Ex Parte Geng et al

Board of Patent Appeals and Interferences

Aug 27, 2012

10446481 (B.P.A.I. Aug. 27, 2012)

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.
10/446,481 05/28/2003 Qinghuang Geng PIL0155/US (P5579) 9653
7590 08/27/2012
KAGAN BINDER, PLLC
Suite 200
Maple Island Building
221 Main Street North
Stillwater, MN 55082
EXAMINER
SMITH, PRESTON
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
08/27/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte QINGHUANG GENG and DAVID J. DOMINGUES

____________

Appeal 2011-006553
Application 10/446,481
Technology Center 1700
____________

Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and
GEORGE C. BEST, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
Appeal 2011-006553
Application 10/446,481

2
Qinghuang Geng and David J. Domingues, the Appellants,1 seek our
review under 35 U.S.C. § 134(a) of a final rejection of claims 7, 9-14, 25,
27-29, and 31-42.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

STATEMENT OF THE CASE
The invention relates to dough products such as unproofed or proofed
(e.g., partially proofed or pre-proofed) packaged dough products.
Specification (“Spec.”) at 2, ll. 21-23.3 According to the Specification, the
invention provides for packaging and proofing of the dough composition in a
flexible package without the need for a substantial amount of headspace in
the package interior volume and, in the claimed invention recited below,
without substantially stretching the packaging material. Id. at 2, ll. 24-31.
The package is designed to accommodate an increase in volume of the
dough composition by allowing the package to change in form, e.g., by
providing folds or wrinkles in the package. Id. at 3, ll. 5-10.
Claim 7, which is representative of the appealed subject matter, is
reproduced below (with key limitations shown in italics):

1 The Appellants state that the real party in interest is General Mills
Marketing, Inc. Appeal Brief filed September 17, 2010 (“Br.”) at 3.
2 Br. 13; Final Office Action mailed April 19, 2010; Examiner’s Answer
mailed December 9, 2010 (“Ans.”) at 2.
3 The Specification explains that the terms “proof” and “proofing” relate to a
step before baking of a dough composition that allows at least a partial
expansion (i.e., at least partial proofing) of the dough composition by giving
time to allow chemical leavening agents to produce leavening gas (or yeast
to metabolize and produce metabolites) that expand bubbles within the
dough composition, thereby allowing the dough composition to expand to a
desired volume and optionally a desired shape. Spec. 5, l. 22 to 6, l. 3.
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7. A packaged, chemically-leavenable, dough product
comprising unproofed dough composition in a sealed, flexible
unvented package such that gas cannot be expelled from the
package while the package remains sealed, wherein
the sealed, flexible package consists of flexible, gas-
impermeable packaging, wherein the flexible, gas-impermeable
packaging comprises flexible film,
the sealed, flexible package contains the unproofed
dough composition and is collapsed upon and conformed to the
unproofed dough composition such that the package contains
less than 10% headspace,
the sealed, flexible package is sized to allow the dough
composition to increase to at least 1.5 times its original volume
without substantially stretching the flexible film,
the packaged dough product does not include a rigid
canister, and
the unproofed dough composition comprises an acidic
active ingredient and a basic active ingredient, wherein the
acidic active ingredient and the basic active ingredient are each
present in an amount such that when the acidic and basic active
ingredients react with each other to generate carbon dioxide
gas, the gas causes the unproofed dough composition to proof
such that after the dough composition has proofed the sealed,
flexible package contains less than 10% headspace.
App. Br. 26 (Claims App’x).
The Examiner rejected the claims as follows:
I. Claim 42 under 35 U.S.C. § 112, ¶ 1, as failing to comply with
the written description requirement; and
II. Claims 7, 9-14, 25, 27-29, and 31-42 under 35 U.S.C. § 103(a)
as unpatentable over Taylor,4 Schumacher,5 Allison,6 Cahill,7

4 U.S. Patent 3,436,232 issued April 1, 1969.
5 U.S. Patent 1,988,091 issued January 15, 1935.
6 U.S. Patent 4,525,367 issued June 25, 1985.
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Application 10/446,481

4
Colman ’805,8 Wyman,9 Colman ’554,10 Robins,11 Nakano,12
Graves,13 the admitted prior art, and Anderson.14
Ans. 4-14.

DISCUSSION
I.
The Appellants have not contested the Examiner’s rejection under 35
U.S.C. § 112, ¶ 1, of claim 42 as failing to comply with the written
description requirement. Br. 14-24; Ans. 4. Accordingly, we summarily
affirm Rejection I.

