Ex Parte Wittorff et al

Patent Trial and Appeal Board

Jun 28, 2016

11664984 (P.T.A.B. Jun. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
11/664,984 0410612007
24126 7590 06/30/2016
ST ONGE STEW ARD JOHNSTON & REENS, LLC
986 BEDFORD STREET
STAMFORD, CT 06905-5619
Helle Wittorff
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.
05198-P0021A 5957
EXAMINER
DEES, NIKKI H
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
06/30/2016 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):
patentpto@ssjr.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HELLE WITTORFF and KIRSTEN LUND
Appeal2014-009166
Application 11/664,984
Technology Center 1700
Before TERRY J. OWENS, MICHAEL P. COLAIANNI, and
JENNIFER R. GUPTA, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner's
rejection of claims 1, 3, 7-15, 18, 19, 21-23, 25-27, and 29-32. We have
jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellants claim a confectionary product and a method for
making it. Claim 1 is illustrative:
1. Confectionery product comprising
a polymer system,
flavor and
sweetener,
wherein less than 10% by weight of said polymer system
comprises polymer having a molecular weight (Mw) of greater
than about 50000 g/mol,
Appeal2014-009166
Application 11/664,984
wherein said confectionery product comprises at least
one low molecular weight PV Ac having a molecular weight
(Mw) of about 2000 to 40000 g/mol in an amount of from about
70 to 99 % by weight of the polymer system, wherein said
confectionery product comprises:
the polymer system in an amount of from about 5 to
about 99% by weight,
flavor in an amount of about 0.001 to about 30% by
weight and
sweeteners in an amount of about 5% to about 80% by
weight selected from the group consisting of xylitol and
sorbitol,
wherein said confectionary product is not center-filled,
wherein substantially the only water insoluble polymers
present in the confectionary product are one or more polyvinyl
acetates; and
wherein the confectionery product is substantially free of
filler.
Cherukuri (Cherukuri '510)
Cherukuri (Cherukuri '620)
The References
us 4,238,510
us 4,721,620
The Rejections
Dec. 9, 1980
Jan.26, 1988
The claims stand rejected as follows: claims 1, 3, 7-15, 18, 19, 21-23,
25, 26, and 29-32 under 35 U.S.C. § 103 over Cherukuri '620 and claim 27
under 35 U.S.C. § 103 over Cherukuri '620 in view ofCherukuri '510. 1
1 A provisional obviousness-type double patenting rejection of claims 1, 3,
7-15, 18, 19, 21-23, 25-27, and 29-31 over claims 1--46, 49-56, and 58---68
of Application No. 11/664,985 (Ans. 6) is moot because that application has
been abandoned (as of April 28, 2016).
2
Appeal2014-009166
Application 11/664,984
OPINION
We reverse the rejections. We need address only the independent
claims, i.e., claims 1, 30, and 31.2 Those claims require a polymer system
comprising about 70 to 99 wt% of at least one low molecular weight
polyvinyl acetate (PV Ac) having a molecular weight of about 2000 to
40000 g/mol. 3
Cherukuri '620 discloses a bubble gum base composition comprising
up to 14 wt% of a polyvinyl acetate having a low molecular weight of about
12,000 to about 16,000 and up to 35 wt% of a polyvinyl acetate having a
medium molecular weight of about 35,000 to about 55,000 (col. 2, 1. 62
- col. 3, 1. 6).
Setting forth a prima facie case of obviousness requires establishing
that the applied prior art would have provided one of ordinary skill in the art
with an apparent reason to modify the prior art to arrive at the claimed
invention. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
2 The Examiner does not rely upon Cherukuri '510 for any disclosure that
remedies that deficiency in Cherukuri '620 as to the independent claims
(Ans. 6).
3 The Appellants indicate that their term "polymer system" corresponds to
the conventional term "gum base" (Spec. 19:21-24). The Appellants state:
According to the invention, a toffee-like chewing gum has been
obtained. The backbone of the product is a polymer system,
basically equivalent in function to the gum base of conventional
chewing gum although with significant textural differences.
[Spec. 2:4--7]
The toffee texture of the polymer based confectionery product
according to the invention is obtained through a substantial
amount of polyvinyl acetate and avoiding use of substantial
amounts of high molecular weight polymers, in particular
elastomers. [Spec. 2: 18-21]
3
Appeal2014-009166
Application 11/664,984
The Examiner asserts that "[a]s the low Mw component is
approximately 30% of the polymer system (Cherukuri ['620] col. 4 lines 1-
28), and the Mw of the medium molecular weight range overlaps the
claimed Mw, it is considered obvious to provide a polymer system as
claimed, with about 70-99% by weight of the polymer system comprising at
least one polyvinyl acetates having a molecular weight as claimed based on
the teachings of Cherukuri ['620]" (Ans. 11).
The portion of Cherukuri '620 relied upon by the Examiner discloses
that the upper limit of the amount of lower molecular weight component is
14 wt% (col. 4, 11. 6-7) of the gum base, not approximately 30 wt% as
asserted by the Examiner.
The Examiner has not established that Cherukuri '620's disclosure of
a maximum combined amount of low and medium molecular weight
polyvinyl acetates of 49 wt% (col. 2, 1. 67 - col. 3, 1. 4) would have provided
one of ordinary skill in the art with an apparent reason to use an amount
within the Appellants' recited range of about 70 to 99 wt%. Thus, the
Examiner has not established a prima facie case of obviousness of the
Appellants' claimed invention.
DECISION/ORDER
The rejections of claims 1, 3, 7-15, 18, 19, 21-23, 25, 26, and 29-32
under 35 U.S.C. § 103 over Cherukuri '620 and claim 27 under
35 U.S.C. § 103 over Cherukuri '620 in view of Cherukuri '510 are
reversed.
It is ordered that the Examiner's decision is reversed.
REVERSED
4