2020002183 (P.T.A.B. Jun. 28, 2021)

Givaudan, S.A.

Patent Trials and Appeals BoardJun 28, 2021

2020002183 (P.T.A.B. Jun. 28, 2021)

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. 14/699,047 04/29/2015 Frans WITTEVEEN GIV.P30692A 5941 23575 7590 06/28/2021 CURATOLO SIDOTI CO., LPA 24500 CENTER RIDGE ROAD, SUITE 280 CLEVELAND, OH 44145 EXAMINER TRAN, LIEN THUY ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 06/28/2021 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): docket@patentandtm.com pair@patentandtm.com sidoti@patentandtm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte FRANS WITTEVEEN Appeal 2020-002183 Application 14/699,047 Technology Center 1700 Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and N. WHITNEY WILSON, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s July 23, 2019 decision to finally reject claims 1–9, 12, and 13 (“Final Act.”). We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Givaudan S.A. (Appeal Br. 3). Appeal 2020-002183 Application 14/699,047 2 CLAIMED SUBJECT MATTER The claims are directed to an encapsulated flavor, comprising a core material, a flavor material, and a coating material (Abstract). The claimed product is said to be a good alternative to gelatin-based encapsulated flavors, which are difficult or impossible to consume for vegetarians and persons with certain religious beliefs (Spec. 1). Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A gelatin-free encapsulated flavor, comprising flavor granules composed of a gelatin-replacer core material, flavor material on the core material and a coating material on the flavor granules, the gelatin-replacer core material comprising a finely-divided native starch, xanthan gum and konjac, the combined proportions of the xanthan gum and konjac by weight of the encapsulated flavor comprising from about 4% to about 16%, and the weight ratio of xanthan gum to konjac comprising from about 20:80 to about 80:20, wherein the coating material is selected from the group consisting of cellulosic materials and starch-based materials, and wherein the flavor material contains an emulsifier comprising polyoxyethylene sorbitan monooleate. REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Ciliberto et al. US 4,288,460 September 8, 1981 Dusterhoft et al. US 2006/0110494 A1 May 25, 2006 Spence et al. US 2011/0027412 A1 February 3, 2011 REJECTION Claims 1–9, 12, and 13 are rejected under 35 U.S.C. §103 as unpatentable over Dusterhoft in view of Spence and Ciliberto. Appeal 2020-002183 Application 14/699,047 3 DISCUSSION The Examiner’s findings are set forth at pages 2–8 of the Final Action and include the following. Dusterhoft discloses encapsulated functional bakery ingredients which are in the form of granules having the functional bakery ingredient and a lipophilic substantially continuous layer encapsulating the core (Final Act. 2). The Examiner also finds that the encapsulating layer contains emulsifiers as a release agent, and that the core comprises hydrocolloids (such as xanthan gum, guar gum, etc.), starches, flavor, sugar, etc. (id.). The Examiner further finds that Dusterhoft does not disclose the core containing konjac and the ratio of xanthan and konjac, the amounts of xanthan and konjac, and the emulsifier and function of replacing gelatin as an encapsulant (Final Act. 2–3). The Examiner finds that Spence discloses encapsulated compositions comprising a gelling dietary fiber which includes konjac and xanthan gum in amounts from about 1–15% (Final Act. 3). The Examiner further finds, inter alia, that Ciliberto discloses a non- caking, water soluble, granular coated food ingredient, where the coating includes polyoxyethylene sorbitan monooleate (Final Act. 3). The Examiner further finds that Ciliberto teaches that its core particles are strongly protected against caking or degradation stemming from atmospheric moisture or oxidation (id.). The Examiner determines that it would have been obvious to use Ciliberto’s coating in connection with Dusterhoft’s core materials to prevent the particles from caking during storage (Final Act. 4). Appellant makes a number of arguments urging reversal of the rejection. Appeal 2020-002183 Application 14/699,047 4 First, Appellant contends that the Examiner has not adequately established a motivation to combine Dusterhoft and Ciliberto because the proposed reason to combine “is not sufficiently tied to the alleged benefit” of the combination (Appeal Br. 8). The Examiner’s rationale for combining Ciliberto’s coating material, which contains polyoxyethylene sorbitan monooleate, and Dusterhoft’s core materials, in order to prevent the particles from caking during storage (Final Act. 4). Appellant argues that Ciliberto specifically teaches that the polyoxyethylene sorbitan monooleate is an optional component in a multi-component protective coating and, therefore, that a person of skill in the art would have had no reason to use polyoxyethylene sorbitan monooleate as Dusterhoft’s emulsifier in order to prevent caking (Appeal Br. 9.) Moreover, as explained by Appellant (Reply Br. 5), Ciliberto specifically teaches that the function of the polyoxyethylene sorbitan monooleate is to provide solubility of the particles, not to prevent caking or provide stability: Generally, the polyoxyethylene chain will be formed from about 20 mols of ethylene oxide per mol of sorbitol in order to provide the desired solubility characteristics. The use of lecithin, the oleate ester or the sterate ester in accordance with the invention is critically important. Use of other fatty acid derivatives have not been found to provide the needed solubility despite their surface active properties. (Ciliberto 3:2–10, emphasis added). Moreover, Ciliberto explicitly states that “the flow promoter is necessary to prevent the coated acid crystals from adhering to each other, thereby facilitating handling of the material” (Ciliberto 3:22–24), which suggests that it is the flow promoter which provides the anti-caking effect. Appeal 2020-002183 Application 14/699,047 5 To the extent that the Examiner finds that a person of skill in the art would have combined all of Ciliberto’s coating components (comprising (1) a fatty acid derivative selected from the group consisting of polyoxyethylene sorbitan monooleate, polyoxyethylene sorbitan monostearate and lecithin, (2) propylene glycol, and (3) a flow agent) with Dusterhoft (Ans. 8), we agree with Appellant (Reply Br. 6) that such a combination would have provided no additional benefits over what is already taught by Dusterhoft. That is, Dusterhoft teaches that its product is free flowing and stable (Dusterhoft ¶ 30), so that there would be no additional benefit by providing an additional multi-component product to provide more of the same characteristics. Thus, we agree with Appellant that the Examiner’s rationale for combining Ciliberto and Dusterhoft is not adequately supported by the evidence of record. It is well established that in order to show unpatentability under §103, the Examiner must articulate some “reasoning with some rational underpinning to support the legal conclusion of obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). This reasoning must show that “there was an apparent reason to combine the known elements in the fashion claimed.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). In this instance, we determine that the preponderance of the evidence of record does not support the Examiner’s determination that it would have been obvious to combine the polyoxyethylene sorbitan monooleate disclosed by Ciliberto with Dusterhoft’s system. The reasoning offered by the Examiner is not sufficiently supported by the evidence. Accordingly, we reverse the rejection. Appeal 2020-002183 Application 14/699,047 6 CONCLUSION The Examiner’s rejection is reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–9, 12, 13 103 Dusterhoft, Spence, Ciliberto 1–9, 12, 13 REVERSED