II.
With respect to Rejection II, the Appellants have submitted arguments
under separate headings, each heading identifying certain claim(s). To the
extent that the arguments constitute arguments in support of separate
patentability within the meaning of 37 C.F.R. § 41.37(c)(1)(vii), we consider
them separately below.

7 U.S. Patent 6,422,455 B1 issued July 23, 2002.
8 U.S. Patent 2,673,805 issued March 30, 1954.
9 U.S. Patent 3,140,034 issued July 7, 1964.
10 U.S. Patent 3,052,554 issued September 4, 1962.
11 U.S. Patent 2,815,883 issued December 10, 1957.
12 Patent Abstracts of Japan of Publication No. 01080253 published March
27, 1989.
13 U.S. Patent 2,681,284 issued June 15, 1954.
14 U.S. Patent 2,870,022 issued January 20, 1959.
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Claims 7, 9-12, 31, 33, 34, 36-40, & 42
We select claim 7 as representative and confine our discussion to this
claim. Claims 9-12, 31, 33, 34, 36, 37-40, and 42 stand or fall with claim 7.
37 C.F.R. § 41.37(c)(1)(vii).
The Examiner found that Schumacher describes a dough product
comprising an unproofed dough composition in a flexible package
comprising a flexible, sealed wrapper made of flexible film, which may be
provided with folds, pleats, or wrinkles. Ans. 5-6. The Examiner further
found that Taylor provides additional evidence that it was well known in the
art to provide a flexible completely sealed package containing unproofed
dough. Id. at 5. The Examiner also found that the degree of expansion of
the dough composition, the minimization of film stretching, and the amount
of headspace in the package are result-effective variables that a person of
ordinary skill in the art would have optimized by routine experimentation.
Id. at 5-8. Regarding headspace, the Examiner relied on, among other prior
art, Cahill. Id. at 8, 13-14. Alternatively, the Examiner concluded that a
person of ordinary skill in the art would have found it obvious to use
Schumacher’s “expedient” (folds for accommodating expansion of the
dough) in Taylor. Id. at 9-10.
The Appellants contend that the Examiner’s proposed combination of
Schumacher and Taylor constitutes reversible error because it would change
the principle of operation in each of these references. Br. 17. Specifically,
the Appellants argue that “[p]roposing to modify the rigid expandable and
vented tube package of Schumacher to not include rigid tubular members, as
per Taylor . . . changes the principle of operation of the Schumacher
reference.” Id. The Appellants further argue that “[p]roposing to modify the
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enclosure of Taylor . . . to remove or reduce the headspace, supposedly as
per Schumacher, changes the principle of operation of the Taylor reference.”
Id. Additionally, the Appellants contend that the proposed “combination
would not result in a package that can contain both unproofed dough with a
headspace of less than 10% and proofed dough with a headspace less than
10%.” Id. at 18. Still further, the Appellants argue that “there is no
discussion [in Schumacher and Taylor] of the possible amount of expansion
[of the dough composition], much less any quantification of the increase”
and that Cahill does not cure this deficiency. Id. at 19-20.
Thus, the issues arising from these contentions are:
Does Schumacher describe a “sealed, flexible package,” as required
by claim 7?
If not, did the Appellants demonstrate reversible error in the
Examiner’s combination of the prior art references to arrive at a conclusion
of obviousness as to the subject matter of claim 7?
We answer these questions in the negative. Our reasons follow.

App
App

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Schumac
06553
/446,481
her’s Figures 1-7 ar
7
e reproduced below:

