Ex Parte BROWN et al

Patent Trial and Appeal Board

Oct 31, 2017

13780357 (P.T.A.B. Oct. 31, 2017)

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.
CFLAY.00764 6048
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
13/780,357 02/28/2013
110933 7590
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
Martha Meadows BROWN
10/31/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARTHA MEADOWS BROWN, MARTIN BERNHARD DIERL,
PONNATTU KURIAN JOSEPH, GENEVIEVE BARNARD LAWSON,
STEVE SCANNELL, and SUPRIYA VARMA
Applicant-Appellant FRITO-LAY NORTH AMERICA, INC.1
Appeal 2016-007906
Application 13/780,357
Technology Center 1700
Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
CHRISTOPHER L. OGDEN, Administrative Patent Judges.
OGDEN, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellant identifies itself, Frito-Lay North America, Inc., as the real party
in interest. See Appeal Br. 2, Oct. 20, 2015.
Appeal 2016-007906
Application 13/780,357
Appellant appeals2 under 35 U.S.C. § 134(a) from the Examiner’s
final decision rejecting claims 1—6, 8—20, and 34 in the above-identified
application.3 We have jurisdiction pursuant to 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
BACKGROUND
Appellant’s invention “relates to a shelf-stable baked crisp.” Spec.4
11. Figure 4 of the application depicts a representative example of this
invention:
Appeal Br. 5. Figure 4 depicts a shelf-stable crisp that includes a crust 418
and a crumb surface 419, with three substantially straight edges 420a, 420b,
and 421 defined by the crust 418. Id.
2 See Appeal Br.; see also Reply Br., Aug. 15, 2016.
3 Final Office Action, May 21, 2015 [hereinafter Final Action]; Examiner’s
Answer, June 15, 2016 [hereinafter Answer],
4 Specification, Feb. 28, 2013 [hereinafter Spec.].
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Application 13/780,357
Claim 1, the sole independent claim on appeal, is illustrative:
1. A shelf-stable crisp comprising:
batter cooked to a moisture content of between 2 and
5%;
wherein said shelf-stable crisp is shelf stable;
wherein said crisp comprises a crust along the entire
periphery of said crisp;
wherein said crisp is a sliced product', and
wherein said sliced piece has a crumb surface comprising
at least three substantially straight edges defined by the crust.
Appeal Br. 17 (emphasis of key limitations added).
The Examiner maintains the following grounds of rejection:
1. Claims 1—3, 6, 9-11, 14, and 17 are rejected under 35 U.S.C.
§ 102(b) as being anticipated by Mihalos5 as evidenced by a definition of
“crumb” in The Free Dictionary.6 See Final Action 2-4.
2. Claim 8 is rejected under 35 U.S.C. § 102(b) as being
anticipated by, or in the alternative, under 35 U.S.C. § 103(a) as being
unpatentable over Mihalos. See Final Action 4—5.
3. Claims 1, 2, and 11 are rejected under 35 U.S.C. § 102(b) as
being anticipated by Tatosian7 as evidenced by USDA.8 See Final Action 5—
6.
4. Claims 4, 5, and 8 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Mihalos. See Final Action 7.
5 Mihalos et al., US 2005/0249845 A1 (published Nov. 10, 2005)
[hereinafter Mihalos].
6 Crumb, The Free Dictionary, http://www.thefreedictionary.com/crumb
(last visited Oct. 27, 2017) [hereinafter The Free Dictionary],
7 Tatosian, US 2,349,582 (issued May 23, 1944).
8 USDA, Basic Report: 18220, Crackers, Melba Toast, Plain, National
Nutrient Database for Standard Reference,
https://ndb.nal.usda.gov/ndb/foods/show/5727 (last visited Oct. 27, 2017).
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5. Claims 15 and 34 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Mihalos in view of Roberts.9 See Final Action 7—8.
6. Claims 12, 13, 16, and 18—20 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Mihalos in view of Coleman.10 See
Final Action 8—9.
