Ex Parte Vega et al

Patent Trial and Appeal Board

Jun 14, 2017

13042256 (P.T.A.B. Jun. 14, 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.
13/042,256 03/07/2011 Cesar Vega M241-US 6563
20529 7590 06/16/2017
NATH, GOLDBERG & MEYER
Joshua Goldberg
112 South West Street
Alexandria, VA 22314
EXAMINER
MORNHINWEG, JEFFREY P
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
06/16/2017 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):
USPTO@nathlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CESAR VEGA and CAROL LLOYD
Appeal 2016-000167
Application 13/042,2561
Technology Center 1700
Before ROMULO H. DELMENDO, BEVERLY A. FRANKLIN, and
GEORGE C. BEST, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Applicants (hereinafter “Appellants”) appeal under 35 U.S.C.
§ 134(a) from the Primary Examiner’s final decision to reject claims 2—6,
8—12, and 14—23.2 We have jurisdiction under 35 U.S.C. § 6(b).
1 The Appellants state that the real party in interest is “MARS,
INCORPORATED” (Appeal Brief filed February 13, 2015, hereinafter
“Appeal Br.,” 3).
2 Appeal Br. 6—19; Reply Brief filed September 17, 2015, hereinafter “Reply
Br.,” 3—10; Final Office Action entered July 17, 2014, hereinafter “Final
Act.,” 2—15; Examiner’s Answer entered July 21, 2015, hereinafter “Ans.,”
2-20.
Appeal 2016-000167
Application 13/042,256
We affirm.3
BACKGROUND
The subject matter on appeal relates to a proteinaceous beverage that
includes a particular coca extract (Specification, hereinafter “Spec.,” 11).
Representative claim 21 is reproduced from page 22 of the Appeal Brief
(Claims Appendix), with key limitations highlighted in italicized text, as
follows:
21. A ready-to-drink aqueous beverage comprising a
proteinaceous liquid, a stabilizer, an edible acid, and a milled
cocoa extract comprising cocoa polyphenols, wherein the pH of
the beverage is below 4.6 and wherein the beverage comprises a
total cocoa polyphenol content of at least 100 mg/serving.
REJECTIONS ON APPEAL
On appeal, the Examiner maintains two rejections under pre-AIA 35
U.S.C. § 103(a):
I. Claims 2-4, 6, 8—12, and 14—23 as unpatentable over
Ferruzzi4 in view of Nair et al.5 (hereinafter “Nair”),
Anderson et al.6 (hereinafter “Anderson”), Nijhuis et al.7
(hereinafter Nijhuis”), and Ares et al.8 (hereinafter
“Ares”); and
3 We heard oral argument from the Appellants’ representative on June 6,
2017.
4 US 2004/0096547 Al, published May 20, 2004.
5 US 2007/0254068 Al, published November 1, 2007.
6 US 2008/0317891 Al, published December 25, 2008.
7 US 7,201,934 B2, issued April 10, 2007.
8 Gaston Ares, et al., “Alternatives to Reduce Bitterness, Astringency and
Characteristic Flavour of Antioxidant Extracts,” 42 Food. Res. Int’l 871—878
(2009).
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Application 13/042,256
II. Claim 5 as unpatentable over Ferrazzi in view of Nair,
Anderson, Nijhuis, Ares, and Gobbo et al.9 (hereinafter
“Gobo”).
(Final Act. 2—16; Ans. 2—20.)
DISCUSSION
With respect to Rejection I, the Appellants argue the claims together
(Appeal Br. 6—18). Therefore, we confine our discussion of this rejection to
claim 21, which we select as representative pursuant to 37 C.F.R.
§ 41.37(c)(l)(iv). As provided by this rule, claims 2-4, 6, 8—12, 14—20, 22,
and 23 stand or fall with claim 21. With respect to Rejection II, the
Appellants rely on the same arguments offered against Rejection I, adding
only that Gobbo, the additionally-cited reference, does not cure the
perceived deficiencies in Rejection I. Therefore, our ruling on claim 21
controls our decision as to all claims on appeal.
The Examiner finds that Ferrazzi describes or suggests every
limitation recited in claim 21 except it “does not explicitly disclose the
polyphenol [epicatechin] is derived from a milled cocoa extract” (Ans. 2—3;
Final Act. 3). To resolve this difference, the Examiner relies primarily on
additional teachings found in Nair, Anderson, and Nijhuis (Ans. 3; Final
Act. 3—4).10 Based on these findings, the Examiner concluded (Ans. 3):
It would have been obvious to one having ordinary skill in
the art to incorporate cocoa polyphenols according to Nair et al.
into the beverage of Perrazzi and to mill the cocoa polyphenols
9 US 5,529,796, issued June 25, 1996.
10 The Examiner relies on Ares “only as a supplementary reference to aid in
discerning the nature of the teaching in Anderson . . . regarding the taste of
polyphenols in aqueous solutions such as milk” (Ans. 18).
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Application 13/042,256
according to Anderson et al. to minimize any undesirable
organoleptic properties as described in Nijhuis et al.
(See also Final Act. 4.)
The Appellants contend that Ferrazzi focuses on energy drinks and
“does not mention or suggest any combination of flavanols, let alone coca
polyphenols as required by all pending claims” (Appeal Br. 12). Therefore,
according to the Appellants, “Ferrazzi should not be deemed relevant to any
of the pending claims, much less help to make any claim obvious” (id.).
Regarding Nair, the Appellants argue that it “does not in any manner
disclose isolating a cocoa extract, or using coca polyphenols as a cocoa
