NISSHIN FOODS INC.Download PDFPatent Trials and Appeals BoardOct 16, 20202020000476 (P.T.A.B. Oct. 16, 2020) Copy Citation 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. 15/117,641 08/09/2016 Yasuyuki YOSHIOKA 474669US99X PCT 8281 22850 7590 10/16/2020 OBLON, MCCLELLAND, MAIER & NEUSTADT, L.L.P. 1940 DUKE STREET ALEXANDRIA, VA 22314 EXAMINER COX, STEPHANIE A ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 10/16/2020 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): OBLONPAT@OBLON.COM iahmadi@oblon.com patentdocket@oblon.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte YASUYUKI YOSHIOKA, MASATO OMURA, and MICHIHIRO SAKAKIBARA Appeal 2020-000476 Application 15/117,641 Technology Center 1700 Before BEVERLY A. FRANKLIN, JEFFREY R. SNAY, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 1, 3, 6–9, 11, 12, and 14–19. See Final Act. 3, 6. We have jurisdiction under 35 U.S.C. § 6(b). A hearing was held on September 17, 2020, a transcript of which will be made of record. We AFFIRM. 1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Nisshin Foods Inc. Appeal Br. 2. Appeal 2020-000476 Application 15/117,641 2 CLAIMED SUBJECT MATTER “The present invention relates to a packaged wheat flour that can be used by being shaken out of a container.” Spec. ¶ 1. Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A packaged wheat flour, comprising a wheat flour packed in a shaker-type container having 2 to 7 shaker holes, wherein each shaker hole has a maximum width of 2 to 12 mm, and wherein the wheat flour has a particle diameter at 10%, D10, of 25 μm or more, a particle diameter at 90%, D90, of 400 μm or less, and a D90/D10 of 3 to 12. Claims Appendix (Appeal Br. 15). REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Hiroko JP 09-266862A Oct. 14, 1997 Kang, “Physical Properties of Wheat Flour Treated by Supercritical Carbon Dioxide,” Biological & Environmental Engineering Society, April 2012 Kitchen Encounters, http://kitchenencounters. type pad.com/blog/2013/11 /-baking-basic-bread-cake-all-purpose-flours-. html Zaalouk, “Effect of Moisture Content of Angel of Response and Friction Coefficient of Wheat Grain,” Msr J. Ag. Eng., Jan. 2009 REJECTIONS2 Claims 1, 6–8, 11, and 14–19 are rejected under 35 U.S.C. § 103 as being unpatentable over Hiroko and Kang. Final Act. 3. 2 A provisional nonstatutory double patenting rejection has been withdrawn. Ans. 7. Appeal 2020-000476 Application 15/117,641 3 Claims 3, 9, and 12 are rejected under 35 U.S.C. § 103 as being unpatentable over Hiroko, Kang, Kitchen Encounters, and Zaalouk. Final Act. 6. OPINION Claim 13 Appellant argues that Hiroko does not teach or suggest “a shaker-type container having 2 to 7 shaker holes” as recited in claim 1. Appeal Br. 5. Appellant and the Examiner, however, agree that the container in Hiroko has many holes. See id. at 6; see also Final Act. 5, 10. We note that claim 1, reciting the transitional phrase “comprising” is open-ended and therefore does not exclude the container from having more than the recited “2 to 7 shaker holes.” “In the patent claim context, the term ‘comprising’ is well understood to mean ‘including but not limited to’.” CIAS, Inc. v. Alliance Gaming Corp., 504 F.3d 1356, 1360 (Fed. Cir. 2007). Consistent with the open-ended claim language, the Specification provides that the claim relates to “a container having one or more shaker holes.” Spec. ¶ 7. Appellant’s argument that the container in Hiroko has “far more holes than presently claimed” (Appeal Br. 6) therefore does not patentably distinguish the prior art. Moreover, Appellant does not address the Examiner’s finding that the number of shaker holes is a “mere duplication of parts” which does not patentably distinguish the prior art. Compare Appeal Br. 5, with Final Act. 10. 3 Appellant argues for the patentability of claims 1, 6–8, 11, 14, 15, and 17– 19 as a group with claim 1 being the representative claim. See Appeal Br. 4– 13. These claims stand or fall together. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2020-000476 Application 15/117,641 4 Appellant argues that Hiroko does not teach or suggest a container having “each shaker hole has a maximum width of 2 to 12 mm” as recited. Appeal Br. 5. As the Examiner points out, however, “the shaker holes of Hiroko would be required to be larger than the largest flour particles in order to ensure that clogs do not form and all of the flour can be dispensed.” Ans. 9. The Examiner finds that “the shaker holes sizes presently claimed are merely an obvious variant of the prior art” and “it is within the ordinary skill “to have varied the size of the holes of the shaker of Hiroko depending on the speed with which the flour was desired to be dispensed.” Id. Appellant’s argument does not address these findings and is therefore not persuasive of error. See Reply Br. 2–7. Appellant next argues that Kang does not teach or suggest “wheat flour [that] has a particle diameter at 10%, D 10, of 25 μm or more, a particle diameter at 90%, D90, of 400 μm or less, and a D90/D10 of 3 to 12” as recited. Appeal Br. 6.4 Appellant argues that the Examiner’s finding that 4 The Specification characterizes D10 as the sieve size through which 10% of particles will pass, Spec. ¶ 18, but identifies D10 values as minima, e.g. “25 μm or more” in claim 1. That raises a possible ambiguity; if a 10% fraction of a particle distribution can pass a 25 μm sieve, that same fraction necessarily would pass a larger sized sieve. Notably, the Specification similarly characterizes D90 in terms of sieve size through which a specified percentage of particles would pass, and identifies D10 values as maxima, e.g. “400 μm or less” in claim 1. The Specification provides, on the one hand, that “the particle diameter at 10% (D10) is 18 μm or more, . . . and the particle diameter at 90% (D90) is 500 μm or less . . . .” Spec. ¶ 17 (emphases added). The Specification provides, on the one hand, that a prior art flour “compris[es] 90% or more of particles having a particle diameter of 150 μm or less and 20 cumulative volume% or less of particles having a particle diameter of 20 μm or less.” Spec. ¶ 4 (emphases added). During oral argument, Appellant stated that D10 and D90 are “art recognized terms and skill in the art would understand the meaning of these term” but does not Appeal 2020-000476 Application 15/117,641 5 “at least 92% of the particles being less than 150 micrometers” and “only 8% of the particles being greater than 150 micrometers” (Final Act. 4) is insufficient for a prima facie case of obviousness. Id. at 6–7.5 From the outset, Appellant’s argument is unsupported by the record. The “Background Art” of the pending Specification provides that a prior art reference known as “Patent Literature 1” describes a particular type of wheat flour having “90% or more of particles having a particle diameter of 150 μm or less and 20 cumulative volume% or less of particles having a particle diameter of 20 μm or less.” Spec. ¶ 4. Applicant admitted prior art therefore is consistent with the evidence the Examiner cites in support of the rejection. In addition to the prior art teachings, claim 1, as it is currently written, encompasses a flour having a particle distribution D10 of greater than 25 μm without an upper bound. The prior art flour having “90% or more of particles having a particle diameter of 150 μm or less” (Spec. ¶ 4) – that is, the prior art flour with 10% of the particle (which is included in the 90%) explain the apparent inconsistency in the definitions in the Specification. Hearing Transcript 12:14–16. We nonetheless analyze the claim language in light of the portion of the Specification that is not inconsistent with the claim language. Ex parte Ionescu, 222 USPQ 537 (Bd. Pat. App. Int. 1984) (holding that if a claim is subject to two interpretations and one interpretation would render the claim unpatentable over the prior art, the proper course of action is for the examiner to enter both a 112, 2nd rejection and an art rejection based on an interpretation of the claim). 5 We further note that Kang provides a variety of flours with respective diameter distribution. For example, Kang provides that a flour identified as “SFC3” has 10.99 vol% at greater than 150 μm whereas a flour identified as “SFC2E” has 9.62 vol% at less than 38 μm, both of which would have suggested the recited D10 of more than 25 μm. Kang p. 30, Table 3. Appeal 2020-000476 Application 15/117,641 6 having a particle diameter of 150 μm or less – is therefore within the scope of claim 1. Based on the prior art teaching of overlapping particle diameter ranges, the Examiner finds that “Kang discloses an overlapping particle diameter range and therefore is considered to teach an overlapping ratio of D90/D10.” Final Act. 5. Because the record supports the Examiner’s finding that various overlapping