Ex Parte Ruijter

Patent Trial and Appeal Board

Jan 4, 2019

14396649 (P.T.A.B. Jan. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/396,649 10/23/2014
23117 7590 01/08/2019
NIXON & V ANDERHYE, PC
901 NORTH GLEBE ROAD, 11 TH FLOOR
ARLINGTON, VA 22203
FIRST NAMED INVENTOR
Hendrik Ruijter
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
BHD-4662-2937 4823
EXAMINER
GEORGE,PATRICIAANN
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
01/08/2019 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):
PTOMAIL@nixonvan.com
pair_nixon@firsttofile.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HENDRIK RUIJTER
Appeal2018-001816
Application 14/396,649
Technology Center 1700
Before TERRY J. OWENS, CHRISTOPHER C. KENNEDY, and
LILAN REN, Administrative Patent Judges.
Opinion for the Board by OWENS, Administrative Patent Judge.
Opinion Dissenting filed by REN, Administrative Patent Judge.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant (DSM IP Assets B.V.) appeals under
35 U.S.C. § 134(a) from the Examiner's rejection of claims 1-5. We have
jurisdiction under 35 U.S.C. § 6(b).
The Invention
The claims are to a process for producing a vitamin-containing
product. Claim 1 is illustrative:
1. A process for production of a pasteurized vitamin-
containing product, wherein the process comprises the steps of:
(A) providing an aqueous vitamin-containing formulation
comprised of:
Appeal 2018-001816
Application 14/396,649
(i) at least 20 g/1 of vitamin C, and
(ii) at least 10 g/1 of at least one further
water-soluble vitamin, and
(iii) water,
(B) sterilizing the aqueous vitamin-containing
formulation by passing the aqueous vitamin-containing
formulation of step (A) through a filter with a pore size of
2: 0.22 µm to obtain a sterilized aqueous vitamin-containing
formulation having particles smaller than 0.22 µm, and
(C) adding the sterilized aqueous vitamin-containing
formulation obtained according to step (B) to a non-vitamin-
containing pasteurized product to obtain a pasteurized vitamin-
containing product. [ 1 J
Steven2
The References
WO 2009/092628 Al July 30, 2009
Robert F. Cathcart, III, Vitamin C, Titrating to Bowel Tolerance,
Anascorbemia, and Acute Induced Scurvy, 7 Med. Hypotheses 1359--76
(1981 ), http://vitamincfoundation.org/www.orthomed.com/titrate.htm.
L.H. Leung, Pantothenic Acid Deficiency as the Pathogenesis of Acne
Vulgaris, 44 Med. Hypotheses 490-92 (1995).
A. Hofer, Vitamin B-3: Niacin and It's [sic] Amide, DoctorYourself.com,
http/web.archive.org/web/20001206134200/http://doctoryourself.com/hoffer
_niacin.html 1-12 (Dec. 6, 2000).
James H. Lake & David Spiegel, Complementary and Alternative
Treatments in Mental Health Care, Am. Psych. Pub. 138--41 (Apr. 2, 2007)
(hereinafter Lake).
1 In this claim and throughout the Appellant's Specification, "2: 0.22 µm"
should be ":S O .22 µm".
2 Although WO 2009/092628 Al is in English, the Examiner cites to
US 2011/0020497 Al (published Jan. 27, 2011) which is based on the same
PCT application (PCT/EP2009/05015I) as WO 2009/092628 Al (Ans. 2).
For consistency, we likewise do so.
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Appeal 2018-001816
Application 14/396,649
The Rejection
Claims 1-5 stand rejected under 35 U.S.C. § 103(a) over Steven in
view of Cathcart, Hoffer, Leung, and Lake.
OPINION
We reverse the rejection. We need address only the sole independent
claim, i.e., claim 1. That claim requires adding sterilized aqueous vitamin-
containing formulation to a non-vitamin-containing pasteurized product to
obtain a pasteurized vitamin-containing product. To meet that claim
requirement the Examiner relies upon Steven (Ans. 6-7).
Steven removes undesirable microorganisms such as bacteria from
vitamin-containing infant formula (contained in chamber 12) by passing it
through an antimicrobial filter (1) having pores as small as 0.2 µm, mixes
the filtered infant formula with pro biotic microorganisms ( contained in
chamber 6), and flows the mixture into a baby bottle (2) (i1i126, 28, 55, 87,
96, 100, 103, 108; Figs. 1, 2B).
The Examiner finds that "pasteurization kills some microbes where
sterilization kills all microbes, therefore a sterilized product encompasses a
pasteurized product" (Ans. 7), "[i]t would be a matter of common sense to
pasteurize/sterilize baby bottles" (Ans. 6), and Steven's baby bottle, after
being sterilized, would correspond to the Appellant's non-vitamin-
containing pasteurized product such that flowing Steven's filtered infant
formula into the sterilized baby bottle would correspond to the Appellant's
step of adding sterilized aqueous vitamin-containing formulation to a
non-vitamin-containing pasteurized product to obtain a pasteurized vitamin-
containing product (Ans. 7-8).
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Appeal 2018-001816
Application 14/396,649
Pasteurization is "[t]he application of heat to matter for a specified
time to destroy harmful microorganisms or other undesirable species," 3
whereas sterilization is "[ a ]n act or process of destroying all forms of
microbial life on and in an object."4 The Examiner does not establish that
one of ordinary skill in the art would have considered a sterilized baby bottle
to be pasteurized. Nor does the Examiner establish that the broadest
