Kraft Foods Group Brands LLC

Patent Trials and Appeals Board

May 18, 2021

2020004037 (P.T.A.B. May. 18, 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.
14/579,005 12/22/2014 Stacey Ann Hirt 1410-132891-US 3576
48940 7590 05/18/2021
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 2100
CHICAGO, IL 60603-3406
EXAMINER
LE, EMILY M
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
05/18/2021 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 STACEY ANN HIRT, ANDREW E. MCPHERSON,
JOHN B. TOPINKA, and MARIA DEL PILAR COBOS
Appeal 2020-004037
Application 14/579,005
Technology Center 1700
Before MICHAEL P. COLAIANNI, JEFFREY B. ROBERTSON, and
DEBRA L. DENNETT, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–4, 6–10, 12, 25, and 26. See Appeal
Br. 5, 9. We have jurisdiction under 35 U.S.C. § 6(b).

1 This Decision includes citations to the following documents:
Specification filed December 22, 2014 (“Spec.”); Final Office Action mailed
May 13, 2019 (“Final Act.”); Appeal Brief filed December 27, 2019
(“Appeal Br.”); Examiner’s Answer mailed April 24, 2020 (“Ans.”), and
Reply Brief filed May 7, 2020 (“Reply Br.”).
2 We use the term “Appellant” to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Kraft Foods Group
Appeal 2020-004037
Application 14/579,005

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We REVERSE.
CLAIMED SUBJECT MATTER
Appellant states the invention relates to a starch-based clouding agent
for powdered beverages. Spec. 1. Independent claim 1, reproduced below,
is illustrative of the claimed subject matter (Appeal Br., Claims Appendix
22):
1. A powdered beverage mix that forms a beverage when
reconstituted with water, the powdered beverage mix
comprising:
one or more powdered beverage ingredients; and
a powdered clouding agent in an amount of about 0.1 % to
about 4 % by total weight of the powdered beverage mix, the
powdered clouding agent consisting of a retrograded
maltodextrin that contains amylose and has a dextrose equivalent
(DE) of about 1 to about 15, wherein the clouding agent is free
of titanium dioxide; and
wherein the powdered beverage mix is free of titanium
dioxide.
Claim 7 is also independent and similarly recites a powdered beverage
mix including powdered clouding agent consisting of a retrograded
maltodextrin. Id. at 23.

Brands LLC, a subsidiary of KFG Management Services LLC, which is in
turn a subsidiary of Kraft Heinz Foods Company. Appeal Br. 3.
Appeal 2020-004037
Application 14/579,005

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Baensch US 5,759,581 June 2, 1998
Eskins US 5,882,713 Mar. 16, 1999
Gaonkar US 2005/0100649 A1 May 12, 2005
Chiu EP 0 553 368 A1 Aug. 4, 1993

REJECTIONS
1. Claims 1–4, 6–10, 12, 25, and 263 are rejected under 35 U.S.C.
§ 112(b) or 35 U.S.C. § 112 (pre-AIA), second paragraph, as
being indefinite for failing to particularly point out and
distinctly claim the subject matter which the inventor regards as
the invention. Final Act. 2; Ans. 3.
2. Claims 1, 3–4, 6–7, 9–10, 12, 25, and 26 are rejected under 35
U.S.C. § 103 as being unpatentable over Gaonkar et al. in view
of Chiu. Final Act. 3; Ans. 4–9.
3. Claims 2 and 8 rejected under 35 U.S.C. § 103 as being
unpatentable over Gaonkar, Chiu, Eskins, and Baensch. Final
Act. 8; Ans. 9–10.

3 Claims 25 and 26 depend from claims 1 and 7, respectively. These claims,
which were added by way of an Amendment filed January 25, 2019, are not
discussed in the rejection. See Final Act. 2; Ans. 3. However, because these
claims depend from claims 1 and 7, we understand the rejection to apply
equally to claims 25 and 26 and view the Examiner’s omission of these
claims from the statement of the rejection as harmless error.
Appeal 2020-004037
Application 14/579,005

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OPINION
Rejection 1
We focus our discussion on claim 1, which is sufficient for disposition
of this rejection.

The Examiner’s Rejection
In rejecting claim 1, the Examiner determined that maltodextrins have
a dextrose equivalent (DE) of 3–20, such that it is not clear how a
maltodextrin can have a DE from about 1 to about 15 as recited in claim 1.
Final Act. 2, citing Abstract from Handbook of Starch Products and their
Derivatives, M.W. Kearlsey and S.Z. Dzeidzic, eds. Ch. 3, p. 65, 1995
(“Handbook”).

Appellant’s Arguments
Appellant argues that the Specification provides multiple passages
that explain that the powdered clouding agent consists of a retrograded
maltodextrin having a DE of 1 to about 15 and that the Handbook does not
exclude maltodextrins with a DE in the range recited in claim 1. Appeal Br.
20, citing Spec. ¶¶ 7, 13, 32; Reply Br. 8–10.

Issue
Did the Examiner err in determining that claim 1 is indefinite for
reciting retrograded maltodextrins having a DE less than 3?

Appeal 2020-004037
Application 14/579,005

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Discussion
We are persuaded by Appellant’s arguments. During examination,
“[a] claim is indefinite when it contains words or phrases whose meaning is
unclear.” In re Packard, 751 F.3d 1307, 1310, 1314 (Fed. Cir. 2014 (per
curiam) (citing Manual of Patent Examining Procedure § 2173.05).
The Specification describes retrograded maltodextrins having a
dextrose equivalent (DE) of about 1 to about 15, and further describes dent
corn based maltodextrins and waxy corn based maltodextrins with a DE of
about 1 to about 5. Spec. ¶¶ 7, 41. The Specification describes a particular
example of a waxy corn based maltodextrin having a DE of 1
(STARDRI@1). Id. ¶¶ 42, 44, 46, 59. The Handbook, cited by the
Examiner, discloses that Maltodextrins “are by definition starch hydrolysates
. . . with a DE of less than 20.” This disclosure is consistent with the express
discussion in the Specification.
Although the Handbook further discloses “[t]he definition of
maltodextrins can thus be taken further as those materials having a dextrose
equivalent of between 3 and 20,” we do not agree with the Examiner that
claim 1 is unclear. That is, in view of the broad definition in the Handbook
and the express discussion in the Specification discussed above, we are of
the view that one of ordinary skill in the art would understand the scope of
claim 1 with sufficient clarity. In re Moore, 439 F.2d 1232, 1235 (CCPA
1971)(the test for compliance for 35 U.S.C. § 112, second paragraph, is
whether the claims set out and circumscribe a particular area with a
reasonable degree of precision and particularity when read in light of the
application disclosure as they would be interpreted by one of ordinary skill
in the art.).
Appeal 2020-004037
Application 14/579,005

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As a result, we reverse the Examiner’s decision to reject independent
claim 1, as well as independent claim 7, and the claims dependent therefrom.

Rejection 2
We confine our discussion to claim 1, which is sufficient for
disposition of this rejection.

The Examiner’s Rejection
In rejecting claim 1 as unpatentable over Gaonkar and Chiu, the
Examiner found Gaonkar discloses a mix and beverage including a
composite particle, which the Examiner found corresponds to the recited
clouding agent. Final Act. 3–6. The Examiner found Gaonkar does not
disclose a retrograded maltodextrin. Id. at 6.
The Examiner found Chiu discloses retrograded maltodextrins that are
more stable to precipitation. Final Act. 7. As such, the Examiner
determined it would have been obvious to have modified the general
maltodextrins disclosed in Gaonkar to substitute or add the specific
retrograded maltodextrin of Chiu for the benefits taught therein. Id.

Appellant’s Arguments
Appellant argues, inter alia, that claim 1 requires the powdered
clouding agent be made up of only retrograded maltodextrin, whereas
Gaonkar discloses composite particles that include water-soluble core
particles, a coating on the core particles that comprises a matrix material,
and a gas-forming substance. Appeal Br. 13–14.

Appeal 2020-004037
Application 14/579,005

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Issue
Did the Examiner err in determining that the combination of Gaonkar
and Chiu would have rendered obvious a “powdered clouding agent
consisting of a retrograded maltodextrin that contains amylose” as recited in
claim 1?

Discussion
We are persuaded by Appellant’s arguments. Gaonkar discloses
“composite particles” that include at least a water-soluble particle core and a
coating applied to the water-soluble particle core, where the coating contains
a material that forms carbon dioxide upon contact with an edible acid
dispersed in a beverage. Gaonkar ¶ 20. Gaonkar discloses the gas-
producing substance may be encapsulated in a slow-dissolving matrix
material, where the matrix material may be a low DE maltodextrin. Id.
¶¶ 24, 31. Thus, Gaonkar requires the presence of other materials besides
maltodextrins, namely a water-soluble particle core and a gas-producing
substance.
The Examiner’s position appears to be that because claim 1 uses the
open transitional phrase “comprising,” the claim is open to additional
clouding agents, notwithstanding the use of the closed transitional phrase
“consisting of” in reference to the powdered clouding agent. Ans. 12–13.
However, as discussed above, the Examiner expressly identified Gaonkar’s
composite particle as the “powdered clouding agent” recited in claim 1.
Thus, because claim 1 recites “a powdered clouding agent . . . the
powdered clouding agent consisting of a retrograded maltodextrin that
contains amylose,” we are of the view that additional components that would
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Application 14/579,005

8
make up the powdered clouding agent, such as the water-soluble particle
core and gas-producing substance disclosed in Gaonkar are excluded from
the “powdered clouding agent” element of the claim. See MPEP
§ 2111.03(II) (“[w]hen the phrase ‘consists of’ appears in a clause of the
body of a claim, rather than immediately following the preamble, there is an
‘exceptionally strong presumption that a claim term set off with ‘consisting
of’ is closed to unrecited elements.” quoting Multilayer Stretch Cling Film
Holdings, Inc. v. Berry Plastics Corp., 831 F.3d 1350, 1359 (Fed. Cir.
2016)).
Accordingly, because the Examiner’s combination relies on
Gaonkar’s composite particle as the powdered clouding agent, which is
excluded by claim 1, and Chiu is only relied upon for replacing the low DE
maltodextrins in Gaonkar’s matrix material with retrograded maltodextrin,
we reverse the Examiner’s rejection of claim 1.

Rejection 3
In rejecting claims 2 and 8, which depend from claims 1 and 7,
respectively, the Examiner relied on the same base combination of Gaonkar
and Chiu. See Final Act. 8–9. Accordingly, we reverse the Examiner’s
rejection of claims 2 and 8 for similar reasons as discussed above with
respect to claim 1.
Appeal 2020-004037
Application 14/579,005

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DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 6–10,
12, 25, 26
112(b) Indefiniteness 1–4, 6–10,
12, 25, 26
1, 3, 4, 6, 7,
9, 10, 12,
25, 26
103 Gaonkar, Chiu 1, 3, 4, 6, 7,
9, 10, 12,
25, 26
2, 8 103 Gaonkar, Chiu,
Eskins, Baensch
2, 8
Overall
Outcome
1–4, 6–10,
12, 25, 26

REVERSED