Ex Parte Dohl et al

Patent Trial and Appeal Board

Mar 20, 2013

11830507 (P.T.A.B. Mar. 20, 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.
11/830,507 07/30/2007 INV001Christopher T. Dohl 33979-CNT1 2942
23589 7590 03/20/2013
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
EXAMINER
GEORGE, PATRICIA ANN
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
03/20/2013 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 CHRISTOPHER T. DOHL, JENNIFER MITCHUM,
GREGORY STEMPIEN, KYUNGSOO WOO, CLODUALDO MANINGAT, and
SUKH BASSI
____________

Appeal 2012-000724
Application 11/830,507
Technology Center 1700
____________

Before BEVERLY A. FRANKLIN, LINDA M. GAUDETTE, and
GRACE KARAFFA OBERMANN, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-000724
Application 11/830,507

2
Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting under 35 U.S.C. §103(a) claims 1, 2, 7, 8, 12, 13, 18, and 19 as
unpatentable over Marsland (US 2003/0091698 A1, published May 15, 2003) in
view of Anfinsen (US 2003/0134023 A1, published Jul. 17, 2003), claims 3 and 14
as unpatentable over the same references, further in view of Brabbs (US 4,596,714,
issued Jun. 24, 1986)), and claims 4-6, 9-11, 15-17, and 20-23 as unpatentable over
Marsland and Anfinsen, further in view of Haralampu (US 5,849,090, issued Dec.
15, 1998).2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The invention relates to “a high-protein, low-carbohydrate bakery product
which exhibits dough handling properties, loaf volume, crumb grain, and flavor
characteristics similar to those of a traditional bakery product.” (Spec.3 2:4-6.)
Appellants’ arguments in support of patentability as to all claims are based on
limitations common to independent claims 1, 7, 12, and 18. (See generally, App.
Br. 22-36.) For reference, claim 1 is reproduced below from the Claims Appendix
to the Appeal Brief:
1. A wheat-containing bakery product comprising:
from about 1-150 baker's percent of a first proteinaceous ingredient,
said first proteinaceous ingredient being vital wheat gluten;
a chemical leavening agent; and
a second proteinaceous ingredient different from said first
proteinaceous ingredient selected from the group consisting of-
(a) between about 0.5-100 baker's percent of a modified wheat
protein concentrate product formed by dispersing wet gluten in an
ammonia solution followed by spray drying;
(b) between about 0.5-20 baker's percent of a fractionated
wheat protein product, said fractionated wheat protein product being

1 Final Office Action mailed Jan. 20, 2011.
2 Appeal Brief filed Jun. 17, 2011 (“App. Br.”).
3 Specification filed Jul. 30, 2007.
Appeal 2012-000724
Application 11/830,507

3
selected from the group consisting of gliadin and glutenin, said gliadin
comprising at least 85% by weight protein, said glutenin comprising
at least about 75% by weight protein;
(c) between about 0.5-20 baker's percent of a deamidated wheat
gluten product; and
(d) any combination of ingredients (a)-(c), said bakery product
having a total protein content of between about 4-18% by weight..

The issue presented for our consideration is: does a preponderance of the
evidence favor the Examiner’s determination that it would have been obvious to
one of ordinary skill in the art at the time of Appellants’ invention to have included
a vital wheat gluten in Marsland’s dough composition?4
We answer this question in the affirmative for the reasons discussed below.
Marsland discloses an edible dough (Marsland Abstract) comprising a
modified wheat protein isolate and at least one additional proteinaceous ingredient
(id. at [0007]). The modified wheat protein isolate is said to possess a protein
content of greater than 70%. (Id. at [0010] and [0015].) The modified wheat
protein isolate may be “sodium metabisulfite-modified wheat gluten . . . [and]
constitute from about 5% to about 50% by weight of the final product.” (Id. at
[0015].) Marsland lists “wheat protein concentrate” and “gluten” as examples of
additional proteinaceous ingredients. (Id. at [0010], cited in Ans. 5.)

4 We note any additional arguments raised by Appellants, but not expressly
discussed herein, are considered unpersuasive for the reasons expressed by the
Examiner. (Compare e.g. App. Br. 18 (“Marsland does not teach a protein content
within the claimed range.”) with Examiner’s Answer mailed Aug. 3, 2011
(“Ans.”), 7-8 (“[I]t would have been obvious to include a step wherein the overall
percentage of protein of the product is in the quantities of 4 to 8 wt% total protein
content, as claimed, since it has been held that where general conditions of the
claim are disclosed in the prior art, the discovery of optimum or workable ranges
involves only routine skill in the art. In re Aller, 220 F.2nd 454, 105 USPQ 223
(CCPA 1955).”).)
Appeal 2012-000724
Application 11/830,507