7. Claims 1 and 2 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Simply Cooking.* 11 See Final Action 9-10.
In the Appeal Brief, Appellant makes distinct arguments only with
respect to rejections 1,3, and 7, which Appellant identifies as Groups I—III,
respectively. See Appeal Br. 5—13. Regarding rejections 2 and 4—6
(identified as Groups IV—VI), Appellant relies on the same arguments as for
Group I. See id. at 13—15. In addition, as to Groups I—III, Appellant
presents arguments relating only to claim 1 as representative of the other
claims in each group. See id. at 5, 9, 11. Therefore, consistent with
37 C.F.R. § 41.37(c)(l)(iv) (2016), we limit our discussion to claim 1 as it
relates to each of Groups I, II, and III. As to Groups I and IV—VI, claims 2—
6, 8—20, and 34 stand or fall with claim 1. As to Group II, claims 2 and 11
stand or fall with claim 1. As to Group III, claim 2 stands or falls with claim
1.
9 Roberts et al., US 6,033,703 (issued Mar. 7, 2000) [hereinafter Roberts].
10 Coleman et al., US 2011/0104338 Al (published May 5, 2011)
[hereinafter Coleman],
11 Bruschetta, Simply Cooking (June 2, 2007),
https://simplycooking.wordpress.corn/2007/06/02/bruschetta [hereinafter
Simply Cooking],
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DISCUSSION
Groups I and IV—VI (Rejections 1, 2, and 4—6)
We reproduce Figure 2 of Mihalos below:
Figure 2 depicts a bakable product 10 prior to baking, with a creamy filling
(not shown) and “a frangible area 11 to facilitate breaking.” Mihalos 133;
see also 123.
The Examiner finds that Mihalos discloses all the limitations of claim
1, including a “crumb surface.” Final Action 3. The Examiner interprets
crumb surface as a surface comprising crumbs, with the word crumb defined
as “a very small piece broken from a baked item such as a cookie, cake or
bread.” Id. The Examiner finds that the cracker of Mihalos “is inherently
made of many crumbs that can break off into individual pieces”; therefore,
Mihalos describes a “crumb surface.” Id. In the Answer, the Examiner also
points to an alternative dictionary definition of crumb that “specifically
mentions bread.” Answer 13; see The Free Dictionary 2 (“3. the soft inner
portion of bread (disting, from crust).”).
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With respect to the Examiner’s first proposed definition of crumb
surface, Appellant argues that Mihalos discloses an unbroken surface that is
not broken into crumbs. See Appeal Br. 8. Thus, according to Appellant,
none of the surfaces disclosed in Mihalos is a crumb surface. See id.
Appellant also mentions the second definition of crumb proposed by the
Examiner, which makes a distinction between the inner portion of a baked
product and its crust. See Reply Br. 2 (citing The Free Dictionary).
According to Appellant, the Examiner’s first proposed definition ignores the
distinction, made in the Specification, between the crust 418 and the crumb
surface 419. See id. at 2—3.
The evidence on this record does not support the Examiner’s
interpretation of crumb surface as being a surface comprising crumbs. In the
Specification, item 419 refers to a “crumb,” without using the language
“crumb surface,” and distinguishes the crumb from crust 418 based on their
colors. See Spec. 137. Likewise, claim 2 distinguishes a “crumb” from a
“crust,” see Appeal Br. 17, even though it appears that both the crust and the
crumb could in theory flake apart into crumbs. Moreover, the third
definition in the Examiner’s dictionary reference refers to the “crumb” as the
inner portion of a bread, as distinguished from the crust. See The Free
Dictionary 2. Therefore, the evidence supports an interpretation of crumb as
the inner portion of the baked product, as distinguished from its crust. Thus,
we interpret crumb surface as simply the surface of the crumb, such as when
it is exposed, for example, by slicing.
In light of this definition, the Examiner has not established that
Mihalos discloses a crumb surface. Therefore, the Examiner erred in
rejecting claim 1 as anticipated by Mihalos. Because the Examiner’s
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rejections 1, 2, and 4—6 rely on the Examiner’s incorrect analysis as to
Mihalos, we reverse these rejections, covering claims 1—6, 8—20, and 34.
Group II (Rejection 3)
Figure 6 of Tatosian is reproduced below:
Figure 6 depicts a piece of bread as it has been toasted in a method for
making melba toast. Tatosian 1, col. 2,11. 25—27.
The Examiner finds that Tatosian discloses all the limitations of claim
1, including a crumb surface. See Final Action 5—6. In particular, the
Examiner finds that the product is bread, which “is inherently known to have
a crumb surface.” Answer 13 (citing The Free Dictionary 2, dfn. 3).
