Schwan's Global Supply Chain, Inc.Download PDFPatent Trials and Appeals BoardMar 30, 202014860810 - (D) (P.T.A.B. Mar. 30, 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. 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. Appeal 2019-001075 Application 14/860,810 2 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. Appeal 2019-001075 Application 14/860,810 3 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 Appeal 2019-001075 Application 14/860,810 4 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 Appeal 2019-001075 Application 14/860,810 5 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. Appeal 2019-001075 Application 14/860,810 6 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. Appeal 2019-001075 Application 14/860,810 7 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 Appeal 2019-001075 Application 14/860,810 8 “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. Appeal 2019-001075 Application 14/860,810 9 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 Appeal 2019-001075 Application 14/860,810 10 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. Appeal 2019-001075 Application 14/860,810 11 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 Copy with citationCopy as parenthetical citation