11932111 (P.T.A.B. Dec. 2, 2014)

Ex Parte Sanchez et al

Patent Trial and Appeal BoardDec 2, 2014

11932111 (P.T.A.B. Dec. 2, 2014)

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. 11/932,111 10/31/2007 Velvet Sanchez 006943.02050 2036 66811 7590 12/03/2014 BANNER & WITCOFF, LTD. and ATTORNEYS FOR CLIENT NO. 006943 10 SOUTH WACKER DR. SUITE 3000 CHICAGO, IL 60606 EXAMINER YOO, HONG THI ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 12/03/2014 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 VELVET SANCHEZ, ROBERTO GARCIA DE ALBA, and JESUS VILLANUEVA ____________ Appeal 2013-001817 Application 11/932,111 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, BEVERLY A. FRANKLIN, and CHRISTOPHER M. KAISER, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134 from the Examiner's decision rejecting claims 1â€“4, 6, 7, and 11â€“21. We have jurisdiction under 35 U.S.C. Â§ 6. We AFFIRM-IN-PART. Appeal 2013-001817 Application 11/932,111 2 Appellants claim a baked snack bar comprising first and second dough layers having therebetween "a filling layer comprising a plurality of solids provided only by components selected from the group consisting of at least one fruit, starch, modified starch, pectin, inclusion pieces, at least one sweetener, glycerin, citric acid, vitamins, coloring agents, and combinations thereof" (claim 1). Appellants also claim a method of making such a snack bar (claim 13). Appellants further claim a similar baked snack bar wherein the filling layer is defined as "consisting essentially of fruit, sugar, fructose, glycerin, dextrose, modified starch, pectin, acid and water" (claim 21). The appealed claims additionally require that the filling be visible at all of the edges of the first and second dough layers. A copy of representative claims 1 and 21, taken from the Claims Appendix of the Appeal Brief, appears below. 1. A baked snack bar comprising: a first dough layer; a second dough layer, the first and second dough layers each comprising wheat flour, modified starch and enzyme; and a filling layer comprising a plurality of solids provided only by components selected from the group consisting of at least one fruit, starch, modified starch, pectin, inclusion pieces, at least one sweetener, glycerin, citric acid, vitamins, coloring agents, and combinations thereof, wherein the filling layer exhibits a resistant heat stability of greater than about 90%, the filling layer disposed between the first and second dough layers and extending substantially to all of the edges of the first and second dough layers, wherein the filling is visible at all of the edges of the first and second dough layers, wherein the first and second dough layers each have a cracker texture wherein the weight required to break each of the first and second dough layers ranges between 0.09 kg and 1.40 kg, and wherein the thickness of the bar is less than 7 millimeters. Appeal 2013-001817 Application 11/932,111 3 21. A baked snack bar comprising: a first dough layer comprising docked holes; a second dough layer comprising docked holes, the first and second dough layers each comprising wheat flour, modified starch and enzyme; and a filling layer consisting essentially of fruit, sugar, fructose, glycerin, dextrose, modified starch, pectin, acid and water, wherein the filling layer exhibits a resistant heat stability of greater than about 97%, the filling layer disposed between the first and second dough layers is visible at all of the edges of the first and second dough layers and extends substantially to all of the edges of the first and second dough layers, wherein the first and second dough layers each have a cracker texture wherein the weight required to break each of the first and second dough layers ranges between 0.09 kg and 1.40 kg and wherein the thickness of the bar is less than 7 millimeters. Under 35 U.S.C. Â§ 103, the Examiner rejects: claims 1, 3, 4, 6, 7, 11, 12, and 21 as unpatentable over Mihalos et al. (US Pub. 2005/0249845 A1, published Nov. 10, 2005) in view of Jindra et al. (US 6,528,104 B1, issued Mar. 4, 2003), Martinez-Serna Villagran et al. (US 6,287,622 B1, issued Sept. 11, 2001), and Froseth et al. (US 6,592,915 B1, issued July 15, 2003); claim 2 as unpatentable over these references in combination with the "Blueberry Crisp . . ." reference of record; and claims 13â€“20 as unpatentable over Mihalos, Jindra, Oki (JP2004- 16146, published Jan. 22, 2004), and Froseth. We do not sustain the Â§ 103 rejections of claims 1â€“20. We agree with Appellants that these claims exclude the fat solids which would result from providing the Mihalos snack bar with Jindra's filling layer as proposed by the Examiner (App. Br. 17). The Examiner urges that the claim term "comprising" encompasses the fat solids of the Jindra filling layer (Ans. 20). Appeal 2013-001817 Application 11/932,111 4 However, as correctly argued by Appellants, such an interpretation would be unreasonable and inconsistent with the plain language of these claims (App. Br. 19). The Examiner's alternative position is that the fat solids of Jindra are merely semi-solids (Ans. 20). Appellants convincingly criticize this position as unsupported by evidence (App. Br. 18). However, we sustain the above Â§ 103 rejection of claim 21 for the reasons given by the Examiner in the Final Action and in the Answer. The following comments are added for emphasis. The Examiner correctly explains that the "consisting essentially of" language of claim 21 has not been shown by Appellants to exclude the fat solids of Jindra (Final Action 7, 18; Answer 20â€“21). Appellants argue that "[s]olids provided by fats are necessary to achieving the characteristics of the filling disclosed by Jindra" (App. Br. 19) and that "[t]he term 'consisting essentially of' recited in claim 21 thus excludes fats as a source of solids in the filling" (id.). As properly explained by the Examiner and not disputed by Appellants, an unlisted ingredient is excluded by the claim phrase "consisting essentially of" only if the unlisted ingredient would affect the basic and novel properties of the claimed invention (Ans. 20â€“21). Appellants' argument inappropriately focuses on whether fat solids affect the basic and novel properties of Jindra's invention rather than the claim 21 invention. Appeal 2013-001817 Application 11/932,111 5 Concerning the claim 21 requirement that the filling layer be visible at all edges of the dough layers, we share the Examiner's conclusion that it would have been obvious to provide the snack bar of Mihalos with such a feature in view of Froseth (Final Action 6). Appellants contend that such a provision would not have been made "because of the risk of the loss of filling out of the open edges of the laminated snack bar" (App. Br. 14). This contention is not supported by evidence and therefore is not persuasive. Appellants further argue that the provision would render Mihalos' snack bar unsatisfactory for its intended purpose because Mihalos teaches that the filling is fully enclosed within the snack bar (id. at 14â€“15). Contrary to this argument, the modified snack bar of Mihalos would remain satisfactory for its intended purpose as a snack food. Finally, Appellants contend that Froseth teaches away from the combination proposed by the Examiner by describing disadvantages of snack bars of the type disclosed by Mihalos (id. at 16). For the reasons detailed by the Examiner, this contention is not persuasive (Ans. 18 (1st two Â¶Â¶) (citing In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("A known or obvious composition does not become patentable simply because it has been described as somewhat inferior to some other product for the same use."))). The decision of the Examiner is affirmed-in-part. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. Â§ 1.136(a). AFFIRMED-IN-PART Appeal 2013-001817 Application 11/932,111 6 cdc