Ex Parte Sharma

Patent Trial and Appeal Board

Nov 8, 2017

13733285 (P.T.A.B. Nov. 8, 2017)

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.
13/733,285 01/03/2013 SHRI K. SHARMA RICH 200926US02 1063
27885 7590
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
EXAMINER
BEKKER, KELLY JO
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
11/08/2017 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 SHRI K. SHARMA
Appeal 2017-002876
Application 13/733,285
Technology Center 1700
Before TERRY J. OWENS, MONTE T. SQUIRE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’
rejection of claims 19-33 and 38—51. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellant claims a whippable food product. Claim 19 is
illustrative:
19. A whippable food product comprising a whipped
topping emulsion and yogurt that have been mixed together
prior to said whipped topping emulsion being whipped, said
whipped topping emulsion prior to being mixed with said
yogurt including 8 wt% to 40 wt% fat, 0.3 wt% to 1 wt%
emulsifiers, 10 wt% to 20 wt% sweetener that are absent syrup
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Application 13/733,285
solids, 10 wt% to 25 wt% syrup solids, 0.3 wt% to 1 wt%
stabilizers, 40 wt% to 60 wt% water, and up to lwt% protein,
said yogurt including microflora, said yogurt prior to being
mixed with said whipped topping emulsion having a solids
content of 10-20%, said yogurt and said whipped topping
emulsion mixed together at a ratio of 3 to 1 parts whipped
topping emulsion to 1 to 3 parts yogurt, said whippable food
product formulated to be whippable in a non-frozen state and at
refrigerated temperatures to have an overrun of at least 250%
and which is stable in its whipped form for at least 24 hours at a
temperature of no less than 5°C.
The References
Gonsalves
Baensch
Piatko
Hidden
Swan
US 6,372,280 B1 Apr. 16, 2002
US 2002/0122864 A1 Sept. 5, 2002
US 2008/0085353 A1 Apr. 10, 2008
US 2008/0280004 A1 Nov. 13, 2008
US 2009/0074932 A1 Mar. 19, 2009
W.S. Arbuckle, Ice Cream 130 (Avi, 2nd ed. 1972).
Robert S. Igoe & Y.H. Hui, Dictionary of Food Ingredients 30, 31, 69, 70,
84, 154 (Chapman & Hall, 3rd ed. 1996) (hereinafter Igoe).
Hannahactually, Cool Whip Fruit Dip, Food.com (June 30, 2005).
Elaine Magee, The Benefits of Yogurt (Mar. 7, 2007),
http://www.webmd.com/diet/features/benefits-of-yogurt.
USD A National Nutrient Database for Standard Reference, Nutrient data for
01117, Yogurt, plain, low fat, 12 grams protein per 8 ounce (Release 24,
Mar. 30, 2012), http://ndb.nal.usda.gov/ndb/foods/show/105 (hereinafter
USD A Release 24).
USD A National Nutrient Database for Standard Reference, Basic Report:
19349, Syrups, corn, dark; Basic Report: 19350, Syrups, corn, light; Basic
Report: 19351, Syrups, corn, high-fructose (Release 27, undated)
(hereinafter USDA Release 27).
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Application 13/733,285
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows:
claims 19-31, 42, 44, and 46—51 over Gonsalves in view of Hannahactually,
Magee and USDA Release 27, claims 38 and 40 over Gonsalves in view of
Hannahactually, Magee, USDA Release 27 and Baensch, claims 32, 33, 43,
and 45 over Gonsalves in view of Hannahactually, Magee USDA Release 27
and Piatko, claims 39 and 41 over Gonsalves in view of Hannahactually,
Magee, Piatko, USDA Release 27 and Baensch, claims 19, 24, 25, 27—31,
42, 44, and 51 over Swan in view of Igoe and USDA Release 24, claims 20-
23 and 26 over Swan in view of Igoe, USDA Release 24 and Hidden,
claims 32, 33, 43, and 45 over Swan in view of Igoe, USDA Release 24 and
Arbuckle, claims 38 and 40 over Swan in view of Igoe, USDA Release 24
and Baensch, and claims 39 and 41 over Swan in view of Igoe, Arbuckle,
USDA Release 24 and Baensch.
OPINION
We reverse the rejections. We need address only the independent
claims (19 and 46).1
Rejections involving Gonsalves
Claim 19 requires a ratio of 3 to 1 parts whipped topping emulsion to
1 to 3 parts yogurt, and claim 46 requires a ratio of 2.47 to 1 parts whipped
topping emulsion to 1 to 2.5 parts yogurt. To meet those claim requirements
1 The Examiner does not rely upon additional references applied to
dependent claims for any disclosure that remedies the deficiency in the
references applied to the independent claims as to the limitations in the
independent claims (Ans. 7—19, 25—36).
