Ex Parte Vaman et alDownload PDFPatent Trial and Appeal BoardSep 8, 201613120515 (P.T.A.B. Sep. 8, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/120,515 05/23/2011 Shama Karu Vaman 23413 7590 09/12/2016 CANTOR COLBURN LLP 20 Church Street 22nd Floor Hartford, CT 06103 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. CDS0357US 1736 EXAMINER LEBLANC, KATHERINE DEGUIRE ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 09/12/2016 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): usptopatentmail@cantorcolbum.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHAMA KARU V AMAN, SARAH JAYNE PRESTWOOD PEARSON, and CLIVE RICHARD THOMAS NORTON1 Appeal2015-002550 Application 13/120,515 Technology Center 1700 Before MICHAEL P. COLAIANNI, CHRISTOPHER C. KENNEDY, and AVEL YN M. ROSS, Administrative Patent Judges. KENNEDY, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134(a) from the Examiner's decision to reject claims 1---6, 8-10, 12-20, and 37. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND The subject matter on appeal relates to a chewing gum product comprising a plurality of capillaries. E.g., Spec. 1:3-5; Claim 1. Claim 1 is reproduced below from page 12 (Claims Appendix) of the Appeal Brief: 1 According to the Appellants, the Real Party in Interest is Cadbury UK, Ltd. Br. 2. Appeal2015-002550 Application 13/120,515 1. A chewing gum product comprising an extruded body portion, the body portion having a plurality of capillaries disposed therein, the capillaries in the extruded body portion result in a voidage in the range of 5---60%, one or more capillaries being at least partially filled with a fill material and the body portion and/ or the fill material comprising gum, and wherein different capillaries are filled with different gum components. ANALYSIS Claims 1---6, 8-10, 12-20, and 37 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Fomaguera (WO 2007/056685 A2, published May 18, 2007). After review of the cited evidence in the appeal record and the opposing positions of the Appellants and the Examiner, we determine that the Appellants have not identified reversible error in the Examiner's rejection. Accordingly, we affirm the rejection for reasons set forth below, in the Advisory Action dated March 12, 2014, and in the Examiner's Answer. See generally Advisory Act. 2; Ans. 3-10. The Appellants present arguments for several different claims, which we address in tum below. A. Claim 1 Claim 1 is reproduced above. The Examiner finds that F omaguera teaches an extruded confectionary product, which may be gum, comprising each element of claim 1 except that (1) "Fomaguera does not specifically teach the voidage in the body portion," and (2) "Fomaguera does not specifically teach that different gum components are located in different 2 Appeal2015-002550 Application 13/120,515 capillaries." Ans. 4. Concerning the voidage, the Examiner finds that it would have been obvious to adjust the voidage space based on the desired amount of fill material. Id. Concerning different gum components in different capillaries, the Examiner finds that "it would have been obvious to fill the different capillaries with different types of gum in order to give the consumer a variety of flavors .... " Id. The Appellants argue that the multi-capillary product of Fornaguera is an "intermediate" in Fornaguera's manufacturing process, and that "Fornaguera fails to disclose or suggest a chewing gum product comprising an extruded body portion, the body portion having a plurality of capillaries disposed therein." Br. 5. That argument does not persuade us of reversible error in the Examiner's rejection. Consistent with the Examiner's findings, Figure 6 of Fornaguera, which appears below, depicts a multi-capillary extruded confectionary product, which may be chewing gum: Figure 6 shows center-filled confectionery ropes 46 with fill material 38 occupying capillaries in the ropes. See, e.g., Fornaguera i-f 77. We recognize that the multi-capillary product depicted in Fornaguera's Figure 6 is an intermediate product in F ornaguera' s manufacturing process that may ultimately be divided into individual pieces having only a single capillary. See, e.g., Fig. 1 (item 72, representing multi-capillary pieces, and item 78, 3 Appeal2015-002550 Application 13/120,515 representing single-capillary pieces), Figs. 13 & 14. However, even if split into individual pieces, variety in flavor and texture would be desirable, and the scope of claim 1 appears to be broad enough to encompass the intermediate product of F omaguera when modified, as proposed by the Examiner, to include different fill materials in different capillaries to provide different flavors. The Appellants also argue that it would not have been obvious to fill Fomaguera's capillaries with different fill materials because "the apparatus of Fomaguera ... shows only a single fill reservoir connected to multiple conduit inlets." Br. 5. That argument is not persuasive. The Appellants do not persuasively challenge the Examiner's finding that a person of ordinary skill in the art would have been motivated to use different fill materials to provide, for example, a variety of flavors. Fomaguera teaches a wide variety of potential fill materials, see i-f 74, and it teaches that the individual conduits for the fill material may have dedicated flow regulators, see i-f 77. While the Examiner does not identify any express teaching in F omaguera of using different fill materials in different capillaries, the teachings of i-f 7 4 and i-f 77 in combination with the knowledge that different textures or flavors are desirable in confectioneries at least inferentially suggests to a person of ordinary skill in the art that different fill materials could be used in different capillaries to provide variety. Cf KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) ("A person of ordinary skill is also a person of ordinary creativity, not an automaton."). The Appellants do not argue that it would have been beyond the ordinary level of skill in the art to modify Fomaguera's apparatus to accommodate multiple fill materials. 