RAISIO NUTRITION LTD

Patent Trials and Appeals Board

Oct 29, 2021

2021000560 (P.T.A.B. Oct. 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.
15/054,803 02/26/2016 Ritva LAHTINEN RAIS0104PUSA1 1023
22045 7590 10/29/2021
Brooks Kushman
1000 Town Center
22nd Floor
Southfield, MI 48075
EXAMINER
FISCHER, JOSEPH
ART UNIT PAPER NUMBER
1658
NOTIFICATION DATE DELIVERY MODE
10/29/2021 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):
docketing@brookskushman.com
kdilucia@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RITVA LAHTINEN, PAIVI KUUSISTO, and
LEENA KOPONEN
Appeal 2021-000560
Application 15/054,803
Technology Center 1600
Before JEFFREY N. FREDMAN, DEBORAH KATZ, and
RACHEL H. TOWNSEND, Administrative Patent Judges.
TOWNSEND, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims to a cholesterol lowering protein
containing beverage as being obvious. 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 Raisio Nutrition Ltd.
(Appeal Br. 2.)
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STATEMENT OF THE CASE
Appellant’s Specification states:
Berries, fruits and vegetables are recommended to be included
in the daily diet. Different types of smoothies have increased
their market share during the past years.
(Spec. 1.) Appellant’s Specification discloses that it is known in the prior art
to include phytosterols in beverages, and that plant sterols are known to
improve one’s serum lipid profile. (Id. at 1–2.) Appellant’s Specification
states that “there is a need for cholesterol-lowering beverages containing
berries, fruits or vegetables, and containing non-fermented protein.” (Id.
at 2.) Appellant’s invention is directed at such a beverage.
Claims 1, 7–9, 24, and 25 are on appeal.2 Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A beverage comprising:
protein in an amount of 0.5-5% by weight of the beverage;
plant sterol ester and/or plant stanol ester in an amount of
0.5-7 % by weight of the beverage;
stabilizer in an amount of 0.1-1% by weight of the
beverage, wherein the stabilizer comprises high methoxy pectin;
and
a vegetable preparation, wherein the beverage has an
effective concentration of 30-1000% by weight natural vegetable
derived from the vegetable preparation, based on the
weight of the beverage.
(Appeal Br. Claims Appendix 1.)
In response to a species election requirement, Appellant elected,
relevant to the composition of claim 1:

2 Claims 2–6, 10, 13–19, and 23 are also pending, but remain withdrawn as
being directed to a non-elected invention. (Final Action 3.)
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the protein is a soy protein,
the high methoxy pectin stabilizer having a degree of
esterification of at least 50%,
sitosterol is the plant sterol ester, and sitostanol is the
plant stanol ester and both are present, and
the vegetable preparation is a carrot vegetable
preparation and there is no fruit preparation present, and “no
further compounds/materials/food extracts [sec] are present.”
(Final Action 2; Restriction Requirement dated April 3, 2018 at 2.)

The prior art relied upon by the Examiner is:
Name Reference Date
Ashourian et al. US 20040071821 Apr. 15, 2004
Hartinger DE10063288 A13 July 4, 2002
Hitchcock et al. WO 2007/06630 Feb. 8, 2007
James N. BeMiller An Introduction to
Pectins: Structure and
Properties, ACS
Symposium
Series, 1–12
1986

The following ground of rejection by the Examiner is before us on
review:
Claims 1, 7–9, 24, and 25 under 35 U.S.C. § 103(a) as unpatentable
over Hartinger, Hitchcock, Ashourian, and BeMiller.

