Ex Parte Thompson et al

Patent Trial and Appeal Board

Jan 25, 2018

13828704 (P.T.A.B. Jan. 25, 2018)

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.
13/828,704 03/14/2013 Jason Thompson P231502.US.01 7295
25763 7590 01/29/2018
DORSEY & WHITNEY LLP - MINNEAPOLIS
ATTENTION: PATENT PROSECUTION DOCKETING DEPARTMENT
INTELLECTUAL PROPERTY PRACTICE GROUP - PT/16TH EL
50 SOUTH SIXTH STREET, SUITE 1500
MINNEAPOLIS, MN 55402-1498
EXAMINER
MORNHINWEG, JEFFREY P
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
01/29/2018 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):
ip. docket @ dorsey .com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JASON THOMPSON and
THOMAS ALEXANDER GLENN
Appeal 2017-002658
Application 13/828,704
Technology Center 1700
Before JULIA HEANEY, AVELYN M. ROSS, and JEFFREY R. SNAY,
Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 requests review pursuant to 35 U.S.C. § 134(a) of a
decision of the Examiner to reject claims 1, 9—14, and 16—20 of Application
13/828,704. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
1 This Decision includes citations to the following documents: Specification
filed Mar. 14, 2013 (“Spec.”); Appeal Brief filed June 10, 2016 (“Appeal
Br.”); Examiner’s Answer dated Oct. 28, 2016 (“Ans.”); and Reply Brief
filed Dec. 6, 2016 (“Reply Br.”).
2 Appellant is the Applicant, Land O’Lakes, Inc., which is also identified as
the real party in interest. App. Br. 4.
Appeal 2017-002658
Application 13/828,704
BACKGROUND
The subject matter on appeal relates to a method of producing a
crumble process cheese. App. Br. 4. According to the Specification, the
crumble process cheese may serve as a replacement for natural crumble
cheeses, and may be formed by freezing process cheese and holding the
cheese at freezing temperatures for a period sufficient to fracture protein
bonds within the cheese. Spec. 17. Claim 1, reproduced below from the
Claims Appendix of the Appeal Brief, is illustrative of the claimed subject
matter:
1. A method of producing a crumble process cheese,
comprising:
forming process cheese into a block, disk, or loaf, the
process cheese comprising an emulsion of an emulsifier,
protein, water and oil, wherein the protein is bound to the water
and the oil in the emulsification;
cooling the block, disk, or loaf process cheese in a
temperature-controlled environment to reach a freezing
temperature during an equilibration period of at least about 43
hours and up to about 120 hours,
wherein the formed process cheese has an elevated
temperature of at least about 140 °F to about 165 °F upon
introduction into the temperature-controlled
environment, and
wherein the freezing temperature is reached after
the equilibration period and is about 0 °F to about -20 °F,
and
wherein the equilibration period is sufficient to
cause a freeze-induced protein denaturation; and
elevating a temperature of the cooled process cheese to
refrigeration temperatures,
wherein after reaching the refrigeration
temperatures, a modified block, disk, or loaf process
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cheese comprising a texture adapted to crumble is
produced.
Appeal Br. 25, Claims App’x. Claim 16, the other independent claim on
appeal, recites a crumble process cheese product.
REFERENCES
The Examiner relied upon the following prior art in rejecting the
claims on appeal:
Merrill et al., US 7,651,715 B2 Jan. 26, 2010
(“Merrill”)
Bosy et al., US 4,112,131 Sept. 5, 1978
(“Bosy”)
Silver., US 5,064,660 Nov. 12, 1991
(“Silver”)
Linse-Loefgren., US 4,847,107 July 11, 1989
(“Linse-Loefgren”)
Sommer, H. H., “The Freezing Point of Cheddar Cheese: Injury of
Cheese by Freezing, Journal of Dairy Science, 11:9-17 (January, 1928)).
Kasprzak et al. (Kasprzak, K, Wendorff, W. L. and Chen, C.M.,
“Freezing Qualities of Cheddar-Type Cheese Containing Varied Percentages
of Fat, Moisture, and Salt,” J. Dairy Sci., 77:1771-1782 (1994)).
THE REJECTIONS
1. Claims 1 and 9-14 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Merrill, Bosy, Silver, Linse-
Loefgren, and Sommer.
2. Claims 16—20 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Merrill, Bosy, Sommer,
Linse-Loefgren, Silver, Kasprzak, and Chen.
