LAND O'LAKES, INC.

Patent Trials and Appeals Board

Mar 23, 2021

2020002298 (P.T.A.B. Mar. 23, 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.
14/011,294 08/27/2013 Thomas A. Glenn III P235565.US.01 1061
25763 7590 03/23/2021
DORSEY & WHITNEY LLP - Minneapolis
INTELLECTUAL PROPERTY DEPARTMENT
50 South Sixth Street
Suite 1500
Minneapolis, MN 55402-1498
EXAMINER
MORNHINWEG, JEFFREY P
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
03/23/2021 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):
ip.docket@dorsey.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte THOMAS A. GLENN III, RICHARD DINESEN,
CLINT GAROUTTE, and JASON THOMPSON
Appeal 2020-002298
Application 14/011,294
Technology Center 1700
Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.

Appeal 2020-002298
Application 14/011,294

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DECISION ON APPEAL1

The Appellant2 appeals under 35 U.S.C. § 134(a), from the
Examiner’s decision finally rejecting claims 1–6, 11–13, 17, 18, and 20–24.3
We AFFIRM IN PART.
CLAIMED SUBJECT MATTER
Claims 1 and 18, reproduced below, are illustrative of the claimed
subject matter:
1. A method of producing concentrated cream, the method
comprising:
providing a cream composition in a homogenous, oil-in-
water emulsion, the cream composition comprising fat globules,
phospholipid membrane components and non-fat solids,
wherein an initial fat content of the cream composition is
between about 35 to about 55 percent by weight; and
removing moisture from the cream composition through
evaporative processing using a wiped film evaporator that
operates from about 75 rpm to about 280 rpm to produce the
concentrated cream, wherein the concentrated cream remains in
a homogenous state as the oil-in-water emulsion or as a bi-
continuous emulsion, wherein the step of removing moisture

1 The appeal record includes the following documents: Substitute
Specification filed Nov. 15, 2013 (“Spec.”); Final Office Action dated Apr.
25, 2019 (“Final Act.”); Appeal Brief filed Sept. 24, 2019 (“Appeal Br.”);
Examiner’s Answer dated Nov. 29, 2019 (“Ans.”); and Reply Brief filed Jan.
29, 2020 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. The
Appellant identifies the real party in interest as Land O’ Lakes, Inc. Appeal
Br. 3.
3 We have jurisdiction under 35 U.S.C. § 6(b).

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Application 14/011,294

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causes the concentrated cream to retain the native fat globules,
native phospholipid membrane components, and native non-fat
solids, and wherein the concentrated cream comprises a fat
content of at least about 70 percent to about 82 percent by
weight and a salt and the retained native non-fat solids content
of at least about 8 percent by weight.
18. A concentrated cream product comprises a homogenous,
oil-in-water or a bi-continuous emulsion including fat globules,
phospholipid membranes and retained, native non-fat solids,
wherein the concentrated cream product includes a fat content
of at least about 70 percent to about 82 percent by weight and a
salt and the retained, native non-fat solids content of at least
about 8 percent by weight, and wherein at least a portion of the
fat globules are intact.
Appeal Br. 27, 29.
REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Bell US 3,108,875 Oct. 29, 1963
Weissman US 4,341,801 July 27, 1982
Mackereth WO 2011/122966 A1 Oct. 6, 2011

