Ex Parte Roberts

Patent Trial and Appeal Board

Jul 2, 2018

14208867 (P.T.A.B. Jul. 2, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/208,867 03/13/2014
27885 7590
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
07/03/2018
FIRST NAMED INVENTOR
John S. Roberts
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.
RICH 201865US01 5311
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
MAILDATE DELIVERY MODE
07 /03/2018 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 JOHNS. ROBERTS
Appeal2017-010328
Application 14/208,867 1
Technology Center 1700
Before GEORGE C. BEST, N. WHITNEY WILSON, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL 2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from the rejection of
claims 21 and 23-29. We have jurisdiction under 3 5 U.S. C. § 6(b ).
We REVERSE.
1 Appellant identifies Rich Products Corporation as the real party in interest.
Appeal Br. 1.
2 In this Opinion, we refer to the Specification filed March 13, 2014
("Spec."); the Final Office Action mailed June 30, 2016 ("Final Act."); the
Appeal Brief filed January 30, 2017 ("Appeal Br."); the Examiner's Answer
mailed May 26, 2017 ("Ans."); and the Reply Brief filed July 25, 2017
("Reply Br.").
Appeal2017-010328
Application 14/208,867
The claims are directed to heating flour to improve the water
absorption capacity, dough handling, baking quality, and performance
thereof. Spec. i-f 2. Claims 21 and 29, reproduced below with disputed terms
emphasized, are illustrative of the claimed subject matter:
21. A method for heat treating flour comprising the steps of:
a) providing a flour, said flour at ambient temperature of
65°F-85°F having a moisture content of about 6o/o-18%, about
50/o-50% of said flour has particles having a size of about
150--250 microns;
b) thermally heating said flour in a single heat-treating
system by continuously moving said flour through said single
heat-treating system until said moisture content of said flour
is reduced to about 1-6%, said step of thermally heating said
flour occurs in a heat exchanger as said flour continuously
moves through said heat exchanger at a rate of at least 100
lbs.lhr., said flour having a residence time in said heat
exchanger of about 0.1---60 minutes, a maximum temperature of
said exchanger is about 200°F-380°F, an average humidity
level in said heat exchanger is about 2-30%; and,
c) cooling said heat-treated flour in an environment that
minimizes reabsorption of moisture into said heat-treated flour
such that the percentage increase in moisture of said heat-
treated flour is no more than about 30% and/or the weight
percent moisture increase is no more than about 3 %, and the
final moisture content of said cooled heat-treated flour is about
1-7%;
wherein said heat-treated flour exhibits an increase in
moisture absorption of 2-15% relative to untreated flour.
29. A method for heat treating flour comprising the steps of:
a) providing a flour, said flour at ambient temperature of
65°F-85°F having a moisture content of about 6o/o-18%, about
50/o-50% of said flour has particles having a size of about
150--250 microns;
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Appeal2017-010328
Application 14/208,867
b) thermally heating said flour in a single heat-treating
system by continuously moving said flour through said single
heat-treating system until said moisture content of said flour
is reduced to about 1-5%, said step of thermally heating said
flour occurs in a heat exchanger as said flour continuously
flows through said heat exchanger at a rate of at least 2000
lbs.lhr., said flour having a residence time in said heat
exchanger of about 0.2--40 minutes, a maximum temperature of
said exchanger is about 260°F-350°F, an average humidity
level in said heat exchanger is about 2-30%, said step of
thermally heating said flour having no forced air flow
through said heat exchanger as said flour is heated in said
heatexchanger;and,
c) cooling said heat-treated flour at ambient temperature
of 65°F-85°F in an environment that minimizes reabsorption of
moisture into said heat-treated flour such that the percentage
increase in moisture of said heat-treated flour is no more than
about 30% and/or the weight percent moisture increase is no
more than about 3 %, and the final moisture content of said
cooled heat-treated flour is about 1.5-7%;
wherein said heat-treated flour exhibits an increase in
moisture absorption of 2-15% relative to untreated flour, said
heated flour containing 5-15% denatured protein, less than 10%
of starch in said heated flour is gelatized, more than 7 5% of
said heated flour having a particle size of 90-150 microns, said
heated flour has a Aw of about 0.1---0.5.
Appeal Br. 24--25, 26-27 (Claims App'x).
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Appeal2017-010328
Application 14/208,867
REFERENCE
The Examiner relies on the following prior art in rejecting the claims
on appeal:
U preti et al.
("Upreti")
US 2010/0092639 Al
REJECTIONS
Apr. 15, 2010
The Examiner maintains-and Appellant appeals-the rejection under
