Ex Parte Jacobson et al

Patent Trial and Appeal Board

Jun 19, 2017

13419505 (P.T.A.B. Jun. 19, 2017)

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.
13/419,505 03/14/2012 PETER JACOBSON AVFP102US 8735
23623 7590 06/21/2017
AMIN, TUROCY & WATSON, LLP
127 Public Square
57 th Floor, Key Tower
CLEVELAND, OH 44114
EXAMINER
WILLIAMS, LELA
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
06/21/2017 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
hmckee@thepatentattomeys.com
rveri@thepatentattorneys.com
docket @ thepatentattorney s. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PETER JACOBSON, and MARC de LONGREE
Appeal 2016-006653
Application 13/419,505
Technology Center 1700
Before CHUNG K. PAK, PETER F. KRATZ, and
BRIAN D. RANGE, Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s Final Rejection of claims 1—7 and 16—18. We have jurisdiction
pursuant to 35 U.S.C. § 6.
Appellants’ claimed invention is directed to a multi-layered food
product.
Claim 1 is illustrative and reproduced below:
1. A multi-layered food product comprising:
a yeast-leavened dough that is baked less than 100% and
encapsulates a filling; and
a baked chemically-leavened batter layer that encapsulates
the yeast-leavened dough.
Appeal 2016-006653
Application 13/419,505
The Examiner maintains the following grounds of rejection:
1. Claims 1—4 and 16—18 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Black (US 2008/0248168 Al; pub. Oct. 9, 2008)
in view of Thelen (US 3,250,625; iss. May 10, 1966).
2. Claims 2 and 3 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Black in view of Thelen, and Morad (US 2005/0025862
Al; pub. Feb. 3, 2005).
3. Claims 5—7 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Black in view of Thelen and Yasosky (US 5,520,937; iss.
May 28, 1996).
After a careful review of the opposing positions articulated by
Appellants and the Examiner and the evidence of obviousness adduced by
the Examiner, we determine that the Appellants’ arguments are insufficient
to identify reversible error in any of the Examiner’s obviousness rejections.
In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
Accordingly, we affirm the stated obviousness rejections for
substantially the fact findings and the reasons set forth by the Examiner in
the Examiner’s Answer and in the Final Office Action. We offer the
following for emphasis.
Concerning the Examiner’s rejection of claims 1—4 and 16—18 under
35 U.S.C. § 103(a) as being unpatentable over Black in view of Thelen,
Appellants argue the rejected claims together as a group. Accordingly, we
select claim 1 as the representative claim on which we decide this appeal as
to this ground of rejection.
Appellants do not dispute the Examiner’s finding that Black teaches
or suggests encapsulating a filling within a partially baked yeast leavened
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Application 13/419,505
dough (Final Act. 2; Black || 11, 18, 30; App. Br. 11—17). In this regard,
Black teaches that the dough can fully cover (fully encapsulate) the food
components in a filling, such as in making a calzone (111).
Appellants do not dispute the Examiner’s finding that Thelen teaches
a multilayer food dough product including a chemically leavened batter
layer in addition to a yeast leavened dough layer (Final Act. 2; Thelan, col.
1,11. 1-20; col. 2,11. 24—32, col. 3,11. 45-65; App. Br. 12-16).
In essence, the Examiner maintains that the combined teachings of the
applied references would have suggested to an ordinary skilled artisan the
option of manufacturing the filled product of Black using the dough of
Thelen in a manner such that the yeast-leaved dough layer of the Thelen
laminate dough was on the inside (center) of the laminate during the rolling
(or crimping) of a filling therein when the dough is used for making a filled
product, such as calzone, as taught by Black and, thereby, resulting in a
product shaped such that the chemically-leaved paste is located on the
outside encapsulating the yeast-leavened layer on the inside of the
rolled/crimped laminate and having the filling inside the shaped dough
laminate (Ans. 3^4; Thelan, col. 3,1. 45 — col. 4,1. 56; Black || 11, 18, 30).
Appellants argue that the Examiner’s combination of Black in view of
Thelen lacks merit in arriving at the subject matter of representative claim 1
because Thelen does not teach encapsulating a yeast-leavened dough within
a chemically leavened layer (App. Br. 12).
However, the Examiner finds that Thelen suggests, inter alia,
manufacturing the multi-layer dough product (chemically-leavened paste
and yeast-leavened dough laminate) of Thelen in a flat or roll form, and
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Application 13/419,505
which dough product can be shaped in any form (Ans. 3; Thelen, col. 4,11.
17-20).
Appellants do not persuasively articulate why it would not have been
obvious one of ordinary skill in the art from the combined teachings of the
applied references that the laminate, multi-layer dough of Thelen could have
been shaped, such as for enfolding an edible filling as taught by Black, such
that the chemically-leavened layer of the laminate surrounds the yeast
leavened dough layer. In this regard, Appellants’ depiction of a rolled form
of dough wherein the chemically leaved paste is on the inside merely
represents one way that the dough of Thelen may be shaped (App. Br. 15).
In particular, Appellants do not persuasively articulate why the argued
depicted dough form and/or the argued non-preferred embodiment of Thelen
serve to establish that the dough of Thelen could not have been obviously
constructed/shaped /folded/crimped/cut such that the chemically leavened
layer surrounds/encapsulates the yeast leavened dough and the filling when
the dough of Thelen is employed for enclosing a filling, such as for
enclosing the filling components of a food product, such as in forming a
calzone as taught by Black (App. Br. 15; Reply Br. 2—3). After all, Thelen
expressly teaches as an objective that “a yeast-leavened layer is directly and
continuously associated on at least one surface with a chemically-leavened
layer” (col. 1,11.61—65).
Significantly, Appellants do not directly contest the Examiner’s
determination of the incentive that the Examiner found would have served to
lead one of ordinary skill in the art to combine Black and Thelen; that is, “to
coat the filled yeast leavened dough product of Black with the chemically-
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Application 13/419,505
leavened paste of Thelen to provide [sic] structural stability and added flavor
to the product” (Final Act. 3; see generally App. Br.; Reply Br 2—3).
Accordingly, Appellants’ arguments fail to identify reversible error in
the Examiner’s obviousness rejection over the combined teachings of the
applied references. Therefore, we sustain the Examiner’s obviousness
rejection over Black and Thelen (Rejection 1).
Appellants rely on the same argument or substantially the same
argument as discussed above as made with respect to the Examiner’s
Rejection 1 in arguing against Rejections 2 and 3 concerning certain
dependent claims (App. Br. 17—18).
Therefore, we shall likewise sustain Rejections 2 and 3 for the reasons
advanced by the Examiner.
CONCLUSION/ORDER
The Examiner’s decision to reject the appealed claims 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).
AFFIRMED
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