NISSHIN FOODS INC.

Patent Trials and Appeals Board

Oct 16, 2020

2020000476 (P.T.A.B. Oct. 16, 2020)

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.
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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.
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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).
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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
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“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.
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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
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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
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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