Schwan's Global Supply Chain, Inc.

Patent Trials and Appeals Board

Mar 30, 2020

14860810 - (D) (P.T.A.B. Mar. 30, 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.
14/860,810 09/22/2015 Steven Mark Leicht 02661.0630USU1 3634
23552 7590 03/30/2020
MERCHANT & GOULD P.C.
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
03/30/2020 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):
USPTO23552@merchantgould.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEVEN MARK LEICHT, MICHELLE RUTH HEID,
PRADYOT KUMAR GHOSH, ASHLEY NICHOLE HENSLEY,
and DAVID ZION OVADIA

Appeal 2019-001075
Application 14/860,810
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, MICHAEL G. McMANUS, and
SHELDON M. McGEE, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the
Examiner’s decision to reject claims 48–60, 62, 63, and 66–73. We have
jurisdiction under 35 U.S.C. § 6(b).
Oral argument was held March 17, 2020.
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 SFC Global
Supply Chain, Inc. Appeal Br. 2.
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Application 14/860,810

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CLAIMED SUBJECT MATTER

The present application generally relates to formulations for a food
product having a crunchy texture. Specification filed Sept. 22, 2015
(“Spec.”) 2. The Specification teaches that “[t]he food product generally
comprises a crust or an outer casing having a dough-based matrix or a batter-
based matrix, with a thickness of about 1 to about 150 mm, and texture
modifying particles dispersed throughout the matrix.” Id.
The Specification teaches an embodiment where “food product 1’
comprises two sensory zones: a crunchy portion 12 and a non-crunchy
portion 16. The texture modifying particles 20 may be dispersed throughout
the matrix of the food product 1’, but only maintain their crunchy texture
within the crunchy portion 12.” Spec. 11. This is shown in Figure 5A of the
Drawings, reproduced below.

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Figure 5A depicts “a thick crust pizza, and the crunchy portion 12 of the
crust 10’ comprises a bottom layer of the pizza crust and a portion (e.g.,
adjacent to the outer surface) of the rim 14 of the pizza crust.” Id. The
Specification further teaches that “[t]he non-crunchy portion 16 may
comprise the portion of the crust 10’ surrounded by the crunchy portion 12
and/or covered by toppings 18.” Id. at 12.
Claim 48 (the sole independent claim at issue) is illustrative of the
subject matter on appeal and is reproduced below with certain limitations
bolded for emphasis:
48. A baked or cooked food composition comprising:
a main body having a dough-based or batter-based
matrix; and
particle inclusions comprising extruded starch-containing
particles dispersed throughout the matrix, wherein the particle
inclusions are present at from about 4 % by weight to about
25 % by weight of the food composition, wherein the particle
inclusions create a crunchy sensory zone and a non-crunchy
sensory zone and the particle inclusions only maintain a
crunchy texture within the crunchy sensory zone.

Appeal Br. 18–19 (Claims App.).
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Rollins et al. US 6,110,511 Aug. 29, 2000
Schuppan et al. US 2005/0226971 Al Oct. 13, 2005
Hupfer et al. US 2010/0303956 Al Dec. 2, 2010

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REJECTIONS
The Examiner maintains the following rejections:
1. Claims 48, 49, 51–56, 66–71, and 73 are rejected under
35 U.S.C. § 103 as being unpatentable over Rollins. Non-
Final Action dated Feb 15, 2018 (“Non-Final Act.”) 3–4.
2. Claims 57–60 are rejected under 35 U.S.C. § 103 as being
unpatentable over Rollins in view of Schuppan. Id. at 5.
3. Claims 50, 62, 63, and 72 are rejected under 35 U.S.C. § 103
as being unpatentable over Rollins in view of Hupfer. Id. at
5–6.
DISCUSSION
Rejection 1. The Examiner rejects claims 48, 49, 51–56, 66–71, and
73 as obvious over Rollins. Id. at 3–4. In support of the rejection, the
Examiner finds that Rollins teaches a food composition comprising a dough-
based or batter-based matrix and having particle inclusions made of extruded
starch-containing particles dispersed throughout the matrix. Id. at 3. The
Examiner further finds that the “particles can be used to impart a crunchy
mouthfeel.” Id.
The Examiner additionally finds that Rollins does not explicitly teach
that the crunchy particles are present at a concentration of 4% to 25% by
weight, separate “sensory zones,” or “the features as in claims 66–71, [and]
73.” Id. at 4.
With respect to the concentration of particle inclusions, the Examiner
determines that one of skill in the art would have “var[ied] the amount of the
inclusions to any desirable range depending on the taste, flavor and texture
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desired” and that the claimed concentration would have been achieved by
routine experimentation. Id.
Claim 66 depends from composition claim 48 and further requires that
the crunchy texture be “determined by sensory analysis, acoustic
measurement, textural analysis, and time to achieve peak force.” Claim 71
depends from claim 66 and further requires that the sensory zones “are
identified by a tasting panel.” The Examiner determines that such testing
steps do not bear on patentability. Id.
Claims 67–70 each depend from claim 66 and further concern the
“peak force” of the crunchy sensory zone.2 The Examiner determines that
“it is expected such properties will also be present in the Rollins
composition when the inclusions are used on the surface and in the interior.
It would also have been obvious to vary the peak force by varying the
amount of inclusions to use to obtain varying texture.” Non-Final Act. 4.
Appellant argues that Rollins does not teach a food item having
“particles dispersed throughout the matrix” and where “the particle
inclusions create a crunchy sensory zone and a non-crunchy sensory zone
and the particle inclusions only maintain a crunchy texture within the
crunchy sensory zone” as required by claim 48. Appeal Br. 6–10.3
Appellant argues that Rollins lacks any teaching that its particles,
when used in bread or cookie dough, have a different texture on the exterior
than the interior. Id. at 8. Given the purported absence of any teaching on
point, Appellant argues, the proper inference is that Rollins’ particles have a