3 The Examiner relies on a machine-generated translation of this reference,
as do we.
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DISCUSSION
The Examiner found that Hartinger teaches a phytosterol-enriched
beverage, including a vegetable beverage, that is useful for lowering blood
cholesterol levels. (Final Action 6, 8.) The Examiner noted that Hartinger
teaches phytosterols, i.e., sterols and stanols, are taken in naturally by food,
but the amount is “believed to be insufficient to effectively lower cholesterol
levels” and that “in order to prevent and minimize the damage caused by
cholesterol in the human body, it is useful to add phytosterols to human
food.” (Id. at 8 (citing Hartinger ¶ 8).) The Examiner also found that
Hartinger teaches “[m]ilk-like products obtained from soybeans can be used
as the base drink for the invention’s mixed drink” and that soymilk can be
used to dissolve phytosterols during the preparation of the beverage. (Id. at
6 (citing Hartinger ¶¶ 21, 30).) The Examiner thus concluded that Hartinger
teaches soy protein can be included in the beverage at different levels. (Id.)
The Examiner also found that Hartinger teaches that carrots can be
used as a vegetable source in making the beverage, as well as teaching
adding a stabilizer, such as pectins, carageenans, and xanthan gum, to the
emulsion. (Final Action 7 (citing Hartinger ¶¶ 18, 49).) The Examiner
noted that Example 1 of Hartinger is an orange nectar that includes 0.6% by
weight emulsifier and phytosterol powder being added to a beverage at
0.32%. (Id. at 7, 8 (citing Hartinger ¶¶ 68–69).) The Examiner found that
Hartinger teaches that an emulsifier can keep the phytosterol stably in
solution. (Id. at 13.) The Examiner found that Hartinger’s use of an
emulsifier within the claimed stabilizer range suggests that the use of
“stabilizer would be at a comparable level, and within the range of instant
claim 1’s stabilizer. (Id. at 8; Ans. 16.)
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The Examiner indicated that “Hartinger teaches or suggests the
combined beverage components of claim 1, and the species, except for . . .
the elected stabilizer species and also for not explicitly teaching the plant
sterol ester and/or plant stanol ester in an amount of 0.5-7 % by weight of
the beverage.” (Final Action 9.)
The Examiner found that Hitchcock teaches sterol fortified beverages
where the sterol is “selected from the group consisting of sterol esters, stanol
esters, and mixtures thereof” and the sterol or stanol portion is present in a
concentration of from 0.8 grams/liter to about 50 grams/liter of the beverage
but more preferably from about 3.2 grams/liter to about 7 grams/liter and is
uniformly dispersed in the aqueous medium. (Final Action 9 (citing
Hitchcock ¶ 8).) The Examiner explained that the range overlaps what is
claimed “[e]ven considering the upward shift in weight from these values
that do not consider the fatty acid moiety portion of the molecules, see
Figure A and paragraph 31 of Hitchcock.” (Id. at 9.) The Examiner
concluded that “it would have been obvious to consider Hitchcock’s
teachings to supplement those of Hartinger because Hartinger gave only one
example and did not provide ranges of sterols/stanols for its beverages” and
one of ordinary skill in the art would have “sought guidance” on the amounts
that could be added to beverages with a predictable result. (Id. at 10–11.)
The Examiner relied on Ashourian for the obviousness of selecting a
stabilizer that is a high-methoxy (“HM”) pectin with a degree of
esterification of at least 50% and for using that stabilizer in the claimed
range. (Final Action 9; Ans. 15–16.) The Examiner found that Ashourian
teaches “similar beverages that utilize high methoxy pectin,” having a
degree of esterification of 68–74%, in an amount of 0.1 to about 5.0 % by
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weight, “and modifying the amount based on the amount of milk protein.”
(Final Action 9 (citing Ashourian ¶ 44 and claims 1–3); Ans. 15–16.) The
Examiner further found Ashourian teaches adding carrot juice to its
beverages. (Final Action 9 (citing Ashourian Examples 20 (using 50%
carrot juice in the beverage).) In addition, the Examiner found that
Ashourian teaches soy milk may be used in products instead of bovine milk.
(Id. (citing Ashourian ¶ 39).)
The Examiner concluded “given the preference for HM pectin in
Ashourian and its examples of beverages, HM pectin would have been
among the primary choices for stabilizing beverages that combined a protein
source with a vegetable juice such as carrot juice.” (Final Action 10.) The
Examiner stated:
There is a clear nexus between Ashourian and Hartinger and
