SOCIÉTÉ DES PRODUITS NESTLÉ S.A.

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.

17/123,443 12/16/2020 Khushal Brijwani 3712036-03790 6555

29157 7590 01/05/2026 EXAMINER

K&L Gates LLP-Nestec S.A.

P.O. Box 1135

DUBOIS, PHILIP A

Chicago, IL 60690

ART UNIT PAPER NUMBER

1791

NOTIFICATION DATE DELIVERY MODE

01/05/2026 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):

uspatentmail@klgates.com

PTOL-90A (Rev. 04/07)

1

UNITED STATES PATENT AND TRADEMARK OFFICE

____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD

____________

Ex parte KHUSHAL BIRJWANI, EVAN BERK, and VIVEK DILIP

SAVANT

____________ Appeal 2025-002524 Application 17/123,443 Technology Center 1700 ____________

Before JEFFREY R. SNAY, BRIAN D. RANGE, and JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL

The Appellant¹requests review under 35 U.S.C. § 134(a) of the Examiner's final rejection of claims 1-21.²We have jurisdiction over the appeal under 35 U.S.C. § 6(b).

We affirm.

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Appeal 2025-002524 Application 17/123,443

CLAIMED SUBJECT MATTER

Claim 1 illustrates the subject matter on appeal, and reads as follows:

1. A method of making a meal replacement bar, the method comprising:

providing a base material comprising at least one real food and/or natural ingredient comprising proteins, carbohydrates, fats, and/or fiber;

providing at least one natural binding agent to bind together the base material, wherein the at least one natural binding agent is selected from the group consisting of honey, chicory root syrup, dates paste, and mixtures thereof and is in an amount effective for the meal replacement bar to maintain a shape; and

providing additional ingredients comprising vitamins and minerals to form a final mixture, wherein the meal replacement bar does not contain any pea protein,

wherein the meal replacement bar does not comprise a coating.

Appeal Br. 29 (Claims Appendix) (emphases added).

REJECTIONS

The Examiner maintains the following rejections in the Examiner's Answer entered March 11, 2025 ("Ans."):

I. claims 1-5, 10-12, 14, 16, and 18-21 under 35 U.S.C. § 103 as unpatentable over Burrington;³

II. claims 6-9, 15, and 17 under 35 U.S.C. § 103 as unpatentable over Burrington in view of Solomon;⁴and

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Appeal 2025-002524 Application 17/123,443

III. claim 13 under 35 U.S.C. § 103 as unpatentable over Burrington in view of Hendriks.⁵

FACTUAL FINDINGS AND ANALYSIS

We review appealed rejections for reversible error based on the arguments and evidence the Appellant provides for each issue the Appellant identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ 2d 1072, 1075 (BPAI 2010) (precedential) ("Filing a Board appeal does not, unto itself, entitle an appellant to de novo review of all aspects of a rejection. If an appellant fails to present arguments on a particular issue — or, more broadly, on a particular rejection — the Board will not, as a general matter, unilaterally review those uncontested aspects of the rejection."), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that "it has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections").

After considering the evidence relied upon in this appeal and each of the Appellant's contentions, we affirm the Examiner's rejections of claims 1-21 under 35 U.S.C. § 103 for reasons set forth in the Final Action, the Answer, and below.

Rejection I

We begin with the Examiner's rejection of claims 1-5, 10-12, 14, 16, and 18-21 under 35 U.S.C. § 103 as unpatentable over Burrington. We address claims separately to the extent they are so argued by the Appellant. 37 C.F.R. § 41.37(c)(1)(iv).

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Appeal 2025-002524 Application 17/123,443 Claims 1 and 3-5 The Appellant argues claims 1 and 3-5 as a group, and in so doing, presents arguments for claim 1 only, to which we accordingly limit our discussion. Appeal Br. 6-15; 37 C.F.R. § 41.37(c)(1)(iv). Burrington "reviews the processing conditions and formulations of"

nutrition bars, which Burrington indicates are often coated in chocolate or other flavors. Burrington 1. According to Burrington, nutrition bars can be cold-processed or baked, and cold-processed bars are made using an extrusion process or using binders that permit the components to stay together in a set shape. Id. at 2. Burrington discloses that the later type of cold-processed bars (binder bars) contain grains, inclusions such as nuts, and added protein in the form of whey crisp, whey protein isolate, and/or whey protein concentrate. Id. at 5. Such bars "are held together by sugar syrups such as brown rice, honey or corn syrups." Id. Burrington provides a recipe for producing a cold-processed binder bar, referred to as a "High-Protein Granola Bar: Whey Good Bar." Id. The recipe sets forth steps for forming a chewy granola bar, and for preparing a caramel layer poured over the granola bar. Id.

Burrington discloses that baked bars require baking to form their final texture, and "[l]ike cold-processed bars, baked bars can be enrobed or coated with flavored chocolate or compound coatings after they cool." Id. at 6. The Examiner finds that Burrington thus discloses that a "coating is optional," and concludes that, therefore, it would have been obvious "to provide a bar with no coating" as recited in claim 1. Final Act. 3 (citing Burrington 2).

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Appeal 2025-002524 Application 17/123,443 The Appellant argues that in rejecting claim 1, the Examiner combines two different products disclosed by Burrington—extruded bars and chewy binder granola cereal bars. Appeal Br. 7. According to the Appellant, these two types of bars have different ingredients and different properties, and Burrington discloses that a coating is optional only for extruded bars. Id. at 7-8. The Appellant argues that Burrington would not have suggested that a coating is optional for chewy binder granola cereal bars, particularly because Burrington discloses a "formulation" for such a bar that "explicitly includes a coating." Id. at 8. The Appellant argues that Burrington, therefore, "fails to provide a reasonable expectation of success for the skilled artisan to combine two separate and distinct bars in Burrington to somehow arrive at the claimed meal replacement bar that does not comprise a coating." Id. at 7.

The Appellant's arguments do not identify reversible error in the Examiner's rejection, for reasons that follow.

First, the Examiner's rejection is not based on combining Burrington's extruded bars and chewy binder granola cereal bars. Final Act. 3-4 (citing Burrington 2, 5). The Examiner, instead, cites disclosures in Burrington relating to both types of bars, which does not constitute a proposal to combine the two bars. Id. And Burrington's disclosures related to binder bars are not limited to the recipe (or formulation) for "High-Protein Granola Bar: Whey Good Bar" Burrington provides. Rather, as discussed above, Burrington describes—in general terms—the ingredients of binder bars (grains, inclusions, added protein, and sugar syrups). Although the Examiner cites to Burrington's description of extruded bars to support a finding that a "coating is optional" (id. at 3), Burrington not

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Appeal 2025-002524 Application 17/123,443 only discloses that a coating is optional on extruded bars (by explaining that extruded bars "are often coated with a compound or chocolate coating"), Burrington more broadly discloses that nutrition bars in general, and cold- processed bars more specifically (which include both extruded bars and binder bars), "are often," and "can be," coated (as discussed above). A person of ordinary skill in the art would have inferred from these disclosures that application of a coating to a binder bar is optional, and, consequently, the ordinarily skilled artisan reasonably would have expected that a satisfactory binder bar could be produced successfully without coating the bar, contrary to the Appellant's arguments. In re Preda, 401 F.2d 825, 826 (CCPA 1968) ("[I]t is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.").

The Appellant argues that even if Burrington would have suggested that a coating is optional, "Burrington does not teach what features allow for a bar to somehow still be satisfactory without a coating." Appeal Br. 8. The Appellant argues that, "[t]o the contrary, Burrington teaches that the formulation of the bar is 'critical to help maintain optimal taste and texture during shelf life,'" and "Burrington fails to provide any indication of how these properties can be maintained without a coating." Id. The Appellant argues that Burrington, therefore, "teaches that removal of the coating would compromise taste, mouthfeel and integrity of bars." Id. Contrary to the Appellant's arguments, however, Burrington does not disclose that an uncoated binder bar would have unsatisfactory taste, mouthfeel, and integrity. Rather, Burrington discloses that "[g]ood

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Appeal 2025-002524 Application 17/123,443 formulation and packaging are critical to help maintain optimal taste and texture during shelf life." Burrington 2.

Furthermore, a person of ordinary skill in the art would have inferred from Burrington's disclosure that binder bar coatings are optional that a satisfactory uncoated binder bar (a bar with a "good formulation") could be produced using the binder bar ingredients Burrington discloses—grains, inclusions, added protein, and sugar syrups. The ordinary skilled artisan reasonably could have produced a satisfactory uncoated binder bar in the absence of explicit guidance in Burrington for doing so using nothing more than ordinary skill and creativity. In re Levin, 178 F.2d 945, 948 (CCPA 1949) (holding that it is a matter of obviousness for one of ordinary skill in the art to combine conventional ingredients in a food product, and to determine their optimum amounts, in the absence of evidence that the ingredients coreact or cooperate in a manner to produce an unexpected result); Facebook, Inc. v. Windy City Innovations, LLC, 953 F.3d 1313, 1333 (Fed. Cir. 2020) ("'[a] person of ordinary skill is also a person of ordinary creativity, not an automaton,' so the fact that it would take some creativity to carry out the combination does not defeat a finding of obviousness"

(alteration in original)) (quoting KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398,

421 (2007)).

The Appellant argues that "Burrington uses sugar syrups and sugar alcohols as binding agents," and none of the recipes Burrington discloses

"use natural binding agents." Appeal Br. 9. The Appellant argues that Burrington's 40-30-30 bar and chewy granola bar recipes include 5% and 1.1% honey, respectively, which amounts a skilled artisan would have

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Appeal 2025-002524 Application 17/123,443 understood would only add flavor and would be insufficient to function as a binding agent. Id.

Burrington's disclosures, however, are not limited to recipes for a 40- 30-30 bar and a chewy granola bar. Rather, as discussed above, Burrington more broadly discloses that cold-pressed bars "are held together by sugar syrups such as brown rice, honey or corn syrups." Burrington 5. A person of ordinary skill in the art would have understood this disclosure to indicate that sugar syrups function as binding agents in cold-pressed bars, and to indicate that brown rice syrup, honey, and corn syrup each could be used successfully in a cold-pressed bar as a binder to hold the bar's ingredients together. In re Hedges, 783 F.2d 1038, 1041 (Fed. Cir. 1986) (When determining obviousness, "the prior art as a whole must be considered. The teachings are to be viewed as they would have been viewed by one of ordinary skill.").

It would have been well within the level of ordinary skill in the art to determine an amount of honey sufficient to bind the ingredients of a cold- pressed bar together to allow the bar maintain a desired shape. In re Aller,

220 F.2d 454, 456 (CCPA 1955) ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation."); see also Burrington 5 (teaching that honey may be added to hold the bar together). The Appellant argues that it "surprisingly found that a meal replacement bar comprising honey, dates paste or chicory root syrup as a binding agent exhibits excellent organoleptic properties" as shown in Table 9 and Figures 9-15 of the present application. Appeal Br. 11. The Appellant argues that such organoleptic properties would have been

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Appeal 2025-002524 Application 17/123,443 unexpected because honey, dates paste, and chicory root syrup have high hygroscopicity, and Burrington highlights the importance of low water activity in food products and "teaches ingredients with low water activity should be selected." Id. at 12-13.

The burden of establishing unexpected results rests with the Appellant. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). To meet this burden, the Appellant must provide objective evidence of results that are commensurate in scope with the claimed subject matter that would have been unexpected by one of ordinary skill in the art relative to the closest prior art. In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005); In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978); In re Baxter Travenol Labs.,

952 F.2d 388, 392 (Fed. Cir. 1991). The Appellant's Figures 9-15 show sensory maps prepared by respondents 1-6, respectively, for four "prototype" bars: 378, 536, 774, and 140, and five comparative commercial products: 212, 984, 886, 906, 520. Spec. ¶¶ 159-165. Table 9 "summarizes the mapping results of the tested prototypes and commercial products." Id. ¶ 166. The Appellant does not direct us to any disclosure in the Specification indicating the composition of the four prototype bars, and we find no such disclosure. Nor does the Appellant direct us to disclosure of the composition of the comparative commercial products. The Appellant, therefore, does not establish that the prototype bars are within the scope of any of the present claims, including claim 1. It follows that the Appellant does not direct us to objective evidence commensurate in scope with the subject matter of claim 1 of results that would have been unexpected by one of ordinary skill in the art relative

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Appeal 2025-002524 Application 17/123,443 to the closest prior art. The Appellant, consequently, does not meet its burden of establishing unexpected results.

Considering the totality of the evidence on the record before us, a preponderance of the evidence weighs in favor of the Examiner's conclusion of obviousness. We, accordingly, sustain the Examiner's rejection of claims 1 and 3-5 35 U.S.C. § 103.

Claim 2

Claim 2 recites that the method of claim 1 further comprises shaping the final mixture in a mold, and cutting the molded final mixture into the meal replacement bar.

The Appellant argues that Burrington does not disclose and would not have suggested the steps recited in claim 2. Appeal Br. 14-15. As the Examiner finds, however, Burrington's chewy granola bar recipe includes steps of combining ingredients, compressing the combined ingredients into a sheet having a thickness of 0.6 inches, a width of 12 inches, and a length of 18 inches, and cutting the sheet into bars. Final Act. 4 (citing Burrington 5); Ans. 18. The Examiner further points out that Burrington includes numerous illustrations of individual nutrition bars having uniform rectangular shapes in which all sides are flat. Ans. 18 (citing Burrington 1, 3, 5, 6).

A person of ordinary skill in the art reasonably would have understood that one approach for compressing bar ingredients into a sheet having specific, pre-determined, uniform dimensions as indicated in Burrington's recipe would be to press (mold) the ingredients into a form of the requisite dimensions (mold), corresponding to shaping a mixture in a mold as recited in claim 2. See. e.g., Merriam-Webster.com,

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Appeal 2025-002524 Application 17/123,443 https://www.merriam-webster.com/dictionary/mold, mold (noun): a molded object; mold (verb): to knead or work (a material, such as dough or clay) into a desired consistency or shape; KSR, 550 U.S. at 418 ([A]n obviousness analysis "need not seek out precise teachings directed to the specific subject matter of the challenged claim, for [an examiner] can take account of the inferences and creative steps that a person of ordinary skill in the art would employ."); see also Preda, 401 F. 2d at 826 ("[I]t is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom.").

Contrary to the Appellant's arguments, Burrington, therefore, reasonably would have suggested the steps recited in claim 2. We, accordingly, sustain the Examiner's rejection of this claim under 35 U.S.C. § 103.

Claims 10-12, 16, and 18-21

Although the Examiner rejects claims 10-12, 16, and 18-21 under § 103 over Burrington alone (in the Examiner's first rejection under § 103), and rejects claim 17 under § 103 over Burrington in view of Solomon (in the Examiner's second rejection under § 103), the Appellant argues claims 10- 12 and 16-21 as a group to address "the obviousness rejection of claims 10, 11, 12, and 16-21 over Burrington and Solomon." Compare Final Act. 3, 7, with Appeal Br. 20. But because the Examiner does not apply Solomon in the rejection of claims 10-12, 16, and 18-21, we address only the arguments the Appellant presents for these claims that are directed to Burrington alone, selecting claim 10 as representative. 37 C.F.R. § 41.37(c)(1)(iv). We include claim 17 in our discussion below of the claims rejected under § 103

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Appeal 2025-002524 Application 17/123,443 over Burrington in view of Solomon (Rejection II). The Appellant's arguments for claims 10-12, 16, and 18-21 directed to Burrington alone are the same as arguments the Appellant presents for claim 1 (discussed above). Compare Appeal Br. 20-23, with id. at 7-14. Because the Appellant's arguments do not identify reversible error in the Examiner's rejection of claim 1, the arguments also do not identify reversible error in the Examiner's rejection of claim 10 for the same reasons. We, accordingly, sustain the Examiner's rejection of claims 10-12, 16, and 18-21 under § 103.

Claim 14

Claim 14 depends from claim 10, which reads as follows:

14. A meal replacement bar comprising:

a base material comprising at least one real food and/or natural ingredient comprising proteins, carbohydrates, fats, and/or fiber, wherein the meal replacement bar does not contain any pea protein;

at least one natural binding agent to bind together the base material, wherein the at least one natural binding agent is selected from the group consisting of honey, chicory root syrup, dates paste, and mixtures thereof and is in an amount effective for the meal replacement bar to maintain a shape; and vitamins and minerals,

wherein the meal replacement bar does not comprise a coating.

Appeal Br. 30-31 (Claims Appendix).

Claim 14 recites that the meal replacement bar of claim 10 comprises about 9.0 wt.% to about 12.0 wt.% of chicory root syrup. Id. at 31. Similar to the situation with claims 10-12, 16, and 18-21 discussed above, the Appellant presents arguments to address "the obviousness rejection of claim 14 over Burrington and Solomon," but the Examiner does

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Appeal 2025-002524 Application 17/123,443 not apply Solomon in the rejection of claim 14. Compare Final Act. 3, 6, with Appeal Br. 25. We, therefore, address only the arguments the Appellant presents for claim 14 that are directed to Burrington alone. The Examiner finds that it would have been obvious to a person of ordinary skill in the art to vary the amount of honey included in Burrington's nutrition bars "to obtain the desired sweetness and taste." Final Act. 6. The Appellant repeats the argument the Appellant presents for claim 1 (discussed above) that Burrington's 40-30-30 bar and chewy granola bar recipes include too little honey for the honey to function as a binding agent, and honey at such a low level would only add flavor. Appeal Br. 25. This argument is unpersuasive of reversible error in the Examiner's rejection of claim 14 for the same reasons that it is unpersuasive of reversible error in the Examiner's rejection of claim 1 (discussed above).

The Appellant also argues that because Burrington does not disclose or suggest using honey as a natural binding agent, a person of ordinary skill in the art "would not have characterized the amount of honey as a result- effective variable." Appeal Br. 26. The Appellant argues that, therefore,

"the skilled artisan would not increase the alleged amount of honey (as a flavor in Burrington) by 'routine optimization' to somehow arrive at the claimed invention." Id. at 25.

As discussed above, however, contrary to the Appellant's argument, Burrington explicitly discloses that cold-processed binder bars "are held together by sugar syrups such as brown rice, honey or corn syrups."

Burrington 5. A person of ordinary skill in the art would have understood this disclosure to indicate that honey could be used successfully in a cold- pressed bar as a binding agent to hold the bar's ingredients together. One of

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Appeal 2025-002524 Application 17/123,443 ordinary skill in the art seeking to determine an amount of honey effective to bind the ingredients of a cold-pressed binder bar as disclosed in Burrington would have arrived at a suitable amount, such as an amount as recited in claim 14, through nothing more than routine experimentation. In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) ("A recognition in the prior art that a property [or a result] is affected by the variable is sufficient to find the variable result-effective."); In re Boesch, 617 F.2d 272, 276 (CCPA 1980) ("[D]iscovery of an optimum value of a result effective variable in a known process is ordinarily within the skill of the art."); Aller, 220 F.2d at 456 ("[W]here the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.").

The Appellant's arguments, therefore, do not identify reversible error in the Examiner's rejection of claim 14 under § 103, which we accordingly sustain.

Rejection II

We turn now to the Examiner's rejection of claims 6-9, 15, and 17 under 35 U.S.C. § 103 as unpatentable over Burrington in view of Solomon. We address claims separately to the extent they are so argued by the Appellant. 37 C.F.R. § 41.37(c)(1)(iv).

Claims 6, 8, 9, and 17

The Appellant argues claims 6, 8, and 9 as a group. Appeal Br. 15-

19. We, therefore, select claim 6 as representative of this group of claims and limit our discussion accordingly. 37 C.F.R. § 41.37(c)(1)(iv). We include claim 17 in this group of claims because the Appellant does not

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Appeal 2025-002524 Application 17/123,443 argue this claim separately (instead grouping claim 17 with claims 10, 11, 12, and 16-21 as discussed above). Appeal Br. 20.

