UNITED STATES PATENT AND TRADEMARK OFFICE
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RED DIAMOND, INC.,
`Petitioner,
`v.
`SOUTHERN VISIONS, LLP,
`Patent Owner.
`___________
`Case PGR2019-00045
`Patent 10,071,852
`___________
`
`Declaration of Juelene Beck
`in Support of Patent Owner’s Preliminary Response
`
`Page 1 of 28
`
`Southern Visions
`Exhibit 2001
`
`
`___________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`____________
`
`RED DIAMOND, INC.,
`Petitioner,
`v.
`SOUTHERN VISIONS, LLP,
`Patent Owner.
`___________
`Case PGR2019-00045
`Patent 10,071,852
`___________
`
`Declaration of Juelene Beck
`in Support of Patent Owner’s Preliminary Response
`
`Page 1 of 28
`
`Southern Visions
`Exhibit 2001
`
`
`
`I. INTRODUCTION
`
`A. Engagement
`
`1.
`
`My name is Juelene Beck. I have been retained by counsel for Southern
`
`Visions, LLP (“Southern Visions”) as an expert witness in the above-captioned
`
`proceeding. I have been asked to provide my analysis and my opinion about the
`
`technology described in U.S. Patent No. 10,071,852 (the “’852 Patent”).
`
`B. Background and Qualifications
`
`2.
`
`I am the principal of JUELENE BECK & ASSOCIATES, L.L.C., a chain
`
`restaurant consulting firm. I have over 30 years of experience in the foodservice
`
`industry including operations, product development, packaging development,
`
`Quality Assurance and food safety systems, the management of suppliers to
`
`foodservice chains, relationships between chain restaurant franchisors and
`
`franchisees, and marketing. A copy of my current resume/CV is appended to this
`
`declaration as Exhibit A.
`
`3.
`
`I have received the following education:
`
` B.A. in Chemistry from Eastern Nazarene College in 1975, graduating
`
`Magna cum Laude;
`
` M.S. in Food Science from the University of Wisconsin-Madison in
`
`1978;
`
`Page 2 of 28
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`
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` Massachusetts Institute of Technology in Cambridge, MA, from 1979-80
`
`as a Post-Graduate Research Associate in the Department of Food
`
`Science, and;
`
` MBA courses in Economics and Finance from the University of
`
`Cincinnati from 1984-85.
`
`4.
`
`I am currently working as a Chain Restaurant and Food Product Expert. My
`
`other career experience includes:
`
` Burger King Corporation – Vice President of Product & Packaging
`
`Development, Vice President of Supply and Restaurant Operations
`
`Worldwide, Vice President of Supply Management and Quality
`
`Assurance. These roles included management of all products and their
`
`in-store operations, including commercial restaurant iced tea brewing
`
`systems, as well as working with the company’s 1400+ suppliers
`
`worldwide and developing and managing the company’s worldwide
`
`supplier product specifications, including iced tea systems.
`
` North American Association of Subway Franchisees – Chief Executive
`
`Officer (CEO) for NAASF, the franchisee association representing
`
`owners of the 20,000+ Subway restaurants in the U.S. and Canada.
`
` Sara Lee Coffee and Tea / Douwe Egberts Coffee Systems – Vice
`
`President of Chain Restaurants. This role included management of
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`Page 3 of 28
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`
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`operations including the sale of tea and commercial restaurant iced tea
`
`brewing systems to the company’s chain restaurant customers.
`
` Dunkin’ Donuts, Incorporated – Product Marketing Manager for
`
`Beverages, including tea and iced tea.
`
` Proctor & Gamble – Technical Brand Manager; Assistant Brand
`
`Manager. These roles included acting as the head of a product
`
`development team for the Crush Beverages brand, part of Proctor &
`
`Gamble’s Beverages Division, which included the Tender Leaf Tea
`
`brand.
