Ex Parte Vega et al

Patent Trial and Appeal Board

Jan 29, 2018

14091956 (P.T.A.B. Jan. 29, 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.
14/091,956 11/27/2013 Cesar VEGA M237C1-US 9393
20529 7590 01/31/2018
NATH, GOLDBERG & MEYER
Joshua Goldberg
112 South West Street
Alexandria, VA 22314
EXAMINER
DEES, NIKKI H
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
01/31/2018 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):
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 2017-005048
Application 14/091,956
Technology Center 1700
Before ROMULO H. DELMENDO, BRIAN D. RANGE,
and MICHAEL G. McMANUS, Administrative Patent Judges.
McMANUS, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 2—10, 22, and 25—34 of
Application 14/091,956 under 35 U.S.C. § 103(a) as obvious. Final Act.
(April 19, 2016) 2—6. Appellant1 seeks reversal of these rejections pursuant
to 35 U.S.C. § 134(a). We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we affirm.
1 Appellant is the Applicant, Mars incorporated, which is also identified as
the real party in interest. Appeal Br. 3.
Appeal 2017-005048
Application 14/091,956
BACKGROUND
The present application generally relates to palatable beverages and
compositions such as nonchocolate flavored water soluble dry powder
compositions comprising a cocoa extract which comprises cocoa
polyphenols, and an edible acid. Abstract.
Claim 2 is representative of the pending claims and is reproduced
below:
2. A water-soluble dry powder composition comprising a
sweetener, an edible acid, a cocoa extract comprising cocoa
polyphenol comprising cocoa flavanol monomers and
oligomers (procyanidins), and a carrier, wherein the
composition is non-chocolate flavored, the edible acid is
present at 18% by weight or more of the composition, the
edible acid to cocoa extract ratio is 0.8 and above, and the total
cocoa flavanol content of the composition, including monomers
and oligomers, is at least 100 mg per serving of the
composition.
Appeal Br. 20 (Claims App.).
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 2—10, 22, 25, 27—29, and 31—34 are rejected under 35
U.S.C. § 103(a) as obvious over Henry et al (2002/0061347 Al,
published May 23, 2002) (hereinafter “Henry”) in view of
Anderson et al. (US 2008/0317891 Al, published Dec. 25, 2008)
(hereinafter “Anderson”). Final Act. 2—5.
2. Claims 26 and 30 are rejected under 35 U.S.C. § 103(a) as obvious
over Henry in view of Anderson and further in view of Winter
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(Winter, R., A Consumer’s Dictionary of Food Additives 199
(1972)). Id. at 5-6.
DISCUSSION
Rejection 1. The Examiner rejected claims 2—10, 22, 25, 27—29, and
31—34 as obvious over Henry in view of Anderson. Id. at 2—5. In support of
the rejection, the Examiner found that Henry teaches a dry flavored beverage
mix containing vitamin and mineral sources, coloring agent, flavoring
agents, an acid component and sweetener. Id. at 2. The Examiner further
found that Henry teaches that the mix may include polyphenols for
astringency. Id. at 2—3. The Examiner found that Henry does not teach the
use of cocoa extract as a source of polyphenols. Id. at 3.
The Examiner additionally found that Anderson teaches to use
isolated cocoa polyphenols in food products including in a dry drink mix.
Id. The Examiner further found that cocoa polyphenols are known to have
health benefits. Id. The Examiner determined that “it would have been
obvious to utilize the cocoa extracts of Anderson as a source of polyphenols
for astringency to flavor or add taste to the beverage mix of Henry and also
provide additional health benefits to the nutritive product of Henry.” Id.
Appellant argues that such determination is in error on several bases.
First, Appellant argues that Henry is not an appropriate “starting point” for
the obviousness analysis because Henry relates to dietary formulations that
include iron supplements. Appeal Br. 11. Such argument is inapposite. An
obviousness determination requires finding both “that a skilled artisan would
have been motivated to combine the teachings of the prior art references to
achieve the claimed invention, and that the skilled artisan would have had a
reasonable expectation of success in doing so.” Intelligent Bio-Sys., Inc. v.
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Application 14/091,956
Illumina Cambridge Ltd., 821 F.3d 1359, 1367—68 (quoting Kinetic
Concepts, Inc. v. Smith & Nephew, Inc., 688 F.3d 1342, 1360 (Fed. Cir.
2012)). Where such test is met, and the art is analogous, there is nothing
improper in the prior art used as a primary reference.
For its second argument, Appellant argues that a person of ordinary
skill in the art would not combine the teachings of Henry with “Anderson’s
reduced astringency flavanols.” Appeal Br. 11. Here, Appellant relies upon
Henry’s teaching that, under certain circumstances, ferric ion may complex
with polyphenols and take on an unappealing “deep rusty color.” Henry
110. This effect is prevented or mitigated by the presence of ascorbic or
citric acid which preferentially complex ferric ion. Id. 130. Appellant
further relies upon Anderson’s teaching that “when the milled high CP
extracts are milled to smaller particle sizes, one sees a reduction in bitterness
and astringency.” Anderson 126. Appellant reasons that the reduced
astringency of Anderson’s milled extracts would require one to add a greater
amount of extracts (containing polyphenols) than would otherwise be
required. Appeal Br. 11—12. Such greater amount of polyphenols would,
Appellant infers, result in greater undesirable coloring effect arising from
ferric ion-polyphenol complexing.
The Examiner determines that this argument is unpersuasive because
Henry teaches including agents such as ascorbic and citric acid which
preferentially complex the ferric ions in the presence of polyphenols or
flavonoids. Answer 7. Appellant has not shown error in this regard.
Moreover, Anderson teaches that extracts do not exhibit reduced astringency
in aqueous compositions. Anderson 126 (“[t]he same flavor improvement
[reduced bitterness and astringency] does not result when the milled high CP
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Application 14/091,956
cocoa extracts are added to water or an aqueous-based system”).
Accordingly, Appellant has not shown error on this basis.
For its third argument, Appellant argues that nothing in Henry would
lead one of skill in the art to add the specifically claimed cocoa flavanols.
Appeal Br. 13—16. Appellant asserts that polyphenols are “a very large
class” of compounds. Id. at 13. Appellant argues that Henry provides a
motivation to limit the quantity of polyphenols (as opposed to some other
compound imparting astringency) because of its interaction with the iron
compounds of Henry. Id. at 14. Appellant further asserts that Henry
specifically teaches that “tannic acid, malic acid or tartaric acid and mixtures
thereof’ may be used to impart astringency. Id. (citing Henry | 69).
Appellant notes that the identified acids would have the advantage of
reducing the pH of the formulation. Id.
Henry provides that “[pjolyphenols and/or flavonoids such as tannic
acid may also be added for astringency.” Henry. 122. The Examiner
determines that, given such disclosure, it would have been obvious to
combine any polyphenol or flavonoid with the formulation of Henry.
Answer 7.
In the Final Rejection, the Examiner determines that “it would have
been obvious to utilize the cocoa extracts of Anderson as a source of
polyphenols for astringency to flavor or add taste to the beverage mix of
Henry and also provide additional health benefits to the nutritive product of
Henry.” Final Act. 3. Appellant provides only a limited response to the
Examiner’s second stated reason to combine — the provision of health
benefits. Appellant states that “small amounts of tannic acid provide that
benefit without unduly interfering with Henry's iron component, and while
simultaneously helping to lower the pH.” Appeal Br. 17. Appellant does
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Application 14/091,956
not, however, cite to factual evidence in support of its assertion regarding
the health benefits of tannic acid. Thus, Appellant’s allegation of error
regarding the Examiner’s determination that a person of ordinary skill in the
art would have been motivated to use the polyphenols of Anderson with the
formulation of Henry to provide health benefits is unsupported. Nor does
Appellant provide factual evidence regarding the number of polyphenols or
flavonoids known nor any information as to which are commonly used as
food and/or beverage additives. Accordingly, Appellant has not shown error
in this regard.
For its fourth argument, Appellant argues that the cited references
would not have led a person of ordinary skill in the art to use 100 mg or
more per serving as required by the claims. Id. at 17—18.
Claim 2 requires that “the total cocoa flavanol content of the
composition ... is at least 100 mg per serving of the composition.”2 The
Specification indicates that the dry mix composition “may contain at least 5
mg/g (-)-epicatechin and/or at least 53 mg/g total epicatechin, catechin and
procyanidin oligomers 2 to 10.” Spec. 15. Thus, the polyphenol
concentration of the subject composition is at least 58 mg/g.
Anderson teaches a milled cocoa extract having “a total cocoa
polyphenol content of at least about 300, preferably about 300 to about 700
milligrams, per gram of the milled extract.” Anderson 114. This is the
same as is described in the Specification. See Spec. 16 (“The milled cocoa
extract typically contains at least about 300 milligrams of cocoa polyphenols
(profile 1-10, flavanols and procyanidin oligomers), for example, about 300
2 We do not, at present, consider whether the “per serving” limitation
complies with the definiteness requirement of 35 U.S.C. § 112(b).
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Application 14/091,956
to about 700 milligrams.”). Thus, while the actual polyphenol content per
serving will vary with the size of the serving, for any given serving size, the
polyphenol content taught by Anderson will equal that taught by the
Specification and will exceed that required by claim 2.
Accordingly, Appellant has not shown error on this basis.
Rejection 2. The Examiner rejected claims 26 and 30 as obvious over
Henry in view of Anderson and further in view of Winter. Final Act. 5—6.
Appellant relies upon the same arguments regarding these claims as with
regard to the claims subject to Rejection 1. Appeal Brief 18—19. As these
arguments have not been found persuasive, we determine that the Appellant
has not shown error in regard to the rejection of claims 26 and 30.
CONCLUSION
The rejection of claims 2—10, 22, 25, 27—29, and 31—34 as obvious
over Henry in view of Anderson is affirmed. The rejection of claims 26 and
30 as obvious over Henry in view of Anderson and further in view of Winter
is affirmed.
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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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