International Flavors & Fragrances Inc.

Patent Trials and Appeals Board

May 22, 2020

14208463 - (D) (P.T.A.B. May. 22, 2020)

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.
14/208,463 03/13/2014 Lewis Michael Popplewell IFF0049US.P2 1086
23679 7590 05/22/2020
Licata & Tyrrell P.C.
66 East Main Street
Marlton, NJ 08053
EXAMINER
DEES, NIKKI H
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
05/22/2020 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LEWIS MICHAEL POPPLEWELL, KEITH THOMAS HANS,
LULU HENSON, CHRISTOPHER THOMAS LAVALLEE,
ERIC JESSE WOLFF, MARIA WRIGHT, DANIEL KAIPING LEE, and
RONALD GABBARD

Appeal 2019-004427
Application 14/208,463
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, JAMES C. HOUSEL, and
DONNA M. PRAISS, Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 17–19 and 26. We have jurisdiction
under 35 U.S.C. § 6(b). We AFFIRM.

1 In this Decision, we refer to the Specification filed Mar. 13, 2014
(“Spec.”), the Final Office Action dated Nov. 29, 2018 (“Final Act.”), the
Appeal Brief filed Feb. 11, 2019 (“Appeal Br.”), the Examiner’s Answer
dated Mar. 20, 2019 (“Ans.”), and the Reply Brief filed May 15, 2019
(“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies International Flavors & Fragrances
Inc. as the real party in interest. Appeal Br. 1.
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STATEMENT OF THE CASE
The invention relates to optically clear beverage liquid concentrates
and final consumable beverages. Spec. ¶¶ 2, 14. According to the
Specification, the beverage industry has been challenged to produce
nanoemulsions capable of delivering optically clear consumable beverages
that are propylene glycol-free flavored liquid concentrates and final ready-
to-drink beverages. Id. ¶ 2. The Specification describes a stable spray-dried
flavor composition comprising a flavor and an optional surfactant produced
by spray drying the flavor and optional surfactant in a spray dryer having an
inlet temperature of less than 100ºC and an air inlet dew point -10ºC to 5ºC.
Id. ¶ 15. The Specification discloses suitable emulsifiers or surfactants
include, among others, polysorbates, polyglycerol fatty acid esters, and the
like. Id. ¶ 21.
Claim 17, reproduced below, is the sole independent claim in this
appeal and illustrative of the subject matter on appeal (emphasis added).
17. An optically clear liquid beverage or optically clear
liquid beverage concentrate comprising a spray-dried flavor
composition, said spray-dried flavor composition produced by
spray drying a flavor that contains volatile compounds; a carrier
material; and polyglyceryl-10 oleate, polyglyceryl-10
caprylate/caprate or polyoxyethylene (20) sorbitan
monostearate in a spray dryer having an inlet temperature of
less than 100°C and an air inlet dew point -10°C to 5°C.
Appeal Br. 14 (Claims Appendix).

