Ex Parte Rivera et al

Patent Trial and Appeal Board

Aug 9, 2016

12626226 (P.T.A.B. Aug. 9, 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.
12/626,226 11/25/2009 Teodoro RIVERA CTROP.3480 1751
110933 7590 08/09/2016
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
KING, FELICIA C
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
08/09/2016 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 TEODORO RIVERA, JESSICA OESTERLING, and
YIH JENNIFER LEE
____________

Appeal 2015-003475
Application 12/626,226
Technology Center 1700
____________

Before CHUNG K. PAK, JEFFREY T. SMITH, and
WESLEY B. DERRICK, Administrative Patent Judges.

PAK, Administrative Patent Judge.

DECISION ON APPEAL

Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claims 1 through 30 and 46. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellants identify the Real Party in Interest as Tropicana Products, Inc.
(Appeal Brief filed May 27, 2014 (“App. Br.”) at 3.)
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The subject matter on appeal is directed to a beverage product having
a pH of at most 4.5 and comprising, inter alia, orange juice, probiotic
bacteria, and beta-glucan. (Spec. ¶ 10.) The beverage product “exhibit[s]
the characteristic” that after storage for 45 days at refrigeration temperatures
(35ºF) and in conditions that shield the beverage from UV radiation, the
number of bacteria contained in the beverage is from 1.0 x 109 CFU/12 fl.
oz. to about 5.0 x 109 CFU/12 fl. oz. (Spec. ¶ 28.)
Details of the appealed subject matter are recited in representative
claim 1, reproduced below from the Claims Appendix to the Appeal Brief.
1. A beverage product comprising:
orange juice in an amount of at least 40 % by weight of
the beverage product,
citrus fruit flavor additive in an amount of 0.050 %–
0.20 % by weight of the beverage product;
rebaudioside A in an amount of 0.005 %–1.0 % by
weight of the beverage product,
at least one buffering agent,
at least one vitamin,
probiotic bacteria, and
beta-glucan in an amount of 0.20 %–2.0 % by weight of
the beverage product,
where the beverage product has a pH of at most 4.5.

(App. Br. i, Claims Appendix.)

Appellants seek review of the following final rejections2 maintained in
the Examiner in the Answer entered August 11, 2014 (“Ans.”):

