Novozymes A/S

Patent Trials and Appeals Board

Jan 28, 2022

2021001365 (P.T.A.B. Jan. 28, 2022)

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. 15/817,109 11/17/2017 Karsten Bruun QVIST 11606-US-CNT[2] 9547 25908 7590 01/28/2022 NOVOZYMES NORTH AMERICA, INC. US PATENT DEPARTMENT 77 PERRYS CHAPEL CHURCH ROAD PO BOX 576 FRANKLINTON, NC 27525-0576 EXAMINER WONG, LESLIE A ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 01/28/2022 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): DOCKETING@novozymes.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KARSTEN BRUUN QVIST, JEPPE WEGNER TAMS, MERETE FAERGEMAND, CHRISTEL GARRIGUES, and PER MUNK NIELSEN Appeal 2021-001365 Application 15/817,109 Technology Center 1700 Before JEFFREY R. SNAY, LILAN REN, and SHELDON M. McGEE, Administrative Patent Judges. REN, 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 32-34, 36, 38-49, 51, 52, 54-56, and 58-60. See Final Act. 3. We have jurisdiction under 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. Appellant identifies the real party in interest as “Novozymes A/S.” Appeal Br. 3. Appeal 2020-001365 Application 15/817,109 2 CLAIMED SUBJECT MATTER Claim 32, reproduced below, is illustrative of the claimed subject matter: 32. A method for producing an acidified milk product, said method comprising: (a) treating a milk substrate with an enzyme having transglutaminase activity; (b) treating the milk substrate with a protease; and (c) fermenting the milk substrate with a lactic acid bacterium; wherein steps (a) and (b) are carried out before or during step (c); the acidified milk product is selected from the group consisting of: a fermented milk drink, a fermented set-type product, and a fermented spoonable product, the enzyme having transglutaminase activity is added at a concentration of 0.5-20 TGHU TGase/g protein in the milk substrate, the protease is added in a concentration of 0.00001% to 5% (w/w), and the fermentation time is reduced compared to a fermentation wherein no protease is added. Claims App. (Appeal Br. 23). REFERENCES The Examiner’s rejection relies on the following prior art references: Name Reference Date Takenawa US 4,842,873 June 27, 1989 Soeda EP 0 745 670 B1 Dec. 4, 1996 Miwa EP 1 197 152 B1 Apr. 17, 2002 Rajakari WO 2007/060288 A1 May 31, 2007 Kuraishi EP 0 711 504 B1 May 15, 1996 Lorenzen, Effect of Enzymatic Cross-Linking of Milk Proteins on Functional Properties of Set-Style Yoghurt, 55 Int’l J. Dairy Tech. 152-157 (Aug. 2002). Appeal 2020-001365 Application 15/817,109 3 REJECTION2 The Examiner maintains the following rejection: Claims Rejected 35 U.S.C. § Reference(s)/Basis 32-34, 36, 38-49, 51, 52, 54-56, 58- 60 103 Soeda, Miwa, Rajakari, Lorenzen, Takenawa, Kuraishi OPINION We review the appealed rejection for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 94 USPQ2 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 having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that reversible error has been identified, and we affirm the Examiner’s rejection for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Claim 323 Appellant argues that the Examiner reversibly erred because “neither Takenawa nor Kuraishi teach or reasonably suggest the use of a protease to produce the claimed invention.” Appeal Br. 17. Appellant argues that “Takenawa is directed to an unfermented yoghurt-like food” and “fails to 2 The Examiner withdraws the rejection under section 112 for failure to meet the written description requirement. Ans. 5. 3 Appellant does not separately argue for the obviousness rejection of claims 33, 34, 36, 38-49, 51-52, 54-56, and 58-60. See Appeal Br. 15-21. These claims stand or fall with claim 32 with respect to the obviousness rejection. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv) (2019). Appeal 2020-001365 Application 15/817,109 4 teach or reasonably suggest adding a protease to produce a fermented product.” Id (emphasis omitted). Appellant argues that “Kuraishi discloses that the transglutaminase and the milk clotting enzyme catalyze a reaction to produce curd which is then transformed into cheese” which “is not a claimed acidified milk product” and therefore “Kuraishi fails to teach or reasonably suggest an acidified milk product as required by the claims” and “does not teach or suggest the desirability of adding protease in a process of producing a claimed acidified milk product.” Id. at 18. Appellant argues that Appellant’s arguments do not identify reversible error. A proper obviousness “analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). The skilled artisan is not compelled to blindly follow the teaching of one prior art reference over the other without the exercise of independent judgment. See Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881, 889 (Fed. Cir. 1984). In this case, the recited steps are known in the art and the Examiner’s finding that it is within the ordinary skill to use a known process step for a known purpose is supported by the record before us. See KSR, 550 U.S. at 417 (“If a person of ordinary skill can implement a predictable variation [of a known work], § 103 likely bars its patentability.”). Appellant’s arguments are unpersuasive also because the arguments attack the references individually, rather than considering what the combined references would have suggested to the person of ordinary skill in the art. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a Appeal 2020-001365 Application 15/817,109 5 combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Whether Takenawa and Kuraishi, as individual references “teaches or suggests a process of producing a fermented acidified milk product selected from the group consisting of: a fermented milk drink, a fermented set-type product, and a fermented spoonable product” as Appellant argues (Appeal 20-21) does not show that the Examiner reversibly erred in the fact findings based on the combined prior art teaching, including Soeda, Miwa, Rajakari, Lorenzen, as well as Takenawa, and Kuraishi. Appellant’s argument that claim 32 produces unexpected results (Appeal Br. 18-20) is also unpersuasive. “To be particularly probative, evidence of unexpected results must establish that there is a difference between the results obtained and those of the closest prior art, and that the difference would not have been expected by one of ordinary skill in the art at the time of the invention.” Bristol-Myers Squibb Co. v. Teva Pharms. USA, Inc., 752 F.3d 967, 977 (Fed. Cir. 2014). Example 4 of the Specification, cited by Appellant as evidence of unexpected results (Appeal Br. 19), does not show any difference would have been unexpected by the ordinary artisan. See Bristol-Myers Squibb Co., 752 F.3d at 977. Appellant also does not show that any difference shown in Example 4 is obtained from comparing to “the closest prior art.” See id. Moreover, as the Examiner points out, “Example 4 is not commensurate in scope with” claim 32 which recites an “enzyme having transglutaminase activity . . . at a concentration of 0.5-20 TGHU TGase/g protein” and a “protease . . . in a concentration of 0.00001 % to 5% (w/w).” Ans. 6. Appellant disagrees with the Examiner’s finding that the Appeal 2020-001365 Application 15/817,109 6 concentrations used in Example 4 are not commensurate in scope with those required by claim 32 but does not adequately explain why the concentrations used in Example 4 are representative of the entire range recited in claim 32 to show any purported unexpected results. See Reply Br. 7 (arguing instead that “the use of transglutaminase in a fermentation process is routine and the amount of transglutaminase is well known in the art”). Appellant argues that “the cited Example provides three treatments with three specific concentrations that fall within the ranges required by the invention as claimed” but do not specify what these concentrations are and why they support the asserted unexpected results over the entire ranges recited in claim 32. Id. No reversible error has been identified in the Examiner’s fact finding here. CONCLUSION The Examiner’s rejection is affirmed. DECISION SUMMARY In summary: Appeal 2020-001365 Application 15/817,109 7 Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 32-34, 36, 38-49, 51, 52, 54-56, 58-60 103 Soeda, Miwa, Rajakari, Lorenzen, Takenawa, Kuraishi 32-34, 36, 38-49, 51, 52, 54-56, 58-60 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