Ex Parte Fritz-Jung et al

Patent Trial and Appeal Board

Mar 13, 2013

11462539 (P.T.A.B. Mar. 13, 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.
11/462,539 08/04/2006 Cathryn Fritz-Jung 46237-323190 5446
44200 7590 03/13/2013
HONIGMAN MILLER SCHWARTZ & COHN LLP
350 East Michigan Avenue
Suite 300
Kalamazoo, MI 49007-3800
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
03/13/2013 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 CATHRYN FRITZ-JUNG, DEBORAH AUER,
HIBA KAKISH, and AMANDA B. THOMAS

__________

Appeal 2011-010308
Application 11/462,539
Technology Center 1700
____________

Before LINDA M. GAUDETTE, MICHAEL P. COLAIANNI, and
DONNA M. PRAISS, Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
1-25 and 27-30. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
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We AFFIRM. However, for the reasons explained below, we
denominate the affirmed rejections as NEW GROUNDS OF REJECTION
pursuant to 37 C.F.R. § 41.50(b). .
Appellants’ invention is said to be directed to a method of reducing
the amount of bake time required for a pizza (Spec. para. [0001]).
Claim 1 is illustrative (bracketed steps added and key limitation
italicized):
1. A method comprising:
[step 1] preparing an at least partially baked pizza crust;
[step 2] adding at least one topping to said at least
partially baked pizza crust;
[step 3] covering said at least partially baked pizza crust
and said at least one topping with a moisture
impermeable cover to maintain a moisture content of
said at least partially baked pizza crust and said at least
one topping;
[step 4] heating said covered at least partially baked pizza
crust and said at least one topping at a holding
temperature above ambient temperature;
[step 5] removing said moisture impermeable cover after
said heating said covered at least partially baked pizza
crust and said at least one topping; and
[step 6] baking said at least partially baked pizza crust
and said at least one topping in an oven to complete
baking thereof after said removing said moisture
impermeable cover.
Appellants appeal the following rejections:
1. Claims 1-7, 10-13, 15-19, and 21-23 are rejected under 35 U.S.C. §
103(a) as being unpatentable over Kimple (US 5,775,208, issued Jul.
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7, 1998) in view of Casale (US 5,279,392, issued Jan. 18, 1994) and
further in view of Lamonica (US 4,649,053, issued Mar. 10, 1987).
2. Claims 8-9, 20, and 29 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Kimple in view of Casale and Lamonica and in
further view of Owens (US 6,121,578, issued Sep. 19, 2000).
3. Claims 25, 27-28, 12, and 23 are rejected under 35 U.S.C. §103(a) as
being unpatentable over Kimple in view of Casale and Lamonica and
in further view of Peleg (US 5,260,070, issued Nov. 9, 1993).
4. Claim 29 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Kimple in view of Casale and Lamonica and Peleg in further
view of Owens.
5. Claim 30 is rejected under 35 U.S.C. §103(a) as being unpatentable
over Kimple in view of Casale and Lamonica and Peleg in further
view of Moreth (US 6,146,677, issued Nov. 14, 2000).
6. Claims 14 and 24 are rejected under 35 U.S.C. §103(a) as being
unpatentable over Kimple in view of Casale and Lamonica and in
further view of Moreth.

With regard to rejections (1) and (3), Appellants limit their arguments to
the subject matter common to claims 1, 15, and 25 (App. Br. 14-27). We
select claim 1 as representative. Appellants separately argue the subject
matter of dependent claim 7 (id. at 27-28).
Instead of separately arguing rejections (2), and (4)-(6), Appellants rely
on arguments made regarding claims 1, 15, and 25 (id. at 27). Accordingly,
the rejections of claims 2-6, 8-14, 16--24, and 27-30 will stand or fall with
claim 1, 15 or 25.
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ISSUES
1. Did the Examiner reversibly err in determining that since Casale
partially bakes then pre-heats pizza in a device that introduces
moisture prior to adding additional toppings and completely baking
while Kimple and Lamonica both seal pre-prepared pizza to retain
moisture before completing baking, it would have been obvious to
one of ordinary skill in the art to actively heat a partially baked
pizza crust with a moisture impermeable cover to maintain the
moisture content of the pizza prior to completely baking? We
decide this issue in the negative.
2. Did the Examiner reversibly err in determining that it would have
been obvious to one of ordinary skill in the art to increase the
temperature at which pre-heating is taught by Casale from 125°F
to between 140°F and 150°F as recited in claim 7 to further
decrease the time needed to prepare and finally bake the pizza
product? We decide this issue in the negative.

FINDINGS OF FACT AND ANALYSES
Issue 1: Claims 1-6, 8-25, and 27-30
The Examiner finds that both Kimple and Casale teach pre-heating
frozen pizza prior to baking and that pre-heating maintains the moisture
content, therefore both the benefit of maintaining desired moisture and
decreasing the final cooking time is provided (Ans. 6). The Examiner also
finds that Lamonica teaches the importance of retaining moisture of a pizza
using a substantially sealed container and specifically teaches removing the
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cover for final baking (id. at 6-7). The Examiner finds that it would have
been obvious to remove the cover prior to final baking in order to reduce
material costs since removing the cover means it would not have to
withstand oven temperatures (id. at 7).
Appellants argue that Kimple’s disclosure of placing uncooked dough
or dough plus toppings in a pan system, cooking the same, then storing the
cooked pizza in the pan system, does not meet the limitations of claim 1
because claim 1 requires that “the pizza crust has been at least partially
baked prior to the addition of the at least one topping” (App. Br. 18).
Appellants assert that Kimple’s uncooked dough “is never at least partially
cooked or fully cooked prior to the addition of toppings.” Id. at 20.
Appellants further contend that the lid on Kimple’s pan system “does not
inherently result in a ‘moisture impermeable cover’” (App. Br. 19).
Appellants do not dispute that Lamonica teaches a plastic container to
retain moisture of a prepared pizza and removing the pizza from the
container prior to baking. Appellants argue, instead, that the combination of
Lamonica with Kimple obviates the purpose of Kimple to use a “’strong and
durable lid’ capable of withstanding the temperatures at which the pizza is
baked” for the benefit of “eliminating the pizza crust edge and prevent pizza
toppings from oozing over the edge of the crust” (id. at 22-23).
Appellants next argue that Casale “does not teach preparing an at least
partially baked pizza crust.” App. Br. 23. Appellants do not dispute that
Casale teaches partially baking a pizza dough shell with sauce and cheese
toppings to 60 to 90 percent of their cooking completion (id.). Appellants
contend that the evaporative unit of Casale into which the partially baked
pizzas are placed is not equivalent to using a “moisture impermeable cover”
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to retain moisture because the evaporative unit device “actively introduces
moisture” (id. at 24). Appellants do not dispute that the evaporative unit of
Casale heats the pizza at 125°F until ready for final preparation when the
pizza is taken out of the evaporative unit, requested toppings are added to
the partially baked pizza, and then baking is completed in an oven (see id. at
23-25, 27-28).
The Examiner responds that “Casale teaches adding toppings both
prior to pre-baking and after partial baking.” (Ans. 18). The Examiner then
identifies the same process disclosed in Casale that Appellants do not
dispute. (Id.; see App. Br. 23). Nevertheless, Appellants continue to argue
that because Casale adds toppings to uncooked dough, it does not teach or
suggest the claimed method. (Reply Br. 13-14). We do not find Appellants’
argument persuasive. Appellants’ distinction over Casale does not appear to
take into consideration that the transitional language “comprising” in claim 1
does not preclude the addition of a topping being present on the pizza crust
when pre-heated in the first step nor do Appellants address why the second
step is not met when additional toppings are added before final baking in the
Casale process. (See Reply Br. 13-14).
Thus, Appellants’ distinction over Casale vis-à-vis the subject matter
of claim 1 boils down to Casale’s use of an evaporative unit to provide to the
partially cooked pizza both (1) moisture during the interim pizza warming
stage of the process and (2) heat during the interim warming stage of the
process. (See App. Br. 24; Reply Br. 14-15). Stated in another way, Casale
discloses an evaporative unit to perform steps three and four as set out in
claim 1. The Examiner’s response is that it would have been obvious to one
of ordinary skill in the art to actively heat a pizza with toppings on it while
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maintaining moisture with the use of a container that is a barrier to moisture
because Kimple discloses heating a pizza in a sealed pan to retain moisture.
(See Ans. 19-20). The Examiner’s stated reason for combining Kimple and
Casale is because “both recognize and teach the desire to preheat the frozen
food prior to baking.” (Ans. 20). However, we find that even Casale’s
embodiment that does not freeze the pre-prepared pizza before placing in an
evaporative unit (Casale, col. 11, l. 27 – col. 12, l. 5) recognizes the need to
maintain moisture of the pizza during the cooking process.
We are unpersuaded by Appellants argument that the evaporative unit
of Casale is not a moisture impermeable cover because “moisture must be
continually introduced into the evaporative unit.” Appellants’ argument
misses the purpose for which Casale and Kimple are cited by the Examiner.
Casale is cited for, among other things, teaching the steps of maintaining
moisture content of the pizza and heating the pizza prior to final baking
(Ans. 6; Casale, col. 11, ll. 20-26) while Kimple is cited for covering pizza
in an air tight container that can be heated (Ans. 4-5, 18; Kimple col. 3, ll.
53-67).
Furthermore, the Examiner relies upon Lamonica’s teaching to retain
moisture of the pizza dough by placing it in a “substantially sealed enclosure
. . . such that air flow to the pizza dough 17 is sufficiently small so that the
pizza dough is not dried out during storage.” (Lamonica, col. 3, ll. 10-25;
see Ans. 6). The sealed enclosure of Lamonica also retains moisture during
storage of a cooked pizza. (Lamonica, col. 4, ll. 43-47; see Ans. 18).
Appellants have not directed us to any evidence that the substitution of the
moisture retaining enclosure disclosed in Kimple or Lamonica for the
evaporative unit in the interim heating step disclosed in Casale would do
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more than yield a predictable result of keeping the pizza moist and heated.
See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (citing United
States v. Adams, 383 U.S. 39, 40 (1966)).

