CARAVAN INGREDIENTS INC.

Patent Trials and Appeals Board

Mar 18, 2022

2021003272 (P.T.A.B. Mar. 18, 2022)

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. 15/324,174 01/05/2017 GuoHua FENG 174231 5837 23589 7590 03/18/2022 Hovey Williams LLP 10801 Mastin Blvd., Suite 1000 Overland Park, KS 66210 EXAMINER MUKHOPADHYAY, BHASKAR ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 03/18/2022 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): uspatents@hoveywilliams.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GUOHUA FENG, EMILY GUILFOYLE, JESSE STINSON, and LAWRENCE SKOGERSON Appeal 2021-003272 Application 15/324,174 Technology Center 1700 Before GEORGE C. BEST, DONNA M. PRAISS, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1-7 and 19-26. See Non-Final Act. 4. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Caravan Ingredients, Inc.” Appeal Br. 4. Appeal 2021-003272 Application 15/324,174 2 CLAIMED SUBJECT MATTER Claim 1, reproduced below, illustrates the claimed subject matter: 1. A method of forming a bakery product, said method comprising: providing a dough comprising: yeast; an initial quantity of sugar; a source of starch; two different amyloglucosidase enzymes: a thermally-stable amyloglucosidase that exhibits activity during baking at temperatures at which the starch gelatinizes and has a half-life (T1/2) of from about 1 minute to about 30 minutes at about 85°C, wherein said thermally stable amyloglucosidase is present in said dough at a level of at least 500 AGU/kg flour; and a raw starch degrading amyloglucosidases having a half- life (T1/2) of from about 1 minute to about 20 minutes at about 70°C, wherein said raw starch degrading amyloglucosidase is present in said dough at a level of not more than 5,000 AGU/kg flour; and optionally an anti-staling amylase; and baking the dough for a time and temperature sufficient to yield the bakery product, said bakery product having a final quantity of sugar that is greater than said initial quantity of sugar, wherein said final quantity of sugar is at least about 5% by weight, based upon the total weight of said bakery product taken as 100% by weight, said final quantity of sugar comprises glucose, maltose, or a combination thereof wherein said bakery product comprises less than about 1% by weight fructose, based upon the total weight of the bakery product taken as 100% by weight. Claims App. (Appeal Br. 25) Appeal 2021-003272 Application 15/324,174 3 REFERENCES The prior art references relied upon by the Examiner are: Name Reference Date Hirsh US 4,587,215 May 6, 1986 Cooper US 6,896,916 B2 May 24, 2005 Rittig US 2013/0209607 Al Aug. 15, 2013 REJECTIONS Claims 1-7 and 19-26 are rejected under 35 U.S.C. § 103 based on Rittig, Hirsh, and Cooper. Non-Final Act. 4. OPINION We review the appealed rejections for error based upon the issues Appellant identifies and in light of the arguments and evidence produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t 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 presented in this Appeal and each of Appellant’s contentions, we are not persuaded that Appellant has identified reversible error, and we affirm the Examiner’s rejection for the reasons expressed in the Non-Final Office Action and the Answer. We add the following primarily for emphasis. Claim 12 Appellant acknowledges the Examiner’s finding that Rittig teaches “a raw starch degrading enzyme, which may be combined with other enzymes.” 2 Appellant argues for the patentability of claims 1-7 and 21-26 as a group with claim 1 as the representative claim. See Appeal Br. 7-22. Claims 1-7 Appeal 2021-003272 Application 15/324,174 4 Appeal Br. 10; Non-Final Act. 4. Appellant, however, argues that “the Rittig enzymes are all selected to ‘degrade below starch gelatinizing temperature.’” Appeal Br. 10. Appellant argues that the thermally stable amyloglucosidase (“AMG”) taught in Rittig “retain activity at merely 60°C, well below the 85°C” as recited in claim 1. Id. Appellant also acknowledges that Hirsch teaches “a single thermostable amyloglucosidase allegedly demonstrating the claimed thermostability properties” but argues that Hirsh does not teach or suggest combining the two recited AMGs or any advantage of such a combination. Id. Appellant’s arguments are unpersuasive of error. Rittig undisputedly teaches a dough having both raw starch degrading enzymes as well as an additional enzyme which may include any type of amyloglucosidase. Rittig ¶¶ 59, 60. Appellant does not identify error in the Examiner’s finding that the recited thermally stable AMG is encompassed by the prior art AMG genus. Compare Reply Br. 3-8, with Ans. 14-15; cf. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) (“[A] prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness.”). The Examiner’s prima facie case of obviousness is therefore supported by the record. Appellant’s argument that Cooper does not teach or suggest the recited AMG enzymes (Appeal Br. 10) is unpersuasive because the Examiner only relies on Cooper for the teaching of the inclusion of yeast. Non-Final Act. 5. Appellant’s arguments that “Cooper involves temperatures that are incompatible with the ability of the recited enzymes to produce and 21-26 stand or fall together. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2021-003272 Application 15/324,174 5 sugar at the various stages” (id.) and that “Cooper teaches away from additional sugar production in its dough” (id.) are unpersuasive for the same reason. Moreover, “[u]nder the proper legal standard, a reference will teach away when it suggests that the developments flowing from its disclosures are unlikely to produce the objective of the applicant’s invention.” Syntex (U.S.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005). Cooper’s teaching that the presence of malt flour “is purely to contribute malt flavor without breaking down additional starches to release more natural sugars” (Cooper 8:11-12 (cited in Appeal Br. 10)) is not relied upon by the Examiner for the obviousness analysis and supports the Examiner’s finding that it is within the ordinary skill to use different ingredients for their respective purposes. Appellant next argues that a skilled artisan would not have had any reason or a reasonable expectation of success in combining the references. Appeal Br. 11-12. Appellant does not dispute the finding that Hirsch teaches a particular type of thermostable AMG having the properties recited in claim 1 and instead argues that Hirsh does not teach or suggest using the thermally stable AMG in food products such as doughs and bakery goods. Id. at 12. Appellant’s arguments are unpersuasive because they attack the Hirsch reference individually, rather than considering the combined prior art teaching including Rittig’s teaching of using any type of AMG in a food product. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appeal 2021-003272 Application 15/324,174 6 Appellant also argues that Hirsh teaches a continuous method of using AMG and “[o]ne of ordinary skill in the art would understand that enzymes used in a bread product are not to be reused (since they are incorporated into the dough), and ultimately the final bakery product (which is consumed).” Appeal Br. 12. Appellant’s argument is unpersuasive because the argument that continuous process differs from batch process does not identify reversible error in the Examiner’s finding that it is within the to use the enzyme in Hirsch in Rittig’s bread making process. Non-Final Act. 6. “If a person of ordinary skill can implement a predictable variation [of a known work], § 103 likely bars its patentability.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007). Appellant also cites a Declaration by Dr. GuoHua Feng (“Declaration” or “Decl.”) in support of a lack of reasonable expectation of success. Appeal Br. 12. Dr. Feng states: “It is recognized in the art that different enzymes can have different purposes in baking.” Decl. ¶ 3 (cited in Appeal Br. 13). Dr. Feng provides an overview of the purpose of various enzymes including fungal amylase, shelf life extension enzymes, and shelf life extension enzymes with endo-amylase activity and states: “enzymes are widely used in baking, but different enzymes play different roles in breadmaking and they are not interchangeable.” Id. Dr. Feng’s statements that different enzymes serve different purposes do not support Appellant’s argument that a skilled artisan would not have had a reasonable expectation of success in arriving at the recited product based on the combined prior art teaching. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR, 550 U.S. at 416. Moreover, Appeal 2021-003272 Application 15/324,174 7 “[o]bviousness does not require absolute predictability of success. . . . For obviousness under § 103, all that is required is a reasonable expectation of success.” In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988). In this case, Rittig teaches a product having a raw starch degrading AMG as well as an additional AMG of any type and that different enzymes serve different purposes - which is consistent with Dr. Feng’s declaratory statements. Compare Decl. ¶ 3, with Rittig ¶¶ 26-41, 60 (describing various enzymes and their respective purposes). The Examiner’s finding that it is within the ordinary skill to use different AMGs based on their respective known purposes is therefore supported by the record. Appellant argues that Cooper teaches “the temperature range is important to control because the enzymes ‘become both activated and deactivated during specific bake time applied’” (Appeal Br. 13) but does not adequately explain why the Examiner reversibly erred in finding that Cooper teaches the inclusion of yeast on which basis the obviousness rejection is formed. Claim 1 requires no more than “baking the dough for a time and temperature sufficient to yield the bakery product” and Appellant’s argument regarding Copper’s temperature requirement is therefore unpersuasive for claim 1 does not recite a specific temperature range. As the Examiner finds, the method recited in claim 1 is merely “the predictable use of prior art elements according to their