KURT VILLWOCK et al.

Patent Trials and Appeals Board

Sep 30, 2021

2020005450 (P.T.A.B. Sep. 30, 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.
15/625,123 06/16/2017 KURT VILLWOCK 601_024US1 8673
97462 7590 09/30/2021
Mark A. Litman & Associates, P.A.
7001 Cahill Road, Ste. 15A
Edina, MN 55439
EXAMINER
GEORGE, PATRICIA ANN
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
09/30/2021 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 KURT VILLWOCK and BROCK LUNDBERG
Appeal 2020-005450
Application 15/625,123
Technology Center 1700
Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and
SHELDON M. MCGEE, Administrative Patent Judges.
MCGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–5, 7–15, 24, 25, and 27.
We have jurisdiction. 35 U.S.C. § 6(b).
We affirm.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Fiberstar, Inc.
Appeal Br. 4.
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Application 15/625,123
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BACKGROUND
The subject matter on appeal is directed to controlling the thickening
of tomato sauces under different pressure mixing conditions. Spec. 1:7–9.
Controlling the balance between moistness, consistency, viscosity, and
liquidity of food during its preparation is said to be complex; adjustment of
one factor may create imbalance in another factor. Id. at 1:15–20.
Balancing these factors is purportedly more complicated with respect to
tomato sauces because of the acidity and solids in tomatoes and tomato
pastes. Id. at 1:20–24.
The claimed method alters the thickening of tomato sauces by
adjusting the viscosity, binding any freewater/oil of a tomato sauce, and
replacing tomato solids with highly refined cellulose (“HRC”). Id. at 6:14–
15; claim 1.
Independent claim 1 and dependent claim 7, reproduced below, are
illustrative:
1. A method for adjusting Bostwick consistency and binding
of a tomato sauce comprising:
a) mixing tomato paste solids with water;
b) mixing into the mixed tomato paste solids and water a
highly refined cellulose fiber or highly refined cellulose particle
having a water holding capacity of at least 5 g H2O/g dry highly
refined cellulose fiber or highly refined cellulose particle by
agitation until uniformly mixed into a pre-pasteurization mixture
comprising the tomato paste solids and at least 0.2% by weight
of the highly refined cellulose to total weight of the tomato paste
solids;
c) heating the pre-pasteurization mixture to pasteurization
conditions until at least 160 [o]F to form a hot pasteurized
mixture;
d) while the hot pasteurized mixture is over 120[ o]F,
moving the hot pasteurized mixture through a homogenizer and
homogenizing the hot pasteurized mixture through a
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homogenizer and homogenizing [t]he hot pasteurized mixture
under pressure; and
e) wherein increasing the pressure during homogenization
lowers the Bostwick consistency to less than 5.0 to create a
finished tomato sauce.
7. A method of claim 1 where the tomato sauce made with
the at least 0.2% highly refined cellulose fiber or highly refined
cellulose particle has at least 0.6% by weight of the highly
refined cellulose fiber and has at least 1% less water separation
and/or oil separation compared to a control tomato sauce made
with no highly refined cellulose by:
f) mixing a volume of tomato paste solids with water;
g) mixing the mixed volume of tomato paste solids by
agitation until uniformly mixed into a pre-pasteurization mixture
comprising the volume of tomato paste and water;
h) heating the pre-pasteurization mixture to pasteurization
conditions until at least 160 [o]F to form a hot pasteurized
mixture;
i) while the hot pasteurized mixture is over 120[ o]F, move
the hot pasteurized mixture through a homogenizer and
homogenizing the hot pasteurized mixture; and
j) increasing pressure during homogenization.
REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Gallaher US 5,965,190 Oct. 12, 1999
Lundberg US 2014/0363560 A1 Dec. 11, 2014
Liu CN 104366027 A Feb. 25, 2015
Tomato Products, Process Bulletin, issued: 02/2009, 3064-01-07-2008-
US, © 2008, 2012; SPX Corp. (“SPX”).
Using Proper Starting Techniques for Gaulin Homogenizers & High
Pressure Pumps Within a Production or Pilot Plant Process System,
Service Bulletin #18, issued: 02/2009, 3143-01-08-2008-US, © 2008,
2012; SPX Corp. (“SPX2”).
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REJECTIONS
On appeal, the Examiner maintains the following rejections under
35 U.S.C. § 103:
I. Claims 1–4, 7, 10–15, 24, 25, and 27 over Gallaher in view of
Lundberg and SPX; and
II. Claims 5, 8, and 9 over Gallaher, Lundberg, and SPX in view
of Liu.
Final Act. 3, 11; Ans. 4, 13.
OPINION
We review the appealed rejections for reversible error based on the
arguments and evidence presented by Appellant. 37 C.F.R.
§ 41.37(c)(1)(iv); Cf. 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) (explaining that even if the Examiner had failed to make a prima
facie case, “it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”).
For Rejection I, Appellant separately argues claims 1 and 7. Appeal
Br. 13–25. Therefore, we select claim 1 as representative of rejected claims
1–4, 10–15, 24, 25, and 27 and decide the appeal of those claims on the basis
of claim 1 alone. 37 C.F.R. § 41.37(c)(1)(iv). Based on Appellant’s lack of
separate, substantive argument directed to Rejection II of claims 5, 8, and 9,
these claims will likewise stand or fall with claim 1. Appeal Br. 25–26. We
address claim 7 separately.
We affirm the Examiner’s rejection of claims 1 and 7 for the reasons
expressed in the Final Office Action and the Answer. Final Act. 3–13; Ans.
15–33. We add the following only for emphasis.
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Claim 1
In rejecting claim 1, the Examiner finds that Gallaher discloses all the
steps and limitations recited in the claimed method except for: (i) the mixing
of an HRC thickener having a requisite water holding capacity with
Gallaher’s tomato paste and water mixture and (ii) the concomitant decrease
in a tomato sauce’s Bostwick consistency after increasing the pressure
during the homogenization step. Final Act. 3–8. To address these
differences between Gallaher and claim 1, the Examiner turns to Lundberg
and SPX. Id. at 4–8.
With respect to missing limitation (i), the Examiner finds Lundberg
discloses methods of making sauces comprising an HRC thickener having
the required water holding capacity. Id. at 4–5. The Examiner determines
that it would have been obvious to modify Gallaher’s method of making
sauce comprising thickeners with Lundberg’s HRC thickener because
Lundberg teaches that HRC is suitable for a similar intended use. Id. at 5
(citing MPEP 2144.07).
Regarding missing limitation (ii), the Examiner finds SPX discloses
homogenizing tomato sauces and that “higher process pressures produce
lower Bostwick values and lower process pressures produce higher Bostwick
values.” Id. at 8. Based on this disclosure, the Examiner concludes that it
would have required only routine experimentation “to determine the optimal
. . . Bostwick value and homogenization pressure used in the modified
process of Gallaher in view of SPX . . . to impart the desired properties” in
the finished tomato sauce. Id.
Appellant repeatedly contends that the cited prior art fails to disclose
that HRC is added to Gallaher’s tomato paste and water mixture prior to
pasteurization and homogenization. Appeal Br. 12, 13–14; Reply Br. 2–8.
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Specifically, Appellant argues that Gallaher exemplifies the addition of a
non-HRC starch thickener to a tomato sauce after the sauce has already
undergone pasteurization and homogenization. Appeal Br. 16–17; Reply Br.
2–5.
We find no fault in the Examiner’s analysis because Gallaher teaches
that tomato pastes, purees, sauces, and juices may contain thickeners as an
additive. See Gallaher 1:33–36; 1:40–42. Gallaher also teaches and
illustrates that “a tomato-based slurry or sauce is typically prepared from a
tomato paste, puree or juice” in a mixing step 12, which occurs prior to
pasteurization and homogenization steps. Id. at 5:20–22; Fig. 1. Gallaher
refers to “additional components,” including “components such as spices,
salts, sweeteners or other such additives,” which may be included in a
tomato-based product. Id. at 5:29–32 (emphasis added). Gallaher teaches
that “[t]hose additional components may . . . be separately added during the
mixing step 12 or after the tomato sauce or slurry is homogenized.” Id. at
5:32–34. Therefore, based on the combined disclosures of Gallaher and
Lundberg, the skilled artisan would have reasonably inferred that additional
components, such as Lundberg’s HRC thickener, may be added during
Gallaher’s mixing step 12 before pasteurization and homogenization as
recited in claim 1. Ans. 16; Gallaher, Fig. 1. “It is well settled that a prior
art reference is relevant for all that it teaches to those of ordinary skill in the
art.” In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992). Therefore, we
decline to read Gallaher’s disclosure as narrowly as Appellant urges.
Appellant also argues that the cited prior art fails to teach increasing
the pressure on the pasteurized HRC, tomato paste, and water mixture during
homogenization. Appeal Br. 19–20. Applicant contends that the
Examiner’s assumption that pressure is inherently increased during
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homogenization is refuted by Wikipedia entries, which purportedly disclose
that pressure is not established at a fixed level when homogenizing milk
products. Id. at 20.
We, however, discern no reversible error in the Examiner’s finding
that SPX2 evinces that the starting pressure measure in psi of an APV
homogenizer is 0 and is increased gradually thereafter to the desired process
pressure measured in psi. Ans. 22–24. We note that SPX is directed to the
use of APV homogenizers to homogenize tomato sauces. SPX Title. On
balance, the SPX and SPX2 evidence relied-upon by the Examiner is more
germane to the issues raised in the present appeal than Appellant’s
Wikipedia entries regarding milk homogenization pressures.
Appellant argues that the Examiner has not presented any evidence
that adding a cellulosic thickener before homogenization and pasteurization
and increasing pressure during homogenization results in a reduced
Bostwick consistency. Appeal Br. 21; Reply Br. 5.
We are not persuaded by Appellant’s argument that the combined
teachings do not disclose the relationship between “increasing the pressure
during homogenization” and “lower[ing] the Bostwick consistency to less
than 5.0” as recited in claim 1. Based on SPX’s graph plotting Bostwick
values of a tomato sauce as homogenization pressures are increased, the
skilled artisan would have recognized that increasing the pressure during
homogenization results in the reduction of a tomato sauce’s Bostwick
consistency. SPX p. 3. In other words, the Examiner’s finding that the
Bostwick value of a tomato sauce is result-effective vis-à-vis the
homogenizing pressure applied thereto is well-supported. Ans. 24.
“[D]iscovery of an optimum value of a result effective variable in a known
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process is ordinarily within the skill of the art.” In re Boesch, 617 F.2d 272,
276 (CCPA 1980).
Appellant also argues that the Specification’s Example 2 evinces
unexpected results derived from “the combination of the materials and
concentrations and conditions recited in the claims.” Appeal Br. 22.
Appellant points to the Specification’s description that “[a]n unexpected
relationship occurred between the homogenization pressure and the
thickness of the paste.” Id. (citing Spec. 30:18–19). This argument is
unpersuasive for several reasons.
First, such results are not unexpected in view of SPX’s teachings
discussed supra. SPX, p. 3.
Moreover, “[o]bjective evidence of non-obviousness must be
commensurate in scope with the claims which the evidence is offered to
support.” In re Tiffin, 448 F.2d 791, 792 (CCPA 1971). Here, Appellant’s
claim 1 encompasses the following ranges: (i) at least 0.2% by weight of the
HRC to total weight of the tomato paste, (ii) heating the pre-pasteurization
mixture to pasteurization conditions until at least 160 oF, and (iii)
homogenizing the hot pasteurized mixture under pressure while the mixture
is over 120 oF. However, Appellant’s Example 2 only tested: (i) at least
0.8% by weight of the HRC to total weight of the tomato paste, (ii) heating
the pre-pasteurization mixture until about 165 oF, and (iii) homogenizing the
hot pasteurized mixture under specified pressures at an unspecified
temperature. Spec. 30:8–12. Accordingly, Example 2 provides no showing
of criticality or unexpected results for the claimed HRC % by weight range
or the claimed pasteurization and homogenization temperature ranges. In re
Woodruff, 919 F.2d 1575, 1578 (Fed. Cir. 1990) (“[T]he applicant must
show that the particular range is critical, generally by showing that the
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claimed range achieves unexpected results relative to the prior art range.”
(citations omitted, emphasis in original)).
For these reasons, and those provided by the Examiner, we sustain the
rejection of claim 1.
Claim 7
Claim 7 depends from claim 1 and recites a specific range for water
separation in a finished tomato sauce made with at least 0.2% HRC. Appeal
Br. 29–30. Appellant argues that the allegedly low level of water separation
in the finished tomato sauce “is not identified in any reference as a benefit of
the combination of process steps, the order of the process steps, and the use
of HRC before both pasteurization and homogenizing.” Id. at 19.
This argument is not persuasive because of the substantial similarities
between the prior art process and Appellant’s process. We agree with the
Examiner that because “the modified teaching uses similar methods with
similar process steps to make a similar product,” it would have been
reasonable to expect that the finished tomato sauce resulting from Gallaher’s
modified process would have possessed “at least 1% less water separation
and/or oil separation compared to a control tomato sauce made with no”
HRC. Id. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (stating
[w]here, as here, the claimed and prior art products are identical
or substantially identical, or are produced by identical or
substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily
or inherently possess the characteristics of his claimed product.
Whether the rejection is based on ‘inherency’ under 35 U.S.C.
§ 102, on ‘prima facie obviousness’ under 35 U.S.C. § 103 . . .
the burden of proof is the same, and its fairness is evidenced by
the PTO’s inability to manufacture products or to obtain and
compare prior art products.
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(citations and footnote omitted)). On this record, Appellant has failed to
meet this burden.
Appellant also argues that SPX teaches away from the allegedly low
level of separation recited in claim 7 because SPX teaches that “weeping”
would have been expected if homogenization is used on tomato products
having HRC. Appeal Br. 14, 15. This argument is not persuasive. Here, we
agree with the Examiner that SPX only teaches that “[h]omogenization is not
recommended for sauces containing less than eight to nine percent soluble
solids” and, therefore, does not teach away from homogenizing the tomato
pastes of Gallaher having a solids content “of at least about 24% by weight
or more.” SPX p. 2; Gallaher 1:23–25.
For these reasons, and those provided by the Examiner, we sustain the
rejection of claim 7.
CONCLUSION
The Examiner’s rejections are affirmed.
DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 7, 10–
15, 24, 25,
27
103 Gallaher,
Lundberg, SPX
1–4, 7, 10–
15, 24, 25,
27

5, 8, 9 103 Gallaher,
Lundberg, SPX,
Liu
5, 8, 9
Overall
Outcome
1–5, 7–15,
24, 25, 27

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11
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED