Conopco, Inc., d/b/a UNILEVER

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.

15/767,432 04/11/2018 Leonardus Marcus Flendrig P6083637PCT/US 9744 132452 7590 08/04/2025 EXAMINER

Ipsilon USA - NLO

New Babylon City Offices

DUBOIS, PHILIP A

Anna van Buerenplein 21a The Hague, 2595 DA

ART UNIT PAPER NUMBER

NETHERLANDS 1791

NOTIFICATION DATE DELIVERY MODE

08/04/2025 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):

USPTO@nlo.eu

shultz@nlo.eu

uspractice@nlo.eu

PTOL-90A (Rev. 04/07)

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UNITED STATES PATENT AND TRADEMARK OFFICE

____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

____________

Ex parte LEONARDUS MARCUS FLENDRIG and

HENDRIKUS THEODORUS W M VAN DER HIJDEN

____________

Appeal 2024-002655

Application 15/767,432

Technology Center 1700

____________

Before TERRY J. OWENS, CHRISTOPHER C. KENNEDY, and SHELDON M. MCGEE, Administrative Patent Judges. KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellant¹appeals under 35 U.S.C. § 134(a) the Examiner's decision rejecting claims 1, 3-12, 15, and 18. We have jurisdiction under

35 U.S.C. § 6(b). We AFFIRM.

BACKGROUND

The subject matter on appeal relates to compositions comprising a structured oil phase and a puffed endosperm. E.g., Spec. 1:4-6, 3:6-12;

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Appeal 2024-002655 Application 15/767,432 Claim 1. Claim 1 is reproduced below from page 13 (Claims Appendix) of the Appeal Brief:

1. Composition comprising a structured oil phase, wherein the oil phase comprises

a. liquid oil;

b. from 3 to 20 wt-% of hardstock fat with regard to the weight of the oil phase; and

c. from 4 to 20 wt-% with regard to the weight of the oil phase of particles of puffed maize kernel endosperm, dispersed in said oil phase, wherein upon sieving at least 80 wt% of said particles passes a sieve with apertures of 500 μm, and

wherein the hardstock fat and the particles of puffed maize kernel endosperm interact and produce a synergistic structuring effect of the oil phase such that a Stevens value of the composition is greater than a sum of a Stevens value of the liquid oil structured with only the hardstock fat and a Stevens value of the liquid oil structured with only the particles of puffed maize kernel endosperm.

REJECTIONS ON APPEAL

No.	Claims Rejected	35 U.S.C. §	References
1	1, 3–9, 11, 15, 18	103	Higgins,2 Plank,3 Lobee4
2	10	103	Higgins, Plank, Lobee, Fitzgerald5
3	1, 3–12, 15, 18		Provisional Nonstatutory Double Patenting (Appl. No. 15/767,687 in view of Lobee)
4	1, 3–12, 15, 18		Provisional Nonstatutory Double Patenting (Appl.

2 US 2011/0281015 A1, published Nov. 17, 2011.

3 US 2006/0078655 A1, published Apr. 13, 2006.

4 US 8,349,342 B2, issued Jan. 8, 2013.

5 US 2014/0093636 A1, published Apr. 3, 2014.

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Appeal 2024-002655 Application 15/767,432

No. Claims Rejected 35 U.S.C. § References

No. 15/767,394)

ANALYSIS

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 rejections. Accordingly, we affirm the rejections for reasons set forth below, in the Final Action dated January 24, 2023, and in the Examiner's Answer dated March 15, 2024.

Rejections 1 and 2

The Appellant presents arguments only as to claim 1. We address claim 1 below, which is sufficient to address all of the Appellant's arguments concerning Rejections 1 and 2.

The Examiner's findings and conclusions appear at pages 3-5 of the Final Action.

The Appellant argues that the proposed combination "changes the principle of operation o[f] the [prior] art" because Higgins allegedly requires a fibrous material with capillaries and the Examiner has not shown that Lobee's particles of puffed corn meet those requirements. Appeal Br. 7-9. Those arguments fail to identify reversible error in the Examiner's rejection. Higgins discloses a composition that includes cellulose fibers, a hard fat, and a liquid oil. Higgins at Abstract. Higgins defines "cellulose fiber" as "a fibrous cellulose material obtained from plant sources." Id. ¶ 20. Higgins states that "[t]he fibrous nature of the material and the existence of capillaries that can take up oil is an important feature for the cellulose fiber used herein," but as noted above, it does not indicate that capillaries are

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Appeal 2024-002655 Application 15/767,432 required for a material to constitute a cellulose fiber. Id. Higgins indicates that the key functional requirement of the cellulose fiber is that it "can take up oil." Id.

Lobee discloses that puffed corn has a high "oil retention capacity."

Lobee 2:54-56. Lobee indicates, and the Appellant does not dispute, that corn is fibrous. Id. at 3:56-57. Lobee's puffed corn meets both the functional requirements (oil uptake capacity) and definition (fibrous cellulose material obtained from plant sources) of Higgins' cellulose fiber. Thus, a person of ordinary skill in the art reasonably would have regarded it as suitable for use as the cellulose fiber of Higgins. A person of ordinary skill in the art would not have regarded it as changing Higgins' principle of operation.

The fact that Lobee teaches that "it is . . . possible to remove" certain fibrous material from its milled corn, Appeal Br. 8, does not show otherwise because a statement that it is possible to remove certain types of fiber is not a requirement to remove those types of fiber. Even if it were, Lobee at most suggests removing certain types of fiber, not all fiber. See Lobee 3:56-57. The fact that Lobee may not explicitly describe capillaries in its puffed corn powder does not establish that no capillaries are present. But even if we were to accept that Lobee's puffed corn does not have capillaries, we do not agree that such would indicate an impermissible change to the principle of operation of Higgins because, as set forth above, Lobee's corn meets the definition and functional requirements of Higgins' cellulose fibers. On this record, we are not persuaded that the proposed combination changes the principle of operation of the prior art in a way that indicates reversible error in the rejection.

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Appeal 2024-002655 Application 15/767,432 The Appellant also argues that certain examples in Lobee use 25 wt% particles, which is higher than the 4-20 wt% of claim 1. Appeal Br. 9. That argument is not persuasive because "a reference is not limited to the disclosure of specific working examples." See In re Mills, 470 F.2d 649, 651 (CCPA 1972). Additionally, the Examiner relies on Higgins, not Lobee, for the amount of particles, and there is no dispute that Higgins teaches an amount that overlaps the range of claim 1. See Final Act. 4. The Appellant also argues that Lobee does not teach or suggest the claimed particle size, i.e., "wherein upon sieving at least 80 wt% of said particles passes a sieve with apertures of 500 μm." Appeal Br. 10-11. That argument is unpersuasive because Lobee explicitly discloses that

"at least 80 wt % [of the puffed corn powder] has a particle size below [500 μm], preferably at least 70 wt% has a particle size below [300 μm]." Lobee at 2:60-63. That certain examples in Lobee indicate that larger particle sizes might perform better, see Appeal Br. 10, does not negate that express disclosure.

The Appellant argues that "[n]one of Higgins, Plank, and Lobee teach the claimed Stevens value." Appeal Br. 11. The Appellant acknowledges the Examiner's determination that the recited properties flow naturally from the composition but reiterates the argument that "the combination of Higgins, Plank, and Lobee fails to teach or render obvious a composition as claimed in claim 1." Id.

As set forth above, we are not persuaded by the Appellant's arguments that the prior art does not teach or suggest a composition that falls within the scope of claim 1. Accordingly, we are not persuaded by the Appellant's argument concerning the Stevens value.

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Appeal 2024-002655 Application 15/767,432 We affirm the Examiner's rejection of claim 1. Rejections 3 and 4

We summarily affirm Rejections 3 and 4 because the Appellant does not acknowledge or otherwise assert error in those rejections.

CONCLUSION

In summary:

Claim(s) Rejected	35 U.S.C. §	Reference(s)/Basis	Affirmed	Reversed
1, 3–9, 11, 15, 18	103	Higgins, Plank, Lobee	1, 3–9, 11, 15, 18
10	103	Higgins, Plank, Lobee, Fitzgerald	10
1, 3–12, 15, 18		Provisional Nonstatutory Double Patenting (Appl. No. 15/767,687 in view of Lobee)	1, 3–12, 15, 18
1, 3–12, 15, 18		Provisional Nonstatutory Double Patenting (Appl. No. 15/767,394)	1, 3–12, 15, 18
Overall Outcome			1, 3–12, 15, 18

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

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