2021000051 (P.T.A.B. Dec. 29, 2021)

MARS, INCORPORATED

Patent Trials and Appeals BoardDec 29, 2021

2021000051 (P.T.A.B. Dec. 29, 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. 13/674,979 11/13/2012 Maria Dolores Martinez Villagran IAM0130 US 6407 132446 7590 12/29/2021 Mars, Inc. c/o Mars Petcare Theresa Shearin 2013 Ovation Parkway Franklin, TN 37067 EXAMINER SAYALA, CHHAYA D ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 12/29/2021 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): maria.johnson@effem.com mars.patents@effem.com theresa.shearin@effem.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MARIA DOLORES MARTINEZ VILLAGRAN, JENNIFER ALEXANDER, ANNMARIE CILLEY, KATHERINE P. BOEBEL, LEE ANN HAGERTY, and KUO-CHUNG MARK LEE ____________ Appeal 2021-000051 Application 13/674,979 Technology Center 1700 ____________ Before JEFFREY T. SMITH, DONNA M. PRAISS, and JEFFREY R. SNAY, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 29, 31, and 32. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Mars, Incorporated, as the real party in interest. Appeal Br. 2. Appeal 2021-000051 Application 13/674,979 2 BACKGROUND The invention relates to a pet food product. Spec. 1. Claim 29 reads as follows: 29. A pet food product, comprising: a kibble that includes an internal plasticizer, an acid, and a water content of less than 20% by weight of the pet food product; a first coating applied to an outer surface of the kibble that consists of a plasticizer; and a second coating applied to the first coating that includes a fat; wherein the food product includes a softness of 3 to 8 kgf and a Young's Modulus of 2 to 7 kf/cm2. Appeal Br. 19 (Claims Appendix). Claim 32 similarly recites a pet food product comprising kibble having a first plasticizer coating and a second fat coating. Claim 31 depends from claim 29. REJECTION Claims 29, 31, and 32 stand rejected under 35 U.S.C. § 103(a) as unpatentable over Bone,2 Goold,3 Townsend,4 Ubbink,5 Pater,6 Abrams,7 and Pearce.8 2 US 4,039,689, issued August 2, 1977. 3 US 2013/0129865 A1, published May 23, 2013. 4 US 2004/0253342 A1, published December 16, 2004. 5 US 2005/0153018 A1, published July 14, 2005. 6 US 8,137,731 B2, issued March 20, 2012. 7 US 2011/0223373 A1, published September 15, 2011. 8 US 2005/0008735 A1, published January 13, 2005. Appeal 2021-000051 Application 13/674,979 3 OPINION The Examiner finds Bone discloses a soft, dry pet food comprising plasticizer and an acid, having a vegetable or animal fat coating. Non-Final Act. 4. Relevant to Appellant’s arguments on appeal, the Examiner finds Goold teaches plasticizer coatings enhance the texture and softness of extruded food products, including pet food, and that one of ordinary skill in the art would have had a reason to apply such plasticizer coating to Bone’s pet food for that purpose. Id. at 4–5. Appellant argues none of the relied upon references teaches a kibble including both a plasticizer coating and a fat coating, as claimed. Appeal Br. 13. The test for obviousness is not whether any one reference expressly suggests the claimed invention, but whether the claimed subject matter would have been obvious to those of ordinary skill in the art in light of the combined teachings of the prior art. See In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, Bone states it was desired to provide a “soft dry pet food having improved palatability” (Bone 2:50–52), and teaches use of coatings to further improve palatability (id. 7:1–4). Goold teaches providing a plasticizer coating to a food product, such as pet food, can advantageously produce a soft texture. Goold ¶¶ 7, 11. These disclosures support the Examiner’s finding that one of ordinary skill in the art would have had a reason to apply a plasticizer coating to Bone’s pet food product, to enhance the desired soft texture and palatability. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of familiar elements according to known methods is likely to be obvious when it does not more than yield predictable results.”). Appellant’s argument that one of ordinary skill would not have sought to modify Bone because Bone’s disclosed kibble already Appeal 2021-000051 Application 13/674,979 4 achieves a desired softness (Appeal Br. 15) is not persuasive. As noted, Bone acknowledges it is possible and desirable to further enhance palatability through use of coatings. Bone 7:1–4. Appellant also argues “Pearce teaches against the use of glycerin in a coating.” Appeal Br. 13. Pearce concerns orally soluble films applied to edible snacks to provide desired flavors. Pearce ¶ 5. According to Pearce, if the film has a high oil content, it may be advantageous to select a plasticizing agent other than glycerin because glycerin also is a humectant which could produce an overly moist, self-adhering film. Id. ¶ 15. Appellant’s argument is not persuasive of error. No claim on appeal requires glycerin as plasticizer. Bone identifies non-glycerine plasticizers suitable for use in pet food, including sorbitol and propylene glycol. Goold refers to plasticizer coatings generically, with glycerol as an example. Goold ¶ 11 (“The addition of a plasticizer, such as glycerol, to an extruded structure is one means of producing a ‘soft’ texture.”). Moreover, Appellant does not present evidence that Bone’s disclosed pet food would have exhibited the high oil content referenced in Pearce. Appellant states, without elaboration, “claim 29 is further differentiable over the cited references for its recitation of an acid within the kibble.” Appeal Br. 17. Appellant’s statement neither addresses nor shows error in the Examiner’s finding that Bone discloses an acid ingredient. Non- Final Act. 4; Bone 4:1–3 (listing sorbic acid and propionic acid as suitable mold inhibitor ingredients). For the foregoing reasons, we are not persuaded of reversible error in the Examiner’s rejection of claim 29. The rejection of claims 29, 31, and 32 is sustained. Appeal 2021-000051 Application 13/674,979 5 CONCLUSION The Examiner’s decision rejecting claims 29, 31, and 32 is affirmed. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § References/Basis Affirmed Reversed 29, 31, 32 103(a) Bone, Goold, Townsend, Ubbink, Pater, Abrams, Pearce 29, 31, 32 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