4
Marsland does not specifically identify the type of wheat protein
concentrate. (See generally, Marsland.) However, the Examiner finds the term
“wheat protein concentrate” suggests a modified wheat protein concentrate as
claimed in claim 1(a). (Ans. 6.) This finding is reasonable (see Spec. 3:19-21
(“[W]heat protein concentrates are manufactured by dispersing wet gluten in an
ammonia solution followed by spray drying.”)), and is not refuted by Appellants
(see generally, App. Br. 22-36). The Examiner further determines it would have
been obvious to use vital wheat gluten as the gluten component of Marsland’s
composition based on Anfinsen’s disclosure that vital wheat gluten is a “suitable . .
. first proteinaceous component of a wheat containing bakery product.” (Ans. 7,
11.)
Anfinsen discloses a dough composition comprising vital wheat gluten, a
wheat protein isolate (Anfinsen [0021] (stating the dough contains a hydrolyzed
wheat protein and vital wheat gluten) and [0027] (“A preferred hydrolyzed wheat
protein comprises a wheat protein isolate containing about 85% to about 90%
protein.”)), and a sodium metabisulfite-modified wheat gluten (id. at [0054]
(stating the dough composition can further comprise 0.1 to 10% of a dough
conditioner, such as “a wheat gluten having reduced disulfide bonds” to adjust the
dough properties and machinability of a formulated bread dough, and that the
intramolecular disulfide bonds in wheat gluten can be reduced with sodium
metabisulfite)).
According to the Specification, wheat protein concentrates, wheat protein
isolates and vital wheat gluten have high protein contents, i.e., exceeding 70% by
weight. (See Spec. 3:8-18.) However, wheat protein concentrates and wheat
protein isolates are less elastic, but more extensible than vital wheat gluten. (Id. at
10-11, 21-22.)
Appeal 2012-000724
Application 11/830,507

5
Anfinsen’s disclosure that vital wheat gluten can be used in a dough
composition with sodium metabisulfite-modified wheat gluten and a wheat protein
isolate supports the Examiner’s finding that the ordinary artisan would have had a
reasonable expectation of success in using vital wheat gluten as the gluten
component of Marsland’s dough composition, which likewise includes sodium
metabisulfite-modified wheat gluten and a second high protein component, i.e., a
modified wheat protein concentrate (which may be manufactured by dispersing
wet gluten in an ammonia solution followed by spray drying).5
Appellants argue the Examiner’s obviousness determination is based on an
erroneous finding that Anfinsen teaches vital wheat gluten and wheat protein
isolates are equivalents/interchangeable, such that it would have been obvious to
have replaced the wheat protein isolate in Marsland’s composition with vital wheat
gluten. (See e.g., App. Br. 26-27.) In support of this argument, Appellants provide
evidence in the form of Declarations under 37 C.F.R. § 1.132 which include test
results. (App. Br., Evidence Appendix.)
We have fully considered these arguments and evidence, but find them
unpersuasive of error in the Examiner’s conclusion of obviousness because they
fail to address the alternative position advanced by the Examiner in support of
obviousness. As set forth in detail above, the Examiner’s alternative position is
based on a determination that it would have been obvious to have used vital wheat
gluten as the “gluten” component in Marsland’s dough composition comprising

5 We additionally note the Examiner cites to Marsland’s examples in support of the
rejection of the independent claims. (See Ans. 5.) Marsland discloses “[m]aterials
of importance used for these examples include . . . viscoelastic wheat gluten
protein (Prolite Wheat Gluten, ADM, Decatur, Ill.)” (Marsland [0053].) Prolite
Wheat Gluten appears to be a vital wheat gluten. See http://www.adm.com/en-
US/Milling/Glutens/Pages/Prolite.aspx.

Appeal 2012-000724
Application 11/830,507

6
modified wheat protein isolate, wheat protein concentrate, and gluten. (Compare
Ans. 11, Response to Argument (“[E]ven if no consideration was given to
Anfinsen providing wheat protein isolates and vital wheat gluten as being
functional substitutes [], the abstract of the reference plainly provides for the use of
vital wheat gluten as being suitable as a first proteinaceous component of a wheat
containing bakery product.”) with Reply Brief filed Sep. 30, 2011, 6-14
(responding to this quote as follows: “This sentence is not understood, and thus
cannot be directly addressed. However, Applicant’s position remains the same:
Anfinsen fails to teach the interchangeability of wheat protein isolate and vital
wheat gluten.”); see also, Ans. 7 (advancing the same alternative positions:
“It would have been obvious to one of ordinary skill in the art,
at the time the invention was made, to modify the method of making a
wheat containing bakery product, as Marsland, by including a step
which comprises vital wheat gluten, as claimed, because Anfinsen
illustrates that 1) the art finds such a component as suitable for the
intended use of the first proteinaceous component of a wheat
containing bakery product, . . . and 3) provides for the substitution of
one known element for another and the results of the substitution
would have been predictable.”).)

Based on the record before us, we conclude a preponderance of the evidence
favors the Examiner’s determination that it would have been obvious to one of
ordinary skill in the art at the time of Appellants’ invention to have included a vital
wheat gluten in Marsland’s dough composition. Accordingly we affirm the
Examiner’s decision to reject claims 1-22.
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).

AFFIRMED
Appeal 2012-000724
Application 11/830,507

7

kmm