International Flavors & Fragrances Inc.Download PDFPatent Trials and Appeals BoardMay 22, 20202019004427 (P.T.A.B. May. 22, 2020) Copy Citation 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. Appeal 2019-004427 Application 14/208,463 2 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 Appeal 2019-004427 Application 14/208,463 3 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. Appeal 2019-004427 Application 14/208,463 4 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 Appeal 2019-004427 Application 14/208,463 5 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. Appeal 2019-004427 Application 14/208,463 6 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 Copy with citationCopy as parenthetical citation