Appellant argues that “[bjecause Tatosian teaches a crust on all
exterior surfaces, Tatosian cannot teach or suggest a crumb surface, much
less a crumb surface comprising at least three substantially straight edges
defined by crust.” Appeal Br. 10-11. Appellant also argues that the
Examiner’s first interpretation of the term crumb makes no distinction
between the crumb surface and the crust, and contradicts “Tatosian’s
intention to create a bread product [that] has crust encircling the entire outer
surface because ‘most toast lovers prefer the hard toasted crust portions of
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toasted bread to the soft center portions.’” Reply Br. 4 (quoting Tatosian
1:53-55).
In light of our interpretation of the term crumb surface as discussed
above, the Examiner’s identification of the “surface of the toast” as the
crumb surface is correct. See Answer 13. Figure 4 of Tatosian clearly
depicts a distinct crust, with four linear sides, surrounding this crumb
surface. We further note that Tatosian discloses that the toast product “has a
consistency, degree of hardness or density at its edge portions different from
its center portion, thereby simulating the features of a toasted conventional
slice of bread.” Tatosian 1, col. 1,11. 49—53. This difference in properties
between the edge and center portions of the toast correspond to the crust and
crumb portions of the toast, respectively.
Appellant also argues that the Examiner incorrectly disregards the
“batter” limitation in claim 1. Appeal Br. 6—7. According to Appellant, the
Specification defines batter as “a mixture which is less viscous than dough
and which can be poured or dripped from a spoon,” in contrast to “a dough
which is stiff enough to knead or roll.” Appeal Br. 7 (quoting Spec. 114).
This argument is not persuasive of reversible error in the rejection of
claim 1. The Examiner persuasively finds that “[t]he only difference
objectively between a dough and a batter involves a moisture content (both
contain flour and water).” Answer 11; see also Final Action 3. The batter is
an intermediate product, and claim 1 recites that the final product is cooked
to remove moisture. See Appeal Br. 17. However, the evidence on this
record does not establish a patentable difference, relevant to the scope of
claim 1, between the final product starting from batter and the final product
starting from dough.
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Appellant also argues that “the particular use of a batter as described
in the Original Specification yields a crisp that ‘more resembles a slice of
cake from a cake loaf which is desired by consumers.’” Id. at 7 (citing Spec.
120). However, the context of this passage indicates that this benefit relates
to the shape of the periphery, and not specifically to the use of batter as
opposed to dough. See Spec. 120 (“[Bjecause in one embodiment crust runs
along the entire product periphery the product more resembles a slice of
cake from a cake loaf which is desired by consumers.”).
Because Appellant has not persuasively shown reversible error in the
Examiner’s rejection 3, we affirm the Examiner’s rejection of claims 1, 2,
and 11 as anticipated by Tatosian.
Group III (Rejection 7)
Simply Cooking discloses a bruschetta recipe, including Figure 1,
which we reproduce below:
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Figure 1 discloses “Braschetta with tomatoes and roasted poblano chiles.”
Simply Cooking 1. The recipe is as follows:
To make braschetta, slice a large loaf of Italian, French or peasant
bread into thick slices. (If all you have is a baguette, call it cros-
tini—it will still be very good.) It doesn’t matter if the bread is
a little stale; in fact, braschetta was probably invented to use up
day-old bread. Put the slices on a baking sheet and let them dry
out in a 400-degree oven until they are browned and crisped, 5—
10 minutes.
Id.
The Examiner finds that Simply Cooking discloses that, “[a]s shown
from the picture in Braschetta, at least 3 sides are substantially straight.”
Final Action 10; see also Answer 15 (identifying the substantially straight
edges as “the bottom, top and one side”). According to the Examiner, “[t]he
sliced piece has a crumb surface that is inherently found in bread.” Final
Action 10. The Examiner also determines that “Simply Cooking teaches
forming the Braschetta in the same way as the instant invention.” Answer
14.
Appellant argues that Simply Cooking does not teach or suggest a
sliced piece that has a crumb surface, because the reference teaches “baking
each sliced piece in an oven until crisped so that each slice is covered in a
browned crust.” Appeal Br. 12. Appellant further argues that Simply
Cooking teaches away from claim 1, because it “promotes a further cooking
step to ensure that each slice is completely covered in a browned, crisped
exterior—a crust.” Id. at 12—13. According to Appellant, such a crust is not
a crumb surface. Reply Br. 5.
