Ex Parte Rivera et al

Patent Trial and Appeal Board

Aug 25, 2016

13221193 (P.T.A.B. Aug. 25, 2016)

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.
13/221,193 08/30/2011 Edwin Gerardo Rivera 1410-100428 3114
48940 7590 08/25/2016
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 1600
CHICAGO, IL 60603-3406
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
08/25/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte EDWIN GERARDO RIVERA and
RODRIGO R. ROESCH
_________________

Appeal 2015-001361
Application 13/221,1931
Technology Center 1700
____________________

Before ADRIENE LEPIANE HANLON, CATHERINE Q. TIMM, and
JAMES C. HOUSEL, Administrative Patent Judges.

PER CURIAM.

DECISION ON APPEAL

A. STATEMENT OF THE CASE
Appellants filed an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1–18. We have jurisdiction under
35 U.S.C. § 6(b).2
We AFFIRM-IN-PART.

1 According to Appellants, the real party in interest is Kraft Foods Group Brands
LLC. App. Br. 3.
2 Our decision refers to the Specification filed Aug. 30, 2011 (Spec.), the Final
Office Action (Final Act.) mailed July 9, 2013, Appellants’ Appeal Brief (App.
Br.) filed Feb. 18, 2014, the Examiner’s Answer (Ans.) mailed Sept. 2, 2014, and
Appellants’ Reply Brief (Reply Br.) filed Nov. 3, 2014.
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The claims on appeal are directed to cooked cheese products and methods of
producing cooked cheese products (see, e.g., claims 1 and 12). Appellants disclose
that processed cheese can have different characteristics than unprocessed cheese,
such as differences in melting characteristics. Spec. ¶ 3. Appellants disclose that
attempts have been made to control melt characteristics, such as via
homogenization, but further advances are desired. Spec. ¶¶ 7, 8. In view of this,
Appellants disclose cheese products and methods of using supplemental
phospholipids to provide reduced melt restriction and the modulation of fat
separation (i.e., “oiling-off”). Spec. ¶¶ 4, 9.
Independent claim 1 is illustrative and is reproduced below from the Claims
Appendix of the Appeal Brief. The limitations at issue are italicized.
1. A cooked cheese product, comprising:
at least one natural cheese in the range of 20 to 92 percent
weight;
a protein supplement in the range of 0.25 to 30 percent weight;
and
a phospholipid supplement in the range of about 0.1 to 1
percent weight;
wherein cooked cheese product is homogeneous does not
contain significant levels of emulsifying salts.

App. Br. 26.

The claims on appeal stand rejected as follows:
(1) claim 16 under 35 U.S.C. § 112, second paragraph, as being
indefinite;
(2) claims 1–6 and 9–11 under 35 U.S.C. § 103(a) as unpatentable over
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Gronfor3 in view of Bily;4
(3) claims 7 and 8 under 35 U.S.C. § 103(a) as being unpatentable over
the combination of Gronfor and Bily and further in view of USDA Food List;5
(4) claims 12, 14, 15, and 17 under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Gronfor and Bily and further in view of
Bodenstein;6
(5) claim 13 under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Gronfor, Bily, and Bodenstein and further in view of Rhodes;7 and
(6) claims 16 and 18 under 35 U.S.C. § 103(a) as being unpatentable over
the combination of Gronfor, Bily, and Bodenstein and further in view of USDA
Food List.

B. DISCUSSION
1. Rejection of claim 16 under 35 U.S.C. § 112
In the Final Office Action, claim 16 was rejected as being indefinite because
it is unclear if the language “protein in the range of about 10 to 20 percent weight
product” refers to a total amount of protein or only protein in the protein
supplement recited in claim 12. Final Act. 2.
Appellants filed an after-Final amendment to claim 16 to overcome the
§ 112 rejection but an Advisory Action mailed October 23, 2013 stated the

