § 134(a), Appellants2 appeal from the
Examiner’s decision to reject claims 1, 3—6, 9, 11, and 12 under 35 U.S.C.
1 In explaining our Decision, we cite to the Specification dated May 16,
2013 (Spec.), Final Office Action dated October 10, 2014 (Final), the
Appeal Brief dated March 23, 2015 (Appeal Br.), the Examiner’s Answer
dated September 15, 2015 (Ans.), and the Reply Brief dated November 11,
2015 (Reply Br.).
2 The real party in interest is Conopco, Inc. d/b/a/ UNILEVER, Corp.
Appeal 2016-001381
Application 13/885,744
§ 103(a) as obvious over Colliver3 in view of Zhang4 further in view of
Lehmberg5 or Hagiwara6, as evidenced by FAO7, and further in view of
Takihara8. Ans. 2. We have jurisdiction under 35 U.S.C. § 6(b).
For the reasons provided by the Examiner, we AFFIRM. We add the
following primarily for emphasis.
OPINION
The claims are directed to a method for storing a packaged liquid tea
product. Because Appellants do not argue any claim separately, we select
claim 1 as representative. Claim 1 reads:
1. A method for storing a packaged liquid tea product,
[(a)] wherein the liquid tea product comprises expressed tea juice
and has a total tea solids content of at least 4 % by weight of
the liquid tea product, wherein about 75% to about 100% by
weight of the total tea solids in the liquid product are
provided by the expressed tea juice;
[(b)] said method for storing a packaged liquid tea product
comprising packaging said liquid tea product in a package
selected from the group consisting of a sachet, a capsule, a
carton and a bottle;
said method for storing a packaged liquid tea product further
comprising storing said packaged liquid tea product for a
storage period of at least two weeks wherein the packaged
liquid tea product is not subjected to a temperature
3 Colliver, US 2009/0117229 Al, published May 7, 2009.
4 Zhang, US 2010/0034934 Al, published Feb. 11, 2010.
5 Lehmberg, US 5,952,023, issued Sept. 14, 1999.
6 Hagiwara, US 6,022,573, issued Feb. 8, 2000.
7 FAO, Beverages, http://web.archive.org/web/20080724155148/
http://www.fao.org/WAIRdocs/x5434e/x5434e0b.htm (July 24, 2008).
8 Takihara et al., US 5,922,380, issued July 13, 1999.
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Application 13/885,744
exceeding 37 °C for more than 10 days during the storage
period; and wherein the packaged liquid tea product is not
subjected to a temperature below 5 °C for more than 10 days
during the storage period; and
[(c)] wherein the tea juice and/or the packaged liquid product is
subjected to a sanitisation step prior to storage; wherein the
sanitisation step comprises heating the tea juice at a
temperature of between 60 and 100 °C for a time period of
between 1 and 20 minutes; and
[(d)] wherein the tea juice has a pH of greater than 4.5; and
[(e)] wherein at an end of the storage period at least 95% of the
total tea solids are soluble.
Claims Appendix, Appeal Br. 15 (formatting added).
First, there can be no real question that Colliver teaches or suggests a
liquid tea product having the tea juice composition required by claim 1.
Appellants’ storage method is disclosed in the Specification as a method of
storing the tea juice of Colliver. Spec. 1:23—2:7 (citing WO 2009/059927,
which is the International Patent Application associated with the family of
patents including the Colliver patent cited by the Examiner). Moreover, that
Colliver suggests the composition has been established by the Examiner.
Final 2—3; Ans. 3^4.
Appellants’ invention, according to the Specification, is directed to
storing the expressed tea juice product suggested by Colliver under
controlled conditions of temperature and time to prevent the tea solids from
becoming unstable and insoluble. Spec. 2:4—7.
Colliver recognizes the problem of instability and haze formation
during storage due to the poor cold-water solubility of gallated polyphenol
species within the tea solids. Colliver 14. Colliver teaches a process of
expressing the tea juice that lowers the gallated polyphenol species that
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Application 13/885,744
causes the instability. Colliver | 8. However, as acknowledged by the
Examiner, Colliver is silent with regard to the conditions of storage.
Appellants state that “[o]ne skilled in the art would have a tendency to
prolong storage at refrigerated conditions.” Appeal Br. 10. However, Zhang
specifically discloses storing an extracted concentrated tea juice at ambient
temperature for at least about 22 weeks. Zhang || 4, 16, Example 1.
Storage of Colliver’s expressed tea juice, or Colliver’s suggested
concentrated liquid tea product containing the expressed tea juice, at ambient
temperature for at least about 22 weeks, would meet the storage temperature
and time parameters of claim 1.
