Upfield US Inc.

Patent Trials and Appeals Board

Oct 13, 2021

2021002638 (P.T.A.B. Oct. 13, 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.
11/883,220 07/27/2007 Brigitta Boer 039676.00024 9959
68543 7590 10/13/2021
Arent Fox LLP - Los Angeles
555 West Fifth Street
48th Floor
Los Angeles, CA 90013
EXAMINER
ZILBERING, ASSAF
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
10/13/2021 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 BRIGITTA BOER, ECKHARD FLOTER, and
GIJSBERT MICHIEL PETER VAN KEMPEN 1
____________

Appeal 2021-002638
Application 11/883,220
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–3, 7, 8, 10–13, and 21–23. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.
BACKGROUND
The subject matter on appeal relates to edible dispersions comprising
oil and a structuring agent. E.g., Spec. 1:6–7; Claim 1. Claim 1 is

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
Upfield Europe B.V. Appeal Br. 3.
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reproduced below from page 14 (Appendix A) of the Appeal Brief (some
paragraph breaks added):
1. An edible dispersion comprising a fat phase, the edible
dispersion being pourable and having a Bostwick value of at least
4 at 15 °C, and showing an oil exudation of less than 5% after
storage for 15 weeks at 15 °C;
wherein the fat phase contains at least 90 wt% of liquid oil and:
a) 1 wt.% < H3 triglycerides < 6 wt.%;
b) 1 wt.% < H2U triglycerides < 20 wt.%; and
c) the H3 triglycerides comprise at least 70 wt.% of monoacid
triglycerides;
wherein “H” represents long-chain saturated fatty acids
containing at least 16 carbon atoms and “U” represents cis-
unsaturated fatty acids;
wherein the triglycerides in the fat phase are from a triglyceride
source which is not hydrogenated; and
wherein fractionated palm oil stearin represents at least 90 wt.%
of all hardstock present in the edible dispersion.
ANALYSIS
Claims 1–3, 7, 8, 10–13, 15, and 21–23 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Besselink (US 2004/0071857 A1, published
Apr. 15, 2004), Bauer-Plank (US 6,517,884 B1, issued Feb. 11, 2003),
Holemans (US 4,791,000, issued Dec. 13, 1988), and Floeter (WO
03/084337 A1, published Oct. 16, 2003). The Appellant argues the claims
as a group. We select claim 1 as representative, and the remaining claims
will stand or fall with claim 1. See 37 C.F.R. § 41.37(c)(1)(iv).
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner’s rejection.
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Accordingly, we affirm the rejection for reasons set forth below, in the Final
Action dated December 26, 2019, and in the Examiner’s Answer.
The Examiner finds that Besselink teaches or suggests each element
of claim 1 except that (1) “Besselink does not teach a Bostwick value,”
(2) Besselink does not “teach of H3 or H2U triglycerides,” and (3) Besselink
does “not specifically teach H3 triglycerides contain[ing] at least 70 wt.% of
monoacid triglycerides.” Ans. 4–7.
As to (1), the Examiner finds that Bauer-Plank discloses pourable
compositions similar to Besselink’s and teaches that “[t]he pourability or
squeezability is evidenced by a Bostwick value of at least 7 at 15°C and
preferred at least 9 for pourable products.” Id. The Examiner determines
that “it would have been obvious to one having ordinary skill in the art . . . to
have achieved the Bostwick value of at least 4 and at least 9 taught by
Bauer-Plank, which would result in desirable liquid properties as pourability
in the liquid margarine of Besselink.” Id. at 3–4.
As to (2), the Examiner finds that Holemans teaches:
The preferred fat blends for diet margarines and spreads . . . are
characterized by: a content of H3 triglycerides, in which H
represents C16–24 saturated fatty acids, of at most 6% and
preferably 1–3%; a content of H2U triglycerides, in which H is
as defined above and U is a mono- or polyunsaturated C16–24
fatty acid, of at least 2% and preferably 3–10%.
Id. (citing Holemans at 7:23–30). The Examiner determines that, because
“Besselink and Holemans teach margarines using sunflower oil, it would
have been obvious to one having ordinary skill in the art . . . to have
achieved the triglyceride characterization of the H3 and H2U taught by
Holemans in the liquid margarine of Besselink.” Id. at 4–5.
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As to (3), the Examiner finds that Besselink teaches compositions
with “64% monoacid TAG’s . . . [or] 77wt% monoacid TAGS,”2 and that
Floeter “teaches a fat suited as a fat phase for low fat spreads that has HHH
triglycerides, wherein 25 to 65 wt.% are monoacid triglycerides.” Ans. 7.
The Examiner finds that Floeter teaches an embodiment that “contained a
monoacid triglyceride amount of 80wt%, which results in a serious oil
separation at 25°C,” indicating that monoacid triglyceride amounts of less
than 80 wt% are desirable. Id. at 8. The Examiner determines:
It [is] considered that the 64 wt.% monoacid triglycerides taught
by Besselink and the 65 wt.% triglycerides taught by Floeter is
in close proximity to the claimed at least 70wt% monoacid
triglycerides and would have been attained by one of ordinary
skill in the art.
Id.
In view of those and other findings less material to the issues raised
by the Appellant in this appeal, the Examiner concludes that the subject
matter of claim 1 would have been obvious to a person of ordinary skill in
the art.
Relying on the Declaration of Eckhard Floeter, the Appellant first
argues that Bauer-Plank uses fully hydrogenated oils, in contrast to claim 1’s
recitation of “a triglyceride which is not hydrogenated.” Appeal Br. 6–7. In
view of that distinction, the Appellant asserts that a person of ordinary skill
“would have had no motivation to modify Besselink as proposed by the
Examiner.” Id. at 8.