3 Gronfor, US 4,552,774, issued Nov. 12, 1985 (“Gronfor”).
4 Bily, US 4,277,503, issued July 7, 1981 (“Bily”).
5 United States Department of Agriculture, Agricultural Research Service, National
Nutrient Database for Standard Reference, Release 25, Basic Report, nutrient data
for 01009, Cheese, cheddar, http://ndb.nalusda.gov/ndb/foods/show/9 (last visited
Dec. 14, 2012) (“USDA Food List”).
6 Bodenstein et al., US 5,080,912 A, issued Jan. 14, 1992 (“Bodenstein”).
7 Rhodes, US 6,120,809 A, issued Sept. 19, 2000 (“Rhodes”).
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amendment was not entered. In the Appeal Brief, Appellants list the rejections set
forth under § 103 but do not list the § 112 rejection of claim 16. App. Br. 8. No
arguments regarding the propriety of the § 112 rejection have been submitted by
Appellants.
In the Answer, the Examiner states every ground set forth in the Final Office
Action is maintained except for those grounds listed as withdrawn. Ans. 3. No
ground of rejection is listed as withdrawn in the Answer. The Examiner, however,
does not list the § 112 rejection as a ground of rejection applicable to the appealed
claims at pages 3–11 of the Answer but rather merely addresses the § 103
rejections addressed by Appellants in the Appeal Brief.
On this record, we do not consider the Examiner’s failure to address the
§ 112 rejection in the Answer to be a withdrawal of that rejection. Rather, by only
addressing the § 103 rejections in the Answer, we understand the Examiner to have
tailored the Answer to respond to the grounds of rejection argued by Appellants in
the Appeal Brief.
Therefore, the § 112, second paragraph, rejection of claim 16 remains before
us on appeal, which we summarily affirm.

2. Rejection of claims 1–6 and 9–11 under 35 U.S.C. § 103
Claims 1–6 and 9–11 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Gronfor in view of Bily. Appellants argue claims 1, 2, 3, and 5 separately.
Claim 1
The Examiner finds Gronfor discloses a cooked cheese product including at
least one natural cheese and at least 0.5 weight percent of a whey protein
supplement. Ans. 4. In particular, the Examiner cites Example 16 of Gronfor. Id.
Example 16 of Gronfor combines 280 pounds of whole milk, 27.2 pounds of water,
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24 pounds of unmodified wheat flour, 160 pounds of a whey protein concentrate,
288 pounds of cheddar cheese, and 9.6 pounds of salt to produce a cheese-like
product. Gronfor col. 7, ll. 3–16.
The Examiner finds Gronfor does not disclose a phospholipid supplement
but finds Bily teaches the use of a phospholipid supplement, namely lecithin, in an
amount of 0.001–0.15 weight percent. Ans. 4. The Examiner concludes it would
have been obvious to include the lecithin of Bily in the cheese product of Gronfor
to reduce dehydration when the cheese product is frozen and to act as an emulsifier
that facilitates blending of water and the fat phase of the cheese product. Ans. 4–5.
Appellants do not dispute that lecithin is a phospholipid supplement but
argue that, when lecithin is added in the amounts disclosed by Bily to the 280
pounds of whole milk of Example 16, the lecithin is present in the resulting cheese-
like product in an amount of 0.0004–0.05 weight percent, not about 0.1–1 weight
percent, as recited in claim 1. App. Br. 9–10; Reply Br. 2–3. Appellants further
contend Bily demonstrates the cheese product of Example 16, as modified by Bily,
would not have the same properties as the cheese product of claim 1 because Bily
discloses amounts of lecithin greater than 0.066 weight percent lead to adverse side
effects, which serves as a teaching away from lecithin amounts greater than 0.066
weight percent. App. Br. 10–12.
At the outset, we note Bily discloses that good results overall are obtained
by adding between 0.001 percent and 0.066 percent of lecithin by weight to milk.
Bily, col. 3, ll. 27–29. However, Bily also discloses that “lecithin may be added in
the range of 0.066 percent to 0.15 percent prior to curd formation if flavor and/or
texture is not of critical importance, i.e. for cheese that will be further processed,
flavored or mixed with other ingredients,” as in the cheese product disclosed in
Gronfor. Bily, col. 4, ll. 9–13.
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Moreover, the Examiner finds Appellants’ method of calculating the amount
of lecithin is not correct because Bily teaches lecithin is added to milk prior to the
formation of cheese curd in order to increase the yield of the cheese. Ans. 12; see
also Bily, col. 3, ll. 24–27. The Examiner finds if one would have included
lecithin in Example 16 of Gronfor, according to the teachings of Bily, one would
have added the lecithin to the milk used to make the natural cheese of Example 16
(e.g., the cheddar cheese described in Gronfor Example 1), not to the whole milk,
which in combination with, inter alia, the cheddar cheese, produces the cheese-like
product. Ans. 12–13. The Examiner’s finding is supported by the record.
Moreover, the Examiner cites an example disclosed by Bily in which 17.5
pounds of lecithin was added to milk to produce 3558 pounds of cheese.8 Ans. 13.
The Examiner finds there would have been 0.5 weight percent of lecithin in the
resulting cheese in the example of Bily. Id. The Examiner then finds if the
cheddar cheese used in the mixture of Gronfor Example 16 were to have 0.5
weight percent of lecithin, the resulting cheese product of Example 16 would have
0.187 weight percent lecithin. Id.
Appellants respond by arguing Bily discloses the addition of lecithin to
liquid milk, which means lecithin would be added to the whole milk of Example 16
of Gronfor, not to the milk used to make the cheddar cheese used in Example 16.
Reply Br. 4–5. Moreover, Appellants contend Bily’s disclosure of adding lecithin
to milk prior to the formation of cheese curd supports Appellants’ position of
adding lecithin to the whole milk of Example 16, the Examiner’s findings are
contrary to Bily’s teachings, and the modification argued by the Examiner would

