UPFIELD US INC.Download PDFPatent Trials and Appeals BoardJun 23, 20212020004343 (P.T.A.B. Jun. 23, 2021) Copy Citation 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 Appeal 2020-004343 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 Appeal 2020-004343 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 Copy with citationCopy as parenthetical citation