Ex Parte Reidy et al

Patent Trial and Appeal Board

Jan 24, 2018

12746861 (P.T.A.B. Jan. 24, 2018)

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.
12/746,861 08/25/2010 Kathleen Reidy 8669-US-PCT 2467
74475 7590
Nestec S.A.
Attn: Patent Department
12 Vreeland Road
Florham Park, NJ 07932
01/26/2018 EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
01/26/2018 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):
patentdepartment@rd.nestle.com
gary. lobel @ us .nestle, com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KATHLEEN REIDY, CHERYL CALLEN, and LYNN BELOTE
Appeal 2017-004641
Application 12/746,861
Technology Center 1700
Before DONNA M. PRAISS, N. WHITNEY WILSON, and
AVELYN M. ROSS, Administrative Patent Judges.
PRAISS, Administrative Patent Judge.
DECISION ON APPEAL1
Appellants2 appeal under 35 U.S.C. § 134 from the final rejection of
claims 24, 30, and 43—75. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
1 In explaining our Decision, we cite to the Specification filed June 8, 2010
(“Spec.”), the Final Office Action entered Jan. 8, 2016 (“Final Act.”), the
Appeal Brief filed Aug. 2, 2016 as corrected Sept. 26, 2016 (“App. Br.”), the
Examiner’s Answer entered Nov. 29, 2016 (“Ans.”), and the Reply Brief
filed Jan. 27, 2017 (“Reply Br.”).
2 Nestec S.A. is identified by the Appellants as the real party in interest.
App. Br. 1.
Appeal 2017-004641
Application 12/746,861
We AFFIRM.
Appellants’ invention is directed to shelf-stable toddler foods and
menus of shelf-stable toddler foods that have an optimal nutrition profile for
meeting the nutritional needs of a toddler. Spec. 1. Claim 24, copied below
from the Claims Appendix, is illustrative (bracketed matter added):
24. A packaged food product for a child of an age
between about 12 months and about 48 months, the packaged
food product comprising:
[1] at least one shelf-stable toddler food product sealed in a
container, the at least one shelf-stable toddler food product
having an optimal nutrition profile, and wherein the at least
one shelf-stable toddler food product comprises an
incomplete meal or a complete meal;
[2] a caloric reference chart, the caloric reference chart
providing a user with a daily caloric requirement for the
child, the daily caloric requirement based at least on the age
of the child, the caloric reference chart further including an
indicium of the calories of the at least one shelf-stable
toddler food product;
[3] a daily food component reference chart, the daily food
component reference chart comprising:
[(a)] a listing of a plurality of daily food components
comprising shelf-stable toddler food products that
each have an optimal nutrition profile, wherein at
least one of the plurality of daily food components is
capable of being combined with the at least one shelf-
stable toddler food product sealed in the container,
the daily food component reference chart further
comprising a respective nutritional profile associated
with the at least one shelf-stable toddler food product
sealed in the container and a respective nutritional
profile associated with each daily food component
listed therein, wherein each nutritional profile
comprises at least one macronutrient selected from
the group consisting of fat, saturated fat, trans fat,
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Appeal 2017-004641
Application 12/746,861
sodium, cholesterol, fiber, sugar, and combinations
thereof; and
[(b)] an optimal daily nutritional profile listing a plurality
of specific macronutrient values comprising:
(i) about 41 g fat,
(ii) about 12 g saturated fat,
(iii) about 1500 mg sodium, and
(iv) about 300 mg cholesterol; and
[4] guidelines to select and combine the at least one shelf-stable
toddler food product sealed in the container and at least one
of the daily food components listed in the daily food
component reference chart to provide a combination that:
(a) has a caloric load about that of the daily caloric
requirement for the child, as listed in the caloric
reference chart, and
(b) has a nutritional profile about that of the optimal daily
nutritional profile.
Appellants appeal the rejection of claims 24, 30, and 43—75 under
35 U.S.C. § 103(a) as being unpatentable over Wigfield3 in view of Daily
Values,4 Kislyakovskaya,5 and either of DRI6 or Elitok,7 and in further view
3 Wigfield, WO 2004/078599 A2, pub. Sept. 16, 2004 (“Wigfield”).
4 How do the Daily Values found on food labels compare to the nutritional