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Application 13/733,285
the Examiner relies upon the combined disclosures of Gonsalves,
Hannahactually and Magee (Ans. 7).
Gonsalves discloses an acidic whipped topping comprising 1) an
emulsion component containing water, a hard fat, a sweetener, whey protein,
a nonionic stabilizer, and preferably a non-ionic emulsifier, and 2) an acidic
component which is an aqueous solution containing an edible acid and
preferably includes about 70-80 wt% of a milk protein source which can be
yogurt-cultured skim milk (col. 2,11. 52—63; col. 5,11. 4—11). “The edible
acid is present in the acidic component at a level sufficient, when combined
with the emulsion component, to provide a pH of less than about 4.0, and
preferably about 2.5 to about 3.5, for the whipped topping” (col. 4,11. 56—
59). “Generally, the emulsion component is present in the mixture at a level
of from about 75 to about 90 percent and the acidic component is present in
the mixture at a level of from about 10 percent to about 25 percent” (col. 5,
11. 38-42). However, “higher or lower amounts of the acidic component
may be used so long as the pH is within the desired range and the resulting
whipped topping has acceptable consistence and texture” (col. 5,11. 43 46).
Hannahactually discloses a Cool Whip® fruit dip comprising an
8 ounce container of Cool Whip® and a 6 ounce container of yogurt (p. 1).
Magee discloses yogurt’s health benefits (pp. 1^4).
The Examiner concludes (Ans. 7):
As Gonsalves teaches that generally the topping comprises
about 75-90% of the emulsion and about 10-25% of the acidic
component (which comprises up to 80% of a milk protein
source which is selected from the group including yogurt) but
that higher amounts of the acidic component may be used so
long as the pH is acceptable and the whipped topping has
acceptable consistency and texture (column 5 lines 38-46), it
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Application 13/733,285
would have been obvious to increase the yogurt, including a
ratio of the mix to the yogurt of about 1.3:1[2] as taught by
Hannahactually in order to form a final product which provided
improved health benefits because of the increased amount of
yogurt in view of Magee.... to adjust the ratio and weight
percentages of yogurt and whipped cream type emulsions to
obtain a final product with the desired amount of yogurt or
cream type emulsion is considered obvious as it is considered to
be routine and within the purview of one of ordinary skill in the
art.
To establish a prima facie case of obviousness an examiner must show
that one of ordinary skill in the art would have had both an apparent reason
or suggestion to modify the prior art as proposed by the examiner and
predictability or a reasonable expectation of success in doing so. See KSR
Inti Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); In re Vaeck, 947 F.2d
488, 493 (Fed. Cir. 1991).
Gonsalves’ minimum disclosed ratio of emulsion component to
yogurt-cultured skim milk is about 3.75 (about 75 parts emulsion/(about
25 parts acidic component x 0.8 part yogurt-cultured skim milk/part acidic
acid component)) (col. 5,11. 4—5, 38-42). The Examiner does not establish
that Gonsalves’ disclosure that a higher amount of acidic component “may
be used so long as the pH is within the desired range and the resulting
whipped topping has acceptable consistence and texture” (col. 5,11. 43 46)
2 The Appellant’s ratio of 3:1 parts whipped topping emulsion to 1:3 parts
yogurt (claim 19) and 2.47:1 parts whipped topping emulsion to 1:2.5 parts
yogurt (claim 46) are based on the mixture being formed before the whipped
topping emulsion is whipped, whereas Cool Whip® is whipped before
Hannahactually’s Cool Whip®/yogurt mixture is formed. Thus, the
Examiner’s 1.3:1 ratio is not comparable to the ratios recited in the
Appellant’s claims.
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Application 13/733,285
would have provided one of ordinary skill in the art with predictability or a
reasonable expectation of success in increasing the amount of acidic
component to a level at which the emulsion component/yogurt-cultured skim
milk ratio is reduced from about 3.75 to 3 without the pH falling below the
desired range or the consistence and texture being unacceptable.
The Examiner, therefore, has not established a prima facie case of
obviousness of the Appellant’s claimed whippable food product over
Gonsalves and the references applied therewith.
Rejections involving Swan
The Appellant’s independent claims require that the whippable food
product is whippable in a non-frozen state and at refrigerated temperatures to
have an overrun of at least 250%. To meet that claim requirement the
Examiner relies upon Swan (Ans. 23).
Swan discloses “a protein-fortified frozen dessert formulation
comprising 8-15% w/w sugar, 0-8% w/w flavouring, 2-15% w/w fat,
8-12% w/w milk solids, 5-20% w/w protein, 0-20% w/w yogurt,
39-50% w/w water and 20%-55% v/v air” (| 65). The upper limit of the
disclosed overrun range is 120% flflf 108, 109, 136).