2 Claim 69 refers only to the “peak” rather than “peak force.”
3 The Appeal Brief as submitted does not include page numbers. For
convenience, we refer to the brief as though paginated sequentially.
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uniform texture. Id. As a result, Appellant argues, the limitation requiring
crunchy and non-crunchy sensory zones and that “the particle inclusions
only maintain a crunchy texture within the crunchy sensory zone” are not
met. Id. at 8–9.
The Examiner finds that “[i]t would have been obvious to disperse the
inclusions on any particular portion on the dough including [the] surface and
interior depending on the texture and flavoring desired.” Non-Final Act. 4.
Appellant argues that the Examiner’s finding suggests placing particles
(inclusions) in one region but not another. Appeal Br. 8. This, Appellant
argues, differs from the claim requirement that the particles be “dispersed
throughout the matrix.” Id.
In the Answer, the Examiner finds that Rollins teaches “the particles
are added to a dough such as bread dough . . . it has surprisingly been found
that the same particle can be used to impart either a crunchy mouthfeel, a
firm mouthfeel or a soft mouthfeel.” Answer 7 (citing Rollins 12:25–31).
(emphasis omitted). The Examiner further cites to Rollins’ teaching that
“[t]he range in softness conferred by varying amounts of flour, fat, sugar,
gums, and/or moisture is virtually limitless as a consequence, the method of
the present invention can be used to simulate an exceedingly wide range of
textures composition.” Id. (citing Rollins 12:54–57). In view of such
teachings, the Examiner determines that “[i]t would have been well within
the skill of one in the art to form the particles to have a crunchy texture and a
non-crunchy texture and to disperse the particles in varying locations to have
crunchy zone and non-crunchy zone depending on the textural attributes
desired.” Id.
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The Examiner further finds that “Rollins clearly teaches applying
particles to [the] external surface and also adding particles to the dough.” Id.
at 8. By way of example, the Examiner observes that “it is known in the art
to make cookies and to mix M&M candies into the dough to have the candy
inside and to also place M[&]M[s] on the surface to give the additional
uniform look of the candies on the surface.” Id. at 8–9. This is similar to
Rollins’ teaching of a “donut crunch product” (Rollins, col. 16:5) which is
taught to be “[f]or application to a donut surface” (id. at col. 16:28). The
Examiner further concludes that “Rollins discloses the particles can be
applied to the surface and add[ed] to the dough.” Answer 9.
In its brief and at oral argument Appellant argues that a food product
having non-crunchy particles (e.g., the fruit analogs of Rollins) in the
interior and crunchy particles having a different composition (e.g., the donut
crunch of Rollins) on the exterior would not fall within the scope of claim
48. See Appeal Br. 8–9. Appellant contends that “[c]laim 48 provides for a
baked or cooked food product, having a dough- or batter-based matrix,
where particle inclusions are dispersed throughout the matrix, and create
crunchy and non-crunchy sensory zones.” Id. Accordingly, we consider
whether claim 48 requires that a single type of particle inclusion be present
in both sensory zones.
Claim 48 is to a “baked or cooked food composition comprising . . .
particle inclusions comprising extruded starch-containing particles dispersed
throughout the matrix . . . wherein the particle inclusions create a crunchy
sensory zone and a non-crunchy sensory zone and the particle inclusions
only maintain a crunchy texture within the crunchy sensory zone.” Appeal
Br. 18–19 (Claims App.). The use of the transition term “comprising” in
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“particle inclusions comprising” indicates that such term may include
components other than the enumerated “extruded starch-containing particles
dispersed throughout the matrix.” Further, the “dispersed throughout the
matrix” limitation is applicable only to the “extruded starch-containing
particles.” To the extent some other particle inclusions are present, they
need not be dispersed throughout the matrix.
Accordingly, our construction permits a crunchy particle applied to
the exterior such as an M&M® or “donut crunch” to create a crunchy zone
at the exterior of a food item while some other particle (such as a fruit
analog) may be present in the non-crunchy zone. Accordingly, we
determine that Appellant has not shown error in the Examiner’s rejection of
claim 48.
Appellant argues claims 67–70 and 73 separately. Appeals Br. 10–11.
Each of these claims includes limitations relating to the “peak force” of the
crunchy zone.4 Appeal Br. 21–22.
In regard to “peak force,” the Specification teaches that a “cumulative
force, typically referred to as the peak force or peak load, generally occurs
at the point the multiple fractures break rapidly and simultaneously thereby
collapsing the structure of the food product.” Spec. 6 (emphasis added).
Claim 67 requires that “the crunchy sensory zone has a peak force
about 8000 g and the non-crunchy sensory zone either has a peak force
below 7000 g or does not exhibit a measurable peak.” Appeal Br. 21
(Claims App.). Claims 68 and 69 concern the time to achieve peak force.
Id. at 21–22. Claim 70 is similar to claim 67 but lacks numerical limitations.

