Ex Parte Peterson et alDownload PDFPatent Trial and Appeal BoardNov 15, 201713190219 (P.T.A.B. Nov. 15, 2017) 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. 13/190,219 07/25/2011 Scott Peterson 555910.020 1744 30589 7590 11/17/2017 DUNLAP CODDING, P.C. PO BOX 16370 OKLAHOMA CITY, OK 73113 EXAMINER COX, STEPHANIE A ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 11/17/2017 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): docketing@dunlapcodding.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SCOTT PETERSON, FRANK WELCH, THOMAS BURKHOLDER, NORMAN JAGER and GIOVANNA ALEMAN Appeal 2017-004151 Application 13/190,219 Technology Center 1700 Before TERRY J. OWENS, JENNIFER R. GUPTA, and MICHAEL G. McMANUS, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’ rejection of claims 1—8, 24—26 and 28—34. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellants claim a method for making a shelf-stable snack. Claim 1 is illustrative: 1. A method of making a shelf stable snack comprising the sequential steps of: Appeal 2017-004151 Application 13/190,219 (a) adding a dry emulsifier directly to one or more dairy or dairy substitute ingredients and mixing the dry emulsifier and the dairy or dairy substitute ingredient(s) via high shear blending to form an emulsifier-containing blend, wherein the dry emulsifier consists of lactylated monoglycerides and/or lactylated diglycerides; (b) pasteurizing the emulsifier-containing blend, thereby forming a pasteurized blend; (c) adding a yogurt culture to the pasteurized blend and blending the pasteurized blend and the yogurt culture; (d) fermenting the pasteurized blend containing the yogurt culture, thereby forming a fermented blend; (e) admixing a gas with the fermented blend to form an aerated product; (f) freeze drying portions of the aerated product, thereby forming the snack; (g) packaging the snack for consumption by a child; and wherein the dairy or dairy substitute ingredient(s) is present in an amount from about 70% to about 85% by weight of the snack, and wherein the snack has a hardness value of from 0.5 to 8 pounds force peak load. The Rejection Claims 1—8, 24—26 and 28—34 stand rejected under 35 U.S.C. § 103 over Rudolph in view of Engesser. The References Engesser Rudolph US 2003/0224089 A1 WO 01/62099 A1 Dec. 4, 2003 Aug. 30, 2001 2 Appeal 2017-004151 Application 13/190,219 OPINION We reverse the rejection. We need address only the broadest independent claim, i.e., claim 1. That claim requires adding a dry emulsifier to one or more dairy or dairy substitute ingredients.1 Rudolph makes a shelf-stabilized probiotic food by 1) preparing mixture A by inoculating and mixing sterilized skim milk with probiotic bacteria, 2) incubating that mixture, 3) preparing mixture B by mixing skim milk, sugar and stabilizer, 4) preparing mixture C by mixing inoculated mixture A, mixture B, frozen sliced strawberries, sugar, natural strawberry flavor, red beetroot juice concentrate and optional bioactive ingredients, 5) incorporating air into mixture C and freezing that mixture, 6) adding thereto granola cereal and raisins to form mixture D, and 7) shaping mixture D into bars and freeze drying the bars (p. 3,11. 17—18; p. 9,1. 8 — p. 10,1. 18). Engesser makes an aerated yogurt by preparing a yogurt base comprising about 6—24% milk solids, about 0—10% fat, about 0-20% sugar, about 0.5—1.5% gelatin, and starter culture, fermenting the culture, admixing about 2—10% hydrated emulsifier blend comprising about 0.5—1.5% wetting agent, about 7—15% lactylated mono- and di-glycerides, balance water to form a yogurt blend, and aerating the yogurt blend flflf 23—37; 57). The Examiner concludes (Ans. 4): 1 The Appellants’ Specification states that “[a]ll dry ingredients (sugar, gelatin, starch, nonfat dry milk, emulsifier, as well as functional ingredients such as prebiotics) are incorporated into milk via addition to a high shear blender (such as Bredo Liqwifier) to achieve homogeneous dispersion and initial hydration” (Spec. 129). 3 Appeal 2017-004151 Application 13/190,219 With respect to the emulsifier being a dry emulsifier, the examiner notes that Engesser teaches a hydrated emulsifier comprising lactylated mono- and diglycerides [0032], However, the examiner takes the position that it does not matter whether the emulsifier is initially hydrated or not. All the ingredients are mixed together to achieve an initial hydration and then freeze-dried. Therefore, mixing a hydrated emulsifier with the other ingredients is obvious absent a convincing showing of unexpected results. Setting forth a prima facie case of obviousness requires establishing that the applied prior art would have provided one of ordinary skill in the art with an apparent reason to modify the prior art to arrive at the claimed invention. See KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). Neither taking the position that it does not matter whether the Appellants’ emulsifier initially is dry or hydrated nor asserting that the Appellants’ dry emulsifier becomes hydrated after being incorporated into milk in a high speed blender establishes that Engesser’s use of an initially hydrated emulsifier would have provided one of ordinary skill in the art with an apparent reason to use an initially dry emulsifier in Rudolph’s method. Accordingly, we reverse the rejection. DECISION/ORDER The rejection of claims 1—8, 24—26 and 28—34 under 35 U.S.C. § 103 over Rudolph in view of Engesser reversed. It is ordered that the Examiner’s decision is reversed. REVERSED 4 Copy with citationCopy as parenthetical citation