*1 Judgе. ALMOND, CCPA Application of Peter P. United States Court of Customs Patent Charles W. and Patent Carl F. Obenauf. April Appeal Tatter and Appeals. 1968. No. 7901. NOZNICK, tion for affirming the of the Patent duction of a Powder.” This The application patent an dry powder appeal Office Board of entitled is directed to appellants’ applica- from the decision of claims of sour cream. “Sour Appeals 13, 52, Cream pro- powder The is sold to dairies where is reconstituted the addition of water. preferred embodiment of the inven- application tion in- as described agent addition of cludes the appears which to aid in the reconstitu- step. reciting Claims inclusion allowed appeal examiner. before us involves only claims omit the recitation peptizing agent, but which do re- presence “coating agent.” cite admittedly nonpre- While this was thе application ferred embodiment in the filed, it claimed to have become preferred commercial embodiment of invention. The claimed invention with process making
are involved is a for spray-dried powder in- sour volving steps adding to the sour encapsulating cream a particles, homogenizing the fat mix- ture, spray drying. and then The coat- ing agents disclosed are listed group Markush of claim 55. Claim 13 composition approxi- is a claim limited to mately sour cream 82% 18% remaining acacia. directed to disclosed embodi- process ments of the and аre encom- passed by 55. claim Darby Guttag, Cushman, & Alvin reproduced 13 and 55 are be- Claims appel- Cushman, C., Washington, D. low: lants. flowing 13. A dried free sour C., Joseph Schimmel, Washington, D. powder containing approximate- cream Washington, C., (Fred Sherling, D. W. ly sour cream solids and 82% 18% counsel) of Pat- for the Commissioner gum acacia. ents. process making 55. The sour Judge, adding powder comprising WORLEY, cream Before Chief RICH, SMITH, KIRKP 5 to as- ALMOND and 30% sisting ATRICK,* group Judges. selected 197,837 May 28, filed District of Serial No. Eastern District Senior sitting by designation. Pennsylvania,
947 gum consisting gum acacia, traga- solids, gelatin homogeniz- casein, of and corn, starches, canth, potato drying spray wheat and the mixture and then starches, phosphated the mixture. acid modified starches, enzyme modified of rejected starches ex- previous group, pectins, aminer dextrins, under 35 U.S.C. § carboxymethyl cellulose, milk nonfat references are: 1,800,501 April
Bornegg 14, 1931 2,009,135 July 23, 1935 Grelck 2,719,793 Page (Page) 1955 et October al. 2,913,342 (Cameron) Cameron et al. November gum widely vary de- the amount of can Bornegg of a the addition teaches pending upon product dried. gum to be gum such as arabic water soluble agreed The board with the examiner’s liquids (acaciа) drying for acid as a aid rejections. reasons liquids spray are to dried. be animal, contemplated plant, “of In its indicated board that example synthetic specific origin,” unimpressed by arguments pre- it was juice. lemon by appellants alleging is sented an unex- pected product result in that can drying spray of cul- Grelck discloses sep- be reconstituted with water without products milk tured from which the al- aration. The board commented: coagulated. bumin has been The start- However, superior properties may any one material be of Grelck appellants reconstitution to which re- including products number milk of a of appear fer viscosity product of the mainly be attributable to the may finally be of a which is dried step, part. at in In of the least none heavy liquid. examples except Examples in gum Page of a to a addition describes сoating agent without there used a prevent product separa- cream sour agent; Example 9 it Tragacanth gum tion. material stated mentioned; Page does acacia is not. effective, alone makes is not as dry his product dryable, and in encapsulation of fat Cameron teaches appellants of the state that use compositions soluble solids with water peptizing agent pref- was to be found * * * gum gelatin acacia followed erable. drying. by spray took this a new to be ground rejection, request of filed a position It was examiner along for remand with an affidavit dry spray it would be obvious to purporting co-inventor Tatter to show gum-containing Page cream sour spray-dried compositions prepared spray drying since Grelck teaches according application pep- product Bornegg to the without culturеd cream tizing agents redispersible are indeed gum teaches the acacia aid use of as an compositions. water stable spray drying liquids. acid Cameron The board gelatin being answered: was cited to show used grounds gum rejec- a substitute for acacia and