`
` Arthur D. Little – International Food Processing, Production, Marketing
`
`and Distribution Operations Consultant. This role included visiting and
`
`evaluating tea plantations in Sri Lanka, as well as in visiting, analyzing,
`
`and evaluating sugar cane plantations and processing facilities in
`
`Jamaica.
`
` RFC, Inc. – Independent Consulting primarily in areas related to chain
`
`restaurant products, franchisee / franchisor issues, industry analyses, and
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`supply chain (including food processing companies that do business with
`
`chain restaurants) with many different chain restaurants in the U.S.
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`Page 4 of 28
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`
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`5.
`
`I have served on the following Boards:
`
` University of Wisconsin’s College of Agricultural & Life Sciences,
`
`Board of Visitors, Chair (2007-8), Chair-Elect (2005-6), Past Chair
`
`(2009-10) and Member (2002-10).
`
` Institute of Food Technologists, national professional member. I was
`
`instrumental in establishing the South Florida chapter of the IFT,
`
`including Board of Director participation at an officer level.
`
` Women’s Foodservice Forum (WFF) – active committee member from
`
`1996 through 2002.
`
`C. Compensation
`
`6.
`
`I am being compensated at a rate of $425.00 per hour to provide analysis and
`
`testimony in this Post Grant Review proceeding. My compensation is not contingent
`
`on the outcome of any matter or the specifics of my testimony. I have no financial
`
`interest in the proceeding or in the ‘852 Patent or in any other patents or patent
`
`applications owned by Southern Visions.
`
`D. Materials and Information Considered
`
`7.
`
`In addition to my education, experience in the food service and consumer
`
`packaged goods industries, I relied on personal knowledge as gained from my review
`
`of the documents identified in this declaration.
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`Page 5 of 28
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`
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`8.
`
`Nordic Sugar, Functional Properties of Sugar, Exhibit D to this declaration, is
`
`a document publicly available on the Nordic Sugar website. I reviewed a copy this
`
`document
`
`that
`
`I personally downloaded
`
`from
`
`the
`
`following URL:
`
`https://www.nordicsugar.com/fileadmin/Nordic_Sugar/Brochures_factsheet_polici
`
`es_news/Download_center/Functional_properties_of_sugar/Suk_funk_uk.pdf.
`
`9.
`
`2018 Guidelines for Initial IFT Approval of Undergraduate Food Science and
`
`Food Technology Programs, Exhibit F to this declaration, is a document publicly
`
`available from the IFT website. I reviewed a copy of this document that I personally
`
`downloaded
`
`from
`
`the
`
`following
`
`URL:
`
`http://www.ift.org/~/media/Community/Students/ApprovedUnderGrad/2018Guidel
`
`inesforInitialIFTApproval.pdf
`
`10. Granulated Sugar, Exhibit G to this declaration, is a page from the Internet
`
`Archive which I understand displays the content of a page of the Nordic Sugar
`
`website as it appeared in the past. I reviewed a copy of this page that I personally
`
`downloaded
`
`from
`
`the
`
`following
`
`URL:
`
`https://web.archive.org/web/20091220003545/http://www.nordicsugar.com/industr
`
`y/granulated-sugar/.
`
`11. My opinions are based on my experience and information I have reviewed to
`
`date. I reserve the right to supplement, change, or amend those opinions should I
`
`become aware of additional information.
`
`Page 6 of 28
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`12.
`
`I also understand that, should the Patent Trial and Appeal Board institute a
`
`Post Grant Review of the ‘852 Patent, I may be asked to provide additional opinions,
`
`which may require me to review additional information. The fact that any specific
`
`opinion does not appear in this report does not suggest that I am not qualified to
`
`provide such an opinion, nor should it suggest that I agree with any specific
`
`statement in Red Diamond’s Petition for Post Grant Review (the “Petition”) or
`
`Exhibit 1004 to the Petition (the “Coffield Report”).
`
`13. My opinions are presented for the purpose being used in the above-captioned
`
`proceedings, and I understand that the Patent Trial and Appeal Board will be asked
`
`to rely on my opinions in evaluating issues in the above-captioned dispute.
