Ex Parte Heywood et al

Board of Patent Appeals and Interferences

May 18, 2012

11327600 (B.P.A.I. May. 18, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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.
11/327,600 01/06/2006 Adrianna Ashley Heywood CFLAY.00327 4059
22858 7590 05/21/2012
CARSTENS & CAHOON, LLP
P.O. Box 802334
DALLAS, TX 75380-2334
EXAMINER
PADEN, CAROLYN A
ART UNIT PAPER NUMBER
1781
MAIL DATE DELIVERY MODE
05/21/2012 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 ADRIANNA ASHLEY HEYWOOD, K. MICHAEL
KING, RICHARD TODD SMITH, and HEATHER ANN
LONGO
________________

Appeal 2011-006892
Application 11/327,600
Technology Center 1700
________________

Before JEFFREY T. SMITH, 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
26-30, 32, and 35-50. We have jurisdiction over the appeal pursuant to
35 U.S.C. § 6(b).
We REVERSE.

Appeal 2011-006892
Application 11/327,600

2
Appellants’ invention is said to relate to a shelf-stable snack having
both large seasoning bits and a non-particulate second topping. (App. Br. 3).
Claim 26 is illustrative of the subject matter on appeal:
26. A shelf-stable snack food product comprising:

a cooked food substrate having a first texture wherein said food
substrate further comprises a substantially flat geometry having a top side;

a first topping on said food substrate comprising a mixture of a dry
adhesive; and

a plurality of three-dimensional seasoning bits wherein at least 5% of
said bits, by weight, have a diameter substantially between about 1.7 and
about 17 millimeters;

a non-particulate second topping on said top side of said food
substrate having a second texture wherein said second texture is softer than
said first texture, wherein said non-particulate second topping comprises a
fresh water activity between about 0.40 and about 0.50.

Appellants appeal the following rejections:1
1. Claims 26-30, 32, 35-39, and 45-50 are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Budd (US 4,910,031, patented
March 20, 1990) in view of Peterson (Martin S. Peterson & Arnold H.
Johnson, Water Activity in Relation to Food, in “Encyclopedia of
Food Science” 852-60 (1978)) and as further evidenced by Matz
(Samuel A. Matz, Sweeteners, in “Snack Food Technology” 29, 35-39
(1976)).
2. Claim 40 is rejection under 35 U.S.C. § 103(a) as being unpatentable
over Budd in view of Peterson and as further evidenced by Matz and

1 Claims 53 and 54, which are also pending in this application, stand
allowed. (App. Br. 2).
Appeal 2011-006892
Application 11/327,600

3
further in view of Gimmler (US 6,001,409, patented December 14,
1999).
3. Claims 41-44 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Budd in view of Peterson and as further evidenced
by Match and further in view of Addesso (US 5,500,240, patented
March 19, 1996).

ISSUE
The dispositive issue in this appeal is: Did the Examiner reversibly
err by failing to address the amount of three-dimensional seasoning bits
recited in claim 26? We decide this issue in the affirmative.

FINDINGS OF FACT AND ANALYSES
Appellants contend that the Budd reference cited by the Examiner
does not disclose three dimensional seasoning bits “wherein at least 5% of
said bits, by weight, have a diameter substantially between about 1.7 and
about 17 millimeters” as required by claim 26. (App. Br. 7-9).
The Examiner finds that Budd contemplates toppings like onion flakes
and bacon bits, which are larger in size than a ground powder, and that the
size of the toppings would have been within the determination of one of
ordinary skill in the art who desires to alter the appearance and taste of a
potato chip. Ans. 5, 9-10. While the Examiner further states that if the
onion flakes or bacon bits were much smaller than a sixteenth of an inch,
they would probably be referred to as granules rather than flakes or bits
(Ans. 9-10), the Examiner does not direct us to any evidence in this record
regarding the claim limitation of “at least 5% of said bits, by weight.”
Appeal 2011-006892
Application 11/327,600

4
The Examiner’s response to Appellants’ argument acknowledges that
the size of the claimed three dimensional particles is large and that it would
be difficult to adhere such large pieces to the snack food substrate of Budd.
Ans. 9. However, the Examiner’s response to this argument does not
address the claim element “at least 5% of said bits, by weight” or direct us to
evidence that discloses or suggests this limitation would have been met by
the prior art. Accordingly, all the claim features have not been shown to be
taught or suggested by the applied prior art.
Accordingly, we find that the Examiner did not establish a prima facie
case of obviousness over the combined teachings of Budd, Peterson and
Matz, and reverse the rejection of independent claim 26 on this record.
The remaining claims on appeal all depend directly or indirectly from
claim 26. Therefore, we reverse the rejections of all claims on appeal for the
same reason.

DECISION
The Examiner’s decision is reversed.
ORDER
REVERSED

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