Hitchcock in that all of these references are directed to nutritional
beverages that include vegetable juices, with Hartinger and
Hitchcock adding a further nutritional benefit by adding a sterol
and/or stanol to reduce cholesterol in a subject imbibing the
beverage. Adding a component known to be beneficial in
beverages to other known beverage formulations comprising
other components having known benefits and functions would
have been obvious based on a desire by one of ordinary skill in
the art to improve a given composition by adding a component
known to have a predictable benefit. There would have been a
reasonable expectation of success given the known properties
and benefits of each component.
(Id.)
The Examiner relied on BeMiller “as a supportive reference to
provide context and teaching about the different uses of HMO and low
methoxy (‘LMO’) pectins, including the components in compositions that
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react with these pectins.” (Ans. 12.) In particular, the Examiner found that
BeMiller teaches
low methoxy pectin form gels in the presence of calcium ions,
whereas high methoxy pectin gels in low pH compositions,
further indicating the selection of high methoxy pectin would be
more likely indicated in beverages comprising vegetable juices
whose pH is lowered by the amount of vegetable juice, and/or
with added acid. See BeMiller, pages 7-8.
(Final Action 11.)
We agree with the Examiner’s conclusion of obviousness.
“[I]nterrelated teachings of multiple patents; the effects of demands known
to the design community or present in the marketplace; and the background
knowledge possessed by a person having ordinary skill in the art, all [can
provide] an apparent reason to combine the known elements in the fashion
claimed.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007).
Hartinger is directed to a “base beverage” that can be prepared from
vegetables where the beverage includes either a single type of, or mixture of,
phytosterols. (Hartinger Abstr., ¶¶ 8, 12, 18–19, and 28.) Hartinger
explains that because beverages are consumed to a greater extent than foods
and not in conjunction with other foods, “that it is useful to enrich them with
phytosterols.” (Id. ¶ 14.) Hartinger explains that its use of the term
phytosterols includes “all sterols and stanols synthesized by plants and their
derivatives.” (Id. ¶ 5.) Hartinger further indicates sitosterol is one
phytosterol particularly contemplated to be used in the beverage. (Id. ¶ 13.)
Hartinger explains that phytosterols are only fat-soluble and are
emulsified in the base drink by being solubilized in a solvent such as
soymilk or oils including soybean oil, which also naturally contains
phytosterols. (Hartinger ¶¶ 28–31, 35, and 36.) Indeed, Hartinger teaches
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that “soybean contains significant amounts of phytosterols.” (Id. ¶ 5.) And,
Hartinger teaches that “milk-like products obtained from soybeans . . . are
also used as the base drink for the mixed drink according to the invention.
(Id. ¶ 21.)
Hartinger further teaches that emulsifiers are added to maintain a
stable homogeneous solution without the solubilized phytosterol clumping
together. (Id. ¶¶ 38, 40, and 42.) Stabilizers, such as pectins, are also taught
to be included in the composition. (Id. ¶ 49.)
Hitchcock, like Hartinger, teaches sterol fortified beverages including
vegetable juices and dairy drinks “and mixtures thereof.” (Hitchcock Abstr.
¶¶ 8–10.) Hitchcock further teaches “suitable cholesterol reducing sterols
and stanols in esterified forms are commercially available from Raisio
Benecol and McNeil Nutritionals, under the trade name Benecol®, from
Archer Daniels Midland under the trade name CardioAid®, from Cognis
under the trade name VegaPure®, from MultiBene Group under the trade
name MultiBene® and others as known in the art.” (Id. ¶ 27.) Hitchcock
also teaches that the fortified beverage can include “sterol esters, stanol
esters, or combinations thereof.” (Id. ¶ 35.) In addition, Hitchcock teaches
that carrot juice is one example of a suitable vegetable juice. (Id. ¶ 33.)
Both Hartinger and Hitchcock teach that a reason to include sterols
and/or stanols is to help lower cholesterol. (Hartinger ¶¶ 7, 8; Hitchcock ¶
6.)
Ashourian teaches beverages that include both “edible protein rich
fluids,” such as milk or soy milk, and juice and/or puree from vegetables,
which are known “generally [to] provide a wonderful combination of
vitamins and other healthy nutrients.” (Ashourian Abstr., ¶¶ 3, 39.)
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Ashourian teaches that “[t]he difficulty in providing a healthful product