`
`However, the facts of any specific factual matter may differ. Thus, my opinions
`
`stated herein should not be relied upon by parties outside the present proceedings or
`
`for matters unrelated to the proceedings.
`
`II. Analysis
`
`A. The Person of Ordinary Skill
`
`14.
`
`I understand that, for a patent proceeding, it is important for a court or tribunal,
`
`such as the Patent Trial and Appeal Board, to determine the level of skill of an
`
`ordinary person working in a field.
`
`15.
`
`I understand that this “person of ordinary skill” is not necessarily a specific
`
`person, but rather is merely hypothetical. I further understand that, when
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`Page 7 of 28
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`determining who the “person of ordinary skill” is, a court or tribunal would consider
`
`the type of problems encountered in the art, prior art solutions to those problems, the
`
`rapidity with which innovations are made, sophistication of the technology; the
`
`educational level of active workers in the field; and the educational level of the
`
`inventors.
`
`16. Given the inventions of Claims 13, 18, and 19 of the ‘852 Patent, the relevant
`
`field is commercial restaurant iced tea brewing systems.
`
`17.
`
`Tea, and more specifically, iced tea, has commonly been prepared and sold at
`
`restaurants for many, many years.
`
`18.
`
`This field is relatively unsophisticated and has moved at a slow pace over the
`
`last thirty (30) years. Over this period, restaurant-sold iced tea has not changed very
`
`much, except that bottled iced tea and the use of iced tea concentrate in fountain
`
`drink systems have come into the marketplace. Additionally, over this period,
`
`commercial systems for brewing iced tea in restaurants have not changed very much
`
`except for the invention disclosed in the ‘852 Patent and the earlier related patents
`
`(U.S. Pat. No. 9,725,232 (the “’232 Patent”), U.S. Pat. No. 9,549,634 (the “’634
`
`patent”), U.S. Pat. No. 9,468,330 (the “’330 Patent”), and U.S. Pat. No. 9,468,222
`
`(the “’222 Patent,” with the ‘852 Patent, the ‘232 Patent, the ‘634 Patent, the ‘330
`
`Patent, and the ‘222 Patent, collectively, the “’852 Patent Family”).
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`Page 8 of 28
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`
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`19.
`
`The types of problems encountered in this field are at least: (1) inconsistency
`
`in sweetness in the on-premise brewed tea across retail outlets; (2) inconsistency in
`
`sweetness in the on-premise brewed tea at various times or days in the same retail
`
`outlet; (3) training and labor costs for preparing on-premise brewed tea at retail
`
`outlets; (4) minimizing stock keeping units (SKUs); and (5) profitability in the
`
`dynamic beverages product category, while yet allowing for possible additional
`
`future flavor line extensions, within the same equipment system (e.g. different
`
`flavorings).
`
`20.
`
`Prior to the invention of the ‘852 Patent and the ‘852 Patent Family,
`
`commercial restaurant iced tea brewing systems generally solved the problem of
`
`sweetening sugar in a number of ways, including: (a) extra fine granulated sugar
`
`may have been added to an urn of a commercial tea brewing system after brewing,
`
`with the sugar stirred by hand to aid in dissolving the sugar in the brewed tea; (b) a
`
`specialty sugar containing very small particles of sugar may have been added to an
`
`urn of a commercial tea brewing system after brewing, where the smaller particles
`
`are stirred by hand to aid in dissolving the sugar in the brewed tea, but where the
`
`smaller particles result in quicker dissolving sugar; (c) extra fine granulated sugar or
`
`specialty sugars may have been combined with sugar substitutes that are, molecule-
`
`for-molecule, sweeter than sucrose, with the resulting combination added to the
`
`brewed tea and stirred by hand, with the combination including sugar substitutes
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`Page 9 of 28
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`having a smaller mass of sugar, thereby requiring less stirring and resulting in
`
`quicker dissolving in the brewed tea; and (d) commercial restaurant tea brewing
`
`systems may be equipped with a mechanism by which liquid sweetener is mixed into
`
`the urn of a tea brewing system during a brewing cycle, thereby mixing a
`
`predetermined amount of liquid sweetener into the brewed tea without the need for
`
`manual agitation.