Appellant’s arguments are not persuasive of reversible error. Simply
Cooking teaches that the bread slices are “dr[ied] out in a 400-degree oven
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until they are browned and crisped, 5—10 minutes.” Simply Cooking 1. This
is substantially similar to the drying process disclosed in the Specification
for creating the shelf-stable crisp, except that the drying temperature range is
somewhat lower. See Spec. 134 (“The temperature of the dryer, in one
embodiment, ranges from about 250 to about 350°F. After drying, a shelf-
stable crisp is formed.”). Appellant has not directed us to evidence that the
process disclosed in Simply Cooking, unlike that in the Specification,
converts the crumb surface into a crust. We also note that the bruschetta
pieces in Figure 1 of Simply Cooking appear to retain a visual distinction
between the crust around the periphery and the toasted crumb portion of the
bread.
Appellant also argues that Simply Cooking does not disclose “at least
three substantially straight edges defined by the crust.” Appeal Br. 13.
Appellant argues that “[a] simple visual inspection shows that the bread has
at most one substantially straight edge defined by the crust.” Id. Appellant
also argues that the bread types mentioned by Simply Cooking, French
bread, Italian bread, peasant bread, and baguettes, are formed using rolled
dough placed on a flat cooking surface, and do not inherently form straight
edges when baked. See id.
These arguments are not persuasive of reversible error. As the
Examiner correctly notes, claim 1 does not require perfectly straight edges,
only edges that are “substantially straight.” Answer 15. In addition, the
claim does not indicate how long the substantially straight edges must be.
See Appeal Br. 17. We agree with the Examiner that the top bread piece in
Figure 1 has at least three substantially straight sides. In addition, the recipe
in Simply Cooking indicates that a variety of bread types may be used, and it
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does not appear that the shape of the bread is significant to the recipe. See
Simply Cooking 1 (“[Bjruschetta was probably invented to use up day-old
bread.”). Thus, the choice of bread shape appears to be driven by the type of
bread that is available, and if the available bread were shaped, for example,
as in Figure 4 of the Specification, an ordinary artisan would have had
reason to use that bread in the recipe. The preponderance of the evidence,
therefore, indicates that the choice of a bread shape having three
substantially straight edges would have been within the ordinary skill in the
art at the time of invention. Cf. In re Dailey, 357 F.2d 669, 672—73 (CCPA
1966) (affirming a determination of obviousness because the arguments on
appeal did not show that a container shape “is significant or is anything more
than one of numerous configurations a person of ordinary skill in the art
would find obvious for the purpose of providing mating surfaces in the
collapsed container.”).
Because Appellant has not persuaded us on this record of reversible
error in the Examiner’s rejection 7, we affirm the Examiner’s rejection of
claims 1 and 2 as unpatentable over Simply Cooking.
DECISION
We reverse the rejection (1) of claims 1—3, 6, 9-11, 14, and 17 under
35 U.S.C. § 102(b) as being anticipated by Mihalos.
We reverse the rejection (2) of claim 8 under 35 U.S.C. § 102(b) as
being anticipated by, or in the alternative, under 35 U.S.C. § 103(a) as being
unpatentable over Mihalos.
We affirm the rejection (3) of claims 1, 2, and 11 under 35 U.S.C.
§ 102(b) as being anticipated by Tatosian.
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We reverse the rejection (4) of claims 4, 5, and 8 under 35 U.S.C.
§ 103(a) as being unpatentable over Mihalos.
We reverse the rejection (5) of claims 15 and 34 under 35 U.S.C.
§ 103(a) as being unpatentable over Mihalos in view of Roberts.
We reverse the rejection (6) of claims 12, 13, 16, and 18—20 under
35 U.S.C. § 103(a) as being unpatentable over Mihalos in view of Coleman.
We affirm the rejection (7) of claims 1 and 2 under 35 U.S.C. § 103(a)
as being unpatentable over Simply Cooking.
No time period for taking any subsequent action in connection with
this appeal maybe extended. See 37 C.F.R. § 1.136(a)(l)(iv) (2016).
AFFIRMED-IN-PART
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