David John. Fulton

Patent Trials and Appeals Board

Jul 26, 2019

12789280 - (D) (P.T.A.B. Jul. 26, 2019)

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.
12/789,280 05/27/2010 DAVID JOHN FULTON FULT001 / 192188 8320
136856 7590 07/26/2019
Richards Rodriguez & Skeith LLP
816 Congress Avenue, Suite 1200
Austin, TX 78701
EXAMINER
PRAKASH, SUBBALAKSHMI
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
07/26/2019 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):
ecoffee@rrsfirm.com
iplaw@rrsfirm.com
rwilliams@rrsfirm.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte DAVID JOHN FULTON
____________

Appeal 2018-008840
Application 12/789,280
Technology Center 1700
____________

Before MICHELLE N. ANKENBRAND, Acting Vice Chief Administrative
Patent Judge, DONNA M. PRAISS, and JEFFREY R. SNAY,
Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 22, 25–27, 30–33, 36, 39–43, and 45–50 as
obvious over cited prior art references. Claims 1–21, 23, 24, 28, 29, 34, 35,
37, 38, and 44 have been cancelled. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b). We AFFIRM.

1 Our Decision refers to the Specification (“Spec.”) filed May 27, 2010, the
Examiner’s Final Office Action dated Sept. 27, 2017, Appellant’s Appeal
Brief (“Appeal Br.”) filed Feb. 27, 2018, the Examiner’s Answer (“Ans.”)
dated July 12, 2018, and Appellant’s Reply Brief (“Reply Br.”) filed Sept.
12, 2018.
2 Appellant identifies David John Fulton as the real party in interest. Appeal
Br. 1.
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STATEMENT OF THE CASE
The invention “relates to a method for controlled hydration of
mucilaginous hydrocolloids for food compositions and, in particular, to
high-fiber food compositions with minimal amount of digestible
carbohydrates.” Spec. 1:9–11. The Specification states sugar and other
substances that excessively and often quickly metabolize as glucose serve as
a major health problem. Id. at 1:27–29. For instance, “[s]tarch and sugar
are equivalent digestible carbohydrates with equal calories and insulin
requirements.” Id. at 2:8–9. However, high-fiber, low-carbohydrate baked
consumables contain a significant amount of flour to provide desired
organoleptic properties (e.g., mouth feel, crumb, dentation, and taste
profile), but starch is a major component of regular flour. Id. at 3:1–6.
According to the Specification, there is also a growing demand for foods
lacking allergenic gluten proteins, such as those found in wheat flour. Id. at
2:18–19.
In view of this, the Specification discloses a process using the
controlled release and incorporation of bound water and free water to
partially hydrate psyllium to form baked goods having comparable
organoleptic characteristics to traditional baked foods without adding starch,
digestible carbohydrates, or yeast. Id. at 5:23–26. The Specification states
the invention replaces starch “to glue together strands of protein and fiber”
via a controlled wetting process of mucilaginous hydrocolloids to create
sticky chain molecules that anchor protein and fiber strands so that there is
no need for starch. Id. at 4:10–14. According to the Specification, this
results in a baked good almost entirely comprising fiber and protein, which
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does not require starch and has no significant impact on blood glucose. Id.
at 4:14–17.
Claim 22, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative (emphases added).
22. A method for producing a baked food product,
comprising:
mixing dry components together to form a dry mix,
wherein said dry mix comprises a fiber component and baking
soda, wherein said fiber component constitutes about 30% to
65% by weight of said dry mix, wherein said fiber component is
substantially free of digestible carbohydrate, wherein said fiber
component comprises psyllium fiber comprising ground psyllium
husk, ground psyllium seed, or a mixture thereof, and wherein
said fiber component is the only fiber component in said dry mix;
mixing liquid components together to form a liquid mix,
wherein said liquid mix comprises a liquid protein component
and a fat component, wherein said liquid protein component
comprises egg white or fresh whole egg;
blending said dry mix with said liquid mix to form a
dough, wherein said dry mix or said liquid mix or both comprise
one or more additives selected from the group consisting of
processing aids, emulsifiers, leavening agents, flavoring agents,
sweeteners, bracers, colors, preservatives and acidulants,
wherein proper hydration of said fiber is achieved by
maintaining a fiber-to-water weight ratio in a range of 1:0.6 to
1:3 in said dough, wherein water from egg white or fresh whole
egg or both provides over 90% of total water in said dough, and
wherein said dough has a digestible starch content of 2% or less
by weight and a digestible carbohydrate content of 4% or less by
weight; and
baking said dough without the use of yeast to allow an
internal network to encapsulate hot gases released during the
baking process to inflate said dough into a baked food product
selected from the group consisting of a bread or muffin.

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Independent claim 32 recites “[a] dough for producing a bread or
muffin” consisting of, among other things, 3–30% protein by weight that
comprises protein from egg white or fresh whole egg or both; 10–40% fiber
by weight that is substantially free of digestible carbohydrate; wherein the
fiber comprises psyllium fiber; 10–40% fat by weight; at least one additive
in the amount of 1–30% by weight, and
wherein said dough has a fiber-to-water weight ratio in a range
of 1:0.6 to 1:3, wherein water constrained in egg white or fresh
whole egg or both provides over 90% of total water in said
dough, and wherein said dough has a digestible starch content of
2% or less by weight and a digestible carbohydrate content of 4%
or less by weight.
Independent claim 40 recites “[a] baked food product” consisting of,
among other things, 3–30% protein by weight from egg white or fresh whole
egg or both; 10–40% fiber by weight comprising psyllium fiber; 10–40% fat
by weight; at least one additive in the amount of 1–60% by weight; 2–10%
water by weight, “wherein naturally existing water in egg white, or fresh
whole egg or both provides over 90% of water in said baked food product,”
and “wherein said baked food product has a digestible starch content of 2%
or less by weight and a digestible carbohydrate content of 4% or less by
weight.”
The Examiner rejects claims 22, 25–27, 30–33, 36, 39–43, and 45–50
under 35 U.S.C. § 103(a) as being unpatentable over Woestelandt,3

3 Woestelandt, EP 0 642 737 A1, published March 15, 1995
(“Woestelandt”). Further citations to Woestelandt will refer to its machine
translation.
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Zohoungbogbo,4 and Malby5 for the reasons provided on pages 3–12 of the
Examiner’s Answer.6 Appellant argues claims 22, 32, and 40 as a first
group, claims 27, 33, and 41 as a second group, and claim 45 as a third
group. Appeal Br. 24–39. In accordance with 37 C.F.R. § 41.37(c)(1)(iv),
and in the absence of separate argument directed to these claims, claims 25,
26, 30, 31, 36, 39, 42, 43, and 46–50 will stand or fall together with
independent claims 22, 32, and 40. Therefore, we address the arguments for
claims 22, 25, 26, 30–32, 36, 39, 40, 42, 43, and 46–50 as a first group, the
arguments for claims 27, 33, and 41 as a second group, and the arguments
for claim 45 as a third group.

ANALYSIS
We review the appealed rejections for error based upon the issues
Appellant identifies and in light of the arguments and evidence produced
thereon. 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
argued claims in light of the case law presented in this Appeal and each of
Appellant’s arguments, we are not persuaded of reversible error in the
Examiner’s rejections.

4 Zohoungbogbo, US 6,322,826 B2, issued November 27, 2001
(“Zohoungbogbo”).
5 Malby, US 2007/0275121 A1, published November 29, 2007 (“Malby”).
6 The Examiner has withdrawn the rejection of claim 25 under 35 U.S.C.
§ 112, first paragraph, for failing to comply with the written description
requirement. Ans. 3.
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Claims 22, 25, 26, 30–32, 36, 39, 40, 42, 43, 45, and 46–50
The Examiner finds Woestelandt discloses a gluten-free bakery
product made from 30–70 wt% gluten-free flour, 1–1.2 wt% baking powder,
and 30–70 wt% eggs. Ans. 3. The Examiner finds Woestelandt discloses
the use of wheat flour instead of a low starch flour as recited in the claims.
Id. at 4. However, the Examiner finds Zohoungbogbo discloses a flour
including at least 50% protein, less than 15% carbohydrates or preferably
less than 5% carbohydrates, and 35–50% plant fibers. Id. The Examiner
finds Zohoungbogbo teaches its flour is a substitute for wheat flour in bread
and baked goods. Id.
The Examiner concludes it would have been obvious to substitute
Zohoungbogbo’s gluten-free flour for Woestelandt’s whole-wheat flour to
prepare a baked good. Id. at 5. The Examiner determines that
Woestelandt’s process, as modified in view of Zohoungbogbo, would result
in a fiber-to-water ratio of 1:0.91 to 1:0.64, which falls within the claimed
range for fiber-to-water ratio. Id.
The Examiner finds Woestelandt, as modified in view of
Zohoungbogbo, does not disclose the use of psyllium fiber as the plant fiber
in its flour. Id. The Examiner finds Malby discloses a gluten-free bread
made from eggs and psyllium fiber. Id. Specifically, the Examiner finds
Malby teaches that psyllium fibers swell and rapidly form mucilage when
water is added and that the water content of the mucilage can be highly
varied while maintaining the viscous gel rheology. Id. The Examiner
concludes it would have been obvious to modify Woestelandt, as modified
in view of Zohoungbogbo, to obtain the benefits of psyllium fiber Malby
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discloses. Id. at 5–6. The Examiner further finds that Malby teaches that
varying the solid to liquid ratio of a mixture including psyllium affects
whether a bread is very light and highly porous, or compact and finely-
pored. Id. at 6. In view of this teaching, the Examiner finds Malby
recognizes hydration of psyllium as a result-effective variable and concludes
it would have been obvious to optimize compositions including psyllium
fiber to obtain a baked product with the desired texture and consistency. Id.
Appellant contends there would not have been a reasonable
expectation of success to combine Woestelandt and Zohoungbogbo.
Although Zohoungbogbo discloses non-gluten proteins as flour ingredients,
Appellant contends that because Zohoungbogbo does not teach or suggest a
flour without gluten, there would have been no reason to make a gluten-free
flour based on the ingredients Zohoungbogbo discloses, or to combine such
a flour with Woestelandt’s process. Appeal Br. 24–26; Reply Br. 2–4.
Appellant’s arguments are unpersuasive. The Examiner correctly
finds that Woestelandt uses a gluten-free wheat flour that is mixed with egg
to make bread. Ans. 3–4; Woestelandt, 2–3. The Examiner also correctly
finds that Zohoungbogbo discloses a flour that is a substitute for wheat flour
and can be used to make bread. Ans. 4; Zohoungbogbo 1:18–21, 2:54–58.
Therefore, the Examiner’s obviousness rationale of substituting
Zohoungbogbo’s flour for Woestelandt’s wheat flour relies on the well-
established principle that, for an improvement to be patentable, it must be
more than the predictable use of prior art elements according to their
established functions. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417
(2007). Appellant’s arguments appear to suggest that the cited prior art must
provide certainty that the proposed modifications will be successful.
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However, “[o]bviousness does not require absolute predictability of success.
. . . all that is required is a reasonable expectation of success.” In re
O'Farrell, 853 F.2d 894, 903-904 (Fed. Cir. 1988).
With regard to Zohoungbogbo’s flour being a gluten-free flour, the
Examiner finds Zohoungbogbo discloses other protein sources than gluten.
Ans. 4, 13. Appellant acknowledges this. Appeal Br. 25. One such protein
is rice, which Appellant’s Specification discloses as an alternative to wheat
gluten. Zohoungbogbo 2:35–40; Spec. 3:12–15. Therefore, Zohoungbogbo
suggests a flour that is gluten-free.
Appellant also asserts there would have been no reasonable
expectation of success to substitute Malby’s psyllium fiber for
Woestelandt’s plant fiber, as modified in view of Zohoungbogbo, because
psyllium fiber does not behave predictably when combined with water.
Appeal Br. 27–30 (citing the Fulton Declaration, executed on June 13, 2017,
for support); Reply Br. 4–7; Appeal Br., Evid. Appendix (“Fulton
Declaration”). In addition, Appellant contends the Fulton Declaration
demonstrates unexpected results for the claimed invention. Appeal Br. 35–
37; Reply Br. 8–10.
These arguments are also unpersuasive. The Fulton Declaration
describes efforts to replace starch with psyllium fiber, the difficulties of
mixing free water with psyllium fiber to produce a baked good, and the
efforts to obtain a psyllium-based flour that can be hydrated via bound water
protein sources to produce a baked good. Fulton Declaration ¶¶ 4–10.
However, as the Examiner indicates, the Fulton Declaration is in narrative
form, with few facts to provide sufficient support corroborating the
statements and opinions provided within. Ans. 18. For instance, paragraph
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7 of the Fulton Declaration presents an example in which two cups of
psyllium is substituted for two cups of starch flour in a recipe. The Fulton
Declaration states that adding two cups of water “will very likely produce a
gelatinized goo.” Id. ¶ 7. This is an opinion on the likely result that lacks
supporting data showing what precisely was included in the recipe mixture
and what the actual results were. The same paragraph in the Fulton
Declaration alludes to experiments altering the amounts of psyllium and
water, but the Fulton Declaration does not include data for those
experiments either.
Moreover, the record includes evidence that the hydration of psyllium
fiber is predictable. Specifically, Malby teaches psyllium is a mucilage
forming agent and “the water content of the mucilage formed can be highly
varied while maintaining the viscous gel rheology.” Malby ¶ 17. Malby
further discloses that varying the solid to liquid ratio of a mixture including
psyllium affects whether a bread is very light and highly porous, or compact
and finely-pored. Id. ¶ 19. Thus, Malby not only demonstrates that it was
known to hydrate psyllium fiber, but that hydration could be controlled to
vary the texture and consistency in a baked good. Further, Malby teaches
advantageous properties for psyllium fiber, which would have provided a
reason for one of ordinary skill in the art to substitute Malby’s psyllium fiber
for the plant fiber of Zohoungbogbo’s flour. Malby ¶ 17.7

