Robert Sleigh et al.

Patent Trials and Appeals Board

May 13, 2020

2019004373 (P.T.A.B. May. 13, 2020)

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. 15/072,965 03/17/2016 Robert Sleigh WOD0155 PCT US2 3125 132446 7590 05/13/2020 Mars, Inc. c/o Mars Petcare Theresa Shearin 2013 Ovation Parkway Franklin, TN 37067 EXAMINER PACKARD, BENJAMIN J ART UNIT PAPER NUMBER 1612 NOTIFICATION DATE DELIVERY MODE 05/13/2020 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): becca.barnett@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 ROBERT SLEIGH, BRAD WILLIAM WOONTON, ESTELLE LIFRAN, TANOJ SINGH, AUNG HTOON, and SUSAN FINNEGAN ____________ Appeal 2019-004373 Application 15/072,965 Technology Center 1600 ____________ Before JEFFREY N. FREDMAN, DEBORAH KATZ, and JOHN G. NEW, Administrative Patent Judges. KATZ, Administrative Patent Judge. DECISION ON APPEAL Appellant1 seeks our review,2 under 35 U.S.C. § 134(a), of the Examiner’s decision to reject claims 1-19. (Br. 6.) We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 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 Mars, Incorporated. (See Appeal Br. 2.) 2 We consider the Specification dated October 24, 2017 (“Spec.”), Final Office Action issued March 16, 2018 (“Final Act.”), the Appeal Brief filed July 4, 2018 (“Appeal Br.”), and the Examiner’s Answer issued on November 28, 2018 (“Ans.”). Appeal 2019-004373 Application 15/072,965 2 INTRODUCTION Appellant’s Specification is directed to a multi-component food product including a wet phase and a solid phase having separate and distinct physical characteristics from the wet phase. (Spec. ¶ 4.) The multi- component wet packaged food product “includes a component able to remain shape-stable and relatively ‘hard’ or crunchy, to provide a point of textural variety during shelf-life of the product.” (Id. ¶ 10.) Appellant’s claim 1 recites3: A sterilized, multi-component packaged food product, including at least a first component and a second component in contact with, and visible within, the first component, wherein said first component is a substantially water- based, liquid, pasty or gelled food, and wherein the second component is one or more relatively hard, manufactured pieces, each piece including a matrix of inorganic material including calcium mineral salts. (Appeal Br. 11.) Appellant’s claim 10 recites4: A sterilized, multi-component packaged food product, including at least a wet phase component and a plurality of solid phase pieces, 3 Claim 1 has been modified by adding indentations to separate elements of the claimed product. See 37 C.F.R. § 1.75(i). 4 Claim 17 has been modified by adding indentations to separate elements of the claimed product. See 37 C.F.R. § 1.75(i). Appeal 2019-004373 Application 15/072,965 3 wherein said wet phase component consists of a wet phase comprising water and other edible substances and having a water activity of above 85 and which at ambient temperature has a liquid, viscous or gelled consistency, and wherein said solid phase pieces are at least partially surrounded by, and visible within, the wet phase component and include a manufactured matrix of inorganic and edible mineral salts having a bulk water activity value of 0.75 or below prior to thermal processing of the packaged food product. (Appeal Br. 12.) The Examiner rejects the claims under 35 U.S.C. § 103(a) as obvious over the combination of Mathiesen,5 Fleury,6 and Kanner.7 (Final Act. 2-4.) ANALYSIS As the Examiner finds, Fleury teaches supplementing yogurt with calcium phosphate in a quantity sufficient to provide 500 to 1300 mg calcium per 170 g yogurt serving. (See Fleury 2:66-3:5; see Ans. 3-4.) Mathiesen teaches calcium supplements in the form of chewable tablets. (See Mathiesen ¶ 27; see Ans. 4.) Kanner teaches Dannon “Sprinklins” include yogurt co-packaged with a sealed serving of sprinkles to be added to the yogurt. (See Kanner 14; see Ans. 4.) 5 Mathiesen et al., US 2008/0175904 A1, published July 24, 2008. 6 Fleury et al., US 5,820,903, issued October 13, 1998. 