8 This appears to be a typographical error. Bily discloses that 3528 pounds of
cheese was produced. Bily, col. 5, ll. 34–35. Regardless of the error in pounds of
cheese produced, the Examiner’s approximation of 0.5 weight lecithin in the
resulting cheese is correct.
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have rendered the lecithin of Bily unsuitable for its intended purpose. Reply Br. 5–
7.
These arguments do not persuade us that the Examiner reversibly erred. The
Examiner’s finding that lecithin would have been added to the milk used to make
the cheddar cheese used in Gronfor Example 16 follows Bily’s teaching that “the
lecithin must be added prior to the coagulation of the milk into cheese curd” to
enjoy the benefit of increased cheese yield. Bily col. 4, ll. 15–16. Moreover,
Appellants’ arguments do not address the Examiner’s findings that a cheese
produced in an example of Bily would include 0.5 weight percent of lecithin and if
the cheddar cheese used in Gronfor Example 16 included 0.5 weight percent
lecithin, the resulting cheese-like product would have 0.187 weight percent
lecithin, which falls within the range of 0.1–1 weight percent of phospholipid
supplement recited in claim 1.
Appellants further contend the cheese of Gronfor is not a “cooked cheese
product” because Gronfor discloses its cheese-like product can be subsequently
cooked. App. Br. 12; Reply Br. 9. As stated by the Examiner, this argument is
unpersuasive of reversible error because Gronfor’s disclosure that the cheese-like
product can be cooked serves as a disclosure of a cooked cheese and because
Gronfor expressly discloses its examples were cooked to determine their texture
and fat separation characteristics. Ans. 13; see Gronfor col. 6, ll. 18–58 and col. 7,
ll. 14–16. Appellants respond to the Examiner’s finding that the examples of
Gronfor were cooked by asserting the cooking temperature of Gronfor, 100°F, does
not fall within the range of cooking temperature disclosed in Appellants’
Specification. Reply Br. 9–10. This argument is unpersuasive because it regards a
limitation (i.e., cooking temperature) not in the claims. In re Self, 671 F.2d 1344,
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1348 (CCPA 1982) (“Many of appellant’s arguments fail from the outset because .
. . they are not based on limitations appearing in the claims.”).
In addition, Appellants argue the disclosures relied upon by the Examiner
relate to a precursor for a cooked cheese product, not a cooked cheese product
including components in the amounts recited in claim 1. App. Br. 12–13; Reply
Br. 10. This argument is also unpersuasive of reversible error because it does not
explain why cooking the precursor materials of Gronfor, as modified by Bily,
would result in a cheese product that differs from the cheese product of claim 1.
Claim 1 recites “the cooked cheese product is homogeneous.” Appellants
contend Gronfor discloses the use of high shear sizing devices, such as a high shear
mixer or a “Microcutter” to reduce casein protein areas within a starch/whey
matrix, but this would not result in a homogeneous cooked cheese product. App.
Br. 14. In response, the Examiner finds Gronfor discloses the cheese produced in
Example 16 has a smooth texture and no phase separation, which would be
considered a homogeneous cheese product. Ans. 14. With regard to Appellants’
arguments regarding Gronfor’s use of high shear sizing devices, the Examiner
finds Appellants are reading limitations from the Specification into the claims and
not properly considering the broadest reasonable interpretation of the language
“homogeneous.” Id. The Examiner finds that “[t]aking the conventional and
broadest reasonable interpretation of the word ‘homogenous,’ the term is taken to
mean ‘uniform, of the same kind, alike’ as per the dictionary definition.” Id.
In the Reply Brief, Appellants did not respond to the Examiner’s findings.
Therefore, Appellants have failed to establish that the Examiner’s findings are
erroneous.
For the reasons discussed above and those discussed in the Examiner’s
Answer, the § 103 rejection of claim 1 is sustained. Claims 4, 6 and 9–11 have not
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been argued separately in the Appeal Brief9 and therefore fall with claim 1. 37
C.F.R. § 41.37(c)(iv).
Claims 2 and 3
Claim 2 depends from claim 1 and recites “wherein the phospholipid
supplement is in the range of about 0.25 to 1 percent weight.” App. Br. 26. Claim
3 depends from claim 1 and recites “wherein the phospholipid supplement is about
0.4 percent weight.” Id.
As discussed above, the Examiner finds the cheese produced in an example
of Bily would include 0.5 weight percent of lecithin and when the cheddar cheese
of Example 16 of Gronfor includes 0.5 weight percent lecithin, the resulting
cheese-like product would have 0.187 weight percent lecithin. Ans. 13. The
Examiner finds 0.187 weight percent lecithin in the resulting cheese-like product is
also considered close enough to about 0.4 weight percent. Id.
Appellants do not direct us to any error in the Examiner’s finding that 0.187
weight percent lecithin is considered close enough to “about 0.4 weight percent” to
render the amount recited in claim 3, and thus the range recited in claim 2,
obvious. Rather, the Appellants argue that
“the levels of 0.001% to 0.15% lecithin by weight of the liquid milk,
as disclosed in Bily, amount to 0.0004% to 0.05% by weight of the
total composition, which is well below the range of “0.25 to 1
percent” [and “about 0.4 percent”] of phospholipids by total weight of
the composition as recited in claim[s] 2 [and 3, respectively].

