Ex Parte Gan et alDownload PDFPatent Trial and Appeal BoardMay 23, 201712265559 (P.T.A.B. May. 23, 2017) 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. 12/265,559 11/05/2008 Renee Gan 1410-93415-US 2397 48940 7590 05/23/2017 FITCH EVEN TAB IN & FLANNERY, LLP 120 SOUTH LASALLE STREET SUITE 1600 CHICAGO, IL 60603-3406 EXAMINER TURNER, FELICIA C ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 05/23/2017 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 RENEE GAN, KEITH, FORNECK, YA-YU PAI, and GARY SMITH Appeal 2016-001761 Application 12/265,559 Technology Center 1700 Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. FRANKLIN, Administrative Patent Judge. DECISION ON APPEAL Appellants request our review under 35 U.S.C. § 134 of the Examiner’s decision rejecting claims 1—6, 10-12, and 16—18.1 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). STATEMENT OF THE CASE Claim 1 is illustrative of Appellants’ subject matter on appeal and set forth below (emphasis added in bold text): 1. A fully assembled frozen food product comprising a fully baked or par-baked farinaceous portion having a top 1 Claims 19-22 have been canceled. (Advisory Action mailed May 20, 2015). Appeal 2016-001761 Application 12/265,559 bread portion and a bottom bread portion and having a filling between, and co-extensive with, the top bread and bottom bread portions, the fully assembled frozen food product weighing at least about 6.5 ounces, the fully baked or par-baked farinaceous portion prepared from a dough composition comprising, in baker's percentages, 100 percent wheat flour, 0.1 to 1 percent xanthan gum, 0.2 to 1.5 percent guar gum, and 0.2 to 1.5 percent methylcellulose, wherein the fully baked or par-baked farinaceous portion has a water activity of about 0.9 to about 0.98, the top and bottom bread portions having upper and lower surfaces, the lower surface of the top bread portion and the upper surface of the bottom bread portion contacting the filling, and the upper surface of the top bread portion and the lower surface of the bottom bread portion including regions having been treated to provide a crispy texture after baking the farinaceous portion and prior to freezing the food product, the fully assembled frozen food product having a frozen shelf life of at least 120 days when sealed in a package, and the fully assembled frozen food product is effective for providing a heated sandwich with the farinaceous portion not dried out after heating in a microwave oven. THE REJECTIONS 1. Claims 1 and 2 are rejected as being obvious under 35 U.S.C. § 103(a) over Cochran et al.2 (US 4,885,180; iss. Dec. 5, 1989) as evidenced by Lund (The Microbiological Safety and Quality of Food: Vol. /, 11A (Barbara M. Lund et al. eds. (2000)), and in further view of Howard et al.3 (US 2005/0226962 Al; publ. Oct. 13, 2005), Sadek et al.4 (US 2004/0213883 Al; publ. Oct. 28, 2004), and Anfmsen (US 2005/0118326 Al; publ. June 2, 2005). 2 Hereafter “Cochran”. 3 Hereafter “Howard”. 4 Hereafter “Sadek”. 2 Appeal 2016-001761 Application 12/265,559 2. Claims 10 and 16 are rejected as being obvious under 35 U.S.C. § 103(a) over Cochran, as evidenced by Lund, and in further view of Carmichael et al.5 (US 2007/0241102 Al; publ. Oct. 18, 2007), Howard, Sadek, and Anfmsen. 3. Claims 11, 12, 17, and 18 are rejected as being obvious under 35 U.S.C. § 103(a) over Cochran, as evidenced by Lund, in view of Carmichael, Howard, Sadek, Anfmsen, and Lamp et al.6 (US 2002/0146490 Al; publ. Oct. 10, 2002). 4. Claims 3—6 are rejected as being obvious under 35 U.S.C. § 103(a) over Cochran, as evidenced by Lund, in view of Howard, Sadek, Anfmsen, and Lamp. ANALYSIS We select claim 1 as representative of all the claims on appeal, based upon Appellants’ presented arguments. 37 C.F.R. § 41.37(c)(l)(iv) (2014). We review the appealed rejections for error based upon the issues identified by Appellants 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) (“it has long been the Board’s practice to require an applicant to identity the alleged error in the examiner’s rejections”)). After having considered the evidence presented in this Appeal and each of Appellants’ contentions, we are not persuaded that Appellants identify reversible error, and we affirm the Examiner’s rejections essentially for the reasons 5 Hereafter “Carmichael”. 6 Hereafter “Lamp”. 3 Appeal 2016-001761 Application 12/265,559 expressed in the Final Office Action and in the Answer. We add the following primarily for emphasis. Rejection 1 Appellants’ arguments primarily focus on the teachings of Cochran as modified by Sadek. Appeal Br. 14—17. Appellants point out that the Examiner acknowledges that Cochran does not disclose a dough composition containing 0.1 to 1% xanthan gum, 0.2 to 1.5% guar gum, and 0.2 to 1.5% methylcellulose (Final Act p. 3). Appeal Br. 14. Appellants state the Examiner relies upon Sadek for disclosing a dough composition containing emulsifiers at 1-10%, and that emulsifiers work to maintain moisture content and reduce drying out and toughening of the dough during cooking (Final Act. p. 4). Appeal Br. 14. Appellants argue that one skilled in the art would not have been motivated to