2 Final Office Action entered September 24, 2013 (“Final Act.”).
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I. Claims 13, 14, 28, 29, 30, and 46 under 35 U.S.C. § 112,
second paragraph as being indefinite for failing to particularly point out and
distinctly claim the subject matter that applicants regard as the invention;
II. Claims 1–5, 7–12, and 15–24 under 35 U.S.C. § 103(a) as
unpatentable over the combined teachings of U.S. Patent 6,020,016, issued
in the name of Castleberry on February 1, 2000 (hereinafter referred to as
“Castleberry”), U.S. Patent Application Publication 2008/0226804 Al,
published in the name of Talebi et al. on September 18, 2008 (hereinafter
referred to as “Talebi”), U.S. Patent Application Publication 2007/0082106
Al, published in the name of Lee et al. on April 12, 2007 (hereinafter
referred to as “Lee”), and International Patent Application Publication WO
2008/134626 A1, published in the name of Kim et al. on November 6, 2008
(hereinafter referred to as “Kim”);
III. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over the
combined teachings of Castleberry, Talebi, Lee, Kim, and U.S. Patent
Application Publication 2009/0162525 Al, published in the name of Rivera
et al. on June 25, 2009 (hereinafter referred to as “Rivera I”);
IV. Claims 13, 14, 28, 29, 30, and 46 under 35 U.S.C. § 103(a) as
unpatentable over the combined teachings of Castleberry, Talebi, Lee, Kim,
and Saarela, M., et al., Fibres as Carriers for Lactobacillus rhamnosus
During Freeze-Drying and Storage in Apple Juice and Chocolate-Coated
Breakfast Cereals, 112 Int. J. Food Microbiol. 171 (2006) (hereinafter
referred to as “Saarela”);
V. Claims 1–5, 7–10, and 15–27 under 35 U.S.C. § 103(a) as
unpatentable over the combined teachings of U.S. Patent Application
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Publication 2010/0055250 Al, published in the name of Rivera et al. on Mar. 4,
2010 (hereinafter referred to as “Rivera II”), Kim, and Castleberry;
VI. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over the
combined teachings of Rivera II, Kim, Castleberry, and Rivera I; and
VII. Claims 13, 14, 28, 29, 30, and 46 under 35 U.S.C. § 103(a) as
unpatentable over the combined teachings of Rivera II, Kim, Castleberry,
and Saarela.
DISCUSSION
Upon consideration of the evidence on this appeal record and each of
Appellants’ contentions, we determine that Appellants have identified
reversible error only in the Examiner’s rejection of claims 13, 14, 28, 29, 30,
and 46 under 35 U.S.C. § 112, second paragraph. Accordingly, we reverse
this rejection for the reasons set forth in the Appeal Brief, but sustain the
Examiner’s rejections of claims 1–30 and 46 under 35 U.S.C. § 103(a) for
the reasons set forth in the Final Rejection and the Answer. We add the
discussion below primarily for emphasis and completeness.
Rejection I
We reverse the Examiner’s rejection of claims 13, 14, 28, 29, 30, and
46 under 35 U.S.C. § 112, second paragraph, as being indefinite. Claims 13,
14, 28, 29, 30, and 46 each recite a beverage product that is “stored in the
dark or in otherwise UV shielded conditions.” The Examiner asserts that the
phrase “otherwise UV shielded conditions” constitutes relative terminology,
and thus renders claims 13, 14, 28, 29, 30, and 46 indefinite because the
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claims do not define this phrase, and Appellants’ Specification “does not
provide a standard for ascertaining the requisite degree.” (Ans. 2.)
However, the Examiner does not carry the burden of showing that one
of ordinary skill in the art would not understand the scope and meaning of
“otherwise UV shielded conditions” recited in claims 13, 14, 28, 29, 30, and
46. In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992) (“[T]he examiner
bears the initial burden, on review of the prior art or on any other ground, of
presenting a prima facie case of unpatentability”); Amgen, Inc. v. Chugai
Pharm. Co., Ltd., 927 F.2d 1200, 1217 (Fed. Cir. 1991) (A claim is
considered indefinite under 35 U.S.C. § 112, second paragraph, if it does not
reasonably apprise those skilled in the art of its scope). As Appellants
correctly argue, the claim language itself and the Specification provide
sufficient guidance to allow one of ordinary skill in the art to understand that
“otherwise UV shielded conditions” refer to conditions that, like darkness,
protect the beverage from UV light. (App. Br. 10.) Accordingly, one of
ordinary skill in the art would reasonably understand the scope of “otherwise
UV shielded conditions” encompassed by claims 13, 14, 28, 29, 30, and 46.
Therefore, we do not sustain the rejection of these claims under § 112,
second paragraph.

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Rejection II3
The Examiner finds, and Appellants do not dispute, that Castleberry
discloses an orange juice beverage product having a pH of 4.5 or less that
contains sweetener, flavor enhancers, such as fruit extracts, in an amount of
0.01 % to 2 % of the product (overlapping the range of citrus fruit flavor
additive recited in claim 1), vitamins, and beta-glucan in an amount of 0.05
g/L to 5 g/L. (Compare Ans. 3 with App. Br. 10–22.) The Examiner finds
that Castleberry discloses that the beverage product contains 1–65 % fruit
juice. (Ans. 45.) The Examiner finds that the beta-glucan content of 0.05
g/L to 5 g/L taught by Castleberry “is substantially similar to 0.05 % to 5%”
by weight of beta-glucan based on a beverage product. (Ans. 3.)
The Examiner acknowledges that Castleberry does not disclose that
the fruit extract flavor enhancer is citrus flavor, and does not disclose that
the beverage contains a buffering agent. (Ans. 3.) To address these
differences in Castleberry, the Examiner relies on Talebi’s disclosure of
using orange juice and citrus flavors and a buffering agent in a beverage
product. (Ans. 3.) Appellants do not dispute the Examiner’s finding that
Talebi discloses using the recited amount of citrus flavor that can be
included as the flavor enhancer of Castleberry’s beverage and employing a

3Appellants argue claims 1–5, 7–12, and 15–24 as a group. (App. Br. 15.)
Therefore, for the purposes of this appeal, we select claim 1 as
representative, and decide the propriety of this rejection based on claim 1
alone. 37 C.F.R. § 41.37(c)(1)(iv)(2013).
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buffering agent in the beverage to adjust the pH. (Compare Ans. 3 with
App. Br. 10–22.) Based on these findings, the Examiner determines that it
would have been obvious to one of ordinary skill in the art at the time of the
invention to include citrus flavor, as taught by Talebi, in the orange juice
beverage of Castleberry to enhance the citrus flavor of the beverage, and to
include a buffering agent, as also taught by Talebi, to adjust the pH of the
beverage. (Ans. 4–5.)
The Examiner also acknowledges that Castleberry does not disclose
that the sweetener included in its orange juice beverage is rebaudioside A.
(Ans. 3–4.) To account for this feature missing in Castleberry, the Examiner
relies on Lee’s disclosure of a reduced-calorie fruit juice containing 0.01 %
to about 0.2 % by weight of rebaudioside A (overlapping the range recited in
claim 1) as a sweetener, which Appellants do not dispute. (Compare Ans.
3–4 with App. Br. 10–22.) Based on this finding, the Examiner also
determines that it would have been obvious to one of ordinary skill in the art
at the time of the invention to substitute rebaudioside A for Castleberry’s
sweetener to provide a lower calorie beverage. (Ans. 4.)
The Examiner further acknowledges that Castleberry does not disclose
that the orange juice beverage contains probiotic bacteria, and relies on
Kim’s disclosure of adding probiotics to an orange juice beverage in order to
promote the growth of beneficial bacteria in the gut, which Appellants do
not dispute. (Compare Ans. 3–4 with App. Br. 10–22.) Thus, the Examiner
further determines that it would have been obvious to one of ordinary skill in
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the art at the time of the invention to modify Castleberry’s beverage product
to include probiotics as taught by Kim to promote the growth of beneficial
bacteria in the gut for the health purposes. (Ans. 4.)
Appellants argue that the Examiner’s conclusion that it would have
been obvious to one of ordinary skill in the art to modify the product of
Castleberry to include probiotics as disclosed in Kim is based on hindsight
reconstruction because there is no teaching or suggestion in Kim to use the
probiotics without prebiotics, and the skilled artisan would not have been
motivated to do so at the time of the invention. (App. Br. 15.) However, we
are not persuaded by this argument. As explained by the Examiner, claim 1
does not preclude the inclusion of prebiotics in the beverage product. (Ans.
38.)
Appellants further argue that there is no teaching or suggestion in any
of the applied prior art that would have led one of ordinary skill to include a
probiotic bacteria in an acidic juice beverage in combination with beta-
glucan. (App. Br. 15.) However, Castleberry discloses an orange juice
beverage that includes beta-glucan and has a pH of less than 4.5, and
discloses that beta-glucan provides nutritional value and lowers cholesterol
levels in humans. (Castleberry col. 2, l. 66–col. 3, l. 3; col. 3, ll. 21–34; col.
5, ll. 45–56.) Kim discloses that probiotics have beneficial effects on human
health, and describes an acidic orange juice beverage having an upper pH
limit of 4.2 that includes probiotics, which remained viable during
refrigeration of the beverage for 36 days. (Kim ¶¶ 10, 14, 21, 39.) Thus, we
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agree with the Examiner that one of ordinary skill in the art would have been
led to incorporate Kim’s probiotics in Castleberry’s orange juice beverage
having a pH of less than 4.5 to provide further health benefits to the
beverage, as disclosed in Kim, with a reasonable expectation of achieving
stable probiotic in such acidic orange juice beverage.
Therefore, on this record, Appellants do not identify reversible error
in the Examiner’s conclusion that Castleberry, Talebi, Lee, and Kim teach or
would have suggested the subject matter recited in claims 1–5, 7–12, and
15–24 within the meaning of § 103(a). We accordingly sustain the
Examiner’s § 103(a) rejection of these claims.
Rejection III
Appellants rely on the same arguments advanced in connection with
independent claim 1 discussed supra and argue that Rivera I fails to remedy
the deficiencies of Castleberry, Talebi, Lee, and Kim because Rivera I does
not disclose or suggest including probiotics or beta-glucan in its food
product. (App. Br. 16.) Because we are unpersuaded of reversible error in
the Examiner’s rejection of claim 1 as indicated supra, we also sustain the
Examiner’s rejection of claim 6 under 35 U.S.C. § 103(a) as unpatentable
over Castleberry, Talebi, Lee, Kim, and Rivera I.
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Rejection IV
Claims 13, 14, 28, and 294
The Examiner acknowledges that Castleberry does not mention a
beverage product comprising at least 1.0 x 109 CFU/12 fl. oz. of probiotic
bacteria when the beverage product is stored in the dark or in otherwise UV
shielded conditions for 45 days at a temperature of 35° F, as recited in claim
13. (Ans. 8.) To remedy this deficiency in Castleberry, the Examiner relies
on the disclosures of Kim and Saarela. (Ans. 9.) Appellants do not dispute
the Examiner’s finding that Kim discloses an orange juice beverage that
contained at least at 1.0 x109 CFU/fl. oz. of probiotics after refrigeration for
36 days at temperatures of about 0°C to about 10°C. (Compare Ans. 9 with