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Schumacher’s Figures 1-7 depict various aspects of a packaging
designed to protect, preserve, distribute, and market dough in an uncooked
condition. Col. 1, ll. 1-7; col. 2, ll. 20-36.
Schumacher explains that when yeast-leavened dough is closely
confined or sealed in a package and kept under temperatures conducive to
fermentation, extremely high pressures can result within the packaging
container. Col. 1, ll. 33-39. Specifically, Schumacher teaches that “[y]east-
leavened dough of ordinary formula will expand to double its original bulk
under suitable temperature conditions.” Col. 3, ll. 67-69 (emphasis added).
Schumacher states that “the [disclosed] package is safeguarded with respect
to the internal pressures which might be developed by action of the yeast and
the dough safeguarded against ‘killing’ or the breaking down of the spongy
structure which gives the cooked product its desirable lightness.” Col. 1, ll.
40-50.
Referring to the figures, Schumacher teaches that the package
includes a container comprising tubular members 10 and 11, each closed at
one end by a head or cap designated as 12 and 14, which are permanently
connected and sealed to their respective tubular members. Col. 2, ll. 40-44.
Tubular member 10 is said to be an inner body member in telescopic
relationship with tubular member 11, an outer body member, in a close
sliding fit (i.e., frictional fit). Col. 2, ll. 44-50; col. 3, ll. 42-47. Schumacher
teaches that a venting passage opening at one end within the container and at
the other end externally of the container to permit a restricted flow of air
from within the container as the telescoping members are slid together and a
restricted flow of air into the container as they are slid apart. Col. 3, ll. 48-
57.
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As illustrated in, e.g., Figure 3, Schumacher further discloses a
flexible charge wrapper 17, made of a suitable sheet material such as
cellophane, of considerably greater length than either of the body members
for insertion, together with the dough placed therein, into the container. Col.
3, ll. 14-23. According to Schumacher, the wrapper 17 “may be formed by
wrapping a sheet of the material around the charge, which is indicated by
reference numeral 18, in a generally cylindrical form, and uniting the
overlapping margins and folding over the end portions and securing them in
folded position by a suitable seal 19.” Col. 3, ll. 23-29. In addition,
Schumacher teaches:
[W]hen the wrapped charge has been inserted in the inner body
member, the unfilled portion of the charge wrapper is collapsed
longitudinally, in a bellows-like fashion, as indicated at Z in
Fig. 3, whereupon the outer body member is telescoped onto
the inner body member and pressed down to the limit of
movement.
Col. 3, ll. 34-41. Schumacher further elaborates on accommodating
expansion of the dough as follows:
Expansion of the charge is also accommodated by the excess
length of the charge wrapper, which will unfold longitudinally
as the charge expands, and which will also accommodate some
expansion in girth by virtue of the loose fit of the wrapper in the
container. Fig. 3 illustrates a package in which expansion of
the charge has taken place.
Col. 4, ll. 6-13.

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06553
/446,481
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Application 10/446,481

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Cahill teaches that certain food products benefit from being packaged
under a vacuum, where vacuum packaging removes oxygen from the space
surrounding the product, which can improve the shelf life of the product.
Col. 2, ll. 21-24. Against this background, Cahill teaches an expansible
dough product that is vacuum packaged. Col. 4, ll. 17-32.
We agree with the Appellants that Schumacher has not been shown to
include a sealed, unvented package, as required by claim 7. As we found
above, Schumacher discloses that the flexible charge wrapper is formed by
“uniting the overlapping margins and folding over the end portions and
securing them in folded position by a suitable seal 19,” col. 3, ll. 23-29, but
the reference is silent on whether the margins are united in such a way so as
to form a sealed package.
We disagree, however, with the Appellants that a person of ordinary
skill in the art would not have combined the references in the manner
claimed because the principles of operation as disclosed in the references
would be changed. In this case, Schumacher describes a flexible charge
wrapper 17 provided with folds for protection of the dough while
accommodating its expansion, which can be double the original bulk under
suitable temperature conditions. Taylor and Cahill both teach the
importance of providing a sealed package. In particular, Cahill teaches that
it was well known in the art to exclude oxygen to increase shelf life. Thus, a
person of ordinary skill in the art would have been prompted to seal
Schumacher’s flexible charge wrapper, with the lowest amount of headspace
possible, as suggested by Taylor and Cahill, in order to provide a suitable
atmosphere for the dough and/or to increase the shelf life of the dough. KSR
Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417 (2007) (“[W]hen a patent
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‘simply arranges old elements with each performing the same function it had
been known to perform’ and yields no more than one would expect from
such an arrangement, the combination is obvious.” (quoting Sakraida v. Ag.
Pro, Inc., 425 U.S. 273, 282 (1976))).
The fact that Schumacher teaches an outer container that is vented
does not derogate the explicit teaching in the reference regarding the flexible
charge wrapper. When viewed together with Taylor and Cahill, a person of
ordinary skill in the art would have had a sufficient reason to provide a
flexible charge wrapper that is sealed from the atmosphere. As pointed out
by the Examiner, Ans. 14, the Appellants’ arguments attack the references
individually and fail to consider what the collective teachings of the
references as a whole would have suggested to one of ordinary skill in the
art. In re Keller, 642 F.2d 413, 425 (CCPA 1981).
While the Appellants argue that the references do not teach a
headspace of less than 10%, Br. 18, it was known that oxygen would
detrimentally affect shelf life. Therefore, a person of ordinary skill in the art
would have minimized headspace to the greatest extent possible, which
would have included a headspace of less than 10%. Here, the Appellants
have not directed us to evidence showing that the prior art was incapable of
achieving the specified headspace.
For these reasons, we uphold the Examiner’s rejection of claims 7, 9-
12, 31, 33, 34, 36-40, and 42.
Claim 13
Claim 13 depends from claim 7 and further specifies the dough
product as “having a shape of inefficient volume to surface area and
containing less than 1 percent headspace.”
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The Appellants contend that “there is no teaching, suggestion, or
motivation in any of the references to have a sealed, flexible package having
a headspace of less than 10% (as recited in pending claim 7), much less . . . a
headspace of less than 1%.” Br. 20. We do not find this argument
persuasive for the same reason given above with respect to claim 7.
Claim 14
Claim 14 depends from claim 13 and further recites that the dough
product has “an elongated shape and a cross section selected from the group
consisting of an oval, a diamond, a trapezoid, a triangle, a rectangle, a
rhombus, a hexagon, an octagon, a football, and a square.”
The Examiner asserted that it was well known in the art to provide
expandable food products in a package having an inefficient volume to
surface area to accommodate expansion. Ans. 9. In support, the Examiner
relied on the teachings of, e.g., Colman ’805 and Nakano. Id. The
Examiner concluded that a person of ordinary skill in the art would have
found the selection of an appropriate shape to be obvious as a matter of
routine determination. Id.
The Appellants disagree. Br. 21. Regarding Taylor, the Appellants
contend that the reference teaches “a flat, generally planar enclosure that
expands in height, but is still a generally flat, planar enclosure.” Id.
The Appellants have failed to show reversible error in the Examiner’s
reasoning, which we adopt as our own. Moreover, we cannot agree with the
Appellants that Taylor does not disclose the claimed cross section, because
Taylor’s Figures 5 and 6, reproduced above, show a generally rectangular
cross section.