`
`21.
`
`I understand that neither of the inventors of the ‘852 Patent has an
`
`undergraduate degree in a discipline such as chemistry, biology, food science or
`
`related discipline requiring an understanding of the scientific method. Thus, this
`
`necessarily means that neither of the inventors has both such an undergraduate
`
`degree and at least five (5) years of professional experience and/or education in the
`
`field of food science related to sugar as of April 22, 2013.
`
`22.
`
`The field of the ‘852 Patent is the field of commercial restaurant iced tea
`
`brewing systems.
`
`23.
`
`In view of my understanding of the relevant field and the factors considered,
`
`a person of ordinary skill in commercial restaurant iced tea brewing systems would
`
`not require an undergraduate degree in a discipline such as chemistry, biology, food
`
`science or related discipline requiring an understanding of the scientific method and
`
`at least five (5) years of professional experience and/or education in the field of food
`
`science related to sugar.
`
`Page 10 of 28
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`24.
`
`This opinion is based on my experience and background (which includes
`
`being a member of the Institute of Food Technologists), as well as a review of the
`
`current guidelines that the Institute of Food Technologists uses to certify
`
`undergraduate programs granting degrees in food science. See Exhibit F, 2018
`
`Guidelines for Initial IFT Approval of Undergraduate Food Science and Food
`
`Technology Programs. In my view, these guidelines have not changed significantly
`
`since April 22, 2013.
`
`25.
`
`This opinion is also based on my understanding that this level of education
`
`and experience is both overinclusive and underinclusive, in that it would likely teach
`
`many skills that are unrelated to the field of commercial restaurant iced tea brewing
`
`systems and in that it would likely not teach some skills that would be known to a
`
`person of ordinary skill in the field of commercial restaurant iced tea brewing
`
`systems.
`
`26. More specifically, in my view, a person who has five (5) years of professional
`
`experience and education in the field of food science related to sugar would work in
`
`a food manufacturing facility involving the industrial production of food. As such,
`
`“food science related to sugar” might include working with sugar as an ingredient in
`
`confectionary products, to create desirable flavors or textures in other processed food
`
`products, as a preserving agent; working with changes in properties of sugar as heat
`
`is applied (e.g., “caramelization,” or the thermal breakdown of sucrose for use in
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`Page 11 of 28
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`many different types of products), working to prevent undesirable changes in sugar
`
`within commercial applications, or working with sugar in many other types of
`
`applications. This opinion draws from my experience working in industry, during
`
`which I have visited hundreds of food processing facilities worldwide as part of my
`
`work.
`
`27. A person of ordinary skill in the field of commercial restaurant iced tea
`
`brewing systems would, at least, be knowledgeable about how to operate
`
`commercial restaurant iced tea brewing systems. Such a person would also be
`
`knowledgeable about the various types of sweeteners used with commercial
`
`restaurant iced tea brewing systems and the ways that those sweeteners can be added
`
`and mixed with tea.
`
`28. A person of ordinary skill in the field of commercial restaurant iced tea
`
`brewing systems would, at least, be generally knowledgeable about the particle size
`
`distribution of extra fine granulated sugar because this person would work with the
`
`purchasing and sourcing of sugar, because specifications are an inherent part of
`
`purchasing and sourcing, and because particle size distribution is an inherent part of
`
`sugar specifications. See, e.g., Exhibit C, Coarse Grain Sugar.
`
`29. As discussed in more detail below, granulated sugars are commonly referred
`
`to by their average particle size. As such, a person of ordinary skill in the field of
`
`commercial restaurant iced tea brewing systems would, at least, refer to a source of
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`Page 12 of 28
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`sugar by its average particle size, or approximate range of average particle sizes.