4 Appellants’ argument that the applied prior art does not teach or suggest
the subject matter recited in claim 28 does not constitute a substantive
argument as to the separate patentability of this claim. (App. Br. 18.) 37
C.F.R. § 41.37(c)(l)(iv) (“A statement which merely points out what a claim
recites will not be considered an argument for separate patentability of the
claim”); In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“[T]he Board
reasonably interpreted Rule 41.37 to require more substantive arguments in
an appeal brief than a mere recitation of the claim elements and a naked
assertion that the corresponding elements were not found in the prior art.
Because Lovin did not provide such arguments, the Board did not err in
refusing to separately address claims 2–15, 17–24, and 31–34.”). Thus,
Appellants effectively argue claims 13, 14, 28, and 29 as a group (App. Br.
16–18), and for purposes of this appeal, we select claim 13 as representative,
and decide the propriety of the rejection of this group of claims based on
claim 13 alone. 37 C.F.R. § 41.37(c)(1)(iv)(2013).
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App. Br. 10–22.) The Examiner determines that although Kim does not
explicitly teach UV shielding, it was known in the art that refrigerators are
generally closed off to sun light, including UV light, which Appellants do
not dispute, and the Examiner determines that it therefore would have been
obvious to one of ordinary skill in the art that Kim’s beverage was shielded
from UV light. (Compare Ans. 9 with App. Br. 10–22.) Appellants also do
not dispute the Examiner’s finding that Saarela discloses that apple juice
containing a probiotic and beta-glucan was highly stable during storage at
4ºC or 20ºC for over 12 weeks, while apple juice containing a probiotic and
either sucrose, dextrin, or polydextrose was stable for only 2 weeks when
stored at 4ºC. (Compare Ans. 9 with App. Br. 10–22.)
Based on these findings, the Examiner concludes that one of ordinary
skill in the art, at the time of the invention, would have reasonably expected
that the orange juice beverage of Castleberry, as modified by Talebi, Lee,
and Kim, would have been shelf stable when stored 45 days at 35° F
(1.67ºC) and would have at least 1.0 x 109 CFU/12 fl. oz. of probiotic
bacteria, after storage for 45 days at 35° F (1.67ºC), as recited in claim 13, in
view of Sarrela’s disclosure that beta-glucans stabilize probiotics in fruit
juice stored for longer periods of time even at higher temperatures—12
weeks at 4ºC and 20ºC and Kim’s disclosure that an orange juice beverage
contained at least twelve times more probiotics—1 x109 CFU/fl. oz—after
refrigeration for 36 days at 0°C to about 10°C. (Ans. 9–10.)
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Appellants argue that Kim’s use of a combination of a prebiotic and a
probiotic in orange juice was responsible for the bacterial counts described
in the reference, and Appellants further contend that, in contrast, Saarela’s
use of a combination of a prebiotic (polysaccharide) and probiotic in apple
juice resulted in a shorter shelf life than a combination of beta-glucan and a
probiotic. (App. Br. 17–18.) Appellants argue that these teachings in Kim
and Saarela are contradictory, and one of ordinary skill in the art therefore
would not have combined the teachings of these references. (Id.)
We note initially that claim 13 recites a beverage product rather than a
process for storing a beverage product. The beverage product recited in
claim 1, according to claim 13, has a functionally-defined property, namely
the amount of probiotic present in the product when the product is stored
under particular conditions. According to Appellants’ Specification, the
functionally-defined property recited in claim 13 does not further limit the
beverage product recited in claim 1, but the beverage product recited in
claim 1 necessarily possesses such functionally-defined property due to the
ingredients employed in the beverage product recited in claim 1. (Spec.
¶¶ 28–29.) In re Kubin, 561 F.3d 1351, 1357 (Fed. Cir. 2009) (“Even if no
prior art of record explicitly discusses the [limitation], [applicants’]
application itself instruct that [the limitation] is not an additional
requirement imposed by the claims on the [claimed invention], but rather a
property necessarily present in [the claimed invention]”). As indicated
supra, the combined disclosures of Castleberry, Talebi, Lee, and Kim would