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Claims 25, 27-29, 32, and 35
The Appellants rely on arguments that are the same or similar to those
offered in support of claim 7. Br. 22-23. For the reasons stated above, these
arguments are unpersuasive.

Claim 41
Claim 41 is reproduced below:
41. A packaged, chemically-leavenable, dough product
comprising unproofed dough composition in a sealed, flexible
unvented package such that gas cannot be expelled from the
package while the package remains sealed, wherein
the sealed, flexible package consists of flexible, gas-
impermeable packaging, wherein the flexible, gas-impermeable
packaging comprises flexible film,
the sealed, flexible package contains the unproofed
dough composition and is collapsed upon and conformed to the
unproofed dough composition such that the package contains
less than 10% headspace,
the sealed, flexible package is sized to allow the dough
composition to increase to at least 1.5 times its original volume
without substantially stretching the flexible film,
the packaged dough product does not include a rigid
canister, and
the unproofed dough composition comprises an acidic
active ingredient and a basic active ingredient, wherein the
acidic active ingredient comprises sodium aluminum phosphate
present in an amount in the range of from 0.25 to 2 parts by
weight per 100 parts of the dough composition, and the basic
active ingredient is present in an amount sufficient to neutralize
the acidic active ingredient.
Br. 30 (Claims App’x).
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15
In addition to arguments similar to those offered for claim 7, which
we find unpersuasive, the Appellants argue that “[n]one of the references
teach or suggest that one should (or even could) achieve this combination of
headspace of a proofed and then unproofed dough, having the recited
leavener system.” Id. at 24 (emphasis in original).
The Appellants arguments are ineffective to show reversible error on
the part of the Examiner. In this regard, we refer to the Examiner’s
reasoning at page 12 of the Answer, which we adopt as our own.

ORDER
The rejection under 35 U.S.C. § 112, ¶ 1, of claim 42 as failing to
comply with the written description requirement is affirmed.
The rejection under 35 U.S.C. § 103(a) of claims 7, 9-14, 25, 27-29,
and 31-42 as unpatentable over Taylor, Schumacher, Allison, Cahill,
Colman ’805, Wyman, Colman ’554, Robins, Nakano, Graves, the admitted
prior art, and Anderson is affirmed.
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)(iv).
AFFIRMED

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