containing milk and fruit or fruit juice has generally been the lack of stability
in such products” including “[s]tability with respect to the coagulation of
milk and other proteins.” (Id. ¶ 3.) Ashourian teaches a stable milk product
that includes protein from about 0.25 to about 10% of the beverage product
and “a stabilizer/emulsifier, preferably pectin.” (Id. Abstr., ¶¶ 12, 40)
Ashourian further teaches preferably that high methoxyl (HM) pectin is used
to stabilize milk proteins in the beverage. (Id. ¶ 44.) In addition, Ashourian
teaches that HM pectin “is preferably used in an amount of from about
0.60% pectin to about 1.2% pectin in the final formulation.” (Id.)
Ashourian provides two examples in which carrot juice is combined with
skim milk and HM pectin. (Id. ¶ 76 (“In the following examples. . . [t]he
pectin is an HM (high methoxyl) pectin or high ester pectin
(GRINDSTED™ Pectin, AMD 780).”), ¶ 89 (Example 20), ¶ 92 (Example
23).) In one of those examples, the one that includes both vegetable juice
and vegetable puree, 1% by weight HM pectin is used. (Id. ¶ 92.) Thus, we
conclude that Ashourian would have provided a reason to include HM pectin
in an amount within the claimed range. 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.”).
We do not find persuasive Appellant’s argument that the invention is
not obvious because Ashourian does not provide any specific reason for
selecting HM pectins. (Reply Br. 3; Final Action 6.) Regardless of whether
Ashourian provides a specific reason for its selection of HM pectins,
Ashourian provides a motivation to select HM pectin as it notes such use is
preferred and provides multiple examples of using HM pectin that provide
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for a stabilized milk and vegetable or fruit juice based beverage. “As long as
some [reason,] motivation or suggestion to combine the references is
provided by the prior art taken as a whole, the law does not require that the
references be combined for the reasons contemplated by the inventor.” In re
Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992). In the present case, as just
discussed, Ashourian teaches the HM pectin stabilizes the proteins in a milk-
based drink that is combined with a vegetable or a fruit juice.
In addition, we do not find persuasive Appellant’s argument that none
of the references teach or suggest the inclusion of the stabilizer at the
percentages claimed (Appeal B. 9). In re Peterson, 315 F.3d 1325, 1329
(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.”) Not only does Ashourian
teach a preferred range for HM pectin that is suitable for use in a combined
milk -juice beverage that significantly overlaps with the claimed range, but it
also provides a specific exemplification of the use of 1% HM pectin in a
carrot and milk beverage that can be stored at room temperatures for an
extended period of time without spoiling or separating. (Ashourian ¶¶ 76,
92.) The range claimed for the stabilizer is 0.1–1% by weight of the
beverage.
We agree with the Examiner that the combination of teachings from
the references just discussed would have made it obvious to one of skill in
the art to provide a protein beverage that also includes vegetable juice and
added phytosterol as well as to include HM pectin; the phytosterol being
added, as taught by Hitchcock and Hartinger, for its cholesterol lowering
ability, and the HM pectin added for its ability to stabilize the proteins in a
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milk and juice beverage as taught by Ashourian.4 One of ordinary skill in
the art would have reasonably expected that an HM pectin would be usable
in a beverage that also includes phytosterols in light of Hartinger’s teaching
that pectin, generally, can be used as a stabilizer in juice beverages that
include phytosterol, as well as in milk-based or milk-like based beverages
that include phytosterol. (Hartinger ¶¶ 12, 21.) It does not matter that
Ashourian does not teach that HM pectin would have a stabilizing effect on
phytosterols, as Ashourian provides at least one other reason for its use in a
beverage that contains milk proteins and vegetable juice, i.e., stabilize the
proteins in the beverage. “In determining whether the subject matter of a
patent claim is obvious, neither the particular motivation nor the avowed
purpose of the patentee controls. What matters is the objective reach of the
claim. If the claim extends to what is obvious, it is [not patentable] under §
103.” KSR, 550 U.S. at 419.
The test of obviousness is “whether the teachings of the prior art,
taken as a whole, would have made obvious the claimed invention.” In re
Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991). That Hartinger does not