ANALYSIS
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
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thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the appealed rejections.
The Examiner rejects claims 17–19 and 26 as unpatentable under 35
U.S.C. § 103 over the teachings of Comstock (WO 2008/039564 A1,
published Apr. 3, 2008) for the reasons stated in the Final Office Action.
Final Act. 3–11.
Appellant argues claims 17–19 and 26 subject to the rejection over
Comstock as a group. Appeal Br. 7–13. Accordingly, claims 18, 19, and 26
stand or fall together with claim 17 from which they depend. 37 C.F.R. §
41.37(c)(1)(iv).
Appellant contends the Examiner erred in rejecting claim 17 because
(1) Comstock does not select the specifically recited polyglyceryl-10 oleate
or polyoxyethylene (20) sorbitan monostearate from amongst the numerous
emulsifiers encompassed by Comstock’s general disclosure of polyglycerol
esters of oleic acid and polysorbates and (2) Comstock does not recognize
the problem solved by Appellant of selecting an emulsifier which reduces
the need for high pressure homogenization in the preparation of flavor
nanoemulsions to be spray dried. Appeal Br. 7–9. According to Appellant,
the Examiner failed to provide a prima facie case of obvious because the
rejection lacks an explanation why a person having ordinary skill in the art
would have selected the specific emulsifiers claimed with a reasonable
expectation of success. Id. at 10–13.
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Appellant’s arguments do not persuade us that the Examiner
reversibly erred in rejecting claim 17 as obvious over Comstock. As the
Examiner points out (Ans. 5–6), and Appellant does not rebut, claim 17 is
directed to a product, not a method, and the claim does not preclude
subjecting the product to high pressure homogenization. The Examiner also
points out (Ans. 4–5) that Appellant provides no objective evidence that the
problem solved by Appellant’s invention was art recognized and had long
gone unsolved by others. Appellant’s assertion (Reply Br. 2) that the
Specification constitutes such objective evidence is not persuasive as the
Specification provides neither details nor corroboration of the asserted
problem. See Spec. ¶ 2. It is insufficient to assert the beverage industry has
been challenged to produce a propylene glycol-free flavored liquid
concentrate that is solved by the claimed invention without objective
evidence to support the argument. Establishing long-felt need requires
objective evidence that an art recognized problem existed in the art for a
long period of time without solution. In particular, the evidence must show
that the need was a persistent one that was recognized by those of ordinary
skill in the art. See In re Gershon, 372 F.2d 535, 539 (CCPA 1967).
Appellant does not dispute the Examiner’s finding (Ans. 7) that
Comstock’s disclosure of polysorbates encompasses the claimed
polyoxyethylene (20) sorbitan monostearate and Comstock’s disclosure of
polyglycerol ester of oleic acid encompasses the claimed polyglyceryl-10
oleate and polyglyceryl-10 caprylate/caprate. Appellant argues (Appeal Br.
10; Reply Br. 3) Comstock’s examples indicate a preference for other
emulsifiers leading away from the claimed emulsifiers. We do not find this
argument persuasive of error because in a determination of obviousness, a
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reference may be relied upon for all that it would have reasonably suggested
to one having ordinary skill in the art. Merck & Co. v. Biocraft Labs., 874
F.2d 804, 807 (Fed. Cir. 1989) (“That the [prior art] patent discloses a
multitude of effective combinations does not render any particular
formulation less obvious.”). Moreover, “a reference is not limited to the
disclosure of specific working examples.” In re Mills, 470 F.2d 649, 651
(CCPA 1972).
We are of the view that the record supports the Examiner’s underlying
factual findings and determination that it would have been obvious to a
person having ordinary skill in the art to have selected a specific
polyglycerol ester of oleic acid or polysorbate to provide a clear beverage or
beverage concentration with a reasonable expectation of success based on
Comstock’s teaching that the genera of emulsifiers are suitable for such
purpose. Comstock ¶¶ 9, 11, 13. Appellant does not direct us to any
evidence that the specifically recited emulsifiers produce unexpected results.
Instead, the Specification also generally discloses “suitable emulsifiers
include, but are not limited to, polysorbates . . . and the like.” Spec. ¶ 21.
In sum, Appellant’s arguments are not persuasive of error in the
Examiner’s conclusion that it would have been obvious to select a
polysorbate (e.g., polyoxyethylene (20) sorbitan monostearate) or a
polyglycerol ester of oleic acid (e.g. polyglyceryl-10 oleate) to include in a
flavor composition comprising an emulsifier and a carrier material as taught
by Comstock with a reasonable expectation it would function effectively in
Comstock’s composition. Accordingly, we affirm the Examiner’s rejection
of claim 17 under 35 U.S.C. § 103 over Comstock.

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CONCLUSION
For these reasons, and the reasons provided by the Examiner in the
Final Office Action and the Answer, we uphold the Examiner’s rejection of
claims 17–19 and 26 under 35 U.S.C. § 103 as obvious over Comstock.
In summary:
Claims
Rejected 35 U.S.C. § References/Basis Affirmed Reversed
17–19, 26 103 Comstock 17–19, 26

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)(iv).

AFFIRMED