Robert Den Hoed

Patent Trials and Appeals Board

Dec 5, 2019

14803613 - (D) (P.T.A.B. Dec. 5, 2019)

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.
14/803,613 07/20/2015 Robert den Hoed P07620US1 5692
34082 7590 12/05/2019
ZARLEY LAW FIRM P.L.C.
CAPITAL SQUARE
400 LOCUST, SUITE 200
DES MOINES, IA 50309-2350
EXAMINER
MUKHOPADHYAY, BHASKAR
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
12/05/2019 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):
crasmussen@zarleylaw.com
emarty@zarleylaw.com
kconrad@zarleylaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT DEN HOED
____________

Appeal 2019-002554
Application 14/803,613
Technology Center 1700
____________

Before CHRISTOPHER C. KENNEDY, JULIA HEANEY, and
JEFFREY R. SNAY, Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL1

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–4, 6–11, 13, 16, 17, 19, and 20. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 Our decision refers to the Specification (“Spec.”) filed July 20, 2015, the
Examiner’s Final Office Action (“Final Act.”) dated February 28, 2018,
Appellant’s Appeal Brief (“App. Br.”) filed July 30, 2018, the Examiner’s
Answer (“Ans.”) dated December 11, 2018, and Appellant’s Reply Brief
(“Reply Br.”) filed February 11, 2019.
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a).
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Application 14/803,613

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CLAIMED SUBJECT MATTER
The invention relates to methods of processing seeds for nutritional
enhancement. Spec. 1:9–11.
Claim 1, reproduced below, is illustrative of the subject matter on
appeal.
1. A method of processing seeds to nutritionally enhance
food and its prebiotic and probiotic microflora, comprising the
steps of:
placing a plurality of seeds in a tank and sanitizing the seeds;
washing and hydrating the seeds with water;
allowing the seeds to germinate over a period of time;
drying the seeds for at least twelve hours and the seeds are dried
at a temperature between 180 and 350° F;
cooling the seeds; and
wherein the nutritional value of the seeds is maintained.

App. Br. 6 (Claims Appendix).
Independent claim 20 additionally recites that “prebiotic and probiotic
microflora, live enzymes, and nutritional proteins are present in the
processed seeds at an amount at least fifteen percent higher than ground raw
seeds.” Each remaining claim on appeal depends from claim 1.

REFERENCES
The Examiner relies on the following references:
Name Reference Date
Fitzpatrick US 6,613,366 B1 Sept. 2, 2003
Samadpour US 2014/0237895 A1 Aug. 28, 2014
Martinell US 2005/0005321 A1 Jan. 6, 2005
Vinokur US 2010/0278992 A1 Nov. 4, 2010
White US 5,232,465 Aug. 3, 1993

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Application 14/803,613

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REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following grounds of rejection:3
1. Claims 1–4, 7, 8, 13, 16, 17, 19, and 20 under 35 U.S.C.
§ 103(a) as unpatentable over Fitzpatrick in view of Samadpour (Ans.
4–10);
2. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over
Fitzpatrick in view of Samadpour and Martinell (id. at 10–11);
3. Claim 9 under 35 U.S.C. § 103(a) as unpatentable over
Fitzpatrick in view of Samadpour and Vinokur (id. at 11–12); and
4. Claims 10 and 11 under 35 U.S.C. § 103(a) as unpatentable
over Fitzpatrick in view of Samadpour and White (id. at 12–13).

OPINION
Rejection 1: obviousness over Fitzpatrick and Samadpour
The Examiner rejects claims 1–4, 7, 8, 13, and 16–20 under 35 U.S.C.
§103(a) as unpatentable over Fitzpatrick and Samadpour. Appellant
presents arguments directed toward claims 1 and 20, and does not separately
argue the remaining claims subject to this rejection. See App. Br. 2–4;
Reply Br. 2–6. Accordingly, claims 2–4, 7, 8, 13, 16, 17, and 19 stand or
fall with parent claim 1. We address claims 1 and 20 separately, below.
Claim 1
Relevant to Appellant’s arguments on appeal, the Examiner finds that
Fitzpatrick discloses a seed processing method that includes drying
germinated seeds, but does not disclose drying at a temperature between 180

