David John. FultonDownload PDFPatent Trials and Appeals BoardJul 26, 201912789280 - (D) (P.T.A.B. Jul. 26, 2019) Copy Citation 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. Appeal 2018-008840 Application 12/789,280 2 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 Appeal 2018-008840 Application 12/789,280 3 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. Appeal 2018-008840 Application 12/789,280 4 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. Appeal 2018-008840 Application 12/789,280 5 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. Appeal 2018-008840 Application 12/789,280 6 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 Appeal 2018-008840 Application 12/789,280 7 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. Appeal 2018-008840 Application 12/789,280 8 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 Appeal 2018-008840 Application 12/789,280 9 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. Appeal 2018-008840 Application 12/789,280 10 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 Appeal 2018-008840 Application 12/789,280 11 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.”). Appeal 2018-008840 Application 12/789,280 12 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. Appeal 2018-008840 Application 12/789,280 13 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. Appeal 2018-008840 Application 12/789,280 14 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 Copy with citationCopy as parenthetical citation