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`Such person would generally do so without necessarily using the word “average” or
`
`an equivalent adjective.
`
`30. Generally, for a given mass of a product, if that product is made up of smaller
`
`particles, the product will have a greater surface area. When a product having a
`
`larger surface area is mixed in a liquid, the larger surface area will result in faster
`
`wetting and quicker dissolving. Thus, prior to the disclosures of the ‘852 Patent and
`
`the ‘852 Patent Family (i.e., prior to April 22, 2013), a person of ordinary skill in the
`
`field of commercial restaurant iced tea brewing systems would, at least, think that
`
`smaller particles of sugar dissolve faster than larger particles.
`
`31.
`
` Additionally, for a given mass of solute to be dissolved homogenously into
`
`water, the solute will more rapidly be homogenously dispersed if that solute is
`
`already dissolved into a liquid solution. In other words, sugar already dissolved into
`
`water (i.e., a sugar syrup) will more easily mix than the same amount of sugar in
`
`crystallized, granulated form. This principle is readily observed where bartenders at
`
`restaurants or bars mix “simple syrup” into alcoholic beverages. As such, prior to
`
`the disclosures of the ‘852 Patent and the ‘852 Patent Family, a person of ordinary
`
`skill in the field of commercial restaurant iced tea brewing systems would, at least,
`
`think that liquid sugar mixes even more readily than smaller particles of sugar.
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`Page 13 of 28
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`32.
`
`Prior to the disclosures of the ‘852 Patent and the ‘852 Patent Family, a person
`
`of ordinary skill in the field of commercial restaurant iced tea brewing systems
`
`would, at least, think that the solution to the problem of sweetening commercially
`
`brewed iced tea more economically and effectively would involve agitation, liquid
`
`sugar, or very small particles of sugar.
`
`33.
`
`In my experience, large granulated sugar is a specialty product that is not
`
`produced in the same volume as extra fine granulated sugar, and it could be difficult
`
`to source commercial volumes of such sugar in sufficient amounts to satisfy the
`
`needs of, for example, a Quick Service Restaurant (QSR) chain, one of the four
`
`categories of the Chain Restaurant Industry, and the largest, or “fast food,” in
`
`layman’s terms, chain restaurant. Thus, a person of ordinary skill in the field of
`
`commercial restaurant iced tea brewing systems would, at least, believe that larger
`
`granulated sugar is not produced in the same large commercial volumes as extra fine
`
`granulated sugar and that larger granulated sugar would not be available in volumes
`
`sufficient to economically satisfy large commercial accounts. Thus, a person of
`
`ordinary skill in the field of restaurant iced tea brewing systems would not even think
`
`that large granulated sugar was a potential solution to the problem of sweetening
`
`commercial iced tea. In other words, in this case, economic reality teaches away
`
`from the use of large granulated sugar.
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`Page 14 of 28
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`34.
`
`In my opinion, in general, an undergraduate program in chemistry, biology or
`
`food science would not teach the concept of a “packed bed.”
`
`35.
`
`In my opinion, although a person having a degree in food science may, in
`
`some instances, come across applications of “packed beds,” after working in
`
`industry, this would only happen in certain industry Research and Development
`
`laboratories and facilities. I would describe this type of industry experience as being
`
`experience in the field of specialized food engineering systems. Thus, it is highly
`
`unlikely that a person having five (5) years of experience and/or education merely
`
`in food science related to sugar would learn about packed beds.
`
`36.
`
`I personally learned about the concept of a “packed bed” anecdotally through
`
`my major professor in graduate school, whose PhD is in both chemical engineering
`
`and food science. As one of the leading Food Engineers and Food Scientists
`
`worldwide for most of his career, he was involved in leading technological and
`
`industry developments globally while staying in academia for most of his career,
`
`which allowed me to be informed of food industry systems that I otherwise would
`
`not have. As such, I have been familiar with the “packed bed” concept throughout
`
`my career. Solely due to this close relationship throughout my professional career,
`
`through which I obtained this unique knowledge, I have recognized and observed
`
`industrial food systems utilizing the concept of “packed beds.”