4 As noted above, claim 69 refers only to the “peak” of the crunchy zone.
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Id. at 22. Claim 73 requires that “a crunchy sensory zone is located on the
outer surface of the bread crust and a non-crunchy sensory zone is located in
the interior crumb of the bread.” Id.
The Examiner determines that “it is expected such properties will also
be present in the Rollins composition when the inclusions are used on the
surface and in the interior. It would also have been obvious to vary the peak
force by varying the amount of inclusions to use to obtain varying texture.”
Non-Final Act. 4. In the Answer, the Examiner determines that “Appellant
has not shown anything unexpected or critical[ ] in the peak force.” Answer
10.
On appeal, Appellant argues that Rollins does not teach any food
product with different sensory zones and, further, lacks any teaching relating
to peak force. Appeal Br. 10–11.
We earlier determined that Appellant has not shown error in the
Examiner’s finding that it would have been obvious to make a food product
having both a crunchy and non-crunchy zone. Claims 67–70 and 73 merely
further describe the “crunchiness” of the food product. See Spec. 5
(regarding “peak force” and “crunchiness”). Appellant, however, does not
show, or even allege, that the claimed range of crunchiness is critical or
exhibits some unexpected benefit. Further, there is a natural limit as to how
hard of an object a human may safely chew. Accordingly, Appellant has not
shown error in the Examiner’s finding that it would have been obvious to
vary the peak force as claimed. See KSR Int’l Co. v. Teleflex, Inc., 550 U.S.
398, 417 (2007) (“[W]hen a patent ‘simply arranges old elements with each
performing the same function it had been known to perform’ and yields no
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more than one would expect from such an arrangement, the combination is
obvious”) (internal citation omitted).
In view of all of the foregoing, Appellant has not shown error in the
rejection of claims 48, 49, 51–56, 66–71, and 73 over Rollins.
Rejections 2 and 3. The Examiner rejects claims 57–60 as obvious
over Rollins in view of Schuppan. Non-Final Act. 5. The Examiner further
rejects claims 50, 62, 63, and 72 as obvious over Rollins in view of Hupfer.
Id. at 5–6. Appellant includes a separate heading in its brief for each of
these two rejections but does not submit any additional substantive argument
regarding the rejection of claims 50, 57–60, 62, 63, or 72. Appeal Br. 11–
12. Rather, Appellant argues that the secondary references do not address
the shortcomings of Rollins. Id.
As we have found Appellant’s arguments regarding Rollins not to be
persuasive, we determine that Appellant has not shown error with respect to
the rejections of claims 50, 57–60, 62, 63, and 72.

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CONCLUSION

The Examiner’s rejections are affirmed.
In summary:

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
48, 49, 51–
56, 66–71,
73
103 Rollins 48, 49, 51–
56, 66–71,
73

57–60 103 Rollins, Schuppan 57–60
50, 62, 63,
72
103 Rollins, Hupfer 50, 62, 63,
72

Overall
Outcome
48–60, 62,
63, 66–73

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

AFFIRMED