Independent claim 6 reads as follows:

6. A method of making a meal replacement bar, the method comprising:

mixing at least one natural binding agent with vitamins, minerals and/or a flavoring ingredient to form a mixture, wherein the at least one natural binding agent comprises dates paste in an amount of about 12.0 to about 18.0 wt.% of the meal replacement bar and is in an amount effective for the meal replacement bar to maintain a shape;

mixing at least one real food and/or natural ingredient with the mixture to form a homogenous mixture; and mixing a natural protein crisp with the homogenous mixture to form a final mixture, wherein the natural protein crisp stays intact during and after the mixing, wherein the meal replacement bar does not contain any pea protein, wherein the meal replacement bar does not comprise a coating.

Id. at 29-30 (Claims Appendix) (emphasis added). The Examiner finds that Burrington does not disclose adding date paste to the nutrition bars Burrinngton describes, and the Examiner turns to Solomon. Final Act. 8-9.

Solomon discloses a nutritional bar that includes date paste as a natural flavoring agent in an amount of from about 10% to about 40%. Solomon ¶¶ 23, 30, 32. Solomon discloses that dates not only add sweetness to the nutritional bar, but also contain "active antioxidants (particularly flavonoids) and significant amounts of bioavailable iron and potassium." Id. ¶ 30.

In view of these disclosures in Solomon, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to add date

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Appeal 2025-002524 Application 17/123,443 paste to Burrington's nutritional bar in an amount as disclosed in Solomon to add flavor to the bar. Final Act. 8-9.

The Appellant argues that Solomon does not remedy Burrington's deficiencies because Solomon does not provide any reason to combine Burrington's extruded bars and chewy granola binder bars and does not provide a reasonable expectation of success for an attempt to remove the coating of Burrington's extruded bars. Appeal Br. 16.

These arguments are unpersuasive of reversible error in the Examiner's rejection of claim 6 for the same reasons they are unpersuasive of reversible error in the Examiner's rejection of claim 1, discussed above. The Appellant argues that "Solomon merely discloses dates paste can be added in an amount of 10 to 40% as a flavoring agent," and

"fails to provide any reason or motivation for the skilled artisan to modify Burrington's products to include dates paste in the recited amount as a natural binding agent and does not provide a reasonable expectation of success for an attempt." Appeal Br. 17 (emphasis omitted). As the Examiner determines (Ans. 20), however, a person of ordinary skill in the art seeking to add sweetness to a binder bar as disclosed in Burrington, and further seeking to enhance the nutritional value of the bar by adding a source of antioxidants, iron, and potassium, would have been led by Solomon's disclosures to add date paste to the bar in an amount of 10 to 40%, regardless of whether or not Solomon discloses that date paste in this amount would also function as a binding agent. KSR, 550 U.S. at 419 ("[i]n determining whether the subject matter of a patent claim is obvious, neither the particular motivation nor the avowed purpose of the patentee controls"); In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996) ("Although the motivation

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Appeal 2025-002524 Application 17/123,443 to combine here differs from that of the applicant, the motivation in the prior art to combine the references does not have to be identical to that of the applicant to establish obviousness."); In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992) ("[T]he law does not require that the references be combined for the reasons contemplated by the inventor."). The Appellant repeats the argument the Appellant presents for claim 1 that Table 9 and Figures 9-15 of the present application show that Appellant's meal replacement bar exhibits unexpected organoleptic properties. As discussed above, however, the Appellant's showing is insufficient to meet the Appellant's burden of establishing unexpected results.

Considering the totality of the evidence on the record before us, a preponderance of the evidence weighs in favor of the Examiner's conclusion of obviousness. We, accordingly, sustain the Examiner's rejection of claims 6, 8, 9, and 17 under 35 U.S.C. § 103.