established functions,” KSR, 550 U.S. at 417, namely the known AMGs for their respective purposes. Appellant’s arguments with regard to Cooper’s process are unpersuasive. Appellant next argues that the Examiner engaged in impermissible hindsight in finding that it is within the ordinary skill to arrive at the recited amounts of AMG. Appeal Br. 14. Appellant, however, does not dispute the Appeal 2021-003272 Application 15/324,174 8 Examiner’s findings that Rittig “discloses that the effective amount of this enzyme to be used can be determined by routine experimentation[.]” Compare id., with Non-Final Act. 7 (citing Rittig ¶¶ 54-56). Appellant does not dispute the Examiner’s finding that Hirsch’s thermally stable AMG has sugar-producing properties. Compare Appeal Br. 14, with Non-Final Act. 7. Appellant argues instead that it would not have been obvious to first combine the references and then optimize the amounts and “the only logical way to arrive at the combination of references and the ‘optimization’ suggested by the Examiner is by using the claimed invention and the direction provided by the claims and present application as guidance.” Appeal Br. 14, 15. Any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from applicant’s disclosure, such a reconstruction is proper. In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). In this case, Appellant does not identify any such “knowledge gleaned only from applicant’s disclosure” (id.) in the obviousness analysis and we are therefore unpersuaded that the Examiner engaged in impermissible hindsight. We are unpersuaded by these arguments also because Appellant does not adequately explain why the Examiner reversibly erred in finding that it requires no more than routine experimentation to arrive at the recited amounts. See Rittig ¶ 56 (“The raw starch degrading enzymes are added to the flour in an ‘amount effective’ to correct the flour or improve the flour quality or flour based product quality. As used herein, ‘an effective amount’ Appeal 2021-003272 Application 15/324,174 9 is a concentration of enzyme or enzymes sufficient for the intended purpose of improving the flour quality or flour based product quality.”). Appellant’s arguments that none of the references disclose both recited AMGs (Appeal Br. 15-16) are unpersuasive again because these arguments attack the references individually, rather than considering what the combined references would have suggested to the person of ordinary skill in the art. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” Merck, 800 F.2d at 1097. Appellant’s arguments that the recited product exhibits unexpected results (Appeal Br. 16-21) are unpersuasive for multiple reasons. “To be particularly probative, evidence of unexpected results must establish that there is a difference between the results obtained and those of the closest prior art, and that the difference would not have been expected by one of ordinary skill in the art at the time of the invention.” Bristol-Myers Squibb Co. v. Teva Pharms. USA, Inc., 752 F.3d 967, 977 (Fed. Cir. 2014). In this case, as the Examiner points out, the purported unexpected results are not based on a comparison to the closest prior art. Ans. 23. Appellant does not challenge this finding. See, e.g., Reply Br. 3-8. Moreover, neither Appellant nor Dr. Feng explain what would have been expected. “[B]y definition, any superior property must be unexpected to be considered evidence of non-obviousness.. . . [Appellant’s] evidence must fail because the record is devoid of any evidence of what the skilled artisan would have expected.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007). In this case, the record before us is likewise devoid of such evidence of what the skilled artisan would have expected. Appeal 2021-003272 Application 15/324,174 10 Specifically, Dr. Feng presents Figures 4-6 showing certain purported “surprising effect of the thermally-stable AMG in making sugar during the baking process.” Decl. ¶ 5; see also Appeal Br. 18 (showing annotated Figure 5). Dr. Feng presents Figure 9 which “show[s] the results of the sugar profile in bread baked with and without the combination of AMGs (thermally-stable AMG (‘TS-AMG’), and raw starch degrading AMG (‘RSD-AMG’).” Decl. ¶ 6; see also Appeal Br. 19 (showing annotated Figure 5). Dr. Feng presents Figures 7 and 8 showing “reducing or removing added-sugar from bread dough formula can significantly improve the performance of the shelf-life extension enzyme.” Decl. ¶ 7. Dr. Feng also presents Figures 2 and 3 and stating that “comparing to the classic AMG, AMG 1100, the thermally-stable AMG, Po-AMG, can significantly improve crumb resilience and reduce crumb adhesiveness in the finished bread.” Decl. ¶ 8. Appellant additionally presents Figure 1 showing “the use of a thermally-stable amyloglucosidase (‘Po-AMG’) in amounts of at least 500 AGU/kg flour in a dough provides a bakery product having higher-than- expected amounts of glucose, as compared to a similar dough formed without the thermally-stable amyloglucosidase.” Appeal Br. 17.3 Appellant also