Ex Parte Stauffer

Patent Trials and Appeals Board

Mar 27, 2019

13886650 - (D) (P.T.A.B. Mar. 27, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/886,650 05/03/2013
27683 7590 03/29/2019
HA YNES AND BOONE, LLP
IP Section
2323 Victory A venue
Suite 700
Dallas, TX 75219
FIRST NAMED INVENTOR
John E. Stauffer
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.
53540.02US02 8402
EXAMINER
MORNHINWEG, JEFFREY P
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
03/29/2019 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):
ipdocketing@haynesboone.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHN E. STAUFFER
Appeal2018-004887
Application 13/886,650
Technology Center 1700
Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and
BRIAND. RANGE, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicant ("Appellant") 1 appeals under 35 U.S.C. § 134(a) from
the Primary Examiner's final decision to reject claims 1, 2, 5-8, 11, and 15-
17.2 We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 The Inventor is listed as the real party in interest (Appeal Brief filed
October 11, 2017 ("Appeal Br."), 1).
2 Appeal Br. 3-7; Reply Brief filed April 9, 2018 ("Reply Br."), 1-3; Final
Office Action entered September 15, 2016 ("Final Act."), 2-15; Advisory
Action entered March 10, 2017 ("Adv. Act."), 2-15; Examiner's Answer
entered February 9, 2018 ("Ans."), 2-17. Although claims 12-14 were also
rejected in the Final Office Action (Final Act. 2), these claims were canceled
in an Amendment filed February 15, 2017, which Amendment was entered
for purposes of this appeal (Adv. Act. 17).
Appeal2018-004887
Application 13/886,650
I. BACKGROUND
The subject matter on appeal relates to a method for making cottage
cheese (Specification filed May 3, 2013 ("Spec."), ,r 1). Representative
claim 1 is reproduced from the Claims Appendix to the Appeal Brief, as
follows:
1. A method of manufacturing cottage cheese to
minimize waste, comprising:
producing citric acid from a first lot of whey by treating
the first lot of whey;
precipitating cottage cheese curd from cold milk using the
citric acid in sufficient amount to form the cottage cheese curd;
recovering a second lot of whey by filtering the cottage
cheese curd from the whey;
filtering the second lot of whey to produce whey protein
and a lot of lactose; and
repeating the method by using the lot of lactose from the
second lot of whey to create citric acid, wherein the method is a
unified process providing for recycling of the citric acid created
from the second lot of whey, wherein the precipitating is not a
culturing process.
(Appeal Br. 8; emphasis added).
II. REJECTION ON APPEAL
On appeal, the Examiner maintains a rejection under pre-AIA 3 5
U.S.C. § 103(a) of claims 1, 2, 5-8, 11, and 15-17 as unpatentable overY.A.
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Application 13/886,650
El-Samragy et al. 3 ("El-Samragy"), 21 C.F.R. § 133.129 (January 6, 1993;
"CPR Method"), Chang, 4 and Little5 (Ans. 2-17).
III. DISCUSSION
The Appellant does not argue any claim separately within the meaning
of 37 C.F.R. § 4I.37(c)(l)(iv). 6 Therefore, we confine our discussion to
claim 1, which we select as representative pursuant to the rule. Claims 2, 5-
8, 11, and 15-17 stand or fall with claim 1.
The Examiner finds that El-Samragy describes "a method of utilizing
a waste stream from cheese production comprising producing citric acid
from whey by treating the first lot of whey" (Ans. 2). The Examiner finds
further that the CPR Method describes precipitating cottage cheese curd
from milk using citric acid and recovering a second lot of whey by
separating the cottage cheese curd from the whey (id. at 3). The Examiner
also finds that Chang discloses filtering whey to produce whey protein (id.).
In addition, the Examiner finds that Little discloses coagulating casein in the
3 Y.A. El-Samragy et al., "Effect of Fermentation Conditions on the
Production of Citric Acid From Cheese Whey by Aspergillus niger," 29 Int 'l
J. Food Microbiology 411--416 (1996).
4 US 4,089,987, issued May 16, 1978.
5 US 3,406,076, issued Oct. 15, 1968.
6 With respect to claim 6, the Appellant argues that "none of the references
touch on the value of having an organic system that recycles itself
essentially" and quotes the limitations recited in the claim (Appeal Br. 6).
Such a skeletal argument, however, is not an argument that warrants our
separate consideration. In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011)
("[T]he Board reasonably interpreted [former] 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.").
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Application 13/886,650
production of cottage cheese at refrigeration temperatures when acidified
with an acid, such as citric acid (id.). Based primarily on these findings, the
Examiner concludes that the claimed subject matter would have been
obvious to a person having ordinary skill in the art (id. at 3--4).
Specifically, the Examiner concludes that "[i]t would also have been
obvious to one having ordinary skill in the art to combine the whey produced
in the CPR Method [ as modified by] Chang with the citric acid production
process disclosed in El-Samragy" because "[ s ]uch use of whey ... creates
economic value out of a component that was generally regarded as waste"
(id. at 4). Regarding the "precipitating cottage cheese curd from cold milk"