7 In view of Zohoungbogbo’s teaching that its flour is a wheat flour
substitute and Malby’s teachings of psyllium fiber’s advantageous
properties, there is no need to rely on Application of Levin, 178 F.2d 945,
948 (CCPA 1949), to support a conclusion of obviousness, which Appellant
disputes. Appeal Br. 40–42.
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As for the asserted unexpected results, Mr. Fulton describes a prior
expectation that substituting psyllium for starchy flour in a mixture using
constrained water would not have been expected to successfully produce a
baked product and states that this expectation meant success was
unexpected. Id. ¶ 8. Mr. Fulton alludes to experiments that obtained “stable
results for baking purposes with low-starch/no-starch psyllium-based flours
by using controlled hydration through bound water protein sources (such as
eggs) and in fat (such as butter).” Id. ¶ 10. However, Mr. Fulton does not
present the data for these experiments to determine precisely what flours
were used, how much water from eggs provides the total water content of a
dough, what the ratio of psyllium fiber to water was, and what resulted from
the experiments. In other words, we cannot assess these experiments in
relation to the claimed invention.
In view of the above, the statements in the Fulton Declaration are not
persuasively supported by corroborating evidence in a way that supports
Appellant’s contentions that the hydration of psyllium fiber is unpredictable,
or that the claimed invention exhibits unexpected results. See In re
Altenpohl, 500 F.2d 1151, 1158 (CCPA 1974) (lack of factual support
rendered an affidavit of little probative value in overcoming obviousness
rejection). As a result, the statements in the Fulton Declaration have little
probative value.
Appellant additionally argues that Zohoungbogbo and Malby both
mix flour with water instead of egg to hydrate a dry mix and, therefore, it
would not have been obvious to modify the water content Malby discloses.
Appeal Br. 30–32; Reply Br. 5–6. Appellant contends that Malby provides
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no indication that water content could be lowered so that egg provides 90%
of total water in a dough, as recited in claim 22. Appeal Br. 30.
These arguments are also unpersuasive. First, the Examiner finds
Woestelandt’s mixture, modified to use Zohoungbogbo’s flour, would result
in a fiber-to-water ratio of 1:0.91 to 1:0.64, which falls within the claimed
fiber-to-water ratio range. Ans. 5, 14. Given that Woestelandt’s mixture
does not add water (see Woestelandt, 2; Malby ¶ 7 (discussing
Woestelandt)), water from eggs would provide over 90% of the total water
in Woestelandt’s dough, as recited in claim 22. See Ans. 9. Appellant does
not cite any evidence or persuasive technical reasoning demonstrating that
substituting Malby’s psyllium fiber for the plant fiber in Zohoungbogbo’s
flour would alter the fiber-to-water ratio the Examiner has determined.
Second, to the extent Malby’s disclosure requires a specific solid to
liquid ratio when using its psyllium fiber—a teaching that Appellant does
not identify persuasively in the briefs—Malby teaches that the water content
of a mucilage formed from psyllium can be “highly varied while maintaining
the viscous gel rheology” and that varying the solid to liquid ratio of a
mixture including psyllium affects whether a bread is very light and highly
porous or compact and finely-pored. Malby ¶¶ 17, 19. Therefore, Malby’s
disclosure demonstrates the water content of a psyllium/water mixture is a
result-effective variable, the optimum ranges of which would have been
discoverable through routine experimentation. See In re Applied Materials,
Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) (“A recognition in the prior art
that a property is affected by the variable is sufficient to find the variable
result-effective.”).
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Appellant also argues that a dough having a digestible starch content
of 2% or less by weight and a digestible carbohydrate content of 4% or less
by weight, as recited in claims 22, 32, and 40, would not have been obvious
in view of the applied references. Appeal Br. 32–35; Reply Br. 7–8. The
Examiner finds Zohoungbogbo discloses a flour that has less than 15%
carbohydrates and preferably less than 5% carbohydrates. Ans. 4.
Zohoungbogbo discloses that the carbohydrate content of its flour is
“advantageously less than 5%.” Zohoungbogbo 2:31–34. The Examiner
also finds starch is a carbohydrate, Ans. 6–7, and Appellant does not dispute
this finding.8 As a result, Zohoungbogbo discloses a range that overlaps
with the claimed ranges. A prima facie case of obviousness arises when the
ranges of a claimed composition overlap the ranges disclosed in the prior art.
In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003). Appellant’s
arguments do not identify a reversible error in this rejection.
Having weighed all of the evidence before us, including the Fulton
Declaration and the disclosures of the applied references, a preponderance of
the evidence supports the conclusion that claims 22, 25, 26, 30–32, 36, 39,
40, 42, 43, and 46–50 would have been obvious to one of ordinary skill in
the art.

