Ex Parte JOHNSON et al

Patent Trials and Appeals Board

Feb 4, 2019

14207196 - (D) (P.T.A.B. Feb. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/207,196 03/12/2014
110933 7590 02/04/2019
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
FIRST NAMED INVENTOR
Timothy Allen JOHNSON
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.
CFLAY.00718 5957
EXAMINER
KIM,BRYAN
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
02/04/2019 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 TIMOTHY ALLEN JOHNSON, SCOTT ALAN RICHEY,
RICHARD JAMES RUEGG, SIDHARTH SAMBASHIVAN, and
ROGERS WILLIAMS
Appeal 2018-003375
Application 14/207, 196
Technology Center 1700
Before TERRY J. OWENS, LINDA M. GAUDETTE, and GRACE
KARAFFA OBERMANN, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL 1
1 This Decision includes citations to the following documents: Specification
filed Mar. 12, 2014 ("Spec."); Final Office Action dated May 30, 2017
("Final Act."); Appeal Brief filed Oct. 30, 2017 ("Appeal Br."); Examiner's
Answer dated Dec. 12, 2017 ("Ans."); and Reply Brief filed Feb. 12, 2018
("Reply Br.").
Appeal2018-003375
Application 14/207, 196
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision finally rejecting claims 1-7, 9-12, and 17-21. We have jurisdiction
under 35 U.S.C. § 6(b ).
We REVERSE.
The invention relates to a method of making shaped, snack products
that is said to be more efficient and cost-effective than methods available at
the time of the invention. Spec. ,r 1. More specifically, the method enables
the formation of shaped, snack products without the need to align dough
pieces with molds. See, e.g., id. ,r 25.
Claim 1, the sole independent claim on appeal, is reproduced below:
1. A method for making a plurality of shaped food products,
said method comprising the steps of:
providing flat food product preforms;
transferring said flat food product preforms onto a
conveyor of a shaping oven to form shaped preforms, wherein
said conveyor further comprises a plurality of convex molds
attached to a planar surface of the conveyor, and wherein the
transferring step causes the food product preforms to engage
one or more of the plurality of convex molds; and
drying said shaped preforms inside said shaping oven to
form the shaped preforms rigid enough to maintain their shape,
wherein said method lacks any alignment step that aligns the
food product preforms with the plurality of convex molds.
Appeal Br. 12 (Claims Appendix).
On appeal, the Examiner maintains the following grounds of rejection
under 35 U.S.C. § 103(a): 3
2 Appellant is the Applicant, Frito-Lay North America, also identified as the
real party in interest. Appeal Br. 2.
3 The Examiner has withdrawn the rejections under 35 U.S.C. § 112, second
paragraph and 35 U.S.C. § 102(b). Ans. 10.
2
Appeal2018-003375
Application 14/207, 196
1. claims 1, 2, 4--7, 9, 11, 12, and 17-21 over Bows (US
2008/0138480 Al, pub. June 12, 2008) in view of Bender (US
2013/0078345 Al, pub. Mar. 28, 2013) and Sprecher (US 5,392,698, iss.
Feb. 28, 1995);
2. claim 3 over Bows in view of Bender, Sprecher, and Agnello
(US 2008/0171122 Al, pub. July 17, 2008); and
3. claim 10 over Bows in view of Bender, Sprecher, and Kohlwey
(US 4,649,055, iss. Mar. 10, 1987). See Ans. 4--10.
The Examiner finds Bows discloses a method of making snack foods
comprising providing flat food product preforms, transferring the preforms
onto a conveyor of a pre-drying oven, and drying the preforms inside the
oven to obtain a rigidity such that the preforms resist folding and collapse.
Final Act. 5 ( citing Bows Abstract, ,r,r 24, 25, 68). The Examiner finds Bows
does not teach explicitly that the preforms are shaped in the oven. Id. The
Examiner finds Bows does not disclose that the conveyor comprises molds
and, therefore, that Bows' s method meets the limitation recited in the final
wherein clause of claim 1 : "said method lacks any alignment step that aligns
the food product preforms with the plurality of convex molds." Id.
The Examiner finds Bender discloses a chip molding process wherein
food product preforms are placed on convex molds attached to a planar
surface of a conveyor. Final Act. 5 ( citing Bender Fig. 22, ,r 133). The
Examiner finds Bender's conveyor carries the preforms into an oven where