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DISCUSSION
Rejection 1
Appellant argues the claims as a group (App. Br. 5—16). We therefore
limit our discussion to claim 1; claims 9—14 stand or fall with claim 1. See
37 C.F.R. § 41.37(c)(l)(iv). Having considered Appellant’s arguments in
light of this appeal record, we are not persuaded that Appellant identifies
reversible error. Accordingly, we affirm the rejection for the reasons set
forth in the Examiner’s Answer, which we adopt as our own. We add the
following primarily for emphasis.
The Examiner finds that Merrill teaches a method of producing a
cheese comprising the ingredients recited in claim 1, mixing the cheese and
heating at a temperature of 150—170°F, forming the cheese into a block or
loaf, and cooling the cheese in a temperature-controlled environment to
reach a freezing temperature during an equilibration period. Ans. 2—3,
providing citations to Merrill. The Examiner determines that Merrill’s
method of cheese production would have been understood by a person of
ordinary skill in the art to produce a “process cheese” because Merrill’s
method follows the description for preparing a “process cheese” as defined
in Bosy (Ans. 2—3, citing Bosy 1:12—18), and further that Silver teaches that
casein protein in a cheese product binds to both milk and water. Ans. 3,
citing Silver 2:8—10, 4:52—56, 62—65. The Examiner further finds that
Merrill’s cheese would have an elevated temperature of 150—170°F upon
introduction into the temperature-controlled environment because it would
have been obvious to a person of ordinary skill in the art to transfer the
cheese directly in order to minimize processing time, and Merrill does not
indicate a delay in processing should occur. Ans. 3. The Examiner further
finds that Sommer discloses producing crumbly cheese by placing cheese
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loaves in a freezer at 0 to -10°F for seven days (Ans. 5, citing Sommer 13 1
5 — 14 11), and that Sommer’s protocol would necessarily result in the
loaves requiring an equilibration time of at least 98 hours to reach the
temperature range of 0°F to -10°F, because the Specification indicates that
fast freezing cheese loaves at a temperature of 0°F results in the loaves
reaching 0°F after about 98 hours and at a temperature of -20°F results in the
loaves reaching -20°F after about 120 hours. Ans. 5, citing Spec. 128. The
Examiner thus determines that the claimed equilibration period of about 43—
120 hours would have been obvious to a person of ordinary skill in the art.
Ans. 5.
The Examiner further finds that Linse-Loefgren teaches that cheese
having a texture adapted to crumble is desirable in circumstances such as
incorporation into batter (Ans. 3, citing Linse-Loefgren 1:7—9), and that
Sommer teaches that freezing cheese results in a crumbly texture and
suggests elevating a cheese to refrigeration temperatures after freezing. Ans.
4—5, providing citations to Sommer. The Examiner determines that it would
have been obvious to produce Merrill’s cheese loaves according to
Sommer’s freezing protocol in order to obtain a crumbly texture, and further
that it would have been obvious to modify Merrill’s step of freezing in brine
solution to conventional freezing, in order to achieve cooler temperatures,
because Linse-Loefgren and Sommer teach conventional freezers. Ans. 4—5,
citing Linse-Loefgren 1:46-47 and Sommer 14 11. The Examiner further
determines that causing freeze-induced protein denaturation in a cheese
produced by Merrill’s process as modified by Sommer’s freezing protocol
would have been obvious because the references disclose that a crumbly
texture results from freezing. Ans. 5.
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Appellant argues that the rejection’s reliance on Merrill is erroneous
because Merrill does not teach that its cheese comprises an emulsion,
wherein protein is bound to water and oil in an emulsification, as recited in
claim 1. App. Br. 6. Appellant further argues that Merrill does not teach
introducing a process cheese having a temperature of about 140 °F to about
165 °F to a temperature-controlled environment for cooling, because Merrill
does not teach the temperature of the warm, molded cheese, and a person of
ordinary skill would view Merrill’s heated mixing step as separate and
distinct from its “final processing step” when the cheese is cooled. App. Br.
7—8. Appellant’s argument is not persuasive of reversible error. The
Examiner does not rely solely on Merrill as teaching the emulsion recited in
claim 1, but rather relies on additional references as teaching the nature of
Merrill’s cheese. Ans. 8. See In re Keller, 642 F.2d 413, 425 (CCPA 1981)
(nonobviousness cannot be shown by attacking references individually
where the rejection is based on combination of the references). With regard
to the heating temperature prior to initiation of cooling, the Examiner’s
rationale is that the claimed temperature would have been obvious in view of
Merrill, as would have been proceeding directly from heating to a
temperature-controlled cooling environment, in order to minimize
processing time. Ans. 8. Appellant’s argument directed to lack of inherency
is not responsive to the Examiner’s rationale and therefore not persuasive.