4 For this reason, we do not find persuasive of non-obviousness that
Hartinger does not teach vegetable-based protein containing beverages
(Appeal Br. 10–11). Nor do we find persuasive Appellant’s argument that
selecting HM pectin “would not have been obvious in view of Hartinger
because nothing in Hartinger discloses, teaches, or suggests that any
particular stabilizer would have a better effect than another stabilizer within
the laundry list” (Appeal Br. 4). “Non-obviousness cannot be established by
attacking references individually where the rejection is based upon the
teachings of a combination of references. . . . [The reference] must be read,
not in isolation, but for what it fairly teaches in combination with the prior
art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).

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provide a teaching that one stabilizer would have a better effect than another
(Appeal Br. 4) is immaterial, as the Examiner relies on Ashourian for
teaching that the use of HM pectin is preferred to maintain stabilized protein
from milk or soy milk in a juice containing beverage. Hartinger teaches a
reason to include phytosterols in a juice containing beverage, and Hitchcock
provides a motivation to include phytosterols and milk or milk-like proteins
together in such a composition.
We disagree with Appellant that the Examiner “turns to BeMiller to
indicate that a selection of high methoxy pectin would have been obvious.”
(Appeal Br. 4.) The Examiner relies on Ashourian for the obviousness of
selecting HM pectin for use in “similar beverages” taught by Hartinger and
Hitchcock (Final Action 9–10). The Examiner’s rejection states:
Further, given the preference for HM pectin in Ashourian and its
examples of beverages, HM pectin would have been among the
primary choices for stabilizing beverages that combined a protein
source with a vegetable juice such as carrot juice. There is a clear
nexus between Ashourian and Hartinger and Hitchcock in that
all of these references are directed to nutritional beverages that
include vegetable juices, with Hartinger and Hitchcock adding a
further nutritional benefit by adding a sterol and/or stanol to
reduce cholesterol in a subject imbibing the beverage.
…
And as noted above, the teachings of Ashourian would have
made obvious the use of HM pectin, including in the claimed
range of concentration.
(Id. at 10–11.)
We also disagree with Appellant that one of ordinary skill in the art
“would likely have selected a low methoxy pectin over a high methoxy
pectin” based on the teachings of BeMiller. (Id. 4–5.) First, “[a]ttorney
argument is not evidence.” Icon Health & Fitness v. Strava, 849 F.3d 1034,
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1043 (Fed. Cir. 2017) (citing See, e.g., Gemtron Corp. v. Saint-Gobain
Corp., 572 F.3d 1371, 1380 (Fed. Cir. 2009) (“[U]nsworn attorney argument
. . . is not evidence and cannot rebut . . . other admitted evidence . . . .”).
Second, the argument ignores the teachings of Ashourian, which teaches a
preference for using HM pectin in a protein and juice beverage. Moreover,
the fact that BeMiller teaches gelling is achieved with HM pectin only in the
presence of large concentrations of sugar but that LM pectin will gel in the
presence of divalent cation, such as calcium (BeMiller 8) would seem to
counsel one of ordinary skill in the art seeking to provide a beverage that has
good mouthfeel (Ashourian ¶ 3, Hitchcock ¶ 7; cf. Hartinger ¶ 26 (“The aim
in the production of a drink is often to obtain a homogeneous drink, since
this usually meets the wishes of consumers.”)), and includes nutritionally
important vitamins and minerals, protein, and phytosterols, to the selection
of HM pectin over LM pectin. That is because it seems unlikely that a
beverage that has gelled would have good mouthfeel, and the beverage
taught by Ashourian, Hitchcock, and Hartinger is likely to have divalent
cations such as calcium, at a minimum, from the milk-base or milk-like base,
which mineral BeMiller indicates would cause gelling when using LM
pectin. (BeMiller 8 (“LM-pectin will gel in the absence of sugar (if a
divalent cation is present”); Id. (noting that LM-pectin will gel in the
presence of the divalent calcium ion).) There is no evidence of record that a
beverage that contains milk and vegetable or fruit juice would have the
“large concentrations (at least 55% w/w) of sugar” (id.) necessary to cause
gelling with HM pectin. Appellant has not provided a convincing scientific
explanation or rationale why one of ordinary skill in the art would have been
directed from the teachings of BeMiller to select LM pectin over the HM
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pectin that Ashourian teaches is preferred for a beverage including milk
combined with vegetable or fruit juices and purees, which provides for a
stabilized protein beverage that also has a good mouthfeel. (Ashourian ¶¶
11, 12, 16, 48, 76.)
Appellant’s argument that Hartinger and BeMiller teach away from
selecting HM pectin because they do not teach that “high methoxy pectin
prevents creaming [of the sterol/stanol] remarkably better than low methoxy
pectin” (Appeal Br. 7–8) is also unavailing. “A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). As just
discussed, we do not agree that the evidence demonstrates that BeMiller
would have discourage one of ordinary skill in the art from selecting HM
pectin for use in a beverage composition that has milk-based products and
fruit/vegetable juices and that also includes minerals and proteins. Likewise,