extract ingredient to be added to non-cocoa products at all, let alone in a
milled form” and that it “does not in any manner teach or suggest isolation
of any cocoa ‘extract’ suitable for use in anything other than a cocoa
beverage, let alone in Ferrazzi’s energy beverages” (id. at 13). Regarding
Nijhuis, the Appellants acknowledge that the reference mentions particle
size distribution can be controlled to minimize formation of large particles
and to avoid a gritty feel in the cocoa powder, but argue that it does not
address any other undesirable organoleptic property besides gritty mouth
feel (id. at 13—14). Therefore, according to the Appellants, “Nijhuis cannot
reasonably be deemed to teach, or to provide any motivation for, milling any
product” (id. at 14). With respect to Anderson, the Appellants acknowledge
Anderson discloses milled extracts containing cocoa polyphenols but urge
that a person having ordinary skill in the art would not have been motivated
to mill cocoa polyphenols for use in Ferrazzi’s beverages because Anderson
reports that flavor improvement due to smaller particles sizes does not result
when the milled cocoa extracts are added to water or aqueous-based systems
such as milk or cream (id. at 14—15). According to the Appellants (id. at
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Application 13/042,256
15), the Examiner’s reliance on Ares to explain Anderson’s disclosure that
smaller particle sizes would not result in flavor improvement in aqueous-
based systems is misplaced.
The Appellants’ arguments fail to identify a reversible error in the
Examiner’s rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Contrary to the Appellants’ assertion that Ferruzzi is irrelevant to the
claims on appeal, we find Ferruzzi to be highly relevant because it describes
a protein-containing energy drink including milk, milk derivatives, or milk-
based liquids, flavanols such as catechin or epicatechin,11 one or more
acidulants (e.g., edible acids) to maintain a pH of from about 2 to about 8,
and stabilizing agents (Ferruzzi, || 1, 29, 41—45, 55). Nair teaches that it is
well-known that cocoa antioxidants or cocoa polyphenol compounds in milk
or liquor-based products provide desirable health benefits (Nair, || 2—3). As
the Examiner finds (Ans. 4), Nair teaches that cocoa polyphenols—one of
the most abundant flavonoids being flavanols such as catechin—exhibit
health-promoting properties, including beneficial effects against heart
disease (Nair, || 3, 13, 14). In addition, it was known that particle size
distribution of cocoa powder can be controlled (e.g., by milling and
screening) to avoid a gritty feel in the powder (Nijhuis, col. 3,11. 22-48).
Thus, although Anderson teaches that using milled cocoa extract including
cocoa polyphenols in aqueous-based systems such as milk or cream does not
result in reduced flavor improvement (reduced bitterness and astringency)
11 The current Specification states that “[t]he term ‘cocoa extract’ refers to
the solvent-derived extracts containing cocoa polyphenols (catechin,
epicatechin and/or procyanidins) that can be prepared by solvent
extracting cocoa beans, cocoa nibs, or non-defatted, partially or fully
defatted cocoa solids . . . .” (Spec. 116).
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Application 13/042,256
(Anderson, 126), a person having ordinary skill in the art would have been
prompted to use milled cocoa extract with cocoa polyphenols having a
controlled particle size distribution as the flavanol component in Ferruzzi in
order to obtain the known health benefits of such cocoa polyphenols, as
disclosed in Nair, without any gritty feel, as disclosed in Nijhuis. Consistent
with the Examiner’s position (Ans. 15—16), the Appellants’ argument based
on Anderson is not persuasive because they do not direct us to objective
evidence (e.g., comparative experimental testing) to demonstrate that, in
their beverage, milled cocoa extract comprising cocoa polyphenols
surprisingly or unexpectedly provides a reduction in bitterness and
astringency. Nor do they direct us to evidence or reasoning that the
proposed combination would have resulted in a beverage that cannot be
consumed or would not have exhibited any of the health benefits associated
with cocoa polyphenols. In re Urbanski, 809 F.3d 1237, 1244 (Fed. Cir.
2016) (“Nothing in the prior art teaches that the proposed modification
would have resulted in an ‘inoperable’ process or a dietary fiber product
with undesirable properties.”).
Lastly, we are unpersuaded by the attacks against each reference
individually. Nonobviousness cannot be established merely by attacking
references individually where the rejection is based on the collective
teachings of multiple prior art references. In re Keller, 642 F.2d 413, 425
(CCPA 1981).
For these reasons, we sustain the Examiner’s rejections.
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SUMMARY
Rejections I and II are affirmed. Therefore, the Examiner’s final
decision to reject claims 2—6, 8—12, and 14—23 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)(1).
AFFIRMED
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