Ex Parte Moidl et al

Patent Trial and Appeal Board

Nov 27, 2017

13075335 (P.T.A.B. Nov. 27, 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.
13/075,335 03/30/2011 Joseph B. Moidl 6674US01 (PIL0183/US/2) 1509
30173 7590 11/29/2017
Diederiks & Whitelaw, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
EXAMINER
COX, STEPHANIE A
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
11/29/2017 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):
gmi.mail@dwpatentlaw.com
mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOSEPH B. MOIDL, FRANK KONKLE,
DAVID A. GALE, and VINCE S. PESTRITTO1
Appeal 2017-002187
Application 13/075,335
Technology Center 1700
Before: BEVERLY A. FRANKLIN, RAE LYNN P. GUEST, and
AVELYN M. ROSS, Administrative Patent Judges.
ROSS, Administrative Patent Judge.
DECISION ON APPEAL2
Appellants appeal under 35 U.S.C. § 134(a) from a final rejection of
claims 1—5, 8—15, 17, and 20-24. We have jurisdiction under 35 U.S.C.
§ 6(b).
We REVERSE.
1 Appellants identify the real party in interest as General Mills, Inc., the
assignee of the instant application. Appeal Br. 4.
2 In our Decision we refer to the Specification originally filed March 30,
2011 (“Spec.”),the Final Office Action appealed from dated October 8,
2015(“Final Act.”), the Appeal Brief filed March 8, 2016 (“Appeal Br.”), the
Examiner’s Answer dated October 11, 2016 (“Ans.”) and the Reply Brief
filed November 22, 2016 (“Reply Br.”).
Appeal 2017-002187
Application 13/075,335
STATEMENT OF THE CASE
The subject matter on appeal relates to “a method of reducing voids in
the crumb of baked articles that are prepared from white dough compositions
using a blunt edge dough cutter” and formulating the dough composition
with a ‘“void reducing amount’ of a fiber or bran.” Spec. 2 and 4. Claim 1,
reproduced below, is illustrative of the claimed subject matter:
1. A method of making a dough piece that can be baked to
provide a baked white bread article having a reduced total
number of voids, the method comprising the steps of:
(a) providing a sheet of a developed white bread dough
composition having a first surface and a second surface, the
developed dough composition comprising:
(i) a flour component comprising white or refined
flour,
(ii) a liquid component,
(iii) a leavening agent, and
(iv) a void-reducing amount of a light-colored fiber
or bran, the fiber or bran being oat fiber, oat bran,
durum bran, whole grain durum flour, or a mixture
thereof, wherein the fiber or bran is present in the
dough composition in an amount ranging from about
0.5% to about 6% by weight;
(b) providing a dough cutting apparatus having a movable
cutter with a dough-engaging portion that extends sufficiently to
sever the dough sheet,
(c) severing the dough sheet with the dough-engaging
portion to form a dough piece;
(d) causing the moveable cutter to release the dough piece;
(e) freezing the dough piece; and
(f) thawing and proofing the dough piece in a retarder,
wherein the leavening agent in the dough piece comprises yeast
in an amount to proof the dough piece in the retarder, and
wherein the yeast is present in an amount from 0.25% to 10% by
weight on a dry basis.
Appeal Br. 14 (Claims App’x).
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Appeal 2017-002187
Application 13/075,335
REJECTIONS
The Examiner maintains the following rejections:
A. Claims 1—5,10,11,15,17, and 20-23 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Satin3 in view of
Evans4 and Zhang I.5 Final Act. 2—3.
B. Claim 24 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Satin in view of Evans, Zhang I, and
Zhang II,6 and as evidenced by Dodge.7 Id. at 10.
C. Claims 12 and 13 stand rejected under 35 U.S.C. § 103(a)
as unpatentable over Satin in view of Zhang I, Zhang II,
and further in view of Hensperger.8 Id. at 11.
D. Claims 8, 9, and 14 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Satin in view of
Evans, Zhang I, Zhang II, and further in view of Hodgson.9
Id. at 12.
Appellants request our reversal of Rejections A—D. Appeal Br. 7.
Because the basis for our reversal—i.e., the lack of a teaching or suggestion
3 Morton Satin, US 4,237,170, issued December 2, 1980 (“Satin”).
4 Evans et al., US 6,902,754 Bl, issued June 7, 2005 (“Evans”).
5 Decai Zhang and Wayne R. Moore, Effect of Wheat Bran Particle Size on
Dough Rheological Properties, 74 J. Sci. Food Agric. 490-496 (1997)
(“Zhang I”).
6 Zhang et al., US 2005/0202126 Al, published September 15, 2005
(“Zhang II”).
7 Abigail Johnson Dodge, Shaping Diller Rolls to Look and Taste Their
Best: Tips for Making Light, Uniformly Shaped, Classic Dinner Rolls, Fine
Cooking, Issue 41, http://www.fmecooking.com/articles/shaping-dinner-
rolls.aspx (“Dodge”).
8 Beth Hensperger, Semolina Sesame Seed Twist, in The Bread Bible 124—
25(1999) (“Hensperger”).
9 Hodgson et al., US 4,824,683, issued April 25, 1989 (“Hodgson”).
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Application 13/075,335
to modify Satin to include the durum wheat bran of Zhang I in an amount of
0.5 to about 6 % by weight—is common for all claims, we focus our