App. Br. 15, 16.
As discussed above, the calculations arriving at 0.0004% to 0.05% by
weight lecithin based on the total weight of the composition are based on an
erroneous interpretation of Bily as applied to the teachings in Gronfor, especially

9 App. Br. 15.
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Gronfor Example 16. Therefore, Appellants’ argument is not persuasive of
reversible error.
As a result, we sustain the Examiner’s the § 103 rejection of claims 2 and 3.
Claim 5
Claim 5 depends from claim 1 and further recites “wherein the protein
supplement is about 5 to 8 percent weight.”
The Examiner finds Gronfor discloses its cheese-like product can include “a
minimum of approximately 0.5% of functional whey protein by weight of the final
product,” which overlaps the claimed range, and the functional whey protein meets
the “protein supplement” of claim 5, which only requires a source of protein under
its broadest reasonable interpretation. Ans. 14–15; see Gronfor col. 4, ll. 38–41.
Appellants argue that
the percentage of the functional whey protein in the whey protein
concentrate of Gronfor cannot be properly interpreted as the
percentage of “protein supplement” as claimed [because] the present
specification lists “whey protein concentrate” as a possible “protein
component” of the claimed product, while “functional whey protein”
is not listed in the present specification as a possible “protein
component” of the claimed product.

App. Br. 18.
The Appellants have failed to explain, in any detail, why the Examiner’s
finding that functional whey protein is a protein supplement, under the broadest
reasonable interpretation of the term “protein supplement,” is not supported by the
record. See Ans. 15. The mere fact that Appellants’ Specification does not list
whey protein concentrate as an exemplary protein supplement does not suffice.
Appellants have failed to establish that the Examiner’s findings are
erroneous or directed us to any evidence that the claimed range provides
unexpected results. In view of the above, we sustain the Examiner’s § 103
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rejection of claim 5.