2 The Examiner and some references use the term “TAG,” which stands for
triacylglycerol or triacylglyceride, and is used interchangeably with the term
triglyceride.
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Even assuming arguendo that the Appellant is correct about Bauer-
Plank’s use of only hydrogenated fats, the Appellant’s argument is
unpersuasive because it does not meaningfully address the substance of the
Examiner’s rejection. Whether or not Bauer-Plank uses hydrogenated fats is
not material to the Examiner’s analysis. The Examiner finds that Besselink
itself, without modification, teaches pourable, liquid compositions made
from non-hydrogenated fats. Ans. 4, 5. The Examiner relies on Bauer-
Plank merely to establish that pourable liquid compositions, such as those of
Besselink, have a Bostwick value within the scope of claim 1. Ans. 6, 10
(finding that “Bauer-Plank . . . teaches the Bostwick value of
pourable/squeezable fat”). The Appellant’s argument fails to address the
Examiner’s relevant findings or to otherwise identify error in them. 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 . . . .”).
Additionally, we note that, in Appeal No. 2015-006771, involving the
same application as this case, the Board considered essentially the same
issue and described the Examiner’s relevant findings as follows: “because
Besselink teaches ‘liquid’ compositions but does not explicitly provide a
Bostwick value, Bauer-Plank simply provides evidence that [Besselink’s]
liquid compositions necessarily would have possessed Bostwick values
typical of liquids, i.e., ‘[f]or pourable products, a Bostwick value of at least
9.’” Ex parte Boer, Appeal 2015-006771, at 7 (PTAB May 15, 2017)
(“Dec.”). As noted above, the Appellant has not meaningfully addressed
those findings, and the Appellant does not otherwise provide any reason to
depart from our discussion of this issue in Appeal No. 2015-006771.
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The Appellant next argues that Holemans concerns solid margarines
and spreads that use high amounts of “high-melting [point] triglycerides.”
Appeal Br. 9. Again relying on the Floeter Declaration, the Appellant
argues that, “[a]pplying the process outlined in Holemans, one would expect
a product with significantly less than 70% mono-acid triglycerides in the H3
fraction, based on statistics well understood to a POSITA.” Id.
That argument is not persuasive because the Examiner does not
propose using high-melting point triglycerides, or using Holemans’ process.
As set forth above, the Examiner relies on Holemans for the broader
proposition that the amounts of H3 and H2U triglycerides recited by claim 1
were taught by the prior art as desirable amounts in similar fat compositions.
Ans. 6–7. The Appellant does not argue that the desirable amounts taught
by Holemans would not likewise have been considered desirable in the
pourable liquid compositions of Besselink. Nor does the Appellant argue
that incorporation of Holemans’ known preferred concentrations of H3 and
H2U triglycerides into the compositions of Besselink would have been
beyond the ordinary level of skill in the art, or that doing so would have
caused Besselink’s compositions to lose their liquid, pourable character.
The Appellant’s argument fails to meaningfully address the Examiner’s
relevant findings or to otherwise identify error in them. See Jung, 637 F.3d
at 1365.
We also note that the Board’s decision in Appeal 2015-006771
included a similar analysis, Dec. at 9, and the Appellant provides no
persuasive reason to depart from our previous discussion of this issue.
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The Appellant next argues that “[a] POSITA would have had no
reasonable expectation of success regarding the asserted combination of
references.” Appeal Br. 10.
That argument is not persuasive for reasons set forth above. The
Examiner does not propose using Holemans’ high-melting point
triglycerides or Holemans’ process. The Examiner’s proposal is simply the
use of known desirable H3 and H2U triglyceride concentrations (i.e., those
of Holemans) according to their established function (i.e., as a fat source in
margarines and spreads). See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
416–21 (2007) (use of a known element according to its established function
typically does not result in nonobvious subject matter). The Appellant
provides no persuasive reason to believe that a person of ordinary skill in the
art would not have expected known suitable triglyceride amounts to function
successfully in the margarines of Besselink.
The Appellant next points out that claim 1 requires a hardstock
comprising “at least 90% palm stearin fraction,” and alleges that Besselink
discloses “only 5% palm stearin fraction.” Appeal Br. 11. The Appellant
argues that the Examiner “improperly relies upon routine optimization” to
get from Besselink’s alleged 5% to the claimed 90%. Id.
That argument is not persuasive because it appears to misapprehend
Besselink. As the Examiner explains, Ans. 14, Besselink teaches that “Fat C
[e.g., palm oil stearin] has a solid fat content at 20 °C . . . which is at least
5[%].” Besselink ¶ 24. A disclosure that fat C includes at least 5% solid
content is not equivalent to saying that fat C makes up only 5 wt% of the
hardstock, as alleged by the Appellant.
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As we explained in Appeal 2015-006771, the Examiner relies on an
embodiment of Besselink in which “fat C” is present at 5.8% and soybean
lecithin is present at 0.25%, and on Besselink’s suggestion that “fat C” may
be palm oil stearin alone. Dec. 4–6; Besselink ¶¶ 24, 66, 73–74. We
explained in the previous Decision that, in embodiments in which fat C is
palm oil stearin alone rather than an interesterified fat, see Besselink ¶ 24
(“Suitable fat C fats are palm oil fractions or interesterified fats . . . .”), the
90% requirement of claim 1 would be met. Dec. at 5–6. The Appellant does
not address that discussion or otherwise provide any reason to depart from
our previous findings and conclusions.
We have carefully considered the Appellant’s arguments, but we are
not persuaded of reversible error in the Examiner’s rejection.
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 7, 8,
10–13, 15,
21–23
103(a)
Besselink, Bauer-
Plank, Holemans,
Floeter
1–3, 7, 8, 10–
13, 15, 21–23
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED