Ex Parte Kemeny

Board of Patent Appeals and Interferences

May 14, 2007

10326103 (B.P.A.I. May. 14, 2007)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte EMANUEL S. KEMENY
________________

Appeal 2007-1371
Application 10/326,103
Technology Center 1700
________________

Decided: May 14, 2007
________________

Before EDWARD C. KIMLIN, CHUNG K. PAK, and
CATHERINE Q. TIMM, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 15-17. Claim 15 is
illustrative:
15. A food bar snack which approximates and improves on the nutrition,
flavor, and function of a corresponding course in a conventional meal, for an
individual consumer, comprising:

Appeal 2007-1371
Application 10/326,103

2
(a) nutrition ingredients and flavor ingredients in sufficient quantity to
approximate a corresponding course of a conventional meal, said
corresponding course selected from appetizer, main course, and dessert,

(b) said nutrition ingredients primarily ovo-vegetarian: oatmeal, eggwhite
and soy protein, and vegetable oil, selected in sufficient quantities and
proportions for improved dietary balanced nutrition,

(c) said flavor ingredients comprising primary flavors in sufficient quantity
and type to suggest said selected corresponding course of a conventional
meal,

(d) said flavor ingredients further comprising secondary flavors in sufficient
quantity and type to provide appropriate functional appetite-control in
accordance with the selected meal course: increase appetite with an
appetizer bar, satisfy appetite with a main-course bar, and depress appetite
with a dessert bar,

(e) said food bar dimensioned and packaged as a bar,

(1) said bar and package marked to identify said approximated meal
course,

(2) said bar and package dimensioned to be conveniently carried in an
ordinary pocket of clothing,

whereby an individual consumer can conveniently carry, and eat an
improved food bar which approximates one of the courses of a conventional
meal, provides improved physiological nutrition values and psychological
flavor values, the bar further improved with the particular benefits of ovo-
vegetarian dietary balanced nutrition, and associated functional flavors for
appropriate meal-course appetite control.
Appeal 2007-1371
Application 10/326,103

3
The Examiner relies upon the following references as evidence of
obviousness:
Deane GB 11,608 Nov. 20, 1902
Snyder GB 4093 Oct. 28, 1915
Gabby US 3,185,574 May 25, 1965
Mech US 3,336,139 Aug. 15, 1967
Durst US 3,431,112 Mar. 4, 1969
Schafer US 3,882,253 May 6, 1975
Kelly US 4,055,669 Oct. 25, 1977
De Bruyn (as translated) BE 1009616 A6 Jun. 3, 1997
Young US 4,650,686 Mar. 17, 1987
Pflaumer (‘484) US 4,752,484 Jun. 21, 1988
Pflaumer (‘938) US 4,781,938 Nov. 1, 1988
Battista US 5,032,415 Jul. 16, 1991
Lapré EP 0,749,697 A1 Dec. 12, 1996
Klatz US 5,906,833 May 25, 1999
Jones US 6,432,457 B1 Aug. 13, 2002
Kaufman US 6,534,487 B1 Mar. 18, 2003
Evenson US 6,558,718 B1 May 6, 2003
Neil Wolkodoff, “Diet ‘Cookies’ Aren’t the Answer to Long-Term Weight
Loss,” Rocky Mountain News, October 7, 1990, at 23M
Gail Perrin, “Herbs Springtime Symphony: Munching on Parsley, Chewing
Dill Seeds,” Boston Globe, May 5, 1992, at 3
Richard Saltus, “Junk Foods Called Just Plain Bad For You,” Boston Globe,
August 4, 1994, at 3
Dr. Gabe Mirkin, “Metabolism Works to Maintain Weight,” Record
(Northern New Jersey), August 21, 1995, at h03
Susan Taylor, “At the Head of the Class,” Buffalo News, March 13, 1996,
at B2

Appeal 2007-1371
Application 10/326,103

4
Susan Taylor, “Stuffed, Stir-Fried, Fiery, or Fermented Around the World
With Classic Cabbage,” Record (Northern New Jersey), April 17, 1996,
at f03
Dr. Simeon Margolis, “What Diet is Better -- Low Carbohydrate or Low
Fat?,” Baltimore Morning Sun, February 4, 1997, at 4E
Food Safety Information Bulletin 101, Ministry of Agriculture Fisheries and
Food 8-10 (October 1998)
Kathleen Purvis, “Gray Area: Call Us Flakes in the Millennium,” Charlotte
Observer, December 8, 1999, at 1E
Appellant’s claimed invention is directed to a food bar snack which
approximates a conventional meal, such as appetizer, main-course, and
dessert. The Examiner has interpreted the appealed claims to define “a food
bar whose basic ingredients do not contain the actual food or course, which
is intended to be simulated” (Answer 6). For example, the bar snack would
not contain actual lamb but would be a cereal-based product that “would be
provided with a flavor recognizable as a lamb flavor” (id.).
Appealed claims 15-17 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the collective teachings of Deane, Snyder, Kelly,
Mech, Durst, Klatz, Schafer, De Bruyn, Pflaumer ‘938, Gabby,
Pflaumer ‘484, Young, Evenson, Jones, Kaufman, Record (Northern New
Jersey, 8/21/95 and 4/17/96), Buffalo News, Boston Globe 5/5/82 and
8/4/94, Battista, Lapré, Charlotte Observer, Rocky Mountain News,
Baltimore Morning Sun, and Food Safety Information Bulletin. The
Examiner uses Deane, Snyder, and Kelly as the “primary” reference in three
separate analyses.
Appeal 2007-1371
Application 10/326,103