limitations, the Examiner concludes that it would have been obvious to a
person having ordinary skill in the art to perform the CPR Method on cold
milk because although the CPR Method teaches heating milk to a maximum
temperature of 120°P, it does not teach any minimum temperature, and Little
provides motivation to avoid heating the milk in order to avoid deleterious
bacterial growth that commonly occurs when milk is processed at warmer
temperatures (id. at 4--5). Regarding the "repeating" step recited in claim 1,
the Examiner states that "[r]epeated cycling of these methods in a unified
process providing for the recycling of the citric acid created from
subsequently produced lots of whey would likewise be obvious in order to
improve economic efficiency in terms of reduced waste streams and reduced
raw material costs" (id. at 4).
The Appellant contends: (1) "[t ]he rejection is composed of cherry
picked incompatible teaching[s] from the various references"; (2) "[n]o
single reference teaches the use of citric acid, without culture, in low
temperature for creating curd and the conglomeration of incompatible
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Application 13/886,650
references does not teach this either"; and (3) "[ n Jo reference teaches the
repeated recycling process of the claimed system/method that really makes
the claimed subject matter valuable and innovative in terms of obviousness"
(Appeal Br. 4). The Appellant argues that the CPR Method is not intended
to be performed on cold milk (id. at 5). Regarding Little, the Appellant
argues that Little teaches using acid alone does not work for creating cheese
curd but, instead, teaches adding acidifying agents and proteolytic enzymes
to refrigerated milk in amounts to cause casein coagulation (id. at 5---6).
According to the Appellant, "[ t ]he claims tackle the unique problem of
producing organic cottage cheese by limiting the inputs to the system and
recycling all possible pieces in order to retain the organic nature of the
process, with minimal organic inputs" (id. at 6). In the Appellant's view,
"[e]ssentially, the only input to the system is the organic milk provided that
is treated with the citric acid" (id. at 7).
The Appellant's arguments fail to identify any reversible error in the
Examiner's rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
The Appellant is correct that no single reference discloses all the
limitations recited in claim 1. But the Examiner's rejection here is based on
obviousness in view of the collective teachings found in the prior art. In re
Merck & Co., Inc., 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.").
Although the CPR Method discloses producing cottage cheese by
adding citric acid "while heating to a maximum [temperature] of 120 °F" (21
C.F .R. § 13 3 .129(b )( 1 )(ii)), Little teaches that cheese curd may be produced
from refrigerated milk by effecting casein coagulation at refrigerated
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Application 13/886,650
temperatures using an acid such as citric acid and a proteolytic enzyme
(Little, col. 3, 11. 29--40, 49; col. 3, 1. 69---col. 4, 1. 38). Little teaches that
such a technique avoids "[i]nterfering and undesirable organisms that
frequently adversely affect the quality of the cultured product" in
conventional processes (id., col. 3, 11. 24--26; see also id., col. 1, 11. 27-55).
Hence, a person having ordinary skill in the art would have implemented
Little's refrigerated temperature technique in the process suggested by the
collective teachings found in El-Samragy, Chang, and the CPR Method with
a reasonable expectation that any problems associated with undesirable
bacterial growth at higher temperatures would be avoided. Cf KSR Int 'l Co.
v. Teleflex Inc., 550 U.S. 398, 417 (2007) ("[I]f a technique has been used to
improve one device and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill."); id. at 420
("[F]amiliar items may have obvious uses beyond their primary purposes,
and in many cases a person of ordinary skill will be able to fit the teachings
of multiple patents together like pieces of a puzzle.").
It appears to be the Appellant's belief that claim 1 precludes the use of
Little's proteolytic enzymes (Appeal Br. 5---6, 7). The Appellant, however,
does not direct us to any language in claim 1 that would support such a
narrow claim construction. In re Baxter, 656 F.2d 679, 686 (CCPA 1981)
("As long as one of the monomers in the reaction is propylene, any other
monomer may be present, because the term 'compris[ing]' permits the
inclusion of other steps, elements, or materials.").
As to repeating and recycling, the Appellant concedes that El-
Samragy's "teaching could be applied and applied again" (Appeal Br. 6).
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Therefore, we cannot reverse the Examiner's rejection on the basis of the
repeating and recycling limitations.
For these reasons and those given by the Examiner, we uphold the
Examiner's rejection as maintained against claim 1.
IV. SUMMARY
The Examiner's rejection under 35 U.S.C. § 103(a) of claims 1, 2,
5-8, 11, and 15-17 is sustained. Therefore, the Examiner's final decision to
reject claims 1, 2, 5-8, 11, and 15-17 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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