Ex Parte COGAN

Patent Trials and Appeals Board

Jan 30, 2019

14551859 - (D) (P.T.A.B. Jan. 30, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/551,859 11/24/2014
110933 7590 01/31/2019
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
FIRST NAMED INVENTOR
Kevin C. COGAN
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CFLAY.00974 9358
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
01/31/2019 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KEVIN C. COGAN1
(Applicant: Frito-Lay North America, Inc.)
Appeal 2018-003 318
Application 14/551,859
Technology Center 1700
Before BEYERL YA. FRANKLIN, N. WHITNEY WILSON, and
LILAN REN, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellant identifies the real party in interest as Frito-Lay North America,
Inc. Appeal Br. 2.
Appeal 2018-003 318
Application 14/551,859
Appellant requests our review under 35 U.S.C. § 134 of the
Examiner's decision rejecting claims 1-24. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
Claim 1 is illustrative of Appellant's subject matter on appeal and is
set forth below:
1. A method of making a masa, the method comprising:
hydrating kernel com;
grinding the hydrated com; and
adding com flour treated to deactivate enzymes therein to
thereby make a masa comprised of hydrated ground com and
the added treated com flour.
The Examiner relies on the following prior art references as evidence
of unpatentability:
Gimmler
Cardenas
Xu
us 6,001,409
US 2003/0198725 Al
US 2012/0189756 Al
THE REJECTION
Dec. 14, 1999
Oct. 23, 2003
July 26, 2012
Claims 1-24 are rejected under 35 U.S.C. § 103 as being unpatentable
over Cardenas in view of Xu and Gimmler.
ANALYSIS
To the extent that Appellant has presented substantive arguments for
the separate patentability of any individual claim on appeal, we will address
each separately consistent with 37 C.F.R. § 4I.37(c)(l)(iv). We thus
consider claims 1, 3, and 14 in this appeal.
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Appeal 2018-003 318
Application 14/551,859
Upon consideration of the evidence and each of the respective
positions set forth in the record, we find that the preponderance of evidence
supports the Examiner's findings and conclusion that the subject matter of
Appellant's claims is unpatentable over the applied art. Accordingly, we
sustain each of the Examiner's rejections on appeal for the reasons set forth
in the Final Office Action and in the Answer (which we adopt as our own),
and affirm. We add the following for emphasis.
Claims 1-24 are rejected under 35 U.S.C. § 103 as being unpatentable
over Cardenas in view of Xu and Gimmler. We refer to pages 4-6 of the
Answer regarding the Examiner's position for the rejection. The Examiner
relies upon Cardenas for teaching a method of making masa dough which is
used to form a com-based snack product. The process comprises the step of
hydrating a com composition and milling the com composition to form fresh
dough. Cardenas, ,r,r 0006, 0014, 0015, 0017, 0048, 0051. Ans. 4.
The Examiner states that Cardenas does not disclose adding com flour
treated to deactivate enzymes, the amounts of treated flour, and the treating
temperature used for toasting to form the treated flour, as claimed by
Appellant. The Examiner relies upon the secondary references for these
teachings, discussed below. Ans. 4.
The Examiner finds that Gimmler teaches the use of a combination of
a coarse com component and a fine com component. The Examiner finds
that Gimmler teaches that the fine com component creates a continuous
phase which holds the product together and reduces breakage. This is the
benefit for which the Examiner relies upon for making the combination.
Ans. 4 and 5.
3
Appeal 2018-003 318
Application 14/551,859
The Examiner recognizes that the combination of Cardenas in view of
Gimmler does not teach the use of toasted com flour in which the enzyme is
deactivated. Ans. 5. The Examiner relies upon Xu for this teaching. Ans. 4--
6. The Examiner finds that Xu teaches a stabilized whole com flour having
benefits including enhanced com flavors such as sweet com flavor, popcorn
flavor, buttery flavor and toasted com flavor. Ans. 4--5. The Examiner finds
that the method comprises treating whole com kernels with direct heat such
as forced air at temperatures of about 230-280 °F, and grinding the heat-
treated com by hammer mill or attrition mill to desired granulation profile.
The stabilized com flour is substantially free of catalase activity. The flour
can be used in a variety of food products to improve the total dietary fiber
while maintaining or improving the taste of such food products. Xu, ,r,r
[0006], [0007], [0008], [0009], [0040], Ans. 4--5.
The Examiner concludes that it would have been obvious in view of
the teaching of Gimmler to add com flour to the process of Cardenas to
obtain the benefits taught by Gimmler (the benefit being that the fine com
component creates a continuous phase which holds the product together
and reduces breakage). The Examiner also concludes that it would have
been obvious to use the toasted flour as taught in Xu to obtain the benefits,
discussed supra, taught by Xu. Ans. 5.
We agree with the Examiner that a prima facie case of obviousness
has been met. We have carefully reviewed Appellant's position in the
Appeal Brief and Reply Brief, and agree with the Examiner (Ans. 6-9) that
arguments that address the references individually rather than as a
combination are unpersuasive (e.g., see Appeal Br. 10-11. Reply Br. 2).
The test for obviousness is what the combined teachings of the references
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Appeal 2018-003 318
Application 14/551,859
would have suggested to those of ordinary skill in the art; one cannot show
non-obviousness by attacking references individually where the rejections
are based on combinations of references. In re Young, 927 F.2d 588, 591
(Fed. Cir. 1991); In re Merck & Co., Inc., 800 F.2d 1091, 1097-98 (Fed. Cir.
1986); In re Keller, 642 F .2d 413, 425 (CCP A 1981 ). Sufficient motivation
has been provided by the Examiner in the record in support of a prima facie
case, not based on hindsight reconstruction as asserted by Appellants on
page 11 of the Appeal Brief.
We also agree with the Examiner that the reason for the proposed
modification need not be for the same purpose disclosed in Appellant's
Specification. Ans. 9. "As long as some motivation or suggestion to
combine the references is provided by the prior art taken as a whole, the law
does not require that the references be combined for the reasons
contemplated by the inventor." In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir.
1992). Hence, Appellant's arguments that its purposes were different than
those proposed by the Examiner are unpersuasive.
With regard to the temperature range recited in claims 3 and 14, we
agree with the Examiner that Xu suggests the limitations in these claims as
explained by the Examiner on page 9 of the Answer.
In view of the above, we are unpersuaded of error in the Examiner's
rejection, and affirm.
DECISION
The rejection is affirmed.
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Appeal 2018-003 318
Application 14/551,859
TIME PERIOD
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)(l )(iv).
ORDER
AFFIRMED
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