UPFIELD US INC.

Patent Trials and Appeals Board

Jun 23, 2021

2020004343 (P.T.A.B. Jun. 23, 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.
15/025,701 03/29/2016 Berend Jan ARENDS 039676.00061 1466
68543 7590 06/23/2021
Arent Fox LLP - Los Angeles
555 West Fifth Street
48th Floor
Los Angeles, CA 90013
EXAMINER
COX, STEPHANIE A
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
06/23/2021 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):
patentdocket@arentfox.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BEREND JAN ARENDS,
CHRISTIAAN MICHAËL BEINDORFF,
JOHANNES JOZEF MARIE JANSSEN, TEUNIS DE MAN, and
MARCEL STEVENS
Appeal 2020-004343
Application 15/025,701
Technology Center 1700
Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
DONNA M. PRAISS, Administrative Patent Judges.
SMITH, 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 1–11. (Final Act. 1.) We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The term “Appellant” to refers to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Upfield U.S. Inc.
(Appeal Br. 3.)
Appeal 2020-004343
Application 15/025,701
2
CLAIMED SUBJECT MATTER
The claims are directed to a process for preparing a spread. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A process for preparing an edible fat-continuous spread
comprising 15-65% fat and 35-85% water, said process
comprising the steps of:
a) providing a fat powder, an aqueous phase, and an oil
phase;
b) mixing said oil phase and said fat powder to form a fat
slurry in a stirred tank or recirculation means to which such
stirred tank is connected;
c) combining the aqueous phase with the fat slurry outside
said stirred tank in the recirculation means, to form a pre-
emulsion; and
d) forming the edible fat-continuous spread by
recirculating the pre-emulsion at least once between the stirred
tank and the recirculation means.
(Appeal Br. Claims Appendix)

REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Lissant US 4,844,620 July 4, 1989
Dobenesque WO 2010/069752 A1 June 24, 2010

REJECTION
Claims 1–11 are rejected under 35 U.S.C. § 103 as being unpatentable
over Dobenesque in view of Lissant. (Final Act. 5.)

Appeal 2020-004343
Application 15/025,701
3
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. See 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 . . . ” citing Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential)).
Upon consideration of the evidence in this appeal record in light of the
respective positions advanced by the Examiner and Appellant, we determine
that Appellant has not identified reversible error in the Examiner’s
determination that the subject matter recited in claims 1–11 would have been
obvious to one of ordinary skill in the art within the meaning of 35 U.S.C.
§ 103. Accordingly, we sustain the appealed rejection.
Appellant has presented arguments addressing independent claim 1.
We select claim 1 as representative of the rejected subject matter. We will
also address separately argued claims 3, 4, and 5.
Claim 1
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner’s
reasoned analysis and application of the prior art, as well as the Examiner’s
cogent and thorough disposition of the arguments raised by Appellant.
Accordingly, we will adopt the Examiner’s reasoning as our own in
sustaining the rejection of record, and we add the following for emphasis
only.
The Examiner finds Dobenesque discloses a process for preparing a
fat continuous spread comprising providing a fat powder and oil phase,
mixing the oil phase and fat powder to obtain a slurry in a stirred tank,
Appeal 2020-004343
Application 15/025,701
4
providing an aqueous phase and mixing the aqueous phase and fat slurry at a
junction point before mixing in a tank. The Examiner finds Dobenesque
discloses that the two phases are combined before being mixed completely,
however, Dobenesque fails to teach a recirculation means. (Final Act. 5.)
The Examiner finds Lissant teaches a method of a continuous emulsion,
wherein the method includes recirculating the emulsion exiting from the
mixing tank with the aqueous and fat phases to create a pre-emulsion. (Final
Act. 5.) The Examiner determines that it would have been obvious to
perform the process of Dobenesque including a recirculation means to
completely mix/combined the aqueous phase and fat slurry to result in a
continuous spread product. (Final Act. 6.)
Appellant argues the combination of Dobenesque and Lissant fails to
lead a person of ordinary skill in the art to arrive at the claimed invention.
Appellant argues the recirculation loop of Lissant is only configured to
partially recirculate material and continuously expel an emulsion product
while the instant invention allows continuous recirculation by recirculating
the pre-emulsion at least once. (Appeal Br. 8–9.)
Appellant's arguments are not persuasive of reversible error. The
claimed invention does not indicate how much of the material must be
recirculated. The present Specification also indicates that “at least a part of
the fat slurry or pre-emulsion is recirculated through the recirculation
means.” (Spec. 5–6.) Consequently, on this record Appellant has failed to
establish reversible error in the appealed rejection. Moreover, a person of
ordinary skill in the art utilizing ordinary creativity, would have sufficient
skill to determine the appropriate amount of pre-emulsion that should be
recirculated in order to form a continuous spread product. KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (In making an obviousness
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Application 15/025,701
5
determination one “can take account of the inferences and creative steps that
a person of ordinary skill in the art would employ”); In re Venner, 262 F.2d
91, 95 (CCPA 1958) (explaining that the provision of “automat[ed] means to
replace manual activity which has accomplished the same result” is well
within the ambit of one of ordinary skill in the art.) Appellant has not
directed us to evidence that the claimed invention provides unexpected
results.

Claims 3 and 4
Addressing claims 3 and 4, Appellant repeats the argument that the
combination of Dobenesque and Lissant would have led one of skill in the
art to methods and systems which continuously expel emulsion product.
(Appeal Br. 10–11.) This argument was not found persuasive for the reasons
set forth above.
Appellant further argues Lissant fails to suggest a method wherein
recirculation is repeated until no free water is detected. (Appeal Br. 10.)
Appellant’s argument is not persuasive of reversible error because a
person of ordinary skill in the art has a certain basic level of skill and would
have recognized the appropriate time to cease recirculation of the reactants.
See, e.g., In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) ([Applicant's]
argument presumes stupidity rather than skill). A conclusion of obviousness
also may be made based on the common knowledge of the person of
ordinary skill in the art without any specific hint or suggestion in a particular
reference. In re Bozek, 416 F.2d 1385, 13909 (CCPA 1969). It cannot be
reasonably argued that one with ordinary skill in the art is so devoid of skill
and common sense to recognize that in the absence of one of the required
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Application 15/025,701
6
components, i.e. water or the aqueous phase, recirculation of the reactants
would not have been appropriate.

Claim 5
Appellant’s argument with respect to claim 5 is not persuasive.
Appeal Br. 11–12. Merely reciting the claim language, and asserting that the
cited references, alone or in combination, also fail to disclose or suggest
such limitations is not a persuasive argument. See In re Lovin, 652 F.3d
1349, 1357 (Fed. Cir. 2011) (“[W]e hold that the Board reasonably
interpreted Rule 41.37 to require more substantive arguments in an appeal
brief than a mere recitation of the claim elements and a naked assertion that
the corresponding elements were not found in the prior art.”).
CONCLUSION
The Examiner’s decision to reject claims 1–11 is AFFIRMED.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–11 103 Dobenesque, Lissant 1–11

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