Claims 27, 33, and 41
Claim 27 depends from independent claim 22 and further recites a
digestible starch content of 1% or less and a digestible carbohydrate content
of 2% of less. Appeal Br. 45 (Claims App’x). Claims 33 and 41

8 Appellant’s Specification describes starch as a digestible carbohydrate.
Spec. 2:8–9.
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respectively depend from independent claims 32 and 40 and include similar
limitations. Id. at 47–48.
Similar to the arguments for the starch and carbohydrate contents
recited in claims 22, 32, and 40, Appellant argues it would not have been
obvious to modify the starch and carbohydrate content of the applied
references. Appeal Br. 37–38; Reply Br. 11–12. As discussed above with
regard to claims 22, 32, and 40, Zohoungbogbo discloses a range that
overlaps with the claimed ranges. For the same reasons discussed above
with regard to claims 22, 32, and 40, Appellant’s arguments do not identify a
reversible error in the rejection of claims 27, 33, and 41.

Claim 45
Claim 45 depends from independent claim 22 and further recites
“before baking said dough, partially wetting the fiber component, but not to
the extent that the fiber component reaches a gel stage.” Appeal Br. 49
(Claims App’x).
Appellant contends Malby teaches wetting a fiber component to
provide a gel, not the partial wetting recited in claim 22. Id. at 38–39; Reply
Br. 12–13. However, the Examiner finds Woestelandt’s process would
result in the effect of claim 45. Ans. 19. As noted above, Woestelandt
discloses mixing a gluten-free flour with egg without adding free water.
Woestelandt, 2; see Malby ¶ 7. This process is substantially identical to
Appellant’s process of providing water mainly from a protein source (e.g.,
eggs) so fibers of a dough are hydrated mainly by bound water. Spec 13:24–
30, 17:12–21, 17:27–18:11.
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Therefore, a preponderance of the evidence in this appeal record
supports the Examiner’s rejection of claim 45.
For these reasons and those the Examiner provides, we uphold the
Examiner’s rejection of claims 22, 25–27, 30–33, 36, 39–43, and 45–50
under 35 U.S.C. § 103(a) as obvious over Woestelandt, Zohoungbogbo, and
Malby.

DECISION
Upon consideration of the record, and for the reasons given above, in
the Final Office Action, and in the Examiner’s Answer, the decision of the
Examiner rejecting claims 22, 25–27, 30–33, 36, 39–43, and 45–50 under
35 U.S.C. § 103(a) is affirmed.
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