particle diameter ranges are known in the prior art and because Appellant does not address the Examiner’s finding that the prior art would have suggested to the ordinary artisan the recited D90/D10 ratio, no reversible error has been identified. Appellant’s argument regarding unexpected results is unpersuasive because the evidence (including data presented in Table1 and Table 2) (Appeal Br. 7–10) does not show that the results are unexpected. “[I]t is not enough to show that results are obtained which differ from those obtained in the prior art: that difference must be shown to be an unexpected difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). “[B]y definition, any superior property must be unexpected to be considered evidence of non- obviousness. Thus, in order to properly evaluate whether a superior property was unexpected, the [fact-finder] should have considered what properties were expected.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007). In this case, there is no evidence showing what the skilled artisan would have expected. “[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). In this case, the data shown in Table 1 and Table 2 is based on a “commercially- available wheat flour” using a “cylindrical container with a diameter of 50 Appeal 2020-000476 Application 15/117,641 7 mm and a height of 120 mm.” Spec. ¶¶ 29, 35. There is no evidence in the record showing that these are the results from “the closest prior art.” See Baxter Travenol Labs., 952 F.2d at 392. As a result, no factual error has been identified in the Examiner’s evaluation of the evidence shown in Table 1 and Table 2. With regard to Appellant’s assertion that “the Examiner’s obviousness conclusion is merely a conclusory statement with no articulated reasoning and rational underpinning,” (Appeal Br. 11), we note that Appellant does not address the Examiner’s various findings in support of the obviousness determination. For example, the Examiner finds that a skilled artisan would “have placed the flour of Kang in the container of Hiroko because Hiroko is directed to a wheat flour container.” Final Act. 4, 11 (finding that “it would have been obvious to one of ordinary skill in the art at the time the invention was filed to have placed the flour of Kang in the container of Hiroko because Hiroko is directed to a wheat flour container. This is simple substitution of one flour for another”). Appellant does not address the Examiner’s rationale and no error has been identified as a result. We sustain the rejection of claim 1 based on the foregoing. Claims 3, 9, & 12 Appellant’s sole argument with regard to the rejection of claims 3, 9, and 12 is that the additionally cited references fail to “cure[] that lacking in Hiroko in view of Kang as discussed above.” Appeal Br. 12. The rejection of claims 3, 9, and 12 is sustained as claim 1. See 37 C.F.R. § 41.37(c)(1)(iv). Claim 16 Dependent claim 16 recites “wherein the wheat flour is shaken out in an amount of 0.7 to 1.4 grams, with a scattering distance of 10.2 to 15.9 cm, when directing an opening of the container vertically downward toward a Appeal 2020-000476 Application 15/117,641 8 mark at the center of a flat surface that is 10 cm directly below the opening.” Appellant argues that the recited “performance characteristics define a preferred method for, e.g., applying wheat flour to a given object, and are nowhere suggested or disclosed in any applied reference” without elaboration – certainly without addressing the Examiner’s findings in support of the rejection. Compare Appeal Br. 13, with Final Act. 6 (providing evidence and a rationale for the rejection). To the extent that Appellant’s statement that “Appellants’ Examples and Comparative Examples show the importance of, and the advantages of, the method as claimed in Claim 16” (Appeal Br. 13) argues unexpected results, the evidence does not support such results for the reasons provided with regard to Table 1 and Table 2 supra. CONCLUSION The Examiner’s rejections are affirmed. DECISION SUMMARY Appeal 2020-000476 Application 15/117,641 9 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 6–8, 11, 14–19 103 Hiroko, Kang 1, 6–8, 11, 14–19 3, 9, 12 103 Hiroko, Kang, Kitchen Encounters, Zaalouk 3, 9, 12 Overall Outcome 1, 3, 6–9, 11, 12, 14– 19 TIME PERIOD FOR RESPONSE 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)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation