Ex Parte Paloncy et al

Patent Trials and Appeals Board

Jun 6, 2019

14966354 - (D) (P.T.A.B. Jun. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/966,354 12/11/2015
57557 7590 06/10/2019
PAULY, DEVRIES SMITH & DEFFNER, L.L.C.
Suite 900
121 South 8th Street
MINNEAPOLIS, MN 55402-2841
Marianne Paloncy
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.
3 l l.05 l 4US01 2474
EXAMINER
HEGGESTAD, HELEN F
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
06/10/2019 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):
docketing@pdsdlaw.com
kds@pdsdlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARIANNE PALONCY, MICHAEL PLATT,
CAROLYN OTTENHEIMER, and BRUCE BECHTEL
Appeal2018-009207
Application 14/966,354
Technology Center 1700
Before MARK NAGUMO, JEFFREY R. SNAY, and
SHELDON M. McGEE, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 1-22. We have jurisdiction. 35 U.S.C. § 6(b ).
We affirm.
1 We cite to the Specification ("Spec.") filed December 11, 2015; Final
Office Action ("Final Act.") dated November 22, 2017; Appellant's Appeal
Brief ("App. Br.") filed May 22, 2018; Examiner's Answer ("Ans.") dated
July 26, 2018; and Appellant's Reply Brief ("Reply Br."), filed September
26, 2018.
2 Appellant is Applicant, S-L Snacks National, LLC, which is identified
(App. Br. 2) as the real party in interest.
Appeal2018-009207
Application 14/966,354
BACKGROUND
The subject matter on appeal relates to a process for preparing nuts.
Spec. ,r,r 1, 7. Claim I-the sole independent claim on appeal-reads as
follows:
1. A method for preparing crunchy nuts comprising:
preparing a brine solution;
soaking nuts in the brine solution for a duration
dependent on one or more factors including at least brine
composition, desired flavor, soaking environment, and nut
variant, the duration being at least one hour;
draining the brine solution from the nuts; and
oil roasting the nuts.
App. Br. 13 ( Claims Appendix).
REJECTION3
Claims 1-22 stand rejected under 35 U.S.C. § I03(a) as unpatentable
over Nohe, 4 Smyth, 5 and Shannon. 6
OPINION
Appellant solely argues claim 1. See App. Br. 9-11. Each of claims
2-22 therefore stands or falls with claim 1.
Relevant to Appellant's arguments on appeal, the Examiner finds that
Nohe discloses a process for preparing soy bean nuts, in which soy beans are
3 Additional rejections under 35 U.S.C. §§ 112 and 103 set forth in the Final
Office Action have been withdrawn. Ans. 5-7. Claim 23 has been canceled.
See App. Br. 3.
4 US 2,135,593, issued November 8, 1938.
5 US 2013/0177680 Al, published July 11, 2013.
6 Cooking God's Way, Shannon Raw Nuts: How to Soak & Why,
http://www.cookinggodsway.com/raw-nuts-how-to-soak-why (Aug. 2009).
2
Appeal2018-009207
Application 14/966,354
soaked in water for about 15-18 hours, after which the beans are dried,
boiled in brine for 1-1.3 hours, drained, and cooked. Final Act. 4. The
Examiner also finds that Shannon teaches soaking nuts in brine to improve
digestibility and flavor. Ans. 8; see also Shannon 3 (explaining that soaking
nuts in brine makes them "easier to digest, increases vitamin/mineral
absorption, and makes them even more tasty").
Appellant argues Nohe fails to teach "soaking nuts in the brine
solution for a duration dependent on one or more factors including at least
brine composition, desired flavor, soaking environment, and nut variant, the
duration being at least one hour," as is recited in claim 1. App. Br. 9. See
also Reply Br. 2-4. Appellant further argues that Shannon fails to cure the
purported deficiency in Nohe, and that Smyth teaches away from soaking
nuts in a brine solution. Id. at 9-10.
Appellant's arguments are not persuasive of reversible error.
Appellant acknowledges that Nohe's process includes boiling beans in brine
for at least one hour, and that the duration depends on the type of bean. See
App. Br. 9 ("Then the beans are boiled in brine for 1-1.3 hours depending on
the type of beans."). The Examiner further finds that Nohe teaches soaking
nuts with a brine solution sufficient to impart a desired salty taste. Ans. 7
( citing Nohe 1 :34--40). At the cited passage, Nohe states that"[ o ]ver the
beans is poured a heavy solution of sodium chloride, the solution being of
such character as to impart to the beans in their finished nut-like form the
desired salty taste." Appellant does not present a persuasive argument that
the recited step of soaking in brine for a duration dependent on one or more
factors including at least brine composition, desired flavor, soaking
3
Appeal2018-009207
Application 14/966,354
environment, and nut variant would not encompass Nohe' s boiling in brine
for a duration dependent on bean type and desired saltiness. 7
Because Appellant does not persuade us that Nohe is deficient
regarding the recited soaking step, Appellant's argument that Shannon fails
to cure the deficiency also is unpersuasive of reversible error. Finally,
although Smyth discloses certain advantages of an infusion process
compared to soaking (Smyth ,r,r 6, 8), Appellant does not explain why those
advantages would have dissuaded one of ordinary skill in the art from using
the boiling in brine step expressly taught by Nohe to have been useful for
preparing a desired product.
For the foregoing reasons, the Examiner's rejection of claims 1-22 is
sustained.
DECISION
The Examiner's decision 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).
AFFIRMED
7 The Specification describes an embodiment in which peanuts are soaked in
brine at ambient temperature. Spec. 4. Claim 1, however, lacks any recited
temperature condition during soaking. Appellant neither contends nor points
to language in claim 1 that would preclude Nohe's application of heat during
soaking in brine.
4