35 U.S.C. § 103(a) of claims 21 and 23-29 as unpatentable over Upreti.
Final Act. 2-7; see also Ans. 4--7, Appeal Br. 6-22.
The Examiner's obviousness rejections of claims 1-7 and 20 over
Upreti are withdrawn as these claims were cancelled by Appellant in an
Amendment After Appeal filed Jan. 26, 2017.
OPINION
Appellant argues, inter alia, that Upreti fails to render independent
claims 21 and 29 obvious because the applied prior art: (i) fails to disclose or
suggest each requisite step and (ii) teaches away from step b ). See, e.g.,
Appeal Br. 14, 17. Appellant does not make separate patentability
arguments for the dependent claims, 3 which will stand or fall with the
independent claims from which they depend. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Upreti teaches a method for heat-treating
flour comprising each step recited in claims 21 and 29. Final Act. 5-7.
3 Although Appellant provides arguments urging reversal of the rejection to
claim 23, these arguments focus on limitations recited in claim 29. Appeal
Br. 29.
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Appeal2017-010328
Application 14/208,867
With respect to claimed step a) as recited in each independent claim,
the Examiner finds that Upreti "teaches that greater than 7% of the flour
particles are between 150 and 250 microns, which overlaps the claimed
range and renders if [sic] obvious." Id. at 5.
Regarding claimed step b) as recited in each independent claim, the
Examiner further finds that Upreti does not explicitly teach the flow rate of
the heat exchanger. Id. at 6. The Examiner, however, determines that "it
would have been obvious to adjust the flow rate of the heat exchanger
depending on the final moisture content desired and the time required to
meet that final moisture content." Id. The Examiner further determines that
because Upreti "teaches heating the flour under natural convection[](i.e.[,]
without forced air)[,] ... it would have been obvious to use a heat exchanger
without forced air[]([i.e.,] natural flow of air) since a natural flow of air is
desired while heating." Id. (citing Upreti i-f 121).
Appellant's challenges focus on whether the Examiner erred in
concluding that Upreti' s teachings render claims 21 and 29 obvious. See,
e.g., Appeal Br. 14, 17.
Appellant contends that method step a) recited in each independent
claim is neither disclosed nor suggested by Upreti because "[t]here is no
teaching in [Upreti] of the particle size of the flour prior to being heat
treated." Id. at 17 (emphasis added).
Appellant's argument is persuasive. Given the reduction of moisture
content recited in subsequent method step b) in each independent claim, we
agree with Appellant's implicit argument that step a) must occur prior to
step b). Our review of the applied prior art concurs with Appellant's
characterization of Upreti' s teachings. Therefore, we agree that Appellant
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Appeal2017-010328
Application 14/208,867
has identified reversible error in the Examiner's prima facie case of
obviousness with respect to step a) of claims 21 and 29.
Appellant argues with respect to the requisite step b) that Upreti
"teaches that if more than 10 pounds per hour of flour are to be heat treated"
in a single heated step, "the heated flour will have poor baking
performance." Appeal Br. 15 (citing Upreti i-f 40).
The Examiner responds that Appellant's argument "is defining both
[Upreti' s] dehydration step and the heating step to be part of step b) of the
instant claims." Ans. 8. However, even assuming that Upreti's heating step
is not encompassed by step b ), the Examiner's response does not sufficiently
address Appellant's contention. We, therefore, agree with Appellant that
Upreti teaches away from dehydration and/or heating at flow rates greater
than 10 lbs/hr. See Upreti i-f 40 (explicitly disclosing that "[ f]or large scale
heat treatment, it was found that carrying out both the dehydration and
heating steps in a static atmosphere apparatus (such as a Solidaire® heat
exchanger) at temperatures less than 290° F ... resulted in flour with poor
baking performance").
Appellant further argues that the Examiner's relied-upon passage (i.e.,
Upreti i-f 121) for suggesting the limitation "having no forced air flow
through said heat exchanger" recited in claim 29 discusses the rehydration
of the heat-treated flour, not the heat treatment of the flour. Appeal Br. 21.
Appellant's arguments are persuasive because the Examiner has not
provided a reason why the ordinary skilled artisan would have been
motivated to apply Upreti's natural convection, which is disclosed for
rehydration purposes, to heat treat flour for dehydration purposes. See Ans.
10.
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Appeal2017-010328
Application 14/208,867
We, therefore, do not sustain the Examiner's rejection of claims 21
and 29.
DECISION
For the above reasons, the Examiner's rejection of claims 21 and 23-
29 is reversed.
REVERSED
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