reasonable interpretation of the Appellant's claim term "non-vitamin-
containing pasteurized product" consistent with the Specification
encompasses a sterilized baby bottle. 5 The Appellant does not define
"non-vitamin-containing pasteurized product," but exemplifies it as "drinks
(such as fruit juices), dairy products (such as yogurts, milk drinks)" (Spec. 6)
and "fruit juice ( orange juice)" (Spec. 7), all of which mix with the sterilized
aqueous vitamin-containing formulation and none of which bears any
apparent resemblance to a baby bottle.
Thus, the Examiner does not establish that flowing Steven's mixture
of filtered vitamin-containing infant formula and pro biotic microorganisms
into a sterilized baby bottle would correspond to or have suggested, to one of
ordinary skill in the art, the Appellant's step of adding sterilized aqueous
3 McGraw-Hill Dictionary of Scientific and Technical Terms 1456 (5th ed.
1994).
4 Supra note 3, at 1920. See also, Concise Chemical and Technical
Dictionary 782, 986 (Chem. Pub. Co., 1974) ("pasteurization. Partial
sterilization of a liquid by subjection to elevated temperature for a specified
period of time, e.g., milk at 63-65.SQC. for 30 minutes;" "sterile. Free of
living organisms."
5
"' [D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification."' In re
Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re
Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)).
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Application 14/396,649
vitamin-containing formulation to a non-vitamin-containing pasteurized
product to obtain a pasteurized vitamin-containing product. Accordingly,
we reverse the rejection.
DECISION
The rejection of claims 1-5 under 35 U.S.C. § 103(a) over Steven in
view of Cathcart, Hoffer, Leung, and Lake is reversed.
The Examiner's decision is reversed.
REVERSED
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UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HENDRIK RUIJTER
Appeal2018-001816
Application 14/396,649
Technology Center 1700
Before TERRY J. OWENS, CHRISTOPHER C. KENNEDY, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge, dissenting.
I respectfully dissent from the majority opinion reversing the
Examiner's decision to reject claims 1-5 under 35 U.S.C. § 102(a)(l) as
rendered obvious by Steven in view of Cathcart, Hoffer, Leung, and Lake.
Claim 1, a method claim, does not recite a pasteurization step but
rather "a pasteurized vitamin-containing product" which is produced by
"adding [a] sterilized aqueous vitamin-containing formulation" and "a non-
vitamin-containing pasteurized product."
The Examiner's finding that both sterilized product and pasteurized
product are subject to bacterial removal and that "a sterilized product
encompasses a pasteurized product" is unchallenged. Compare Ans. 7, with
App. Br. 5---6. Whether the prior art explicitly contemplates "pasteurization"
- which is not a recited claim term - is not the dispositive in the obviousness
analysis as "the analysis need not seek out precise teachings directed to the
specific subject matter of the challenged claim, for a court can take account
Appeal 2018-001816
Application 14/396,649
of the inferences and creative steps that a person of ordinary skill in the art
would employ." KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007).
In a case such as this one at bar in which the prior art teaches "to
avoid the risk of contamination with bacteria" in infant formula because "the
water may not be boiled prior to use in which case any pathogens in the
water are fed to the infant," (Steven ,r,r 3, 5) and contemplates
simultaneously administering certain heat sensitive probiotics to the infant
(id. ,r,r 1, 7, 12 ), I do not find that Appellant has identified reversible error in
the Examiner's finding that a pasteurized product would have been
suggested to a skilled artisan. The skilled artisan is presumed to have a
certain level of knowledge and skill who would have understood that neither
sterilization by pasteurization nor a pasteurized infant formula is novel.
"An obviousness determination is not the result of a rigid formula
disassociated from the consideration of the facts of a case." Leapfrog
Enterprises, Inc. v. Fisher-Price, Inc., 485 F.3d 1157, 1161 (Fed. Cir. 2007).
The mere fact that the prior art in this case does not explicitly describe
pasteurization does not show reversible error in the Examiner's
determination that both sterilized product and pasteurized product are known
and may be substituted. See Ans. 7-8. A claim can be obvious even where
all of the claimed features are not found in specific prior art references,
where there is "a showing of a suggestion or motivation to modify the
teachings of [the prior art] to the claimed invention." SIEJA Neurosciences,
Inc. v. Cadus Pharm. Corp., 225 F.3d 1349, 1356 (Fed. Cir. 2000).
Because the Examiner has, in my opinion, sufficiently and reasonably
explained the analysis supporting the obviousness rejection and because the
analysis does not require "a specific hint or suggestion in a particular
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Application 14/396,649
reference," (see Perfect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324,
1329 (Fed. Cir. 2009)), I respectfully dissent.
3