We find to show no new may spray that viscous con- emulsions be our decision. It does not ground patent- dried. found no The examiner stitute a new significance spe- appellant why able in the recitation to an his ar- out guments proportions persuasive cific are not error Bornegg rejection, it view disclosure that Examiner’s nor does plication implied they always invitation made it clear that constitute an showings supply present presence the yielded belated * * product. This a reconstitutable deficiencies. being so, argue the board’s us, It as it did to the exam- seems holding ground rejection, new board, iner and the skilled and that the board erred in not remand- the art would find dry *3 ing the case to the examiner and in not product as cultured cream a considering the Tatter affidavit filed to coating teaches, and to add a Grelck answer the board’s statements. spraying the аdvan- to to achieve tages taught Bornegg. specification by the The addition We have examined cream and record in this case and in com- of such a to sour plete agreement suggested by Page, al- Al- with the board. though though purpose. appellants portions for a different cite certain teachings specification con- of of reinforce our the the Cameron various specific percentages during prosecution papers they the clusion. to filed to As support contention, appears in certain we find noth- claims, recited ing their it any specification many they quotations to indicate on the rely criticality proportions. The of such in their brief of con- are taken out merely optimum claim seems to recite the text. achieving acceptable proportions for powder when an example, appellants For refer to one using gum acacia. Since sentence in their spray dry to the com- we find states: bination of acacia and sour coating agent improves prod- the vary pro- also consider it the obvious to appreciably helping uct to secure satisfactory portions of the two until a adequate encapsulation and on recon- found, Bornegg particularly ratio is since improves water, stitution the dis- with suggests proportions that different persibility precludes forming and also liquids. needed for different curdy by a mass charаcterized solids separation argument, attorney precipitation. appellants’ At oral problems different involved stressed the However, they do immediately preceding sentences of the the not mention two drying a semi-solid such liquid sour cream and a thin such as paragraph sрecification. same of their Bornegg’s argument, juice. lemon Such paragraph The whole reads: however, dispose or does Grelck peptizing agent the coat- Cameron, spray dry vis- both whom enrobing agent aid, explained, or cous materials. assuring encapsulation on the attempted hand, over- have hand and on the other aids argu- holding by come the of obviousness the reconstruction im- with water to prove dispersibility produce an unex- have achieved a pected process namely smooth, creamy body. from their result the Without — powder peptizing agent, reconsti- their is water on reconstitution with water, curdy produced into a smooth cream whereas tutable a mass is product appears separate precipi- the not to be so Grelck which the solids or above, coating agent improves reсonstitutable. As stated tate out. The property product appreciably helping board attributed this preferred peptizing step adequate encapsulation embodi- secure and on ment, improves did water, therefore not feel reconstitution with alleged any unexpеcted dispersibility precludes had result and also bearing reciting peptiza- forming curdy on claims not a mass characterized separation precipitation. tion. Appellants vigorously paragraph contest this While this is far from a holding They clarity, organization points claim thаt model its throughout ap- prosecution of the to the conclusion the second sen- nonreconstitutability contrary, patents when On none of the tence teaches spray drying with alone is used teaches of sour a rehydration cited such manner This sentence sour cream. aрpellants yields brief, product material in his viscous the solicitor original explain or comment similar sour cream. fit did not see argument. again, it in oral appellants’ propensity Once quote only portion paragraph specification is The remainder of the misleading, somewhat second point. Appel- help not of much on this following quoted third sentences the one instance, Example 6, for lants are: support coat- contention that function, Thus, example ing agents yield a reeonstitutable peptizing agent powdered clearly mis- Their reliance readily dispersible sour cream which is placed, *4 for 6 states: during rehydration