Ex Parte Ward et al

Patent Trial and Appeal Board

Feb 19, 2016

12261468 (P.T.A.B. Feb. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/261,468 10/30/2008
27148 7590 02/23/2016
POLSINELLI PC
900 WEST 48TH PLACE
SUITE 900
KANSAS CITY, MO 64112-1895
FIRST NAMED INVENTOR
Susan Ruth Ward
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.
P201L 4468
EXAMINER
YOO, HONG THI
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
02/23/2016 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):
uspt@polsinelli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte SUSAN RUTH WARD
and MATTHEW JOEL TAYLOR
Appeal2014-004934
Application 12/261,468
Technology Center 1700
Before BEYERL YA. FRANKLIN, GEORGE C. BEST, and
WESLEY B. DERRICK, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1-3, 10-12, 19, 20, 22-29, and
32 of Application 12/261,468 under 35 U.S.C. § 103(a) as obvious. Final
Act. (April 11, 2013). Appellants 1 seek reversal of this rejection pursuant to
35 U.S.C. § 134(a). We have jurisdiction. 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.
1 The Iams Co., a subsidiary of The Proctor & Gamble Co., is identified as
the real party in interest. Br. 1.
Appeal2014-004934
Application 12/261,468
BACKGROUND
The '468 Application describes a pet food composition comprising an
antioxidant component. Spec. 1. In particular, Appellants' Specification
describes the use of polyphenolic antioxidants recovered from a
decaffeination stream produced during decaffeination of coffee beans in a
pet food composition. Id. The Specification also describes methods for
making the pet food composition and methods for using the polyphenolic
antioxidants to preserve pet foods. Id. at 5.
Claim 1 is representative of the '468 Application's claims and is
reproduced below from the Claims Appendix of Appellants' Brief:
Br. 8.
1 A pet food composition comprising an antioxidant
component derived from a decaffeination stream produced
during decaffeination of coffee beans
wherein the antioxidant component comprises
chlorogenic acid, which comprises dicaffeoylquinic acids and
monocaffeoylquinic acids;
wherein the dicaffeoylquinic acids and the
monocaffeoylquinic acids are present in a ratio of from about
1.6: 1 to about 0.5: 1;
wherein the antioxidant component up-regulates
antioxidants enzymes directed off the Antioxidant Response
Element (ARE); and
wherein the antioxidant component has not been further
purified following removal of caffeine, solvent, and recovery of
solids from the decaffeination stream.
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Application 12/261,468
REJECTIONS
Claims 1-3, 10-12, 19, 20, 22-29, and 32 are rejected under
35 U.S.C. § 103(a) as unpatentable over the combination of Malnoe,2 van
der Stegen,3 Miljkovic,4 and Iwai. 5 Final Act. 2.
DISCUSSION
We begin by noting that Appellants argue for the reversal of the sole
rejection asserted by the Examiner without making specific reference to any
particular claim. We, therefore, select claim 1 as representative of the group
of claims on appeal. 37 C.F.R. § 41.37(c)(l)(iv).
Appellants argue that the rejection of claim 1 should be reversed for
either of two reasons. Br. 4--7. For the reasons set forth below, we are not
persuaded by Appellants' arguments.
First, Appellants argue that the Examiner erred by finding that the
asserted combination of references describes or suggests the use of an
antioxidant component that has not been further purified follovving removal
of caffeine, solid, and recovery of solids from the decaffeination stream. See
id. at 5---6.
The Examiner found that Malnoe describes a pet food composition
comprising coffee extracts containing polyphenols as an antioxidant
2 US 2004/0047896 Al, published March 11, 2004.
3 EP 0158381 Al, published October 16, 1985.
4 US 2006/0263508 Al, published November 23, 2006.
5 Kazuya Iwai et al., In Vitro Antioxidative Effects and Tyrosinase Inhibitory
Activities of Seven Hydroxycinnamoyl Derivatives in Green Coffee Beans,
52 J. Agric. Food Chem. 4893--4898 (2004).
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Appeal2014-004934
Application 12/261,468
component. Final Act. 2. The Examiner also found that van der Stegen
describes a process of using liquid extraction to decaffeinate green coffee