5
Appellant states at page 10 of the Brief that “[t]he claims do not stand
or fall together.” However, Appellant has not set forth an argument that is
reasonably directed to either claim 16 or 17 separately. Accordingly, all the
appealed claims stand or fall together with claim 15.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in full agreement with the Examiner that the
claimed subject matter would have been obvious to one of ordinary skill in
the art within the meaning of § 103 in view of the applied prior art.
Accordingly, we will sustain the Examiner’s rejections for the reasons set
forth in the Answer, which we incorporate herein, and we add the following
for emphasis only.
The twenty-seven references applied by the Examiner in the rejection
of the appealed claims may seem to be somewhat of an overkill. However,
we must agree with the Examiner that the weight of the prior art evidence
underscores the obviousness of the claimed subject matter. Although we
find it unnecessary to apply all twenty-seven references to establish the
obviousness of the claimed food bar snack, the number of references in no
way militates against the legal conclusion of obviousness, as suggested by
Appellant. Both Deane and Snyder establish that it was known in the art to
formulate a food bar comprising nutritional and flavor ingredients which
approximate one or more courses of a conventional meal. While both
references utilize actual food components for providing the corresponding
flavor, and not flavorants for simulating the taste of the food, the Examiner
Appeal 2007-1371
Application 10/326,103

6
properly cites Kelly for demonstrating that it was also known in the art to
use artificial flavorants to impart the desired taste to a food product.
Accordingly, we are in full agreement with the Examiner that it would have
been obvious for one of ordinary skill in the art to substitute artificial
flavorants for the food components of Deane and Snyder. Also, we find no
error in the Examiner’s reasoning that “once it was known to provide meal
components in bar form, singly or in combination, the particular courses,
conventional flavors, and conventional ingredients one chooses to have used
is seen to have been an obvious matter of choice” (Answer 6). It is well
settled in the food art that it is a matter of obviousness for one of ordinary
skill in the art to formulate a food composition comprising known,
conventional ingredients in the absence of an unexpected coaction between
the ingredients.
We also agree with the Examiner’s analysis when Kelly is used as the
primary reference. As set forth by the Examiner, “Kelly discloses a
nutritional, cereal based, food bar that is flavored like a food item or a
course of a meal” (Answer 12), but fails to disclose all the specifically
claimed ingredients. However, since the prior art firmly establishes that the
presently claimed nutrition ingredients, oatmeal, egg white, soy protein, and
vegetable oil, are conventional components in snack bars and food products,
we must concur with the Examiner that it would have been obvious for one
of ordinary skill in the art to provide the cereal based food bar of Kelly with
such conventional components. While Appellant points out that Deane,
Appeal 2007-1371
Application 10/326,103

7
Snyder, and Kelly do not disclose food bars having all the claimed
ingredients, Appellant has not demonstrated why it would have been
nonobvious for one of ordinary skill in the art to modify the food
compositions of the references with the claimed conventional ingredients.
In particular, Appellant points out that Deane teaches a meat bar
comprising meat but not Appellant’s oatmeal. However, Appellant does not
explain why it would have been nonobvious to substitute oatmeal along with
a meat flavorant for the meat of Deane. Also, Appellant maintains that
“Kelly teaches a food bar of cereal and flavor for Breakfast” but not
Appellant’s “meal-course bars with Balanced-Nutrition, and appetite-
control” (Br. 12, last sentence). However, Appellant has not established on
this record why it would have been nonobvious for one of ordinary skill in
the art to incorporate known appetite-control ingredients in the food bar of
Kelly while providing the food with balanced nutrition. Appellant has not
refuted the Examiner’s finding that:
Starch, gums, fiber, fats, bitter substances, etc. are all known to
impart some appetite control, either as a stimulant or a
depressant [and that] the art taken as a whole discloses that
some ingredients such as fat can apparently have both
stimulative and depressant effects, depending on the nature of
the fat.
(Answer 9). Also, Appellant has not contested the Examiner’s factual
finding that “[t]he art taken as a whole also discloses that some ingredients
such as fiber, naturally occurring in cereal such as oats, would inherently
have an appetite suppressant effect” (id.).
Appeal 2007-1371
Application 10/326,103

8
Appellant also contends that Kelly discloses the use of a fat-and-
carbohydrate binder and, therefore, teaches away from Appellant’s low
sugar, salt, and fat dietary bar. However, as properly noted by the Examiner,
the claims on appeal fail to define a food product that is low in sugar, salt
and fat. In addition, we agree with the Examiner that there is no reason to
believe that the binder of Kelly, which is a minor component, is not part of a
low sugar and low fat food product.
As a final point with respect to the § 103 rejections, we again note that
Appellant bases no argument upon objective evidence of nonobviousness,
such as unexpected results.
We will also sustain the Examiner’s obviousness-type double
patenting rejection of the appealed claims over claims 1-12 of U.S. Patent
No. 6,808,727. Appellant has not rebutted the Examiner’s reasonable
conclusion that it would have been obvious for one of ordinary skill in the
art to use conventional components, such as oatmeal, egg white, soy protein,
and vegetable oil in the food bar claimed in U.S. 6,808,727. The Examiner
correctly points out that the two-way distinctness cited in The Manual of
Patent Examining Procedure (MPEP) § 806.05(c) refers to a restriction
requirement and not obviousness-type double patenting. In the present case,
Appellant has not satisfied his burden of demonstrating that the claimed
subject matter would not have been an obvious modification of the subject
matter claimed in the cited patent. As noted by the Examiner, a proper
Terminal Disclaimer would overcome the double patenting rejection.
Appeal 2007-1371
Application 10/326,103

9
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims 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) (2006).
AFFIRMED

clj

Emanuel S. Kemeny
1400 S. Joyce St. #602
Arlington, VA 22202