have looked to Sadek because Sadek is directed to a raw dough, rising crust pizza, which is cooked for the first time, in the microwave (i.e., Sadek’s product may be frozen in raw dough form). Appeal Br. 15. Appellants argue that thus Sadek does not describe a fully assembled frozen product comprising a fully baked or par-baked farinaceous portion as claimed by Appellants. Appellants submit that the products are in a different state (raw versus fully or par baked) when the product is frozen (as claimed). Appeal Br. 15; Reply Br. 3. Appellants argue that there is therefore no suggestion in Sadek as to the functionality of guar gum and xanthan gum in a frozen product that has already been baked to provide a fully baked or par-baked farinaceous portion. Id. Appellants submit that it is important to consider the starting point of Sadek’s product (frozen raw dough) and that of the pending claims (frozen par or fully baked bread) prior 4 Appeal 2016-001761 Application 12/265,559 to heating in a microwave because each product formulation must be carefully designed to withstand the challenges of heating, with the state at which the product begins the microwave heating process (raw versus par or fully baked) being a very important consideration. Appeal Br. 16. Appellants submit that because of this, one of ordinary skill in the art would have no expectation that the ingredients in Sadek’s formulations would be suitable for a product intended to be par or fully baked prior to freezing and then reheating. Id. In response, the Examiner states, inter alia, that Sadek is applicable to the instantly claimed subject matter because the starting composition in Sadek and the starting composition of instantly claimed subject matter is dough. Ans. 23. The Examiner further states that Sadek discloses the claimed gums as maintaining moisture and reducing the tendency of the dough to dry and toughen upon cooking [0029, 0030], and that these benefits would be desirable for the dough of Cochran. Id. Further, the Examiner states that Sadek is not limited to microwave cooking and includes the formation of bread using thermal ovens as well as microwave ovens [0007, 0012], Ans. 23. The Examiner concludes that adequate motivation exists in the combination to include the gums in the amounts taught by Sadek, in the dough of Cochran, in order to improve the texture of the dough. We agree with the Examiner’s stated position as described above. The point being made by the Examiner is that the associated benefits of the gums is applicable to the product of Cochran because Cochran cooks the dough, and Sadek teaches that the gums help dough from drying out when the dough is cooked. We appreciate Appellants position that the claimed subject matter involves a frozen par baked or fully baked product rather than 5 Appeal 2016-001761 Application 12/265,559 frozen raw dough. However, consistent with the point made by the Examiner, this has no impact on the usefulness of the gums when the dough is cooked (e.g., in preparation of making the baked product to be frozen (as in the presently claimed subject matter or as in Cochran)). Whether or not there is usefulness of the gums during heating of a frozen baked product is not an issue in need of being resolved in the instant case because sufficient motivation already exists for using the gums in the product of Cochran when baking it in preparation for making the product to be frozen. We add that, as pointed out by the Examiner, Sadek teaches that the product having the gums in the amounts disclosed are successfully baked in a conventional oven or in a microwave, and therefore we are not convinced that there would not have been a reasonable likelihood of success in heating the frozen product of the combination of Cochran in view of Sadek. Appellants also argue that it would be redundant to use the gums in the product of Cochran because Cochran teaches that the product already provides an improved baked good which will substantially retain its palatability upon microwave heating. Cochran, Abstract. Reply Br. 2—3. Appellants state that this is acknowledged by the Examiner on page 24 and on page 28 of the Answer. Reply Br. 2. Appellants point out that the Examiner nevertheless states it “would have been obvious to one of ordinary skill in the art since there is always room for improvement.” Ans. 24; Reply Br. 2. Appellants state that Cochran discloses that this palatability is achieved by incorporation of an effective amount of a chemically-modified starch. Cochran, Abstract; Reply Br. 2—3. Appellants submit that Cochran already claims to solve the problem that the Examiner uses as motivation to look to Sadek, and that the stated motivation of there being “always room 6 Appeal 2016-001761 Application 12/265,559 for improvement” is particularly inapplicable here when Sadek describes a very different type of product (i.e., a raw dough product). We are not persuaded by such argument for the following reasons. Firstly, as explained supra, the difference between a frozen raw dough versus a frozen par baked or fully baked product has no impact on the usefulness of the gums because dough is being cooked in either situation. In