recommendations for children? Baylor College of Medicine (2004)
(http://www.bcm.edu/cnrc/consumer/archives/percentDV.htm) (“Daily
Values”).
5 V. G. Kislyakovskaya et al., Rational Nutrition and Development of
Children, Moscow Prosveschenie Publishing House (1983)
(“Kislyakovskaya”).
6 Dietary Reference Intakes for Energy, Carbohydrate, Fiber, Fat, Fatty
Acids, Cholesterol, Protein, and Amino Acids, Consensus Report (2002)
(www.nap.edu) (“DRI”).
7 Elitok, US 2007/0191689 Al, pub. Aug. 16, 2007 (“Elitok”).
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Appeal 2017-004641
Application 12/746,861
of CrossFit Journal,8 Segal,9 Gordon,10 Alles,* 11 and USDA,12 and any of
Brenkus,13 Arana,14 and/or Thompson.15 Final Act. 3.
FINDINGS OF FACT AND ANALYSES
The Examiner finds that Wigfield teaches at least one food product
sealed in a container and that the kit can be catered to consumers based on
age, including children (Ans. 3). Therefore, according to the Examiner,
Wigfield’s kit would have been capable of optimizing the nutritional needs
of a child having an age of 12 months to about 48 months (id.).
Alternatively, the Examiner finds that Daily Values, DRI, and
Kislyakovskaya teach meals for children where the child’s age falls within
the claimed range (id. at 3 4). The Examiner further finds that Wigfield
teaches charts that can be included with the kit, including a reference that
indicates the particular nutritional requirements and recommended daily
intake of foods for achieving optimized nutrition as well as healthy meal
combination cards for choosing the foods to put together for achieving the
8 Meal Plans, Crossfit Journal, Issue 121, 1—10 (May 2004) (“Crossfit
Journal”).
9 Segal et al., US 2005/0118233 Al, pub. June 2, 2005 (“Segal”).
10 Gordon, US 2003/0219153 Al, pub. Nov. 27, 2003 (“Gordon”).
11 Alles et al., WO 2006/068485 A2, pub. June 29, 2006 (“Alles”).
12 United States Department of Agriculture, Agricultural Research Service,
Abbreviated
(http://web.archive.Org/web/200602120156411/http://www.ars.usda.gov/Serv
ices/docs.htm?docid=10093) (last modified Oct. 19, 2005) (“USDA”).
13 Brenkus et al., US 6,296,488 Bl, iss. Oct. 2, 2001 (“Brenkus”).
14 Arana, US 2005/0048454 Al, pub. Mar. 3, 2005 (“Arana”).
15 Thompson et al., US 2007/00243290 Al, pub. Oct. 18, 2007
(“Thompson”).
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Appeal 2017-004641
Application 12/746,861
requisite nutrition of a complete meal as well as color coding to facilitate
mixing and matching combinations of food components {id. at 5).
Regarding a caloric chart for the child aged 12 months to 24 months
that comprises at least one macronutrient selected from the group consisting
of fat, saturated fat, trans fat, sodium, cholesterol, fiber, sugar, and
combinations thereof as well as the recited amounts, the Examiner finds that
would have been obvious in view of Daily Values, which encompasses the
claimed values for children within the claimed age range and that
modification of the specific quantity of each of the recited macronutrients
would have been within the routine capabilities of a skilled artisan based on
the specific health needs of the child {id. at 6—7, 11, 12). Regarding the
daily food component reference chart, the Examiner finds that the nutritional
profile of daily food components is taught in the art by DRI, Elitok, and
Kislyakovskaya {id. at 8) and USD A {id. at 11). The Examiner additionally
finds that Brenkus, Arana, Crossfit Journal, Gordon, and Thompson also
teach food component reference charts and expedients to allow a consumer
to combine a variety of food components to achieve a specific nutritional
profile {id. at 9—12). Finally, the Examiner finds that Alles teaches the
conventionality of providing toddler foods that are sealed and shelf stable
{id. at 13).
Appellants argue that Wigfield is directed to food packing to provide
a balanced meal for a consumer, and not related to a daily caloric
requirement or daily nutrition profile as required by the claims (App. Br. 12;
Reply Br. 2—3). Appellants contend that Daily Values, DRI, and
Kislyakovskaya do not disclose the claimed specific optimal daily nutritional
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Appeal 2017-004641
Application 12/746,861
profile of the specific combination of six individual calorie/macronutrient
values as shown in the below chart (App. Br. 13; Reply Br. 3).
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