presents Figure 10 showing that the recited product is sweeter “than conventional bakery products formed from doughs without the enzymes.” Id. at 20-21. Appellant has not carried their burden to show unexpected results because “it is not enough to show that results are obtained which differ from those obtained in the prior art: that difference must be shown to be an 3 We note that Figure 1 is limited to an amount of AMGs of between 0 and 5000 AUG/kg flour. See Fig. 1. Appeal 2021-003272 Application 15/324,174 11 unexpected difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). The figures presented by Dr. Feng and Appellant do not show what would have been expected and why these results are unexpected. See Pfizer, 480 at 1369 (holding that a proper evaluation of a showing of unexpected results considers what properties were expected). The figures do not support Appellant’s arguments also because the data is incommensurate in scope with the claim language which requires both enzymes at recited amounts and does not exclude the presence of additional ingredients such as sugar. See In re Lindner, 457 F.2d 506, 508 (CCPA 1972) (“It is well established that the objective evidence of nonobviousness must be commensurate in scope with the claims.”). Appellant further asserts that the data is commensurate in scope with the claim language because “the data in the application tested two different amounts of each of the two different AMGs and two different ratios, with similar outcomes.” Appeal Br. 21. The claim language, however, requires an amount of thermally stable AMG “at a level of at least 500 AGU/kg flour” and a raw starch degrading AMG “a level of not more than 5,000 AGU/kg flour.” Appellant does not explain why the broad ranges recited in claim 1 are commensurate in scope with “two different amounts” of the respective AMG tested. The evidence before us, therefore, does not support Appellant’s assertion that the Examiner reversibly erred in finding that the data is incommensurate in scope with the claim language. Appellant lastly argues that certain objective evidence supports patentability. Appeal Br. 21-22. Appellant does not support the argument with evidence showing, for example, commercial success or long-felt need. See id. at 22. Appellant argues only that “the existence of the Rittig amyloglucosidases was known for over 25 years prior to the filing of the Appeal 2021-003272 Application 15/324,174 12 present invention” and “the Examiner has cited nothing to suggest that such enzymes had been used in dough compositions or baking processes, alone or in combination with other enzymes.” Id. “The mere age of the references [in this case, Rittig] is not persuasive of the unobviousness of the combination of their teachings, absent evidence that, notwithstanding knowledge of the references, the art tried and failed to solve the problem.” In re Wright, 569 F.2d 1124, 1125 (CCPA 1977). Because Appellant’s arguments are not persuasive of error, we affirm the rejection of claim 1. Claim 19 Claim 19 depends from claim 1 and additionally recites: “wherein the ratio of the level of said thermally-stable amyloglucosidase present in said dough (in AGU/kg flour) to the level of the raw starch degrading amyloglucosidase present in said dough (in AGU/kg flour) is in the range of from about 2:1 to about 1:2.” Appellant’s arguments with regard to claim 19 mirror those raised for claim 1. See Appeal Br. 22-23 (arguing that none of the references individually disclose the recited combination of enzymes and that Hirsh does not use the enzyme in food products). Based on the analysis with regard to claim 1, supra, we affirm the rejection of claim 19. See also Non-Final Rejection, 9 (rejecting claim 19 finding that the amount of the recited enzyme is a result effective variable and a skilled artisan would have arrived at the recited ratio through routine experimentation). Appeal 2021-003272 Application 15/324,174 13 Claim 20 Claim 20 depends from claim 1 and additionally recites: “wherein the level of said thermally stable amyloglucosidase in said dough is in the range of from 500 to 1000 AGU/kg flour and the level of said raw starch degrading amyloglucosidase in said dough is in the range of from 500 to 1000 AGU/kg flour.” Appellant argues that the Examiner erred because Rittig teaches an amount of 0.2-70 AGU/kg flour which is lower than the recited range. Appeal Br. 23. Appellant, however, does not dispute the Examiner’s finding that the amount of the enzyme is a result effective variable and the amount of the recited enzyme is a result effective variable and a skilled artisan would have arrived at the recited ratio through routine experimentation. Non-Final Act. 9; see Appeal Br. 23. Based on the analysis with regard to claim 1, supra, we affirm the rejection of claim 20. CONCLUSION The Examiner’s rejection is affirmed. DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1-7, 19-26 103 Rittig, Hirsh, Cooper 1-7, 19-26 Appeal 2021-003272 Application 15/324,174 14 TIME PERIOD FOR RESPONSE 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