other words, the gums would be useful in the product of Cochran because Cochran cooks the product in preparation of making a product to be frozen, and Sadek teaches that the gums help dough from drying out upon cooking. As to the argument that Cochran already addresses the problem that the Examiner uses as motivation, while Cochran teaches that the product retains its palatability upon microwave heating (as argued by Appellants (Reply Br. 2—3)), the Examiner relies upon paragraph [0029] of Sadek (Ans. 23) for teaching that the gums help maintain moisture and reduce the tendency of the dough to dry and toughen upon cooking, and paragraph [0029] further teaches that the gums help in maintaining a quality crust. We therefore agree with the Examiner that this provides sufficient motivation to modify Cochran in view of Sadek as proposed by the Examiner in the record. As to Appellants’ points made regarding loss of moisture (Appeal Br. 15—16, Reply Br. 2), again, dough is baked in either situation, and the associated benefits of the gums would be useful in Cochran according to the teachings of Sadek, as discussed, supra. We reiterate that the usefulness of the gums during heating of a frozen baked product is not an issue in need of being resolved in the instant case because sufficient motivation already exists for using the gums in the product of Cochran when baking it in 7 Appeal 2016-001761 Application 12/265,559 preparation for making the product to be frozen. This is the point being made when the Examiner states that both the Cochran and Sadek references begin with a raw dough. Ans. 24. Appellants also argue that the issues with heating a frozen par baked or fully baked farinaceous product are compounded when the product includes a filling, as claimed herein. Appeal Br. 16. Appellants submit that a formulation has to not only be able to withstand the rigors of heating a product with a par baked or fully baked farinaceous portion, there is the further challenge provided by the presence of the filling. Appeal Br. 16. However, we are unconvinced by such argument because, as emphasized above, the associated benefits of the gums would be useful in Cochran according to the teachings of Sadek when baking the dough for making the product to be frozen. Also, as stated supra, Sadek teaches that the product having the gums in the amounts disclosed are successfully baked in a conventional oven or in a microwave, and therefore we are not convinced that there would not have been a reasonable likelihood of success in heating the frozen product of the combination of Cochran in view of Sadek Appellants also argue that one skilled in the art would not have the expectation that the ingredients in Sadek’s formulation would be suitable for a product intended to be par or fully baked prior to freezing and then reheating. Appeal Br. 16. Reply Br. 3—5. We are in agreement with the Examiner’s stated position made on pages 24—25 of the Answer, which we do not repeat herein. We add that (as repeated several times, supra), the gums would be useful in the product of Cochran because Cochran cooks the product in preparation of making a product to be frozen, and Sadek teaches that the gums maintain moisture and reduce the tendency of the dough to dry 8 Appeal 2016-001761 Application 12/265,559 and toughen upon cooking, and therefore, sufficient motivation exists in making the combination as proposed by the Examiner. Also, as stated supra, Sadek teaches that the product having the gums in the amounts disclosed are successfully baked in a conventional oven or in a microwave, and therefore we are not convinced that there would not have been a reasonable likelihood of success in heating the frozen product of the combination of Cochran in view of Sadek On page 17 of the Appeal Brief, Appellants do not separately argue the references of Lund and Howard, and we therefore need not address these references. With regard to the Anfmsen reference, Appellants argue that the use of guar and xanthan gums in Anfmsen pertains to viscosity which has no applicability to Sadek’s disclosure. We note that the Examiner relies upon Anfmsen for teaching a synergy between guar gum and xanthan gum in an effort to show obviousness of using the two gums in a dough formulation. Ans. 4—5. However, sufficient teachings already exist in Sadek, for the reasons as stated in the record regarding the benefits of using these gums in a bread formulation such that we need not reach the teachings of Anfmsen in this regard. In view of the above, we therefore affirm Rejection 1. Rejection 2 On page 18 of the Appeal Brief, Appellants rely upon the same arguments relied upon for Rejection 1, and we therefore affirm Rejection 2 for the same reasons that we affirm Rejection 1. 9 Appeal 2016-001761 Application 12/265,559 Rejections 3 and 4 On page 18 of the Appeal Brief, Appellants rely upon the same arguments relied upon for Rejection 1, and we therefore affirm Rejections 3 and 4 for the same reasons that we affirm Rejection 1. DECISION Each rejection 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). See 37 C.F.R. § 1.136(a). AFFIRMED 10 Copy with citationCopy as parenthetical citation