suggested is not examples previous was Each of the Similarly, in the func- the art. repeated, including in mixture the agents coating produce of the to coating agent, namely, gum as such may readily sour cream driеd which be respective- corn starch acacia and suggested by refer- is likewise not the ly, agents rendering mix these the ences record. easily dryable recon- smooth and is similar. The remainder record smooth stitutable water into a with by appel- There statements * * certain cream. attorneys during prosecution lants’ specification Eeference the shows to coating may indicating read be as that a examples” previous “each the that agent agent peptizing in the absence peptizing agent. Example 6 included a product. will a reeonstitutable only of coat- therefore the effect shows indicating But there are also statements ing agents peptiz- in combination with agent peptizing re- that the alone is ing agents. sponsible property. is for There this examples specification, the Of 22 in the conclude no basis thе 14a, only examples 9,- 12, 18 15a and agent yield coating alone can that the coating the use of a show product, reeonstitutable affidavits no agent. agent peptizing in the absence of a file on the were the as it went examples recon- None of these mentions board, that the board. The faced with stituting powder. Example indi- 9 the refusing record, entirely correct was coating though agent, cates that the argu- any weight appellants’ to accord agent, peptizing makes as effective the unexpected do not ments of results. We product dryаble. Examples re- new feel thus made a board 18 indicate use merely explain- jection. The was board agent preferable, say why. do not but arguments ing appellants why their Examples merely report 14a 15a were to overcome ineffective powders using made milk nonfat by madе the examiner. place phosphate. of disodium It follows that the board arguments refusing to consider the belated claim that their correct during prosecution clearly not think Tatter affidavit. It did showed them, they properly considered affidavit be before abundantly producing be аn affi effective clear that a reeonsti- it is decision, consid example, davit filed a board tutable As after quote August the exam neither board nor ered their amendment 2 iner, properly court. before this 1963: is not passing reconsti- It fact of more than interest no affidavit, give speсific accompany- tutable, rec- note that does not samples purports ipes exhibit for shown to show the two pre- says containing only that one was It exhibit. 950 Rothermel, re CCPA
In F.2d 47 276 We support appellants have failed any
allegation unexpected results with agree
credible with the evidence. We before
board that claimed invention
us is under 35 U.S.C. § set forth reasons
Affirmed.
SMITH, Judge (dissenting). Zalkind, pro M. Albert se. Washington, respectfully Joseрh Schimmel, I from the reason- dissent D. C. majority (Raymond Washington, C., Martin, conclusion of the E. D. Wiechert, addition, counsel) In re In see merits. Commissioner Pat- (1967) for F.2d CCPA ents. consisting my concerning a board views Acting RICH, Chief Before Acting Examiners-in-Chief, two SMITH, KIRKPATR ALMOND and appears in record. this *5 Judges. ICK,*
SMITH, Judge. dispositive appeal issue in this appellant’s subject mat- whether claimed teachings ter is obvious in view of the meaning of within references U.S.C. § appeal is an decision of This Appeals,1 ad- Board the Patent Office 55 CCPA affirming upon reconsideration, hered Application of Albert M. ZALKIND. examiner’s Appeal Patent No. 7947. application2 appellant’s 32 and 36 of “unpatentable over” art. United States Court Customs Appeals. and Patent cap- to a The invention in issue relates April 4, 1968. having firing toy whip whip element to a The handle con- attached handle. appellant “inertia- what terms аn tains hammer, operated” cap mechanism, a feed arrang- Those an anvil. elements automatically caps ed so successively sequentially aat time fed position the ham- roll to a between from a cap is suc- mer anvil where and thé each cessively exploded provide sound sim- Bailey pared Example of Messrs. 1. The board consisted 11 and the as described Brewrink, Examiners-in-Chief 16. As other as described Acting Reynolds, Mr. above, Examiner-in-Chief. find in our indicated discussion Bailey specifi- impossible wrote conclude used cation whether a 1, 1962, 227,331, filed October No. Serial examples or not. these Novelty Exploding “Paper Cap entitled 15-28, 12, 13, 4-6, 9, Toy.” Claims Eastern District of Senior District Pennsylvania, sitting designation. stand allowed. 30 and 35