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`Page 15 of 28
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`37. A person of ordinary skill in the art of commercial restaurant iced tea brewing
`
`systems would not have learned about the concept of a “packed bed,” nor would that
`
`person have understood that the solution to dissolving more sugar into restaurant-
`
`brewed iced tea involves optimizing flow of water through a packed bed.
`
`38.
`
`It is highly unlikely that a person having an undergraduate degree in a
`
`discipline such as chemistry, biology, food science or related discipline requiring an
`
`understanding of the scientific method and at least five (5) years of professional
`
`experience and/or education in the field of food science related to sugar would have
`
`learned about the concept of a “packed bed,” or that such person would have
`
`understood that the solution to dissolving more sugar into restaurant-brewed iced tea
`
`involves optimizing flow of water through a “packed bed.”
`
`B. Granulated Sugar
`
`i. Average Particle Size
`
`39. Generally, the sugar refining process causes the crystallization of sucrose.
`
`Sugar refiners regulate this process to create sugar crystals, or granules, of specific
`
`sizes. These crystals may then be screened to separate granules of different sizes.
`
`These crystals may also be milled to break granules into smaller sizes.
`
`40. While sugar refiners use the foregoing processes to regulate the size of sugar
`
`granules, granulated sugar is not uniform. In other words, even when attempting to
`
`regulate the size of sugar granules, not all of the granules are the same size.
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`Page 16 of 28
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`
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`Therefore, the industry has developed several different names for different types of
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`sugar, including sanding sugar, extra fine granulated sugar, fruit sugar, baker’s
`
`special, and powdered sugar. Thus, these terms have become a short-hand way of
`
`referring to the size of granules of sugar.
`
`41.
`
`Industry has also developed different ways of stating the size characteristics
`
`of sugar.
`
`42. One way to state the size characteristics of granulated sugar is to state the
`
`percentage by weight of sugar that passes through sieves of various sizes. This
`
`process is described as Method Number USNC MOA 0003 on page 291 of the
`
`Pennington Sucrose Guide. See Exhibit B, Pennington Sucrose Guide at 291.
`
`43. A second way to state the size characteristics of granulated sugar is to state
`
`the average granule size. The average granule size provides meaningful information
`
`about the size characteristics of a source of granulated sugar because sugar often
`
`follows a “normal” or “Gaussian” distribution, where the distribution of granules of
`
`various sizes follows what is commonly known as a “bell curve.”
`
`44.
`
`In many cases, stating the average granule size is a simpler and more effective
`
`way of communicating the size characteristics of a source of sugar, because it can
`
`be cumbersome to communicate all of the various percentages and screen sizes for
`
`a specific source of sugar.
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`45. A person of ordinary skill in the art of commercial iced tea brewing systems,
`
`if referring to a source of sugar by the size of sugar granules in that source, and
`
`further where the size of sugar granules is not qualified by a series of percentages at
`
`various screen sizes, would refer to the size of granules of sugar by its average
`
`particle size or the potential range of average particle sizes. A person of ordinary
`
`skill in the art of commercial iced tea brewing systems would also understand that,
`
`if a document referred to a specific size of sugar, or to a specific range of sugar,
`
`without also referencing percentages at various screen sizes, that such references
`
`were about an average particle size, or a range of potential average particle sizes.
`
`46.
`
`The three Nordic Sugar references (Functional Properties of Sugar (Exhibit
`
`Exhibit D), Granulated Sugar (Exhibit G), and Coarse Grade Sugar (Exhibit C)) are
`
`consistent with my above statements regarding describing the size characteristics of
`
`granulated sugar, in that each of the three references refers to the size of sugar
`
`granules in sources of granulated sugar by the average size of particles in a source
`
`of granulated sugar.
`
`47.
`
`The average particle size of extra fine granulated sugar is in the range of about
`
`U.S. mesh sieve nos. 40-60.