4 Appeal2015-002550 Application 13/120,515 The Appellants further argue that the Examiner's proposed modification would render Fomaguera unsatisfactory for its intended purpose because "Fomaguera's intended purpose is large-scale production of identical, individual center-filled confectionery pieces." Br. 5. We are not persuaded by that argument. While Fomaguera does not expressly disclose the use of different fill materials in different capillaries, the Appellants identify nothing in Fomaguera that would have discouraged a person of ordinary skill from pursuing such an embodiment in order to provide, e.g., a variety of different flavors. It appears that Fomaguera's apparatus would continue to serve its intended purpose of producing confectionery products even if different fill materials were used in different capillaries. Accordingly, the Appellants' argument does not persuade us of reversible error in the Examiner's rejection. Concerning the voidage, the Appellants argue that the Examiner's "rationale is faulty" because ( 1) F omaguera' s disclosed weight percent range of 1-16% refers to individual pieces, such as those of Pigs. 13 and 14, rather than to the multi-rope extrudate of Figure 6, and (2) Fomaguera discloses a weight percent of fill material, which is not the same as "voidage," which "refers to the interior volume of the capillaries." Br. 6-7. We are not persuaded by those arguments. Fomaguera discloses that the weight percent of the fill material can be varied between about 1 and 16% to achieve desired product characteristics. Fomaguera i-f 94. Claim 1 recites a broad voidage range of 5---60%. That range makes clear that the voids can occupy a relatively small amount of the body (i.e., 5%) or they can occupy a relatively large amount of the body (i.e., 60%). On this record, it is reasonable to believe that the use of, e.g., 16% fill material as disclosed by 5 Appeal2015-002550 Application 13/120,515 Fomaguera if 94, would require a voidage in the range of 5---60%, notwithstanding the fact that weight percent and volume are different units of measure. Moreover, the record indicates that weight percent of the fill material, which is closely related to volume of the capillaries ( voidage ), is a result-effective variable that a person of ordinary skill in the art would have optimized to achieve desired product characteristics. It would have been well within the ordinary level of skill in the art to optimize voidage to achieve desirable results, including in the range of 5-60%. Although we recognize that Fig. 6 is a schematic that does not provide measurements, the volume of the voidage provided by the capillaries of Fig. 6 appears to fall within the recited range of 5---60%, further suggesting that optimization of voidage within that range would have been obvious to a person of ordinary skill in the art. On the record before us, we are persuaded that the use of different fill materials in the capillaries of Fomaguera Fig. 6 would have been obvious to provide variety in flavor, and that claim 1 is broad enough to encompass such a product notwithstanding the fact that it ultimately may be divided into smaller individual pieces. B. Claims 14 and 15 Claim 14 depends from claim 1 and further recites, "wherein the width or diameter of the capillaries is substantially uniform in the body portion." Claim 15 depends from claim 1 and further recites "wherein the distance between adjacent capillaries remains substantially the same in the body portion." The Examiner finds that, because F omaguera teaches that the capillaries of its product are formed from an extrusion die, ( 1) "the capillaries would be expected to be the same size throughout the extruded 6 Appeal2015-002550 Application 13/120,515 composition," and (2) "the distance between the capillaries would remain substantially the same." Ans. 6. The Examiner further finds that a person of ordinary skill in the art would have been motivated to use capillaries of uniform width, separated by a uniform distance, for visual appeal and to provide an even distribution of flavor. Id. The Appellants argue that the Examiner's position is conclusory, and that the Examiner "provides no concrete evidence in the record to support her assertion." Br. 8-9. We disagree. As the Examiner explains, "[ e ]xtrusion dies have a set size and appearance and therefore produce uniform capillary sizes." Ans. 9. The Appellants do not file a Reply Brief to challenge that finding. While we recognize that Fomaguera's figures do not purport to provide measurements, the Examiner's finding is consistent with the fact that the figures depict ropes of apparently uniform width, see Fig. 1, and capillaries of apparently uniform diameter and spacing, see Fig. 6. The Examiner's findings and conclusions are supported by a preponderance of the evidence. C. Claim 37 Claim 3 7 depends from claim 1 and further recites, "wherein each capillary is separated from each adjacent capillary by a wall formed from the extruded body portion and wherein the wall has a thickness of no more than the width or diameter of the capillaries." Based on Fomaguera's extrusion manufacturing process, the Examiner finds that walls necessarily separate the capillaries ofFomaguera's product. Ans. 7. The Examiner finds that Fomaguera does not expressly teach the thickness of the walls, but that "it would have been obvious to adjust the size of the capillaries and accordingly the inner walls between the capillaries to accommodate the amount of fill 7 Appeal2015-002550 Application 13/120,515 material desired." Id. The Examiner explains that, "if the capillary size is very large, the size of the walls between each of the capillaries would be small .... The idea of adjusting the capillary size and the wall size depending on the amount of filling inside is very simple and would only require routine skill in the art." Id. at 10. The Appellants argue that, "[ s ]ince the limitation is not explicitly disclosed by Fomaguera, claim 37 is not obvious over Fomaguera." Br. 10. That argument misapprehends the law of obviousness. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (explaining that the obviousness analysis "need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ."). As the record indicates, and the Appellants do not meaningfully dispute, the size of the capillaries and the walls separating the capillaries are result-effective variables that a person of ordinary skill in the art would have optimized to achieve desired results. On this record, we are not persuaded that wall thickness imparts patentability to the subject matter of claim 37. See In re Applied Materials, Inc., 692 F.3d 1289, 1295 (Fed. Cir. 2012) ("Discovery of an optimum value of a result effective variable ... is ordinarily within the skill of the art."); In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) ("The law is replete with cases in which the difference between the claimed invention and the prior art is some range or other variable within the claims .... [and] in such a situation, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range." (citations omitted)). 8 Appeal2015-002550 Application 13/120,515 * * * We have carefully considered each of the Appellants' arguments, and we are not persuaded of reversible error in the Examiner's rejection. CONCLUSION We AFFIRM the Examiner's rejections of claims 1---6, 8-10, 12-20, and 37. 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 9 Copy with citationCopy as parenthetical citation