3 A rejection of claim 18 under 35 U.S.C. § 112 is rendered moot by
Appellant’s cancelation of that claim. Ans. 13.
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and 350 oF for at least 12 hours. Final Act. 4, 6. The Examiner finds that
Fitzpatrick discloses drying at 104 oF for 10 hours. Id. at 6. The Examiner
also finds that Fitzpatrick teaches crisper product can be achieved by drying
to a lower water activity. Id. at 6–7 (citing Fitzpatrick 86:58–62). In light of
these teachings in Fitzpatrick, the Examiner finds that one of ordinary skill
would have had a reason to increase and optimize the drying time and
temperature in order to achieve a desired crispness within a desired period of
time. Id.
Appellant argues that no reference teaches the recited drying
temperature and time and, therefore, the relied-upon prior art cannot render
the claim obvious. App. Br. 2. Appellant further argues that, because the
prior art does not teach the recited drying conditions, it does not support the
Examiner’s reasoning that that the prior art product inherently would have
maintained its nutritional value as claimed. Reply Br. 3.
These arguments are not persuasive of reversible error. Appellant
does not dispute the Examiner’s finding that Fitzpatrick teaches that drying
may be adjusted to yield a desired water activity and, consequently, a
desired crispiness. Nor does Appellant challenge the Examiner’s finding
that drying time and temperature would have been recognized result-
effective variables, the adjustment of which would have affected drying
degree and time in a known manner. Appellant’s argument that Fitzpatrick
does not specify a drying time and temperature within the recited ranges
does not refute the Examiner’s determination that routine optimization of
those parameters in Fitzpatrick would have been obvious for the purpose of
achieving a desired water activity level within a desired period of time.
Fitzpatrick exemplifies drying at 104 oF for 10 hours to achieve a
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water activity of about 0.9 (Fitzpatrick 108:53–55), and teaches that crisper
product may be obtained by drying to a water activity less than 0.6 (id.
86:53–62). Appellant does not identify reversible error in the Examiner’s
determination that one skilled in the art would have had reason to perform
drying at increased time and temperature to achieve a desired lower level of
water activity and, thereby, increased crispness of the product. For that
reason, Appellant also does not persuade us of error in the Examiner’s
determination that, because the prior art suggests the recited process steps, a
product produced by that process would reasonably have been expected to
meet the same maintenance of nutritional value.
Appellant argues that the data provided in the tables at pages 6 and 7
of the Specification demonstrates an unexpectedly low degradation of
nutrient loads in seeds processed by the claimed method. Appeal Br. 4.
Particularly, Appellant contends that the tables appearing at pages 6 and 7 of
the Specification show nutrient loads of seeds before and after processing by
Appellant’s method. Id. However, as is stated in the Specification, the data
presented at pages 6 and 7 correspond to nutrition loads of already processed
seeds, before and after application of an unspecified heat treatment. Spec. 6
(“[S]prouted flax, barley, wheat, quinoa, and 9 grain produced using the
disclosed method were tested and subsequently heat tested to determine
nutrient degradation.”). The relied-upon data thus relates to nutrient
degradation attributable to an unspecified heat test performed on previously
processed seeds. That data does not support Appellant’s assertion of
unexpected results attributable to the seed processing method itself.
The Examiner’s rejection of claim 1 is sustained.

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Claim 20
Appellant argues that claim 20 additionally requires that the amount
of prebiotic and probiotic microflora, live enzymes, and nutritional proteins
in the processed seeds is at least fifteen percent higher than ground raw
seeds. Appeal Br. 3. The Examiner finds that the recited property would
reasonably have been expected to result in the prior art because the prior art
suggests essentially the same process as that described in Appellant’s
Specification. Final Act. 8. Appellant’s argument merely pointing to the
property recited in claim 20 neither addresses nor identifies reversible error
in the Examiner’s obviousness rationale.
The Examiner’s rejection of claim 20 also is sustained.

Rejections II–IV: claims 6 and 9–11
Appellant does not separately argue any of Rejections II–IV as
applied to claims 6 and 9–11. Accordingly, each of these rejections is
sustained for the reasons given in the Final Office Action, the Examiner’s
Answer, and above.

CONCLUSION
The Examiner’s decision rejecting claims 1–4, 6–11, 13, 16, 17, 19,
and 20 is affirmed.

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Application 14/803,613

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DECISION SUMMARY
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 7, 8,
13, 16, 17,
19, 20
103(a) Fitzpatrick,
Samadpur
1–4, 7, 8,
13, 16, 17,
19, 20

6 103(a) Fitzpatrick,
Samadpur,
Martinell
6
9 103(a) Fitzpatrick,
Samadpur,
Vinokur
9
10, 11 103(a) Fitzpatrick,
Samadpur,
White

10, 11
Overall
Outcome
1–4, 6–11,
13, 16, 17,
19, 20

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED