Tillmann D¿rr et al.

Patent Trials and Appeals Board

Dec 27, 2019

14424181 - (D) (P.T.A.B. Dec. 27, 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.
14/424,181 02/26/2015 Tillmann Dörr P/2107-431 (V33110) 9712
2352 7590 12/27/2019
OSTROLENK FABER LLP
845 THIRD AVENUE
8TH FLOOR
NEW YORK, NY 10022
EXAMINER
BEKKER, KELLY JO
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
12/27/2019 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):
pat@ostrolenk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TILLMANN DORR
and BERND HASSLINGER
Appeal 2019-001878
Application 14/424,181
Technology Center 1700
Before BEVERLY A. FRANKLIN, RAE LYNN P. GUEST, and GEORGE
C. BEST, Administrative Patent Judges.
FRANKLIN, 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 1–4 and 9–13. 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(a). Appellant identifies the real party in interest as Südzucker AG.
Appeal Br. 2.
Appeal 2019-001878
Application 14/424,181

2
CLAIMED SUBJECT MATTER
Claim 1 is illustrative of Appellant’s subject matter on appeal
and is set forth below:
1. A process for coating chocolate cores comprising the steps of:
a) providing at least one chocolate core to be coated,
b) applying to the at least one chocolate core a first liquid
medium comprising a whitening agent, so as to obtain at least
one layer of a pre-coating, wherein the first liquid medium
comprises 0.8 to 20% by weight of the whitening agent, based
on the total dry solids of the pre-coating, wherein the whitening
agent is TiO2,
c) solidifying the at least one layer of the pre-coating, so
as to obtain at least one pre-coated chocolate core, and
d) applying to the at least one pre-coated chocolate core a
second liquid medium comprising isomaltulose and a binding
agent coating 2, so as to obtain at least one layer of a second
coating, wherein the second liquid medium comprises 1 to 10%
by weight of the binding agent coating 2, based on the total dry
solids of the second coating, and wherein the second liquid
medium is free of TiO2,
wherein the total coating comprising the first and second
coating comprises 10 to 40% by weight of the first coating and
60 to 90% by weight of the second coating, each based on dry
weight of total coating,
wherein at least one of the first and the second liquid
medium is applied to the cores by spraying, at a spraying
pressure of from 10 to 100 bar, and wherein optionally the steps
b) and c) are repeated at least 2 times as to build up more than
one layer of the pre-coating.
Appeal 2019-001878
Application 14/424,181

3
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Latini et al. US 5,495,418 Feb. 27, 1996
Rapp et al. US 2008/0050605 A1 Feb. 28, 2008
Hasslinger et al. US 2009/0214699 A1 Aug. 27, 2009
Rapp WO 2006/040144 Apr. 20, 2006
Andrade et al (“Atomizing Spray Systems for Application of Edible
Coatings” Comprehensive Reviews in Food Science and Food Safety
Volume 11, April 2012, pages 323–337.
REJECTIONS
Claim 1–4, 9, 10, 12 and 13 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as obvious over Hasslinger in view of Latini, as evidenced by Rapp
’605, or alternatively, over Hasslinger in view of Andrade.
Claim 11 is rejected as being obvious under 35 U.S.C. § 103(a) over
Hasslinger in view of Latini, as evidenced by Rapp ’605, and further in view
of Rapp ’144, or alternatively over Hasslinger in view of Andrade and
further in view of Rapp ’144.
OPINION
For purposes of this appeal, we address separately argued claims, and
the remaining claims stand or fall with the argued claims, consistent with 37
C.F.R. § 41.37(c)(1)(iv) (2017). We thus consider claims 1 and 11 in this
appeal.
Upon consideration of the evidence and each of the respective
positions set forth in the record, we find that the preponderance of evidence
supports the Examiner’s findings and conclusion that the subject matter of
Appellants’ claims is unpatentable over the applied art. Accordingly, we
Appeal 2019-001878
Application 14/424,181