discussion below on claim 1 to resolve the dispositive issues on appeal.
OPINION
The Examiner finds that Satin teaches a method for making high fiber
white bread comprising dough of flour, water, yeast and fiber or bran. Final
Act. 3. The Examiner acknowledges that Satin fails to teach “forming a
sheet of dough, severing the dough with a movable cutter and durum bran or
oat bran.” Id. at 4. But, the Examiner finds that Evans teaches forming the
dough as a sheet first and a movable dough cutter to sever the dough piece.
Id. The Examiner further finds that “Zhang [I] teaches making wheat dough
containing durum wheat bran at 0, 5, 10, and 15%.” Id. at 5. The Examiner
reasons that one skilled in the art would have reason to modify the method
of Satin to form the dough into a sheet and then using the cutting instrument
of Evans “in order to provide a product that more closely resembles a hand
formed dough product with rounded edges” and to use the durum bran of
Zhang I “in order to provide a . . . high fiber white bread with fiber content,
biologically active and compatible in appearance with white bread.” Id. at
4—5. The Examiner further reasons that use of durum bran for pea fiber is no
more than a simple substitution of one fiber for another. Id. at 5. The
Examiner also finds that additional processing, such as freezing and
packaging would be obvious to one of ordinary skill in the art. Id. And, the
Examiner finds that defrosting and use of a retarder to proof the bread is
taught by Zhang II which would permit bread “to be stored in a frozen state,
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Application 13/075,335
and thus provide an economic incentive to modify the procedure of Satin,
Evans, and Zhang [I].” Id. at 6.
Appellants argue, inter alia, that “Satin considered various fiber
sources other than pea hull fibers and then explicitly concluded that the use
of these other fiber sources was unacceptable.” Appeal Br. 9. Therefore,
Appellants urge that no reason to combine exists because Satin teaches away
from substituting pea fiber with durum flour and such substitution would
render Satin unsuitable for its intended purpose. Id.
“[Rejections on obviousness grounds cannot be sustained by mere
conclusory statements; instead, there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006). “[T]he
question is whether there is something in the prior art as a whole to suggest
the desirability, and thus the obviousness, of making the combination.” See
In re Beattie, 91A F.2d 1390, 1311 (Fed. Cir. 1992)(emphasis added); KSR
Inti Co. v. Teleflex Inc., 550 U.S. 398, 414 (2007).
Here, we observe that the Examiner’s reason to combine the teachings
of Satin and Zhang 1 lacks requisite support. According to the Examiner, the
skilled artisan would have reason to combine Satin and Zhang 1 “in order to
provide a . . . high fiber white bread with fiber content, biologically active
and compatible in appearance with white bread,” or as a matter of simple
substitution of acceptable fiber sources. Id. at 4—5. The reason articulated
by the Examiner comes from the objective taught by Satin but which is only
met with pea hulls of a particular size. See e.g., Satin col. 2,11. 12—15 and
col. 7,11. 36-41. Zhang I, however, is not concerned with preparation of
white bread with a fiber content similar to that of wheat bran with the
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appearance and taste of white bread. Rather, Zhang I’s purpose is to
investigate the impact of wheat bran particle sizes for different bran classes
(including durum wheat bran) on the rheological properties of the resulting
dough. See generally Zhang I. Furthermore, no showing has been made by
the Examiner that the substitution of durum bran is a known, acceptable
substitute to achieve good white bread like qualities, i.e. the purpose taught
by Satin. While the Examiner explains that “Satin discloses comparative
examples using different fiber sources and how the different fiber sources
result in different colors and tastes of the bread [and] Satin teaches wheat
bran as a fiber source and that it results in a specific color and taste,” the
Examiner has not established equivalence between wheat bran of Satin and
durum bran of Zhang I. Ans. 15—16. Further, even if equivalent, Satin
particularly teaches that wheat bran is not satisfactory for the purpose of
Satin. Therefore, absent from the Examiner’s rejection is an articulated
reason, with rational underpinning, to make the proposed modification.
Therefore, on this record, we are constrained to reverse the
Examiner’s rejection of claim 1 as obvious in view of the cited art.
CONCLUSION
Appellants have identified a reversible error in the Examiner’s
rejection of claims 1—5, 8—15, 17, and 20-24, under 35 U.S.C. § 103(a) as
unpatentable over Satin in view of Evans and Zhang (among others).
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Application 13/075,335
DECISION
For the above reasons, the Examiner’s rejection of claims 1—5, 8—15,
17, and 20—24 is reversed.
REVERSED
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