REJECTIONS
1. Claims 1–6, 11–13, 18, and 20–24 are rejected under 35 U.S.C.
§ 103 as unpatentable over Mackereth and Bell. Final Act. 2–13.
2. Claim 17 is rejected under 35 U.S.C. § 103 as unpatentable
over Mackereth, Bell, and Weissman. Final Act. 13–14.
Appeal 2020-002298
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OPINION
The Appellant argues that the combined teachings of Mackereth and
Bell fail to disclose or suggest the claim 1 and claim 13 methods and the
claim 18 product. Appeal Br. 10. For the reasons discussed below, we are
persuaded of reversible error in the rejections of the method claims, but we
sustain the rejection of the product claims.
The Examiner made the following findings of fact: Mackereth
discloses the claim 1 method except for an explicit teaching that the resultant
concentrated cream remains in a homogenous state as an oil-in-water
emulsion or a bi-continuous emulsion, has at least about 70 percent to about
82 percent by weight fat content, and a salt and the retained native non-fat
solids content of at least about 8 percent by weight. Final Act. 2–3.
Mackereth uses a high fat cream starting material—“about 38 to about 85%
by weight lipid” (Mackereth ¶ 92)—that is an oil-in-water emulsion, but
uses a high shear step to cause a phase inversion to a water-in-oil emulsion.
Final Act. 3–4. The ordinary artisan would have understood from Mackereth
“that the high-shear step and phase inversion is necessary only to achieve . . .
especially high lipid concentrations as high as about 99.5%.” Id. at 4. The
ordinary artisan would have understood from Bell that in applications not
requiring such high lipid concentrations, Mackereth’s method could be
simplified by omitting the high-shear step. Id. at 3–4. By omitting the high-
shear step, Mackereth’s method would produce a concentrated cream that
remains in a homogenous state as an oil-in-water emulsion. Id. at 4.
The Appellant argues that Mackereth and Bell, alone or in
combination, do not teach or suggest using a wiped film evaporator in the
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manner claimed: to evaporate moisture from the cream composition such
that the resulting concentrated cream remains in a homogenous state as an
oil-in-water or bi-continuous emulsion. The Appellant argues that Mackereth
discloses that evaporators, including wiped film evaporators, should be
operated in a manner that creates high shear so as to effect a phase inversion.
Appeal Br. 16–17 (citing Mackereth ¶ 94). The Appellant does not dispute
the Examiner’s finding that Bell discloses concentrating a cream without
using high shear, but argues that Bell does not teach or suggest that the
method can be performed using a wiped film evaporator. Id. at 17. Rather,
Bell discloses that “a falling film, non-agitating vacuum evaporator, is a
critical feature in [the] operation of the inventive process.” Bell 5:4–6; see
Appeal Br. 17.
We are persuaded that the applied prior art fails to support the
Examiner’s finding that the ordinary artisan would have understood that a
wiped film evaporator could be used to remove moisture from a cream
composition to produce a concentrated cream that remains in a homogenous
state as an oil-in-water emulsion or as a bi-continuous emulsion as recited in
claim 1. We further agree with the Appellant that the Examiner has not cited
evidence to support a finding that the ordinary artisan would have had a
reason to modify Mackereth’s process to eliminate a high shear step. As the
Appellant argues, Appeal Br. 21, Mackereth’s goal is to further concentrate
a high fat cream comprising about 38 to about 85% by weight lipid and to
produce a water-in-oil emulsion. See Mackereth, code (57). Bell uses a
falling film evaporator to minimize destabilization of a sucrose-cream
mixture during concentration, explaining that agitation is known to affect
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emulsion stability of a sweetened cream. See Bell 2:14–39. We credit Mr.
Glenn’s testimony in paragraphs 11–12 of the Declaration under 37 C.F.R.
§ 1.132, filed January 11, 2019, that supports the Appellant’s argument that
sweetened cream does not respond to evaporative processes in
the same way as unsweetened cream. That Bell does not phase
invert its concentrated sweetened cream, which has up to 50%
fat, says nothing to one of skill in the art about how to achieve
the claimed fat content of “at least about 70 percent to about 82
percent by weight” without phase inversion.
Appeal Br. 20.
As the only basis for the Examiner’s modification of Mackereth in
view of Bell appears to be improper hindsight reasoning, we do not sustain
the rejection of claim 1 or its dependent claims 2–6, 11, 12, and 21–24.
Like claim 1, independent method claim 13 recites a step of removing
moisture “using a wiped film evaporator” to produce a “concentrated cream
product [that] remains as the oil-in-water or is in a bi-continuous emulsion.”
Appeal Br. 28. The Examiner relies on the same references and similar
reasoning in rejecting claim 13. See Final Act. 6–10. For the same reasons
discussed above, we do not sustain the rejection of claim 13 or the rejection
of its dependent claim 17.
Independent claim 18 recites “[a] concentrated cream product
compris[ing] a homogenous, oil-in-water or a bi-continuous emulsion
including fat globules, phospholipid membranes and retained, native non-fat
solids.” Appeal Br. 29. Claim 18 does not explicitly recite the method by
which the product is produced. See id. But the claim specifies “a fat content
of at least about 70 percent to about 82 percent by weight and a salt and [a]
retained, native non-fat solids content of at least about 8 percent by weight.”
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Id. Claim 18 further requires that “at least a portion of the fat globules are
intact.” Id.
The Appellant disputes the Examiner’s finding that Mackereth’s
starting material meets these limitations. See Appeal Br. 18 (citing Sept. 29,
2017 Office Action ¶ 52). In paragraph 52 of the cited Office Action, the
Examiner found that Mackereth discloses “‘[t]he starting material is a high
fat cream (10) that is an oil-in-water emulsion comprising about 38 to about
85% by weight lipid’ . . . obtained by ‘known concentration methods’ . . .
[that] has not undergone phase inversion” (quoting Mackereth ¶ 92). See
also Ans. 16 (citing Mackereth ¶ 92). Mackereth discloses that the high fat
cream starting material “may be prepared from whole milk and low fat
cream by known concentration methods including centrifugation” and will
contain phospholipid that originates from the original dairy source.
Mackereth ¶ 92. In Example 1, Mackereth discloses preparing a high fat
cream starting material by centrifuging to separate the milk into skim milk
and cream to about 40% fat by weight and then producing a high fat cream
of about 80% fat by weight using a high fat cream centrifugal separator. Id.
¶ 119. The high fat cream is described as an oil-in-water emulsion. Id. ¶ 120.
Bell discloses that “centrifuging, especially of cold milk, removes only a
minor part of the total fat globule membrane from the fat globules during the
separation of cream.” Bell 1:49–52. Bell discloses that the non-fat solids
content of whole milk is 8.9%. Id. at 1:41–42.
The above disclosures support the Examiner’s determination that the
applied prior art discloses or suggests “[a] concentrated cream product” as
recited in claim 18. We have considered the Appellant’s evidence of
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unexpected results. See Appeal Br. 22 (citing the Glenn Declaration). But we
agree with the Examiner that Mr. Glenn’s opinion testimony, absent
evidentiary support, is not persuasive of unexpected results. See Ans. 26. In
other words, taking into account the Glenn Declaration, a preponderance of
the evidence still weighs in favor of the Examiner’s conclusion of
obviousness as to claim 18. Accordingly, we sustain the rejection of claim
18, as well as its dependent claim 20.

DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–6, 11–13,
18, 20–24
103 Mackereth, Bell 18, 20 1–6, 11–
13, 21–24
17 103 Mackereth, Bell,
Weissman
17
Overall
Outcome

18, 20 1–6, 11–
13, 17, 21–
24
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).
AFFIRMED IN PART