`
`48. A person of ordinary skill in the art of commercial iced tea brewing systems
`
`would refer to extra fine granulated sugar as having an average size between about
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`Page 18 of 28
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`
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`U.S. mesh sieve nos. 40-60; and, to be clear, such person would generally do so
`
`without always using the word “average” or an equivalent adjective.
`
`49. A person of ordinary skill in the art of commercial iced tea brewing systems
`
`would also understand that extra fine granulated sugar would have a distribution of
`
`particles centered around the average particle size.
`
`50.
`
`Therefore, for example, a person of ordinary skill in the art of commercial
`
`iced tea brewing systems would understand that, in some cases, a source of extra
`
`fine granulated sugar would have an average size of about U.S. mesh sieve no. 40,
`
`with some sugar particles within that source being larger than U.S. mesh sieve no.
`
`40 and others being smaller than U.S. mesh sieve no. 40.
`
`51.
`
`The Pennington Sucrose Guide, Petitioner’s Expert Testimony, and certain
`
`statements made in prosecution of the family of the ‘852 Patent are all consistent
`
`with my understanding that the average particle size of extra fine granulated sugar
`
`is within the range of about U.S. mesh sieve nos. 40-60. See Exhibit B, Pennington
`
`Sucrose Guide; Coffield Report; Exhibit E, Office Action Response dated July 26,
`
`2016 at p. 8.
`
`52.
`
`The Functional Properties of Sugar describes a mathematical method of
`
`determining the average particle size of a non-screened source of granulated sugar.
`
`This method assumes that the size of particles within a non-screened source of
`
`granulated sugar follows a normal, or “bell curve,” distribution. Because a normal
`
`Page 19 of 28
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`distribution is equally distributed about its average, the average particle size can be
`
`determined by finding the hypothetical sieve size that separates a source of sugar
`
`into two equal sets. See Exhibit D, Functional Properties of Sugar at p.31.
`
`53.
`
`Even if a source of sugar is screened, for example, to remove the largest or
`
`smallest particles from that source, this method can be used to determine an
`
`approximate average size of particles within the (now screened) source.
`
`54. Applying these principles, a reasonable interpretation of the Coffield Report’s
`
`test results is that Publix extra fine granulated sugar has an average U.S. Mesh sieve
`
`no. that is larger than 35 (i.e., applying these principles, the average particle size is
`
`smaller than U.S. Mesh sieve no. 35). See Appendix B to Coffield Report at p. 5.
`
`55.
`
` Applying these principles, a reasonable interpretation of the Coffield
`
`Report’s test results is that the average particle size of Domino extra fine granulated
`
`sugar is about U.S. Mesh sieve no. 60. See Appendix B to Coffield Report at p.3.
`
`56. While the Pennington Sucrose Guide only provides estimated ranges of sugar
`
`granules at specified mesh sizes, these estimated ranges are consistent with an
`
`average sugar granule size for extra fine granulated sugar between about U.S. Mesh
`
`sieve nos. 40-60. See Exhibit B, Pennington Sucrose Guide at p.42.
`
`57. Nordic Sugar, Coarse Grade Sugar refers to the sugars described therein by
`
`an approximate average size. The smallest average particle size disclosed in the
`
`Nordic Sugar reference is 650um, or about U.S. Mesh sieve no. 27. Given sugar
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`Page 20 of 28
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`
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`with an average particle size of U.S. mesh sieve no. 27, some of that sugar would
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`likely be smaller than U.S. Mesh sieve no. 35 because of the size distribution of
`
`sugar particles about the mean particle size.
`
`ii. Sources of Sugar
`
`58. When referring to a specific source of sugar (i.e., a unit of commercial sale or
`
`packaging), the industry commonly refers to sugar by the size of the average granule
`
`of sugar at the time of manufacturing; and, to be clear, the industry generally does
`
`so without always using the word “average” or an equivalent adjective.
`
`59. A single specific source of sugar can be modified by milling or screening to
`
`create a new source.
