PTAB

IPR2022-00662

Fonterra USA Inc v. Arla Foods Amba

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Key Events
Petition
petition

1. Case Identification

2. Patent Overview

  • Title: High protein, fruit flavoured beverage; high protein, fruit and vegetable preparation; and related methods and food products
  • Brief Description: The ’150 patent discloses high-protein, acidic, fruit-flavored beverages. The core of the invention is a specific denatured whey protein composition used in the beverage, which contains a high percentage of protein and insoluble whey protein particles within a defined size range (1-10 microns) to achieve a desirable taste and texture.

3. Grounds for Unpatentability

Ground 1: Obviousness over V Powder and Secondary References - Claims 1-20 are obvious over V Powder in view of the knowledge of a POSITA and/or Havea, Nutricia, Fanning & Gregory, and Coca-Cola.

  • Prior Art Relied Upon: V Powder (International Publication No. WO 2013/065014), Havea (International Publication No. WO 2010/120199), Nutricia (International Publication No. WO 2012/050434), Fanning & Gregory (Australian Patent Application No. 2013101214), and Coca-Cola (International Publication No. WO 2011/130898).
  • Core Argument for this Ground:
    • Prior Art Mapping: Petitioner asserted that the V Powder publication discloses all elements of the challenged claims except for the explicit inclusion of a fruit flavoring agent. V Powder's Example 8 described a "model smoothie" with a pH of 4, 5% total protein, water, and a sweetener. Petitioner argued that a POSITA would understand that other denatured whey protein concentrates (WPCs) disclosed in V Powder, such as "Powder F," could be substituted into this smoothie. Petitioner contended that a POSITA could readily calculate from V Powder's data that Powder F contained at least 76% true protein on a dry weight basis and approximately 53% insoluble protein particles. Furthermore, internal testing data for Powder F, referenced in the petition, allegedly confirmed that 100% of its particles fell within the 1–10 µm range required by claim 1. Therefore, a smoothie made with Powder F would meet the limitations for the beverage base and the specific denatured whey protein composition.
    • Motivation to Combine: The central argument was that V Powder's "model smoothie" was an obvious vehicle for fruit flavoring. A POSITA seeking to create a commercially viable product would have been motivated to add fruit flavor to meet consumer expectations for a smoothie. The secondary references (Nutricia, Coca-Cola, and Fanning & Gregory) all explicitly taught the preparation of high-protein, fruit-flavored beverages. For instance, Nutricia disclosed a smoothie with at least 5% (w/w) fruit, and Coca-Cola disclosed a whey protein concentrate with 5-8% (w/w) fruit puree. A POSITA would combine the beverage base from V Powder with the conventional fruit flavoring taught in these references to arrive at the claimed invention.
    • Expectation of Success: A POSITA would have had a high expectation of success because adding fruit purees, juices, and flavors to high-protein beverage bases was a well-known and predictable practice in the food science art. The secondary references demonstrated that such combinations were successful and desirable.

4. Key Claim Construction Positions

  • "fruit flavouring agent": Petitioner argued this term should be construed broadly to encompass not only fruit juice or concentrate but also fruit puree or artificial fruit flavoring. This construction was based on the doctrine of claim differentiation, as dependent claim 12 specifically recites fruit juice or concentrate, implying that the broader term in independent claim 1 is not so limited. This broader construction allows references disclosing fruit purees (like Coca-Cola and Nutricia) to directly satisfy the claim limitation.

5. Key Technical Contentions (Beyond Claim Construction)

  • Calculability of Claim Limitations from Prior Art Data: A core technical contention was that even though the V Powder Publication did not explicitly state the exact percentage of "true protein" (excluding non-protein nitrogen) or the percentage of "insoluble protein particles," a POSITA could have readily calculated these values. Petitioner argued that by using known industry values for non-protein nitrogen in WPCs and applying a formula based on the disclosed percentages of denatured and denaturable protein, a POSITA would arrive at values that fall squarely within the ranges claimed in the ’150 patent. This argument was critical to Petitioner's assertion that V Powder's "Powder F" met the specific compositional limitations of claim 1.

6. Relief Requested

  • Petitioner requests institution of an inter partes review and cancellation of claims 1-20 of the ’150 patent as unpatentable under 35 U.S.C. §103.