beans. Id. at 3. Van der Stegen's process creates a decaffeination solvent
stream comprising a caffeine- and chlorogenic acid-laden solvent. Id. As
the Examiner found, id., van der Stegen does not describe any further
processing of the decaffeination solvent stream. The Examiner, however,
further found that Miljkovic describes processing of a caffeine- and
chlorogenic acid-laden solvent stream into a caffeine-containing product and
a chlorogenic acid-containing product. Id.
Appellants argue that the Examiner has reversibly erred by finding
that Miljkovic describes an antioxidant component that has not been further
purified following removal of caffeine, solvent and recovery of solids from
the decaffeination stream. Br. 5---6 ("As such, Miljkovic is not understood to
teach an antioxidant component that has not been further purified following
removal of caffeine, solvent, and recovery of solids form [sic] the
decaffeination stream, as recited in independent claims 1, 11, 20, 28, and
32.").
Miljkovic describes passing an aqueous coffee extract containing
dissolved caffeine and polyphenols (i.e., anti-oxygens such as chlorogenic
acid) through a basic ion exchange column. Miljkovic at i-f 44. This step
separates the acidic polyphenols from neutral and basic compounds such as
caffeine. Id. The polyphenols are retained on the column, while the caffeine
passes through the column. Id. A sodium acetate solution is used to elute
the polyphenols from the basic ion exchange resin, yielding the sodium salts
of the acidic polyphenols, including chlorogenic acid. Id. Miljkovic then
describes treatment of the polyphenolate sodium salts with an acidic ion
exchange resin to yield an aqueous solution of coffee acid polyphenols and
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Application 12/261,468
acetic acid byproduct. Id. The aqueous solution of coffee acid phenols is
then evaporated to provide the coffee acid polyphenols. Id.
Appellants argue that the steps of eluting the polyphenols from the
basic ion exchange resin sodium acetate and then using an acidic ion
exchange resin to change the polyphenols from their sodium salt form to
their protonated acid form amount to extra purification steps, taking
Miljkovic' s process outside the scope of claim 1. See Br. 6. This argument
is not persuasive because, at the time of the invention, a person of ordinary
skill in the art would have understood that recovery of polyphenols from the
ion exchange resin and regeneration of the protonated acid form of the
polyphenols are not an additional purification step of the polyphenols, but
merely processing of the polyphenols to recover them in a desired form.
Second, Appellants argue that the Examiner reversibly erred by using
Iwai as a reference in the asserted obviousness rejection. Br. 6-7. In
particular, Appellants argue that the Examiner's reliance upon Iwai is
misplaced because Iwai describes a process using low-quality, immature
coffee beans as a starting material rather than a decaffeination stream
produced by decaffeinating coffee beans used to produce decaffeinated
coffee. Id. This argument is not persuasive because the Examiner relies
upon I wai for its comparison of the properties of mono- and dicaffeoylquinic
acids. Final Act. 4--5. The source of the mono- and dicaffeoylquinic acids
used in Iwai's studies is not relevant to the Examiner's reasons for relying
upon Iwai.
Appellants also argue that "even if Iwai were seen to motivate a
change in the desired process output of the other cited references, which is
expressly not admitted, Iwai does not seem to suggest how to do so." Br.
at 7. This argument is not persuasive because van der Ste gen describes a
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Application 12/261,468
decaffeination process that produces decaffeination solvent streams
containing mono-and dicaffeoylquinic acids within the scope of claim 1.
See van der Stegen 13, 15.
Appellants, therefore, have not demonstrated reversible error in the
Examiner's rejection of claim 1.
CONCLUSION
For the reasons set forth above, we affirm the rejection of claims 1-3,
10-12, 19, 20, 22-29, and 32.
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
kmm
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