`
`60. A person of ordinary skill would refer to a sugar as it exists at the time a
`
`product is being used or manufactured.
`
`61.
`
`In the case of a product containing tea and sugar within a filter bag, a person
`
`of ordinary skill would refer to a specific source of sugar at the time that source is
`
`being placed into the filter bag.
`
`iii. Physical Degradation of Granulated Sugar
`
`62. Granulated sugar production is an industrial process involving many variables
`
`to produce a batch of sugar granules having specified characteristics.
`
`63.
`
`Individual granules of granulated sugar are breakable, and large granules can
`
`break apart into smaller granules as they are handled.
`
`Page 21 of 28
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`
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`64.
`
`The process by which individual granules of sugar are mechanically broken
`
`apart is used in the sugar industry to produce smaller granules of sugar, including,
`
`but not limited to, powdered confectioner’s sugar. This process may be referred to
`
`in industry as “grinding” or “milling.”
`
`65.
`
`The Coffield Report’s appendix showing test results for “The Sugar Lab
`
`Belgian Rock Sugar” shows that this sugar has mostly larger sugar granules, but with
`
`some smaller sugar granules. In my opinion, the smaller sugar granules present in
`
`the samples are due to breaking apart caused by handling.
`
`C. “Rock” Sugar and the AU ‘497 Application
`
`66.
`
`I reviewed Australian Patent Application No. AU 2011100497 (the “AU ‘497
`
`Application”). See Exhibit 1006 to Petition.
`
`67.
`
`In my opinion, the AU ‘497 Application does not teach a person of ordinary
`
`skill in the art of commercial restaurant iced tea brewing systems to build the
`
`invention of Claims 13, 18, or 19 of the ‘852 Patent because “rock sugar” is not
`
`suitable for use in the claimed inventions and because the AU ‘497 Application
`
`teaches use of inoperably large filter holes.
`
`i. Rock Sugar
`
`68.
`
`Even though some “rock sugar” may be larger than extra fine granulated
`
`sugar, the term “rock sugar” refers more to a style of sugar having irregularly-shaped
`
`crystals, often in an unrefined form, than to any specific size of sugar.
`
`Page 22 of 28
`
`
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`69.
`
`Some “rock sugar,” including sugar tested by Mr. Coffield, is “unrefined”
`
`sugar that includes impurities that would otherwise be removed via the sugar refining
`
`process. In support of this opinion, I obtained and examined one of the sugars
`
`described as “The Sugar Lab Belgian Rock Sugar” by Mr. Coffield. See Appendix
`
`B to Coffield Report.
`
`70.
`
`These unrefined sugars are not generally suitable for sweetening iced tea sold
`
`in restaurants because unrefined sugar includes impurities and other off flavors that
`
`some restaurant patrons may find unacceptable.
`
`71. Rock sugar, artificial sweetener, brown sugar, and raw sugar all are produced
`
`in a wide variety of different forms.
`
`72. Given the variety of forms of these sweeteners, it would require a large
`
`number of tests for a person of ordinary skill in the art of commercial restaurant iced
`
`tea brewing systems to determine which forms of sweeteners would dissolve best
`
`when placed in a filter bag with tea and used to brew commercially practical amounts
`
`of iced tea.
`
`73. Many sugars sold as “rock sugar” are irregularly shaped and sized. In order
`
`to determine if a specific approximate size of rock sugar would work well, a person
`
`of ordinary skill in the art of commercial restaurant iced tea brewing systems would
`
`need to perform mechanical or manual separation. Such separation would increase
`
`the complexity of the testing required to determine which forms of sweeteners would
`
`Page 23 of 28
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`
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`dissolve best when placed in a filter bag with tea and used to brew commercially
`
`practical amounts of iced tea.
`
`74. Additionally, the irregular shape of sugar sold as “rock sugar” teaches away
`
`from using “rock sugar” in a product for use in commercial restaurant iced tea
`
`brewing systems. This is because consistency is a highly d
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