Further, the Specification states that “the process cheese may be allowed to
initially cool to temperatures below pasteurization temperatures, such as
down to ambient temperatures, e.g. about 70 °F, prior to cooling.” Spec.
117. Such evidence shows that proceeding directly from heating to cooling
is not critical to Appellant’s claimed method, and therefore undercuts
Appellant’s argument against obviousness.
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Appellant further argues that the rejection should be reversed because
the proposed combination of references would not incorporate starch as
taught by Linse-Loefgren, and thus would not achieve Linse-Loefgren’s
benefit of a cheese that does not stick together, and would render Linse-
Loefgren unsatisfactory for its intended purpose. App. Br. 9—10. This
argument is not persuasive of reversible error because the Examiner
primarily relies on Linse-Loefgren only for its teaching that cheese with a
crumbly texture is desirable for certain food applications. Linse-Loefgren’s
inventive method is not at issue. Similarly, the rejection does not rely on
Linse-Loefgren for teaching the freezing temperature, and therefore
Appellant’s argument that Linse-Loefgren teaches its temperature range in
the context of milling cheese rather than forming process cheese (App. Br.
11) is also not persuasive.
Appellant argues with regard to Sommer that (1) its teaching is
directed only to the freezing of natural cheese and would not apply to
process cheese (App. Br. 11—12), (2) its teaching of texture disruption at
sutures is unique to natural cheese {id. at 12), and (3) it provides no teaching
of freeze-induced protein denaturation of an emulsion of protein, oil and
water {id. at 13). Appellant’s arguments are not persuasive of reversible
error, for the reasons adequately explained by the Examiner at Ans. 12—15.
The Examiner notes that Sommer does suggest that its teaching would apply
to process cheese (citing Sommer 9,12). Further, Appellant’s asserted
distinction between natural and process cheese is not supported by evidence.
Appellant further argues that the proposed combination of references
would not achieve a cheese having a crumbly texture after refrigeration, and
in particular that Sommer suggests that storage at refrigeration temperatures
would remove the crumbly texture. App. Br. 14. Appellant asserts that in
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its frozen process cheese in which the proteins have been denatured by the
freezing process, the step of elevating the cheese to refrigeration
temperatures will not cause the water to rebind to the protein, and the
product retains its modified texture adapted to crumble. App. Br. 15, citing
Spec. 121. Appellant’s arguments are not persuasive of reversible error. As
the Examiner notes, Sommer’s teaching of “gradual improvement in the
texture of the cheese” relates to cheese stored at refrigeration temperatures
for four weeks, while Appellant’s evidence (Spec. 121) is silent on a four-
week storage period. Ans. 16. Appellant’s argument therefore is not
commensurate with the scope of claim 1.
Rejection 2
Appellant’s arguments for reversal of Rejection 2 are essentially the
same as those asserted against Rejection 1. We therefore conclude that they
are not persuasive of reversible error, for the reasons discussed above for
Rejection 1, except for the following additional issue discussed below.
The Examiner relies on Kasprzak as teaching that “mealiness” in
frozen cheese “was caused by a separation of moisture from protein” where
freezing “may have agglomerated and dehydrated the casein submicelles to
produce increased mealiness.” Final Act. 8, citing Kasprzak 1776.
Appellant argues that Kasprzak’s teaching is different from the crumbly
texture recited in claim 16, and asserts that “mealiness” means “a tasting
judge would be able to detect a com meal-like mouthfeel when the cheese
sample is masticated and pushed against the roof of the mouth.” App. Br.
22. The Examiner responds by noting that the Specification “does not
provide a detailed, limited definition of a cmmbly texture but instead teaches
only generally that it is a grainy texture” (Ans. 23) and further finds that
Kasprzak describes frozen cheese that has been thawed as having a “cmmbly
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body and mealy texture” “which suggest crumbly and mealy textures are
comparable or at least similar.” Ans. 23—24, citing Kasprzak 1772.
Appellant does not point to anything in the Specification to support the
narrower interpretation of “crumble-like texture” (as recited in claim 16) that
it proposes. Therefore, we do not find Appellant’s claim interpretation and
attempt to distinguish of Kasprzak to be persuasive.
For these reasons, we are not persuaded by Appellant’s arguments for
reversal of the rejection.
SUMMARY
We affirm the rejections of claims 1, 9—14, and 16—20.
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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