Claim 7

The Appellant presents the same arguments for claim 7 that the Appellant presents for claim 2 (discussed above). Appeal Br. 19-20. These arguments are unpersuasive of reversible error in the Examiner's rejection of claim 7 for the same reasons they are unpersuasive of reversible error in the Examiner's rejection of claim 2, discussed above.

Claim 15

The Appellant presents the same argument for claim 15 that the Appellant presents for claims 6, 8, and 9, discussed above. Appeal Br. 27 ("Solomon fails to provide any reason or motivation for the skilled artisan to modify Burrington's products to include dates paste as a natural binding

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Appeal 2025-002524 Application 17/123,443 agent and does not provide a reasonable expectation of success for an attempt." (emphasis omitted)). The Appellant's arguments for claim 15 are unpersuasive of reversible error in the Examiner's rejection of this claim for the same reasons they are unpersuasive of reversible error in the Examiner's rejection of claim 6, discussed above. We, accordingly, sustain the Examiner's rejection of claim 15 under 35 U.S.C. § 103. Rejection III

Finally, we turn to the Examiner's rejection of claim 13 under

35 U.S.C. § 103 as unpatentable over Burrington in view of Hendriks. Claim 13 depends from claim 10 and recites that "the meal replacement bar comprises about 9.0 wt.% to about 12.0 wt.% of chicory root syrup."

The Examiner finds Burrington "is silent as to using chicory root syrup and the amount," and the Examiner turns to Hendriks. Final Act. 11. Hendriks discloses a cereal bar comprised of a cereal mix and a binding syrup containing inulin derived from chicory root (chicory root syrup), which is a soluble fiber having an "intrinsic sweet taste." Hendriks 3:21-27, 10:13-14, 10:20-22, 12:20-22, 12:32-13:6. Hendriks discloses that the ratio of binding syrup to cereals in the bar determines the organoleptic properties of the bar and "also influences the mechanical strength of the cereal bar since the binding syrup—as its name already suggests—glues together the cereals." Id. at 11:9-12. In view of these disclosures in Hendriks, the Examiner concludes that it would have been obvious to one of ordinary skill in the art to add chicory root to Burrington's nutrition bar "to improve the taste of the product AND

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Appeal 2025-002524 Application 17/123,443 then vary the overall amount based on the desired taste and texture of the product." Final Act. 11.

The Appellant argues that Hendriks does not remedy Burrington's deficiencies because Hendriks does not provide any reason to combine Burrington's extruded bars and chewy granola binder bars and does not provide a reasonable expectation of success for an attempt to remove the coating of Burrington's extruded bars. Appeal Br. 24. These arguments are unpersuasive of reversible error in the Examiner's rejection of claim 13 for the same reasons they are unpersuasive of reversible error in the Examiner's rejection of claim 1, discussed above. The Appellant argues that "Hendriks merely discloses adding chicory root syrup to improve the taste of the product," and "Hendriks fails to disclose any reason or motivation for the skilled artisan to modify Burrington's products to include the recited amount of chicory root syrup as a natural binding agent to somehow arrive at the claimed invention." Appeal Br. 24.

Contrary to the Appellant's arguments, however, Hendriks explicitly discloses that the binding syrup (chicory root syrup) glues the cereals together in Hendrik's bar, thus functioning as a binding agent, and Hendriks further discloses that chicory root binding syrup contains inulin, a soluble fiber having a sweet taste. A person of ordinary skill in the art seeking to add soluble fiber and sweetness to a cold-pressed binder bar as disclosed in Burrington reasonably would have been led by these disclosures in Hendriks to use chicory root syrup as the binder in Burrington's binder bar. The ordinarily skilled artisan would have arrived at an amount of chicory root syrup effective to bind the bar's ingredients together, and effective to impart

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Appeal 2025-002524 Application 17/123,443 a desired level of sweetness, such as an amount as recited in claim 13, through nothing more than routine experimentation. Applied Materials, 692 F.3d at 1297; Boesch, 617 F.2d at 276.

The Appellant's arguments, therefore, do not identify reversible error in the Examiner's rejection of claim 13 under § 103, which we accordingly sustain.

DECISION SUMMARY

No time period for taking any subsequent action in connection with

this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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