Mary Lynn. Jump et al.

Patent Trials and Appeals Board

Dec 13, 2019

14534238 - (D) (P.T.A.B. Dec. 13, 2019)

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.
14/534,238 11/06/2014 Mary Lynn Jump 13117M 1085
27752 7590 12/13/2019
THE PROCTER & GAMBLE COMPANY
GLOBAL IP SERVICES
CENTRAL BUILDING, C9
ONE PROCTER AND GAMBLE PLAZA
CINCINNATI, OH 45202
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
12/13/2019 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):
centraldocket.im@pg.com
mayer.jk@pg.com
pair_pg@firsttofile.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte MARY LYNN JUMP, LORI JEAN TOMAN, and
TERESA LYNN ZUIDEMA

Appeal 2018-009132
Application 14/534,238
Technology Center 1700
____________

Before DONNA M. PRAISS, MICHELLE N. ANKENBRAND,
MERRELL C. CASHION, JR., 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 1, 2, and 4–16. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 In this Decision, we refer to the Specification filed Nov. 6, 2014 (“Spec.”),
the Final Office Action dated Sept. 14, 2017 (“Final Act.”), the Appeal Brief
filed Feb. 20, 2018 as corrected Mar. 19, 2018 (“Appeal Br.”), and the
Examiner’s Answer dated June 8, 2018 (“Ans.”). We do not refer to or cite
the subsequent Examiner’s Answer dated July 6, 2018, because it duplicates
the Examiner’s prior Answer.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Procter & Gamble Company is identified as the real
party in interest. Appeal Br. 1.
Appeal 2018-009132
Application 14/534,238

2

STATEMENT OF THE CASE
The invention relates to an organoleptically acceptable snack bar
containing psyllium. Spec. 1:5–6. According to the Specification, consumers
are interested in the health benefits of convenient foods and supplements that
are a good fiber source. Id. at 1:16–18. The Specification describes the slimy
texture and mouthfeel of psyllium upon hydration as a problem when
incorporating the soluble fiber into food products because it “often result[s]
in a product that is not highly palatable.” Id. at 1:19–21.
Claim 1, reproduced below, is illustrative (disputed limitation
italicized).
1. An organoleptically acceptable psyllium snack bar
comprising:
a. from about 3.5 g to about 4 g fiber per reference
amount commonly consumed (RACC) wherein the
fiber comprises from about 2 g to about 4 g psyllium
per RACC; and
b. a whole grain;
wherein the snack bar is not baked and comprises less
than about 3 g fat per RACC and from about 135 to
about 180 calories per RACC.
Appeal Br. 7 (Claims Appendix). Independent claim 7 is similar to
claim 1, but includes alternative components to whole grain, provides
that the snack bar does not comprise cholesterol, requires from about
100 to about 280 calories per RACC, and comprises a weight ratio of
protein to fiber from about 0.25 to about 1.5. Id. at 8.
Appeal 2018-009132
Application 14/534,238

3
ANALYSIS
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
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 Appellant’s arguments, we are not persuaded of reversible
error in the appealed rejections.
The Examiner rejects claims 1, 2, and 4–16 as follows. Final Act. 3–
10.
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
1, 2, 4, 7–16 103 Mody3
5 103 Mody, Kais4
6 103 Mody, Miller5
Appellant argues the rejection of claims 1, 2, 4, and 7–16 as a group.
Appeal Br. 2–5. We select claim 1 as representative. Accordingly, claims 2,
4, and 7–16 will stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
We separately address claims 1, 5, and 6 below.
Claim 1
Appellant contends the Examiner erred in rejecting claim 1 over
Mody because “there is no motivation to select the claimed level of
psyllium, a soluble fiber,” as claim 1 recites. Appeal Br. 3. According to
Appellant, even though Mody discloses the ratio of insoluble fiber to soluble

3 WO 01/64044 A2, published Sept. 7, 2001.
4 US 5,516,524, issued May 14, 1996.
5 US 2007/0218113 A1, published Sept. 20, 2007.
Appeal 2018-009132
Application 14/534,238

4
fiber can be 50:50, Mody teaches away from including high levels or ratios
of soluble fiber because Mody prefers an insoluble fiber to soluble fiber ratio
of 50:20 to about 99:1. Id. at 4. Appellant argues that a person having
ordinary skill in the art “looking to Mody would have no reasonable
expectation of success that reversing the ratio of insoluble fiber to soluble
fiber would produce an organoleptically acceptable snack bar.” Id. at 5.
The Examiner responds that, in light of the overlap between the
claimed snack bar and Mody’s snack bar, it would have been within the skill
level of one of ordinary skill in the art to use psyllium as Mody discloses and
as Appellant’s claims recite in the absence of a showing of criticality. Ans.
10–11. The Examiner finds that Mody discloses a good tasting bar, i.e.
organoleptically acceptable as claim 1 recites. Id. at 11 (citing Mody 4:15–
17). The Examiner determines that Mody, therefore, teaches psyllium fiber
can be used in the claimed amount in an organoleptically acceptable snack
bar. Id.
Appellant’s arguments do not persuade us that the Examiner
reversibly erred in rejecting the claims as obvious over Mody’s teachings.
Appellant does not dispute that Mody’s disclosure overlaps with the claimed
50:50 ratio of psyllium to total fiber in a snack bar composition. Appeal Br.
4. Such an overlap supports the Examiner’s rejection of claim 1 as prima
facie obvious over Mody. In re Peterson, 315 F.3d 1325, 1329, 65 USPQ2d
1379, 1382 (Fed. Cir. 2003) (“In cases involving overlapping ranges, we and
our predecessor court have consistently held that even a slight overlap in
range establishes a prima facie case of obviousness.”). The fact that Mody’s
range extends to a higher percentage of insoluble fiber while Appellant
claims a higher percentage of soluble fiber does not negate this overlap.
Appeal 2018-009132
Application 14/534,238

5
Appellant does not direct us to any evidence of criticality of the
claimed range to rebut the Examiner’s rejection. Rather, Appellant directs us
to the Specification, which describes psyllium as a known mucilaginous
material that often results in a product that is not highly palatable and can
often have an unsatisfactory taste, texture, and mouthfeel. Appeal Br. 4
(citing Spec 1:19–24). However, this argument does not address adequately
the Examiner’s finding that Mody discloses a good tasting bar, i.e.
organoleptically acceptable bar. Ans. 11.
Regarding Appellant’s teaching away argument (Appeal Br. 4–5), we
are not persuaded that Mody’s disclosure that a higher insoluble to soluble
fiber ratio would improve taste characteristics of the food bar would have
discouraged a skilled artisan from pursuing the claimed range of soluble
fiber. “A reference may be said to teach away when a person of ordinary
skill, upon reading the reference would be led in a direction divergent from
the path that was taken by the applicant.” In re Haruna, 249 F.3d 1327, 1335
(Fed. Cir. 2001). As the Examiner finds, and Appellant does not dispute,
claim 1 does not preclude additional components to improve mouthfeel and
taste characteristics of the food bar. Ans. 11. Specifically, the Examiner
finds that adding sugar or a chocolate coating would help cover up any
unappealing taste and texture and reducing moisture content would reduce
any slimy texture. Id. Moreover, Mody teaches enhancing its snack bar in
another way––including “texture additives” having “a particular associated
mouthfeel” such as dried fruit pieces, nuts, caramel layering, nougat
layering, wafers, cookie pieces, fruit preparations and the like.” Mody 7:7–
12. Thus, based on the record cited in this Appeal, it would not have been
Appeal 2018-009132
Application 14/534,238

6
unexpected for a snack bar having a high soluble to insoluble fiber ratio to
also be organically acceptable as the Examiner finds (Ans. 11–12).
The preponderance of the evidence in this appeal record, therefore,
supports the Examiner’s conclusion that the claimed subject matter would
have been obvious in view of Mody. Accordingly, we sustain the
Examiner’s rejection of claim 1 for the above reasons and those expressed in
the Answer, including the Response to Argument section.

Claims 5 and 6
Appellant contends that the Examiner erred in rejecting claims 5 and
6, which depend from claim 1, because the additional prior art references do
not remedy the teachings of Mody, which Appellant asserts teaches away
from the claimed invention. Appeal Br. 5. Because Mody’s snack bar
encompasses the claimed range of insoluble fiber, we are not persuaded that
the Examiner erred in rejecting claims 5 and 6 for the reasons the Examiner
presents and we give above.
Accordingly, we affirm the Examiner’s rejections of claims 5 and 6
under 35 U.S.C. § 103.
For these reasons and those the Examiner provides, we uphold the
Examiner’s rejections of claims 1, 2, and 4–16 under 35 U.S.C. § 103 as
obvious over the cited prior art references.
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).

Appeal 2018-009132
Application 14/534,238

7
CONCLUSION
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 4, 7–16 103 Mody 1, 2, 4, 7–16
5 103 Mody, Kais 5
6 103 Mody, Miller 6
Overall
Outcome
1, 2, 4–16

AFFIRMED