Hartinger does not discourage the use of a particular type of pectin, nor can
it be said to lead one of ordinary skill in the art in a direction divergent from
the path that was taken by the Appellant simply because it does not teach an
advantage of selecting HM pectin. “The prior art’s mere disclosure of more
than one alternative does not constitute a teaching away from any of these
alternatives because such disclosure does not criticize, discredit, or
otherwise discourage the solution claimed.” In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004).
That Appellant recognized an additional property of the HM pectin in
the beverage—assisting in stabilizing the solubilized phytosterol—is
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insufficient to establish non-obviousness. “Mere recognition of latent
properties in the prior art does not render nonobvious an otherwise known
invention.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir.
1991); Persion Pharms. LLC v. Alvogen Malta Operations Ltd., 995 F.3d
1184, 1190–91 (Fed. Cir. 2019) (“Our predecessor court similarly concluded
that it “is not the law” that “a structure suggested by the prior art, and,
hence, potentially in the possession of the public, is patentable . . . because it
also possesses an [i]nherent, but hitherto unknown, function which [the
patentees] claim to have discovered.” In re Wiseman, 596 F.2d 1019, 1023
(C.C.P.A. 1979)); Id. at 1195 (concluding that the district court did not err in
discounting evidence of unexpected results where that evidence did not
account for teachings of the prior art); Perricone v. Medicis Pharm. Corp.,
432 F.3d 1368, 1378 (Fed. Cir. 2005) (“In some cases, [an] inherent property
corresponds to a claimed new benefit or characteristic of an invention
otherwise in the prior art. In those cases, the new realization alone does not
render the old invention patentable.”).
We also do not find persuasive Appellant’s argument that the
selection of HM pectin provides unexpected results in stability compared to
low methoxy pectin that establish non-obviousness. (Appeal Br. 6–7.)
Although secondary considerations must be taken into account, they do not
necessarily control the obviousness conclusion. Pfizer, Inc. v. Apotex, Inc.,
480 F.3d 1348, 1372 (Fed. Cir. 2007) (finding “the record establish[ed] such
a strong case of obviousness” that allegedly unexpectedly superior results
were ultimately insufficient to overcome obviousness conclusion).
Ashourian teaches a preference for HM pectin in a vegetable juice that can
include vegetable puree and that also includes milk to achieve a beverage in
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which the protein from the milk is stabilized therein. Appellant’s stability
table demonstrates what Ashourian teaches, that an HM pectin provides for a
stabilized milk protein in a beverage that includes a milk and a fruit puree.
(Compare Spec. 10 (describing beverages of fat free milk with blueberry and
raspberry puree) with Ashourian ¶ 485, ¶ 61 (Example 6; mixed berry milk
beverage), ¶ 92 (Example 23: Carrot Juice and Carrot Puree and Milk/Pectin
Mix).) That an additional stability benefit is achieved of an additional
component, i.e., plant stanol ester does not cream over time, does not
overcome the Examiner’s conclusion of obviousness. That is because the
additional benefit claimed is an inherent result from the use of the pectin that
Ashourian teaches provides for good stability of the milk protein in a
beverage that contains vegetable or protein puree as well as milk proteins.
Persion Pharms. LLC, 995 F.3d at 1190–91 (Fed. Cir. 2019).
Thus, for the foregoing reasons we affirm the Examiner’s rejection of
claim 1 as being unpatentable over Hartinger, Hitchcock, Ashourian, and
BeMiller.
Appellant argues that claims 7–9 are separately patentable because
these claims require an emulsifier as well as a stabilizer, and the Examiner’s
rejection depends on swapping the emulsifier of Hartinger for a stabilizer not
including both. (Appeal Br. 11.) We do not agree with Appellant’s premise.
With regard to the stabilizer requirement of claim 1, the Examiner
specifically noted that Hartinger teaches at paragraph 49 that the beverage

5 Ashourain teaches that the drinks that are made with HM pectin “can
alternatively be stored at room temperatures for an extended period of time
without spoiling or separating, preferably at least six weeks, more preferably
at least three months, and most preferably about six months.” (Id. ¶ 48.)
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emulsion additionally contains stabilizers. (Final Action 7.) Addressing
claim 7, the Examiner specifically pointed out that Hartinger teaches the
inclusion of an emulsifier at paragraphs 39–48 in a range that overlaps the
claimed range. (Id. at 11–12.) Thus, we affirm the Examiner’s rejection of
claims 7–9 as being unpatentable over Hartinger, Hitchcock, Ashourian, and
BeMiller.
Appellant presents the same arguments just discussed to argue claims
24 and 25 are separately patentable. (Appeal Br. 12.) For the reasons set
forth above, we do not find those arguments persuasive. Thus, we affirm the
Examiner’s rejection of claims 24 and 25 as being unpatentable over
Hartinger, Hitchcock, Ashourian, and BeMiller.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
References/Basis Affirmed Reversed
1, 7–9, 24,
25
103(a) Hartinger,
Hitchcock,
Ashourian,
BeMiller
1, 7–9, 24,
25

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