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have suggested to one of ordinary skill in the art at the time of the invention
a beverage product having all of the ingredients recited in claims 1 and 13.
The suggestion of such beverage product by the combined disclosures of
Castleberry, Talebi, Lee, and Kim constitutes a suggestion of any intrinsic
properties, including that recited in claim 13, associated with such suggested
beverage product. Kubin, 561 F.3d at1357; In re Spada, 911 F.2d 705, 709
(Fed. Cir. 1990) (explaining that a chemical composition and its properties
are inseparable.)
In any event, in contrast to Appellants’ arguments, Kim’s disclosure
that prebiotics stimulate the growth of probiotics (Kim ¶ 6), Saarela’s
disclosure of the superiority of beta-glucans to prebiotics for stabilization of
probiotics in apple juice (Saarela 176, col. 1; Fig. 3), and Castleberry’s
disclosure of the nutritional value and cholesterol lowering property of beta-
glucan would have led one of ordinary skill in the art to combine beta-glucan
or a mixture of a prebiotic and beta-glucan with a probiotic in an orange
juice beverage, such as the orange juice beverage suggested by Castleberry,
Talebi, and Lee discussed supra. Based on the teachings of Kim and
Saarela, one of ordinary skill in the art would have reasonably expected such
an orange juice beverage containing probiotic and beta-glucans, with or
without a prebiotic, to have the functionally-defined property recited in
claim 13 as indicated supra.
Appellants further argue that Saarela teaches away from storing a
probiotic-containing fruit juice beverage at 35ºF (1.67ºC) as recited in claim
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13 because Sarrela discloses that beta-glucan stabilized a probiotic in apple
juice stored at temperature (20ºC) higher than 35ºF. (App. Br. 18.)
However, as the Examiner points out, Saarela discloses that beta-glucan
stabilized probiotics in apple juice stored at both 4ºC and 20ºC. (Ans. 9.)
Therefore, Saarela’s disclosures as a whole would not have discouraged one
of ordinary skill in the art from storing an orange juice beverage containing a
probiotic and beta-glucan at a temperature lower than 20ºC, such as 35ºF. In
re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004) (“[t]he prior art’s mere
disclosure of more than one alternative does not constitute a teaching away
from any of these alternatives because such disclosure does not criticize,
discredit, or otherwise discourage the solution claimed”); In re Gurley, 27
F.3d 551, 552–53 (Fed. Cir. 1994).
In any event, as indicated supra, claim 13 is directed to a beverage
product, not a method of storing a beverage product. Although claim 13
recites storing the beverage product under particular conditions to define the
property of the beverage product, Appellants do not identify any
compositional difference between the beverage product recited in claim 13
and the beverage product suggested by the collective teachings of
Castleberry, Talebi, Lee, Kim, and Saarela. On this record, Appellants do
not show, much less argue, that such functionally-defined property recited in
claim 13 further limits the type of ingredients employed in the claimed
beverage product in a manner that would patentably distinguish the claimed
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beverage product from the beverage product suggested by the collective
teachings of Castleberry, Talebi, Lee, Kim, and Saarela.
Appellants’ remaining arguments for claims 13, 14, 28, and 29 do not
address the combined disclosures of the applied prior art, and thus do not
show error in the Examiner’s rejection of these claims. (App. Br. 18.)
Claims 30 and 465
Independent claim 30 recites the limitations of claim 1, and
additionally recites that the beverage product formulation has at least a 10 %
greater probiotic concentration when tested after storing for 45 days in
hermetically sealed 12 fl. oz. PET vessels in the dark or in otherwise UV
shielded conditions at 35° F than the beverage product formulation without
the beta-glucan when tested after 45 days in hermetically sealed 12 fl. oz.
PET vessels stored in the dark or in otherwise UV shielded conditions at
35° F.
The Examiner’s findings of fact regarding the disclosures of
Castleberry, Talebi, Lee, Kim, and Saarela are set forth above. The
Examiner concludes that it would have been obvious to one of ordinary skill

