Ex Parte Cross et al

Patent Trial and Appeal Board

May 2, 2013

11206424 (P.T.A.B. May. 2, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/206,424 08/18/2005 James C. Cross 36178 5090
23589 7590 05/03/2013
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
EXAMINER
GWARTNEY, ELIZABETH A
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
05/03/2013 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 JAMES C. CROSS, FEDERICO T. CORCORO JR.,
ANKE E. GOLDE, and SENGNGEUNE KATTHANAME
____________________

Appeal 2012-001530
Application 11/206,424
Technology Center 1700
____________________

Before CHUNG K. PAK, CATHERINE Q. TIMM, and ROMULO H.
DELMENDO, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 31-40, 42-44, and 46-50. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

Appeal 2012-001530
Application 11/206,424

2
The claims are directed to a coated food product. All of the claims
require a flavored coating having a moisture content of less than about 0.3
wt%. Claim 31 is illustrative:
31. A coated food product comprising:
a food piece having an outer surface; and
a flavored coating adjacent said outer surface, said
flavored coating having a melting point of at least about 125°F
and a moisture content of less than about 0.3% by weight, based
upon the total weight of the flavored coating taken as 100% by
weight.
(Claims App’x at Br. 33.)
The Examiner maintains two rejections:1
1. The rejection of claims 31-40, 42-44, and 46-50 under 35 U.S.C. §
103(a) as obvious over Green2; and
2. The rejection of claims 31-36, 38-40, 42-44, 47, and 48 under 35
U.S.C. § 103(a) as obvious over Lalria3 in view of de Paolis4.
OPINION
With regard to both rejections, we determine that the Examiner
reversibly erred in concluding that it would have been obvious to formulate
a food piece coating with a moisture content of less than about 0.3 wt%.
With regard to Green, the Examiner finds that Green discloses drying
the coated food pieces to a moisture content of less than 5%, a self-stable
moisture content (Ans. 5). However, what Green teaches is that

1 The Examiner withdrew the rejection of claims 36-38 under 35 U.S.C. §
112, ¶ 2 (Ans. 4).
2 Green et al., US 6,139,886, patented Oct. 31, 2000.
3 Lalria, GB 2 341 532 A, pub. Mar. 22, 2000.
4 de Paolis, US 4,296,141, patented Oct. 20, 1981.
Appeal 2012-001530
Application 11/206,424

3
Desirably, the finished cereal base coated with the
presweetener coating is at moisture contents ranging from
about 3 to 5% to provide shelf stable storage. Conventionally,
the base 46 having been coated with a pre-sweetener coating is
subjected to a drying step, and the present methods can
comprise such drying step, in a drier 48 for times sufficient to
reduce the moisture content to such desirable levels. The drying
step functions to remove the moisture added with the pre-
sweetener coating.
In certain embodiments, however, the pre-sweetener
coating can be at sufficiently low moisture content (i.e., under
5% moisture) such that post coating application drying is
minimal or even unnecessary.
(Green, col. 6, ll. 34-46 (emphasis added).) Therefore, what Green teaches
is an overall moisture content of about 3 to 5% for the coated product that is
obtained either by drying a coating that has a moisture content higher than 3
to 5% or applying a coating that needs no drying, i.e., the moisture level in
the coating is already at a level resulting in an overall 3 to 5% moisture level
for the coated food piece.
The Examiner determines that it would have been obvious to have
selected the portion of the range of “under 5% moisture” recited in column
6, lines 44-45 of Green overlapping with the claimed range “because
overlapping ranges have been held to be a prima facie case of obviousness,”
and further determines that “it would have been obvious to one of ordinary
skill in the art to have decreased the moisture content of both [sic] the
coating as low as possible to maximize the shelf stability of the coated food
product.” (Ans. 5.) However, a reading of the above reproduced paragraphs
of Green indicates that it is unclear whether the moisture content of 0.3 wt%
recited in claim 31is actually within the “under 5% moisture” range taught
Appeal 2012-001530
Application 11/206,424

4
by Green. This is because the “under 5% moisture” range is a drying range
meant to result in an overall moisture content of 3 to 5%, and it is the
moisture content of 3 to 5% that is said to provide self-stable storage.
If the above paragraphs of Green were all the evidence we had before
us, we might conclude that the weight of the evidence supports the
Examiner’s position because placing a very dry coating on the food piece is
likely to result in an overall moisture content within the 3 to 5% range
disclosed by Green. However, Appellants have provided evidence (Exhibit
C) supporting their statement that “one of ordinary skill in the art would
immediately appreciate that a certain level of moisture is required in the
coating of Green to avoid rancidity of the coated cereal pieces.” The Exhibit
C article teaches that small amounts of moisture inhibit the absorption of
oxygen by butter fat, that flour develops rancidity relatively rapidly when
dried to a moisture level substantially less than 5%, crackers with less than
1% moisture become rancid more quickly than higher moisture crackers, and
cereal flakes with 2 to 6% moisture resist rancidity (Exhibit C article, ¶ 2).
The Examiner provides no convincing argument or evidence in rebuttal to
this argument tending to show that moisture would not have been thought to
have the same effect in the pre-sweetener coated onto the cereal of Green.
The weight of the evidence as a whole supports the Appellants’
position that one of ordinary skill in the art would have sought to obtain a
coating having a moisture content higher than 0.3 wt% in order to provide
shelf stable storage for the coating as well as for the entire product.
With regard to the rejection over Lalria in view of de Paolis, there is
no dispute that Lalria does not disclose a moisture content of less than 0.3
wt% for the chocolate coating of that reference (Ans. 10). The Examiner
Appeal 2012-001530
Application 11/206,424

5
finds that de Paolis teaches a coating “intrinsically” exhibiting a moisture
content of less than about 0.3% (Ans. 10-11). However, as pointed out by
Appellants, de Paolis teaches that the “fat is emulsified by the soya protein
isolate and the moisture present is bound by the emulsified fat-protein so
that the finished product is equivalent to that of a conched product having
about a 2.0 percent moisture.” (de Paolis, col. 4, ll. 46-50 (emphasis
added).) While de Paolis’ process eliminates the conching step of the prior
art, de Paolis desires a product equivalent to a conched product, and
expressly teaches a moisture content of 2% in the final chocolate coating
product (de Paolis, col. 2, ll. 49-56).
The weight of the evidence supports Appellants’ position that de
Paolis fails to suggest coating the food piece of Lalria with a coating having
a moisture content of less than about 0.3 wt% moisture as required by the
claims.
CONCLUSION
We do not sustain the Examiner’s rejections
DECISION
The Examiner’s decision is reversed.

REVERSED

cam