The Examiner finds (Ans. 23):
As Swan teaches of a composition that can be whipped (0047,
0068 and 0078) as well as a final food product with the same
basic compositional components (yogurt, 0-20% fat, 5-15%
protein, sweeteners, water, stabilizers and emulsifiers -
paragraphs 0005-0011, 0026, 0061, 0067, 0076, 0077) as
instantly claimed and disclosed (yogurt, 4-35% fat, 2.42-6%
protein, sweeteners, water, stabilizers and emulsifiers -
paragraphs 0009, 0022 and Table 1), one of ordinary skill in the
art would expect that the product of Swan be capable of
achieving the same amount of aeration and stability as the
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instantly claimed product absent any clear and convincing
arguments and/or evidence to the contrary.
The Examiner does not establish that the relied-upon similarities
between Swan’s and the Appellant’s compositions are sufficient to indicate
that Swan’s composition, like that of the Appellant, is whippable in a non-
ffozen state and at refrigerated temperatures to have an overrun of at least
250%. The Examiner does not address the differences between Swan’s and
the Appellant’s compositions and explain why, regardless of those
differences, Swan’s composition is whippable in a non-frozen state and at
refrigerated temperatures to have an overrun of at least 250% rather than
Swan’s maximum disclosed overrun range limit of 120% flflf 108, 109, 136).
The independent claims also require that the whipped topping
emulsion contains 0.3—1 wt% stabilizers. To meet that claim requirement
the Examiner relies upon the combined disclosures of Swan and Igoe
(Ans. 24—25).
Swan discloses that “[sjtabilizers such as locust bean gum, guar gum,
carboxymethyl cellulose, xanthan gum, sodium alginate and carrageenan
may be added at a usage level of 0-0.04% w/w” (1 61).
Igoe discloses that locust bean gum’s “uses include processed cheese,
ice cream, bakery products, soups, and pies. Typical usage level is 0.1 to
1.0 percent” (p. 84); guar gum “is a versatile thickener and stabilizer used in
ice cream, baked goods, sauces, and beverages at use levels ranging from 0.1
to 1.0 percent” (pp. 69—70); carboxymethyl cellulose “functions as a
thickener, stabilizer, binder, film former and suspending agent. It is used in
a variety of foods to include dressings, ice cream, baked goods, puddings,
and sauces. The usage range is from 0.05 to 0.5 percent” (p. 30); xanthan
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Application 13/733,285
gum “is used in salad dressings, sauces, desserts, baked goods, and
beverages at 0.05 to 0.50 percent” (p. 154); and carrageenan “is used to
stabilize milk protein at 0.01 to 0.05 percent and to form water gels at 0.5 to
1.0 percent. Its uses include dairy products, water gel desserts, and
low-calorie jellies. A typical use level in water systems is 0.2 to 1.0 percent
and milk systems is 0.01 to 0.25 percent” (p. 31).
The Examiner concludes (Ans. 24):
It would have been obvious to one of ordinary skill in the art to
increase the usage level of the stabilizers taught by Swan within
known amounts, including up to 1 % as shown by Igoe in order
to provide for greater stability of the final product. To adjust
the amount of stabilizers to obtain the optimal stability would
have been obvious and within the routine determination of one
of ordinary skill in the art.
The Examiner does not establish that Swan’s composition needs more
stability or that the stabilizer level which provides optimum stability is
outside Swan’s 0-0.04% w/w range (161).
Thus, the Examiner has not established a prima facie case of
obviousness of the Appellant’s claimed whippable food product over Swan
in view of the additional applied references.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 19—31, 42, 44, and
46—51 over Gonsalves in view of Hannahactually, Magee and USDA
Release 27, claims 38 and 40 over Gonsalves in view of Hannahactually,
Magee, USDA Release 27 and Baensch, claims 32, 33, 43, and 45 over
Gonsalves in view of Hannahactually, Magee USDA Release 27 and Piatko,
claims 39 and 41 over Gonsalves in view of Hannahactually, Magee, Piatko,
USDA Release 27 and Baensch, claims 19, 24, 25, 27—31, 42, 44, and 51
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over Swan in view of Igoe and USDA Release 24, claims 20—23 and 26 over
Swan in view of Igoe, USDA Release 24 and Hillden, claims 32, 33, 43,
and 45 over Swan in view of Igoe, USDA Release 24 and Arbuckle,
claims 38 and 40 over Swan in view of Igoe, USDA Release 24 and
Baensch, and claims 39 and 41 over Swan in view of Igoe, Arbuckle, USDA
Release 24 and Baensch are reversed.
It is ordered that the Examiner’s decision is reversed.
REVERSED
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