Issue 2: Claim 7
Dependent claim 7 specifies a temperature of “between 140 and
150°F” at which “heating” occurs in step 4 of claim 1. Appellants argue that
the 125°F temperature of the evaporative unit of Casale does not suggest the
temperature range of claim 7 because the temperature of Casale “is merely
intended to defrost and humidify.” (App. Br. 27-28). The Examiner
responds that it would have been obvious to one of ordinary skill to specify a
holding temperature in the range of 140 to 150°F and above the temperature
of 125°F taught by Casale for the reason that a higher temperature would
further reduce the pizza preparation time. Ans. 21. Appellants’ argument is
unpersuasive because it does not address how the 125°F temperature of
Casale does not constitute “heating”. We agree with the Examiner that the
adjustment of temperature to reduce preparation time would have been
within the ordinary creativity of one skilled in the art. See KSR, 550 U.S. at
420 (“A person of ordinary skill is also person of ordinary creativity, not an
automaton.”).)
On this record and for the above reasons, we affirm the Examiner’s
rejections of claims 1-25 and 27-30. Because our affirmance is based on
findings and explanations which differ from those of the Examiner, we
denominate the above-listed grounds of rejection 1-6 as a new grounds of
rejection pursuant to our authority under 37 C.F.R. § 41.50(b). See, e.g., In
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re Stepan Co., 660 F.3d 1341, 1346 (Fed. Cir. 2011); In re Leithem, 661
F.3d 1316, 1319 (Fed. Cir. 2011).
DECISION
The Examiner’s decision is affirmed and we denominate the above-
listed grounds of rejection 1-6 as new grounds of rejection.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b). This section provides that “[a] new ground of rejection . . . shall
not be considered final for judicial review.”
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new grounds of
rejection to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment of
the claims so rejected or new evidence relating to the claims so
rejected, or both, and have the matter reconsidered by the examiner, in
which event the proceeding will be remanded to the examiner. . . .

(2) Request rehearing. Request that the proceeding be reheard
under § 41.52 by the Board upon the same record. . . .

ORDER
AFFIRMED; 37 C.F.R. § 41.50(b)

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