5 Appellants’ argument that the applied prior art does not teach or suggest
the subject matter recited in claim 46 does not constitute a substantive
argument as to the separate patentability of this claim. (App. Br. 20.) 37
C.F.R. § 41.37(c)(l)(iv); In re Lovin, 652 F.3d at 1357. Thus, Appellants
effectively argue claims 30 and 46 together (App. Br. 18–20), and for the
purposes of this appeal, we select claim 30 as representative.

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in the art at the time of the invention that the orange juice beverage of
Castleberry as modified by Talebi, Lee, and Kim would have the properties
recited in claim 30 in view of Saarela’s disclosures, for essentially the same
reasons discussed above for claim 13. (Ans. 14.)
Appellants dispute the Examiner’s determination that the beta-glucan
content disclosed in Castleberry of 0.05 g/L to 5 g/L “is substantially similar
to 0.05 % to 5%,” as discussed above in connection with the Examiner’s
rejection of claim 1 (Rejection II). (App. Br. 19.) Appellants contend that
0.05 g/L to 5 g/L is actually about 0.05 % to 0.5 %. (Id.) However, both
0.05 % to 5% and 0.05 % to 0.5 % overlap the range recited in claim 30 (and
claim 1), and thus regardless of whether the Examiner errs in converting
units of g/L to %, the beta-glucan content disclosed in Castleberry would
have rendered the claimed range prima facie obvious. In re Peterson, 315
F.3d at 1329–330 (“In cases involving overlapping ranges, we and our
predecessor court have consistently held that even a slight overlap in range
establishes a prima facie case of obviousness .”). Because Appellants do not
demonstrate the criticality of the claimed range (App. Br. 19), Appellants’
arguments are unpersuasive of reversible error. In re Woodruff, 919 F.2d
1575, 1578 (Fed. Cir. 1990) (indicating that in cases in which the difference
between the claimed invention and the prior art is some range or other
variable within the claims, the applicant must show that the particular range
is critical, generally by showing that the claimed range achieves unexpected
results relative to the prior art range.).
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Appellants’ remaining arguments for claim 30 are directed to
Castleberry and Saarela individually, and do not address the combined
disclosures of the applied prior art. (App. Br. 19-20). Appellants’
arguments are therefore unpersuasive of reversible error. In re Merck & Co.,
800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.”); In re Keller, 642 F.2d
413, 425 (CCPA 1981) (The test for obviousness “is what the combined
teachings of the references would have suggested to those of ordinary skill
in the art.”)
Accordingly, we sustain the Examiner’s rejection of claims 13, 14, 28,
29, 30, and 46 under § 103(a).
Rejections V and VII6
Appellants do not dispute the Examiner’s finding that Rivera II
discloses a beverage product containing 5 % to 90 % orange juice, a citrus
fruit flavor additive in an amount of 0.01 % to 0.50 %, rebaudioside A in an
amount of 0.005 % to 1.0 %, a buffering agent, and at least one vitamin.

6 Appellants argue claims 1–5, 7–10, and 15–27 together for Rejection V,
and argue claims 13, 14, 28, 29, 30, and 46 together for Rejection VII.
(App. Br. 20–22.) Although Appellants present separate arguments for each
of Rejections V and VII, Appellants provide essentially the same arguments
for both rejections. (Id.) Accordingly, for the purposes of this appeal, we
select claim 1 as representative, and decide the propriety of Rejections V and
VII based on claim 1 alone.
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(Compare Ans. 18 with App. Br. 10–22.) The Examiner’s factual findings
regarding the disclosures of Kim and Casltleberry are discussed above in
connection with the rejection of claim 1 (Rejection II). The Examiner
concludes that it would have been obvious to one of ordinary skill in the art
at the time of the invention to modify the orange juice beverage of Rivera II
to include probiotics as disclosed by Kim to promote the growth of
beneficial bacteria in the gut, and to include beta-glucan in the amounts
disclosed in Castleberry to provide a cholesterol reducing effect to the
beverage. (Ans. 19.)
Appellants argue that Rivera II is directed to a fruit juice product
containing omega-3 fatty acids, and Rivera II does not teach or suggest
including beta glucan or probiotics in fruit juice. (App. Br. 20–22.)
Appellants further contend that one of ordinary skill in the art at the time of
the invention would not have been motivated to include beta glucan or
probiotics in Rivera II’s fruit juice because of the sensitivity of probiotics to
the acidic conditions present in fruit juice. (App. Br. 21–22.) However, as
discussed above, Kim discloses that probiotics have beneficial effects on
human health, and discloses that probiotics remained viable during
refrigeration for 36 days in an acidic orange juice beverage having an upper
pH limit of 4.2. (Kim ¶¶ 14, 21, 39.) As also discussed above, Castleberry
discloses an orange juice beverage containing beta-glucan, and teaches that
beta-glucan provides nutritional value to foods and lowers cholesterol levels
in humans. (Castleberry col. 3, ll. 21–34; col. 5, ll. 45–56.)
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Accordingly, we agree with the Examiner that Rivera II, Kim, and
Castleberry, as a whole, reasonably would have led one of ordinary skill in
the art, through no more than ordinary skill and creativity, to incorporate
probiotics as disclosed in Kim, and beta-glucan as disclosed in Castleberry,
into Rivera II’s fruit juice product, as recited in claim 1, with a reasonable
expectation of successfully forming an acidic orange juice beverage that
would impart the health benefits of probiotics and beta-glucan. (Ans. 19.)
Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989).
Therefore, Appellants’ arguments are unpersuasive of reversible error.
Accordingly, we sustain the Examiner’s rejections of claims 1–5, 7–
10, 13–30, and 46 under § 103(a).
Rejection VI
We summarily affirm the Examiner’s rejection of claim 6 under 35
U.S.C. § 103(a) as unpatentable over the combined teachings of Rivera II,
Kim, Castleberry, and Rivera I because Appellants do not contest this
rejection. (App. Br. 10–22); 37 C.F.R. § 41.37(c)(1)(iv) (requiring that
“arguments shall explain why the examiner erred as to each ground of
rejection . . . [and that] any arguments or authorities not included in the
appeal brief will be refused consideration by the Board”); see also Manual
of Patent Examining Procedure (MPEP) § 1205.02 (9th ed. Mar. 2014) (“If a
ground of rejection stated by the examiner is not addressed in the appellant’s
brief, appellant has waived any challenge to that ground of rejection and the
Appeal 2015-003475
Application 12/626,226
20
Board may summarily sustain it, unless the examiner subsequently withdrew
the rejection in the examiner’s answer.”).
CONCLUSION
In view of the reasons set forth in the Final Office Action, Answer,
and above, we affirm the Examiner’s decision rejecting claims 1–30 and 46
under 35 U.S.C. § 103(a), but reverse claims 13, 14, 28, 29, 30, and 46 under
35 U.S.C. § 112, second paragraph.
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)(iv).

AFFIRMED