7 Bernice Kanner, “Cultural Revolution: Yogurt as a Way of Life,” New York Magazine 14-16 (May 4, 1992). Appeal 2019-004373 Application 15/072,965 4 The Examiner determines that it would have been obvious to one of ordinary skill in the art to have combined Mathiesen’s visible calcium supplements with Fleury’s yogurt base because Kanner teaches that visible sprinkles were previously combined with yogurt. (See Ans. 4.) Appellant argues that the Examiner has not established prima facie obviousness based on the cited references. (See Appeal Br. 6.) Particularly, Appellant argues substituting Mathiesen’s calcium tablets for Fleury’s calcium salt would “frustrate the purpose of Fleury” to provide a yogurt with an undetectable calcium supplement. (See id. at 7.) Appellant cites Fleury’s teaching that “the present invention resides in methods of preparing a [yogurt] fortified with calcium that is undetectable in the final product visually. The process involves the post fermentation addition of a source of insoluble calcium. The calcium phosphate has a particle size of less than 150 microns.” (See id. at 6-7, citing Fleury 3:14-20.) Appellant also cites Fleury’s teaching that: Most importantly, the calcium phosphate has a particle size in the slurry and, therefore, in the finished product of less than 150 microns(“μm”). Having a calcium phosphate being of sufficiently reduced particle size is important to maintaining the calcium in suspension in the finished yogurt for extended times and to avoiding a “grittiness” organoleptic attribute in the finished yogurt. (See id., citing Fleury 6:30-36.) Appellant argues further that the Examiner’s description of Sprinklins does not address the recitation of a packaged food product wherein “the hard pieces of the second component are in contact with and visible within, the first water-based component.” (Id. at 9-10.) Appeal 2019-004373 Application 15/072,965 5 Appellant’s argument is persuasive because the Examiner has not established that the prior art as a whole provides a reason to combine the references in the manner claimed. See KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 402 (2007) (“[A]ny need or problem known in the field and addressed by the patent can provide a reason for combining the elements in the manner claimed.”) As cited by Appellant, Fleury expressly discourages incorporating detectable calcium particles into a pre-packaged yogurt, both for visual and organoleptic desirability. (See Fleury 6:30-48). The Examiner responds that Fleury broadly teaches numerous products incorporating calcium into yogurt, including in the Background of the Invention. (See Ans. 3.) The Examiner finds Fleury’s teaching of undetectable calcium is simply a preferred embodiment, and that Fleury’s non-preferred embodiments would be both visually and texturally detectable. (See id. at 3-4.) Accordingly, the Examiner finds that a non-preferred form of Fleury would allow for visible calcium particles larger than 150 microns. (Id.) The Examiner does not direct us to, and we cannot independently identify, Fleury’s non-preferred embodiments of yogurt containing visually detectable calcium. As for the “Background of the Invention,” Fleury discloses prior attempts to at least partially dissolve inorganic calcium into yogurt compositions. (See Fleury 1:59-60; 2:5-7; 2:17-20.) Fleury criticizes these attempts and instead presents a different solution: insoluble calcium salts characterized by an undetectable particle size. (See id. at 2:27- 34, 57-64.) Although we agree that patents as references are “relevant for all they contain,” see In re Heck, 699 F.2d 1331, 1333 (Fed. Cir. 1983), the Examiner’s interpretation of Fleury is not supported by the evidence. Appeal 2019-004373 Application 15/072,965 6 Because Fleury does not teach or suggest any alternative embodiments of visually detectable insoluble calcium, we agree with Appellant that Fleury does not provide a reason to include Mathiesen’s calcium supplements. We further consider the Examiner’s finding that Kanner’s description of “Sprinklins” overcomes Fleury’s “concerns” of incorporating Mathiesen’s chewable calcium supplements. (See Ans. 4.) Kanner teaches that Sprinklins include a sealed serving of sprinkles co-packaged with yogurt. (Kanner 14.) The Examiner finds that calcium sprinkles kept separate from yogurt would retain their initial moisture content and difference in water activity prior to being incorporated into the yogurt. (Ans. 4.) As presented by the Examiner, the prior art combination suggests co-packaging a sealed serving of chewable calcium supplements with yogurt. (See id.) However, the claims require multi-component packaged food products wherein the first and second components are in contact with each other and the hard pieces are visible in the wet component. (See Appeal Br. 11-12.) The combined prior art does not teach or suggest a packaged food product with a first wet component in contact with a second hard component. Because the Examiner’s findings are not supported by the record, we reverse the Examiner’s rejection of the claims as obvious over the teachings of Mathiesen, Fleury, and Kanner. CONCLUSION Upon consideration of the record and for the reasons given, we REVERSE the Examiner’s rejection. In summary: Appeal 2019-004373 Application 15/072,965 7 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-19 103(a) Mathiesen, Fleury, Kanner 1-19 REVERSED