Ex Parte Gan et al

Patent Trial and Appeal Board

May 23, 2017

12265559 (P.T.A.B. May. 23, 2017)

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).
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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”.
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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”.
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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
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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
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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
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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
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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
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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.
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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
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