Appellants contend that “[bjecause the tea of Zhang is different, one
skilled in the art would have no reason to combine it with Colliver which
discloses expressed tea juice solids.” Appeal Br. 10. The “difference”
Appellants refer to is discussed in the next paragraph, i.e., that Zhang
obtains the tea juice by extraction rather than expression. Appeal Br. 11.
But this difference would not dissuade one of ordinary skill in the art from
storing Colliver’s expressed tea juice product at ambient temperature for at
least 22 weeks. This is because, as explained by Colliver, the expressed
product is more stable than the extracted product due to its lower levels of
gallated polyphenols. Colliver || 4, 8. The ordinary artisan would have had
a reasonable expectation that the storage method of Zhang would result in a
packaged expressed tea juice product free of visible precipitates and with
low haze over a 22-week period at ambient temperature given that such
stability is achieved when storing an extracted product having higher levels
of gallated polyphenols. Zhang 116.
Likewise, Appellants’ arguments pointing out that Lehmberg,
Hagiwara, and Takihara are not directed to expressed tea juice (Appeal
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Application 13/885,744
Br. 11) do not identify a reversible error in the Examiner’s findings and
conclusions with regard to these references. The Examiner relies upon
Lehmberg or Hagiwara as evidenced by FAO to establish that the
temperatures and times for sanitization are conventional for pasteurizing
products such as tea juice. Final 7. The Examiner relied upon these
references because even though Colliver teaches sanitizing, e.g., by
pasteurization or sterilization, Colliver does not specify the time and
temperature conditions. Final 7; Ans. 6—7. Appellants’ argument fails
because, although an extract is somewhat different than an expressed tea
juice product, the products are sufficiently similar to suggest that the time
and temperature conditions the ordinary artisan would use to perform the
pasteurization or sterilization would be the same or similar.
With regard to the Examiner’s use of Takihara to establish that it
would have been obvious to adjust the pH of Colliver’s tea product to 4.75
to 7 to prevent muddiness and precipitate during storage (Final 8—9),
Appellants contend that Takihara uses a cation exchange process for tea
extracts and is silent about the conditions at which the tea extract is stored.
Appeal Br. 11. According to Appellants, “one skilled in the art would have
no reason to pick out the pH conditions of Takihara in an effort to store tea
juice at ambient temperature for at least 2 weeks.” Appeal Br. 11—12.
A preponderance of the evidence fails to support Appellants’
argument. Takihara specifically states that it is the pH adjustment that
prevents muddiness and precipitate. Takihara col. 1,1. 65—2,1. 8. The ion-
exchange treatment with cation exchange resin preserves the natural flavor
and thus is used for a different purpose. Id.
A preponderance of the evidence supports the Examiner’s finding that
Takihara would have suggested to the ordinary artisan controlling the pH of
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Colliver’s tea juice product to prevent muddiness and precipitate, with or
without an ion exchange step. Appellants’ claims do not exclude an ion
exchange step.
Appellants further contend that “[ojbjective evidence of the criticality
of the storage conditions for the present invention is included in the
Specification.” Appeal Br. 13. According to Appellants,
Table 2 (on p. 12) shows that storage at 40 C or 4 C results in
higher levels of insoluble solids than storage at 4 C (and
furthermore that storage at 20 C resulted in a similar amount of
soluble solids to storage at -20 C, but without the drawback of
phase separation).
Id.
Table 2 reports the results of the storage trial of Example 2. Spec. 10-
12. The storage trial involved separating tea juice into four batches. One
batch was stored at a constant temperature of -20 °C. Spec. 11. The other
batches were stored at a constant temperature of 4 °C, 20 °C, and 40 °C,
respectively. Spec. 11. Each batch was stored for 14 days, equilibrated to
20 °C for 24 hours and tested to determine the amount of suspended solids
retained on a filter and sedimented solids remaining in drained cans. Spec.
11. In Table 2, the total insoluble solids is the addition of the suspended and
sedimented solids. Spec. 12.
First, the data is not commensurate in scope with claim 1. Claim 1
allows the temperature to rise above 37 °C for up to 10 days and dip below
5 °C for up to 10 days. All of the tested batches were held at constant
temperature for 14 days without any dips or rises in temperature. Moreover,
Appellants’ claim encompasses temperatures beyond 20 °C (up to 37 °C and
down to 5 °C) for the remaining days.
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Because the data is not commensurate in scope with claim 1, the data
fails to support a showing of unexpected results for the full scope of the
claim.
CONCLUSION
We sustain the Examiner’s rejection.
DECISION
The Examiner’s decision is affirmed.
TIME PERIOD FOR RESPONSE
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).
AFFIRMED
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