they are dried and shaped. Id. ( citing Bender ,r 18). The Examiner finds one
of ordinary skill in the art would have modified Bows' s conveyor to include
a mold/rack on the pre-drying oven conveyor, because "the use of molds on
conveyors for drying snack food preforms is commonly practiced in the art,
3
Appeal2018-003375
Application 14/207, 196
in order to impart a desired shape to a preform and prevent unwanted
folding/clumping during further stages." Id. at 5---6 ( citing Bows ,r 68). The
Examiner further finds the ordinary artisan would have modified Bows' s
conveyor to include molds "in order to allow for the removing/changing of
molds to facilitate cleaning, maintenance, and changing of shapes/sizes,
where certain shapes can facilitate the consumption of the shaped snack food
with complementary foods such as dips, cheeses, and meat." Id. at 6 (citing
Bender ,r,r 3, 134 ).
Bender indicates that an alignment step is required to align the
preforms with the molds on the conveyor. See Bender ,r 10. The Examiner
finds, however, that Sprecher discloses a method for making shaped food
products wherein preforms are randomly distributed onto the convex molds
of a conveyor belt, such that no alignment step is required. Final Act. 6
(citing Sprecher Fig. 7, 8:66---67 (describing a conveyor belt with humps)).
The Examiner finds one of ordinary skill in the art at the time of the
invention would have modified Bows' s process, as modified to include
molds as taught by Bender, to "lack any alignment step" because Bows
"already contemplates not being concerned with how the preforms are
arranged" and because such modification would "simplify the manufacturing
process." Id. ( citing Bows ,r 66 ("[M]onolayering is not required
for this invention and sliced food will be converted into individual
finished crisps at the end of the process. Therefore, partial overlap of at least
two slices is acceptable, which significantly simplifies the production
process, reduces footprint and improves overall economics.")).
Appellant argues the ordinary artisan would not have modified
Bows' s method in the manner proposed by the Examiner because such
4
Appeal2018-003375
Application 14/207, 196
modifications would change the principle of operation of Bows' s method.
Appeal Br. 7-8. Appellant argues "Bows teaches a specific, two-step method
for shaping food pieces which involves a pre-drying step to form a moisture
gradient, then a subsequent drying step that causes the food slices to achieve
a curled shape." Id. at 8. Appellant contends "Bows implicitly excludes the
use of molds in the pre-drying step for shaping ... because Bows teaches the
[ use of] ... explosive dehydration in a deep bed rotary dryer to form the
desired curled shape." Id. at 9. In support of these arguments, Appellant cites
paragraphs 70 and 112 of Bows, wherein Bows describes a pre-drying step
that creates an endo-skeleton at the center of the food slice, allowing the
slice to remain elastic and adopt a curl shape during a subsequent drying
step that is generated by a tumbling action during deep bed rotary drying of
the food slices. Id. at 8. Appellant argues the Examiner's modifications to
Bows' s method would result in a process wherein food pieces are shaped
during pre-drying, thereby "changing the principle of how Bows' [ s]
preforms are shaped." Id.
The Examiner, in response, asserts that Bows "does not exclude the
use of molds during the pre-drying step, and does not exclude shaping prior
to the deep bed rotary dryer." Ans. 11.
Bows's silence as to the use of molds does not amount to a teaching
that molds may be used in the pre-drying step. Rather, we find Appellant's
arguments are consistent with the explicit teachings in Bows and, therefore,
are persuaded of reversible error in the Examiner's conclusion of
obviousness. See In re Mouttet, 686 F.3d 1322, 1332 (Fed. Cir. 2012) ("[I]f
the combination of references would change the principle of operation of the
prior art, then the teachings cannot suffice to render claims obvious.").
5
Appeal2018-003375
Application 14/207, 196
Accordingly, we do not sustain the rejection of claim 1 or its
dependent claims 2, 4--7, 9, 11, 12, and 17-21. Nor do we sustain the
rejections of claims 3 and 10 as they are based on the same error made by
the Examiner in rejecting claim 1. See Final Act. 10-11.
REVERSED
6