Ex Parte Gan et al

Patent Trial and Appeal Board

Feb 25, 2019

11531601 (P.T.A.B. Feb. 25, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/531,601 09/13/2006
48940 7590 02/25/2019
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 2100
CHICAGO, IL 60603-3406
FIRST NAMED INVENTOR
Renee Gan
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1410-77511-US 1474
EXAMINER
TURNER, FELICIA C
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
02/25/2019 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 RENEE GAN and KEITH DANIEL FORNECK 1
Appeal 2018-003110
Application 11/531,601
Technology Center 1700
Before JEFFREY T. SMITH, BEYERL YA. FRANKLIN, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEAL
1 Appellants identify the real party in interest as Kraft Foods Group Brands
LLC.
Appeal 2018-003110
Application 11/531,601
Appellants request our review under 35 U.S.C. § 134(a) of the
Examiner's decision rejecting claims 1-12 and 17-20, which constitute all
the claims pending in this application. We have jurisdiction over the appeal
under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
Claim 1 is illustrative of Appellants' subject matter on appeal and is
set forth below:
1. A fully assembled frozen food product comprising a fully
baked or par-baked farinaceous portion having a top bread
portion and a bottom bread portion and having a filling
therebetween, the filling co-extensive with the top bread and
bottom bread portions, the farinaceous portion having been
fully baked or par-baked in a conventional oven, wherein the
fully baked or par-baked farinaceous portion has a water
activity of about 0.9 to about 0.96 and is at least about% inch
thick, wherein the fully baked or par-baked farinaceous portion
is prepared from a dough composition comprising, in baker's
percentages, 100 percent wheat flour, about 0.1 to about 1
percent xanthan gum, about 0.2 to about 1.5 percent guar gum,
and about 0.2 to about 1.5 percent methylcellulose, wherein the
fully assembled frozen food product has a weight of at least
about 6.5 ounces, wherein the fully assembled frozen food
product has a frozen shelf life of at least about 120 days when
sealed in a package, wherein the fully assembled frozen food
product is effective for providing a heated food product which
has an essentially uniform temperature after microwave heating
and after microwave heating the top and bottom bread portions
of the heated food product being softer than bread portions of
an otherwise identical food product which does not include guar
gum, xanthan gum and methyl cellulose.
2
Appeal 2018-003110
Application 11/531,601
THE REJECTIONS
1. Claims 1 and 2 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Cochran (US 4,885,180, Dec. 5, 1989) as evidenced by
Barbara M. Lund, The Microbiological Safety and Quality of Food, 774,
Aspen Publishers, Inc. (2000), ("Lund") and in further view of Howard et al.
(US 2005/0226962 Al; Oct. 13, 2005) ("Howard"), and Sadek et al.
(US 2004/0213883 Al; Oct. 28, 2004) ("Sadek") as evidenced by Anfinsen
et al. (US 2005/0118326 Al; June 2, 2005) ("Anfinsen").
2. Claims 3, 4, 5, and 6 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Cochran et al. (US 4,885,180; Dec. 5, 1989) ("Cochran")
as evidenced by Lund, and in further view of Howard, and Sadek, as
evidenced by Anfinsen, as discussed above in claims 1 and 2 and in further
view of Lamp et al. (US 2002/0146490 Al; Oct. 10, 2002) ("Lamp").
3. Claims 7 and 10 are rejected under 35 U.S.C. § I03(a) as being
unpatentable over Cochran, as evidenced by Lund, and in further view of
Howard, and Sadek, as evidenced by Anfinsen, and Carmichael et al.
(US 2007/0241102 Al; Oct. 18, 2007) ("Carmichael").
4. Claims 8, 9, 11, and 12 are rejected under 35 U.S.C. I03(a) as being
unpatentable over Cochran, as evidenced by Lund, and in further view of
Howard, and Sadek, as evidenced by Anfinsen, and Carmichael, as applied
to claim 7 above and in further view of Lamp.
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Appeal 2018-003110
Application 11/531,601
5. Claims 17-20 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Cochran, as evidenced by Lund, and in further view of
Howard, Sadek, as evidenced by Anfinsen, and Lamp.
ANALYSIS
To the extent that Appellants have presented substantive arguments
for the separate patentability of any individual claim on appeal, we will
address each separately consistent with 37 C.F.R. § 4I.37(c)(l)(iv). 37
C.F.R. § 4I.37(c)(l)(iv) (2017).
We review the appealed rejections for error based upon the issues
identified by Appellants and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t
has long been the Board's practice to require an applicant to identify the
alleged error in the examiner's rejections."). After considering the evidence
presented in this Appeal and each of Appellants' arguments, we are not
persuaded that Appellants identify reversible error. Thus, we affirm the
Examiner's rejections for the reasons expressed in the Non-final Office
Action and the Answer.
As pointed out by Appellants on page 4 of the Appeal Brief, the
present application is related to U.S. Application No. 12/265,559 (which is a
continuation-in-part of the present application). A Board decision has since
been rendered in this related application (Appeal No. 2014---008021),
affirming the Examiner's decision. This related application is now
abandoned.
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Appeal 2018-003110
Application 11/531,601
The Examiner's non-final office action (mailed December 14, 2016)
in the present application (from which Appellants appeal from in the present
appeal) applies the same combination of references applied in the related
application2 and the claims are similar in each application. Also,
Appellants' arguments in the present appeal overlap the arguments presented
in the appeal in the related application (U.S. Application No. 12/265,559)
such that the dispositive issues are the same.
We are thus unpersuaded by Appellants' arguments in the Appeal
Brief for the reasons provided by the Examiner in the record and for the
reasons discussed in the Decision rendered in the related application (Appeal
No. 2014---008021).
We thus affirm each of the rejections in the present case.
DECISION
Each rejection is affirmed.
2 The rejections in the related application are as follows: (1) claims 1 and 2
were rejected as being obvious under 35 U.S.C. § 103(a) over Cochran, as
evidenced by Lund, and in further view of Howard, Sadek, and Anfinsen; (2)
claims 10 and 16 were rejected as being obvious under 35 U.S.C. § 103(a)
over Cochran, as evidenced by Lund, and further in view of Carmichael,
Howard, Sadek, and Anfinsen; (3) claims 11, 12, 17, and 18 were rejected as
being obvious under 35 U.S.C. § 103(a) over Cochran, as evidenced by
Lund, in view of Carmichael, Howard, Sadek, Anfinsen, and Lamp; and (4)
claims 3-6 were rejected as being obvious under 35 U.S.C. § 103(a) over
Cochran, as evidenced by Lund, in view of Howard, Sadek, Anfinsen, and
Lamp. Decision in Appeal No. 2014---008021, pp. 2-3.
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Appeal 2018-003110
Application 11/531,601
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(l )(iv).
ORDER
AFFIRMED
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