3. Rejection of claims 7 and 8 under 35 U.S.C. § 103
Claims 7 and 8 are rejected under 35 U.S.C. § 103(a) as being unpatentable
over the combination of Gronfor and Bily and further in view of USDA Food List.
Appellants merely reiterate the arguments set forth in support of the patentability
of claim 1 and contend USDA Food List does not include any further disclosure to
render claim 1 obvious. App. Br. 23–24. For the reasons set forth above, there are
no deficiencies in the rejection of claim 1 that require curing by USDA Food List.
As a result, we sustain the Examiner’s rejection of claims 7 and 8 under 35 U.S.C.
§ 103(a).

4. Rejection of claims 12, 14, 15, and 17 under 35 U.S.C. § 103
Independent claim 12 recites a method to produce a cooked cheese product
comprising, inter alia, “homogenizing the cooked cheese product by a pressure in
the range of about 70 to 246 Kg/cm.”
In the rejection of claim 12, the Examiner finds Gronfor does not
specifically disclose homogenizing a cooked cheese product, as recited in claim 12.
Ans. 8. The Examiner finds Bodenstein discloses homogenizing a cheese product
to properly blend oil and water and provide a cheese product with a good texture.
Id.
Appellants contend Bodenstein does not disclose a specific pressure for
homogenization. App. Br. 23. In response, the Examiner finds Examples 8–10 of
Bodenstein use a pressure of 200 bar, which is 204 Kg/cm. Ans. 15. Appellants
maintain their argument that Bodenstein does not disclose a specific pressure for
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homogenization because Examples 8–10 of Bodenstein use a “pressure difference
of 200 bar,” not a pressure of 200 bar. Reply Br. 11–12.
Appellants’ arguments are persuasive. The Examiner has failed to explain,
in any detail, why Bodenstein’s disclosure of a pressure difference of 200 bar
demonstrates that a pressure of about 70 to 246 Kg/cm would have been obvious
for homogenizing a cooked cheese product, as recited in claim 12. Therefore, the §
103 rejection of claims 12, 14, 15, and 17 is not sustained.

5. Rejection of claim 13 under 35 U.S.C. § 103
Claim 13 is rejected under 35 U.S.C. § 103(a) as being unpatentable over the
combination of Gronfor, Bily, and Bodenstein and further in view of Rhodes.
Claim 13 depends from claim 12. The Examiner’s reliance on Rhodes does not
cure the deficiencies discussed above for the rejection of claim 12. Therefore, we
do not sustain the Examiner’s rejection of claim 13 under 35 U.S.C. § 103(a).

6. Rejection of claims 16 and 18 under 35 U.S.C. § 103
Claims 16 and 18 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over the combination of Gronfor, Bily, and Bodenstein and further in
view of USDA Food List. Claims 16 and 18 depend from claim 12. The
Examiner’s reliance on USDA Food List does not cure the deficiencies discussed
above for the rejection of claim 12. Therefore, we do not sustain the Examiner’s
rejection of claims 16 and 18 under 35 U.S.C. § 103(a).

C. DECISION
On the record before us, we:
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A. affirm the Examiner’s decision to reject claim 16 under 35 U.S.C. §
112, second paragraph, as being indefinite;
B. affirm the Examiner’s decision to reject claims 1–6 and 9–11 under 35
U.S.C. § 103(a) as unpatentable over Gronfor in view of Bily;
C. affirm the Examiner’s decision to reject claims 7 and 8 under 35
U.S.C. § 103(a) as being unpatentable over the combination of Gronfor and Bily
and further in view of USDA Food List;
D. reverse the Examiner’s decision to reject claims 12, 14, 15, and 17
under 35 U.S.C. § 103(a) as being unpatentable over the combination of Gronfor
and Bily and further in view of Bodenstein;
E. reverse the Examiner’s decision to reject claim 13 under 35 U.S.C. §
103(a) as being unpatentable over the combination of Gronfor, Bily, and
Bodenstein and further in view of Rhodes; and
F. reverse the Examiner’s decision to reject claims 16 and 18 under 35
U.S.C. § 103(a) as being unpatentable over the combination of Gronfor, Bily, and
Bodenstein and further in view of USDA Food List.
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-IN-PART