4
sustain each of the Examiner’s rejections on appeal for the reasons set forth
in the Final Office Action and in the Answer, and affirm, as emphasized
below.
We refer to the Examiner’s statement of the rejection as set forth on
pages 3–5 of the Answer. Appellant’s arguments are presented on pages 5–7
of the Appeal Brief and on pages 4–5 of the Reply Brief.
Appellant argues that the prior art references do not teach 10–40% of
a first coating, and 60–90% of a second coating as claimed. This argument
is unpersuasive. As the Examiner states on pages 6–7 of the Answer, the
recited coating percentages claimed are based on dry weight, and Hasslinger
teaches that in a preferred embodiment the total coating comprises the first
and second coating, wherein the first coating comprises 40–90% by dry
weight of the total coating and the second coating comprises 10–60% by dry
weight of the total coating (Hasslinger, ¶ 0040) which touches the claimed
ranges. A “claimed invention is rendered prima facie obvious by the
teachings of a prior art reference that discloses a range that touches the range
recited in the claim.” In re Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997)
(citing In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974)).
Appellant also argues that because the preferred range of the first
coating by dry weight disclosed by Hasslinger is 50–90%, even more
preferably 60–90%, the disclosure teaches away from the use of 40% or less
of the first coating and the disclosed preferred range of 40–90%. In a similar
manner, Appellant also argues the use of 60–90% of the second coating is
non-obvious. We are unpersuaded by this line of argument and agree with
the Examiner’s stated position made on page 7 of the Answer.
“Nonpreferred disclosures can be used. A nonpreferred portion of a
Appeal 2019-001878
Application 14/424,181

5
reference disclosure is just as significant as the preferred portion in assessing
the patentability of claims.” In re Nehrenberg, 280 F.2d 161 (CCPA 1960).
Appellant also argues that the applied art does not teach the first
and/or second liquid medium is applied to the core by spraying wherein the
pressure is from 10–100 bar. Appeal Br. 5–7. We agree with the
Examiner’s stated response made on pages 7–8 of the Answer. Therein, the
Examiner states that although Hasslinger does not specifically state that the
coating method is spraying, Hasslinger does teach that the coating process is
conducted by a Driacoater 500/600 (Hasslinger, ¶ 0088), and that Rapp ’605
evidences that this device is a known spraying device (Rapp ’605, ¶¶ 0028,
0112, 0124 and 0129). The Examiner also refers to the reference of Andrade
(alternatively) for teaching different methods of coating edible foods
(Andrade, Abstract). Ans. 8. The Examiner finds that Andrade teaches that
spray coating is the most commonly used technique for applying food
coatings as it offers many advantages including uniform coatings, thickness
control, the possibility of multilayer applications, automation and continuous
production (Andrade, p. 323 col. 2, last full paragraph, and p. 326, second
paragraph). We thus agree with the Examiner that these teachings suggest
the technique of spraying.
Regarding the spraying pressure of 10–100 bars as recited in claim 1,
we also agree with the Examiner’s response made on page 8 of the Answer.
Therein, the Examiner states that Latini teaches a method for coating center
materials, such as chocolate with syrup like coatings, using a pressure for
spraying of 300–600 psi (about 20.7–41.4 bars) for solution atomization and
to eliminate the possibility of a clogged spray tip. Latini, Abstract, col. 1, ll.
3–22, col. 2, ll. 35–44, and col. 7, ll. 13–28. The Examiner concludes that it
Appeal 2019-001878
Application 14/424,181

