Ex Parte Song et al

Board of Patent Appeals and Interferences

Mar 2, 2006

10743501 (B.P.A.I. Mar. 2, 2006)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE

_____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________

Ex parte JOO H. SONG and DONALD TOWNSEND
_____________

Appeal No. 2006-0357
Application No. 10/743,501
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HEARD: FEBRUARY 22, 2006
_______________

Before KIMLIN, TIMM and JEFFREY T. SMITH, Administrative Patent
Judges.
KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-20.
Claim 1 is illustrative:
1. A process for making chewing gum comprising the
steps of:

using a single continuous mixing apparatus to perform
all of the addition and compounding steps necessary to
produce gum base;

adding to the single continuous mixing apparatus all of
a group of components necessary to make a chewing gum base
including an elastomer and a plasticizer, wherein the
elastomer is added to the single continuous mixing apparatus
separate and apart from the plasticizer and the elastomer is
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Application No. 10/743,501

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not preblended or pretreated prior to the addition to the
single continuous mixing apparatus;

providing at least two mixing zones in the mixing
apparatus;

producing gum base from the mixing apparatus; and

mixing the gum base with other ingredients to produce
chewing gum.

The examiner relies upon the following references as
evidence of obviousness:
Reggio et al. (Reggio) 4,379,169 Apr. 5, 1983

Naumann EP 0 273 809 A2 Jul. 6, 1988
(Published European Patent Office Patent Application)
Boudy FR 2 635 441 A1 Feb. 23, 1990
(Published French Patent Office Patent Application)

Appellants’ claimed invention is directed to a process for
making chewing gum comprising using a single continuous mixing
apparatus to perform all the addition and compounding steps
needed to produce the gum base. The elastomer of the base is
added to the apparatus separate and apart from the plasticizer,
and the elastomer is not preblended or pretreated prior to its
addition. The mixing apparatus comprises at least two mixing
zones.
Appealed claims 1-6, 9-17, 19 and 20 stand rejected under
35 U.S.C. § 103(a) as being unpatentable over Naumann in view of
Reggio. Claims 7, 8 and 18 stand rejected under 35 U.S.C.
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Application No. 10/743,501

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§ 103(a) as being unpatentable over the stated combination of
references further in view of Boudy.
We have thoroughly reviewed each of appellants’ arguments
for patentability. However, we are in complete agreement with
the examiner that the claimed subject matter would have been
obvious to one of ordinary skill in the art within the meaning of
Section 103 in view of the applied prior art. Accordingly, we
will sustain the examiner’s rejections for essentially those
reasons expressed in the answer.
Naumann, like appellants, discloses a process for making
chewing gum base by adding elastomer, plasticizer, filler, etc.,
to a single continuous mixing apparatus having at least two
mixing zones. The reference teaches that mixer B maybe
eliminated by adding the premix comprising elastomer and filler
from mixer A into the first segment of the extruder (see page 9
of English translation). A principal issue on appeal is the
claim requirement that the elastomer is not preblended or
pretreated before addition to the single continuous mixing
apparatus. However, we agree with the examiner that the
embodiment of Naumann comprising mixer A and extruder C can be
reasonably considered a single continuous mixing apparatus
comprising at least two mixing zones. Hence, we find that
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Application No. 10/743,501

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Naumann fairly teaches adding elastomer to mixer A, and the
single apparatus as a whole, without preblending or pretreating
the elastomer. Also, we fully concur with the examiner that
Reggio establishes the obviousness of adding all the ingredients
of a chewing gum base to a single mixing zone without preblending
or pretreating the elastomer (see column 3, lines 34-36).
Accordingly, based on the collective teachings of Naumann and
Reggio, we are convinced that one of ordinary skill in the art
would have found it obvious to eschew preblending and pretreating
the elastomer before adding it to the initial mixing zone of a
continuous mixing apparatus having at least two mixing zones.
Appellants contend that “Naumann teaches away from the
process disclosed by Reggio because all of the components of the
gum base produced by the process in Naumann are not mixed in a
single mixer” (page 7 of principal brief). However, the claims
on appeal do not require a single mixer but, rather, “a single
continuous mixing apparatus” having at least two mixing zones,
and, as stated above, we find that Naumann fairly depicts a
single continuous mixing apparatus. Moreover, we find that
Reggio renders obvious the use of a single mixing zone for all
the components of a chewing gum base.
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We do not understand appellants’ argument that “Naumann does
not disclose, teach or suggest a single mixing apparatus
including at least two mixing zones as defined by claim 1” (page
8 of principal brief, third paragraph). Even if we consider only
the extruder of Naumann as the single apparatus, the extruder is
depicted as having three mixing zones, C1, C2 and C3.
Appellants also maintain that “Reggio does not disclose,
teach or suggest employing a ‘single extruder’ to perform all of
the necessary addition and compounding steps to produce the gum
base as defined by claims 13 and 19” (sentence bridging pages 8
and 9 of principal brief). However, as pointed out by the
examiner, Naumann is cited for teaching a single extruder.
As for separately rejected claims 7, 8 and 18, we agree with
the examiner that Boudy establishes the obviousness of employing
a counter-rotating, intermeshing twin screw extruder in the
process of Naumann.
We note that appellants base no argument upon objective
evidence of nonobviousness, such as unexpected results, attached
to not pretreating or preblending the elastomer before it is
added to the mixing apparatus. Indeed, appellants’ specification
seems to militate against any idea of criticality with respect to
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Application No. 10/743,501

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not preblending the elastomer. In particular, Examples 1, 2 and
4 add a powder blend of elastomer and filler to the mixing
apparatus.
Appellants’ counsel at Oral Hearing, in response to
questions referring to the elastomer blends of the specification
examples, emphasized that the appealed claims are drafted to
define that some, but not all, of the elastomer added is not
preblended or pretreated. Appellants’ counsel concurred with the
statement that, therefore, the appealed claims encompass a
process wherein 99% of the added elastomer is preblended or
pretreated and only 1% of the elastomer is not preblended or
pretreated. Consequently, we find that the processes within the
scope of the appealed claims are not substantially different than
the process of Naumann wherein 100% of the elastomer is
preblended or pretreated before added to the extruder. Also, we
find that it would have been obvious for one of ordinary skill in
the art to not preblend or pretreat some minor portion of the
elastomer feed of Naumann in order to reduce the cost of the
overall process. Again, appellants have proffered no objective
evidence which demonstrates that processes within the scope of
the appealed claims produce an unexpected advantage relative to
the process of Naumann.
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In conclusion, based on the foregoing, the examiner’s
decision rejecting the appealed claims is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED

EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
CATHERINE TIMM ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
)
JEFFREY T. SMITH )
Administrative Patent Judge )

ECK:hh
Appeal No. 2006-0357
Application No. 10/743,501

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