6
would have been obvious to utilize a spray pressure in Hasslinger’s coating
method to be about 20.7–41.4 bars for solution atomization, and to eliminate
the possibility of a clogged spray tip, in view of Latini. We agree. The
Examiner also alternatively relies upon Andrade, and we agree with the
Examiner’s statements regarding Andrade’s teachings as set forth on pages 8
and 9 of the Answer in further support of the suggestion of the use of
spraying at the claimed pressure.
Appellant argues secondary considerations on pages 9–10 of the
Appeal Brief. Therein, Appellant states that surprisingly the process of the
present application provides a more even and regular distribution of the
second coating; and that by application of the precoating, the brilliance of
the food color applied to the chocolate cores in the second coating is
preferably improved; and by spraying under a high pressure, liquid media
are distributed extremely finely and regularly which results in a smooth
surface of small liquid droplets over a small surface area. Appellant refers to
Examples 1, 2, and 3 of the Specification in this regard. Appeal Br. 9. We
are unpersuaded by this line of argument for the reasons provided by the
Examiner on pages 10–11 of the Answer. The burden rests with Appellant
to establish (1) that the alleged unexpected results presented as being
associated with the claimed invention are, in fact, unexpected, (2) that the
comparisons are to the disclosure of the closest prior art, and (3) that the
supplied evidentiary showing is commensurate in scope with the claimed
subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Beginning on page 4 of the Reply Brief, Appellant argues that, while
Hasslinger teaches that the coating process is carried out by a Driacoater
500/600, Hasslinger does not specifically teach that the coating process is
Appeal 2019-001878
Application 14/424,181

7
carried-out by spraying, and in particular, by spraying under high pressure as
claimed by the Appellant. Appellant argues that while Rapp ‘601 discloses
that the Driacoater 500/600 can be used as a spraying device, the application
of the first and/or the second liquid medium by spraying is not
unambiguously obvious in view of Rapp ‘601 by using a Driacoater
500/600. Appellant argues that the Driacoater 500/600 is a highly flexible
coating system and refers to the “Driacoater 500/600” product brochure
provided as an attachment to the Reply Brief in this regard. Reply Br. 4.
Appellant argues that the brochure discloses different kinds of film
and suspension coatings of tablets, capsules, granules and pellets which can
be carried out with the use of a Driacoater 500/600. Appellant submits that
the simple fact that spraying under a variety of different kinds of coating
methods can be carried out using a Driacoater 500/600, does not motivate
the skilled person to use exactly the spraying method for preparing the first
coating and the second coating in a coating process as claimed in the present
application. Reply Br. 4. Appellant states that Rapp ’601 is related to pan
coating processes, which are related to a coating method wherein cores are
moved in a solution, and argues this is different from coating a core by
spraying.
We are unpersuaded by these arguments. The Examiner relied upon
Hasslinger for teaching coating of cores using a Driacoater 500/600, and
relies upon Rapp ’601 as evidence that a Driacoater 500/600 is a device
known to be used for spraying coatings. We agree with the Examiner that
these teachings provide the suggestion to spray coat Hasslinger’s coating for
the reasons discussed by the Examiner in the record. The Examiner relies
upon Latini and Andrade for suggesting the pressure claimed. The test for
Appeal 2019-001878
Application 14/424,181

8
obviousness is what the combined teachings of the references would have
suggested to those of ordinary skill in the art; one cannot show non-
obviousness by attacking references individually where the rejections are
based on combinations of references. In re Young, 927 F.2d 588, 591 (Fed.
Cir. 1991); In re Merck & Co., 800 F.2d 1091, 1097-98 (Fed. Cir. 1986); In
re Keller, 642 F.2d 413, 425 (CCPA 1981).
In view of the above, we affirm Rejection 1. We note that with regard
to Rejection 2, Appellant argues that Rapp ’144 does not cure the
deficiencies of the combination of references applied in Rejection 1. Appeal
Br. 7–9. However, for the reasons discussed above involving Rejection 1,
we are unpersuaded by this line of argument, and affirm Rejection 2 for the
same reasons that we affirmed Rejection 1.
CONCLUSION
We affirm the Examiner’s decision.
DECISION SUMMARY
In summary:
Claims
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 9,10,
12, 13 103
Hasslinger, Latini,
Rapp ’605,
Andrade
1–4, 9,10,
12, 13
11 103
Hasslinger, Latini,
Rapp ’605, Rapp
’144, Andrade
11
Overall
Outcome 1–4, 9–13
Appeal 2019-001878
Application 14/424,181

9
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