Ex Parte Van Haesendonck et al

Patent Trial and Appeal Board

Mar 30, 2016

12522148 (P.T.A.B. Mar. 30, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
12/522,148 0710912009 Ingrid Paula Hilde Van Haesendonck
20995 7590 04/01/2016
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
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.
DECLE228.005APC 6540
EXAMINER
MORNHINWEG, JEFFREY P
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
04/01/2016 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):
j ayna.cartee@knobbe.com
efiling@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte INGRID PAULA HILDE VAN HAESENDONCK, WILLEM
FRANS BROEKAERT, JACQUES GEORIS, JAN DELCOUR,
CHRISTOPHE COURTIN, and FILIP ARNAUT
Appeal2014-005193
Application 12/522,148
Technology Center 1700
Before JEFFREY T. SMITH, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Final Action mailed April 24, 2013 ("Final Act."), finally rejecting claims
34-45 and 47-61. We have jurisdiction over the appeal under 35 U.S.C.
§ 6.
We affirm-in-part.
1 According to Appellants, the real party in interest is Puratos N.V. (Appeal
Br. 3).
Appeal2014-005193
Application 12/522,148
CLAIIvIED SUBJECT IvIA TTER
The invention relates, inter alia, to a method for increasing in a baked
product, after baking, the level of water-soluble arabinoxylan (Abstract). The
Specification describes arabinoxylan (AX) as a major constituent of cereal grains
which can exist in a water-extractable form (WE-AX) or a water-unextractable
form (WU-AX) (Spec. ,-i 3). The Specification also states that endoxylanases,
which are enzymes which are said to hydrolyse internal linkages in the AX chain,
affect the structure and physicochemical properties of AX, and that optimal levels
of the right type of endoxylanases improve dough and bread characteristics (Spec.
,-i 5). The claimed invention relates to methods and doughs which detail the use
and amounts of various forms of AX and endoxylanases. Details of the claimed
invention are set forth in representative claim 34, which is reproduced below from
the Claims Appendix of the Appeal Brief:
34. A method for increasing in a baked product, after
baking, the level of water-soluble arabinoxylan with an average
degree of polymerization ranging from 5 to 50, comprising:
preparing a dough for a baked product with flour(s) and/or
milling fraction(s) having a total arabinoxylan content of at least
3% (w/w, % of dry weight), and adding to said dough an enzyme
preparation comprising at least one thermophilic endoxylanase
in an amount between 2-fold and 10-fold higher than the dose
conferring 90% of the maximal bread volume increase obtained
by addition of such enzyme preparation to the recipe of said
baked product;
leavening of the dough through the action of yeast or
chemical leavening agents; and
baking the leavened dough.
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Application 12/522,148
REJECTIONS
I. Claims 53 and 54 are rejected under 35 U.S.C. § 102(b) as
anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious
over Selinheimo.2
II. Claims 34-37, 39, 42-44, 47, 50, 55, 56 and 58-60 are rejected
under 35 U.S.C. § 103(a) as being unpatentable over Selinheimo in view of
Fiszman3 and Vinkx.4
III. Claims 38, 45, 49 and 52 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Selinheimo in view of Fiszman and Vinkx, and
further in view of Van Der Wouw. 5
IV. Claims 40 and 41 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Selinheimo in view of Fiszman and Vinkx, and
further in view of Monsalve-Gonzalez6 and Gerrish. 7
V. Claims 48, 51, 57, and 61 are rejected under 35 U.S.C. § 103(a)
as being unpatentable over Selinheimo in view of Fiszman and Courtin. 8
2 Selinheimo et al., Effects of laccase, xylanase and their combination on the
rheological properties of wheat doughs, 43 J. Cereal Sci. 152-159 (2006).
3 Fiszman et al., Methodological developments in bread staling assessment:
application to enzyme-supplemented brown pan bread, 221 Eur. Food Res.
Technol. 616-623 (2005).
4 Vinkx et al., Rye (Secale cereale L.) Arabinoxylans: A Critical Review, 24 J.
Cereal Sci. 1-14 (1996).
5 Van Der Wouw et al., U.S. Patent No. 5,849,559, issued December 15,
1998.
6 Monsalve-Gonzalez et al., U.S. Patent Pub. 2003/0104103 Al, published
June 5, 2003.
7 Gerrish et al., U.S. Patent No. 3,879,373, issued April 22, 1975.
8 Courtin et al., Arabinoxylans and Endoxylanases in Wheat Flour
Breadmaking, 35 J. Cereal Sci. 225-243 (2002).
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Application 12/522,148
Appellants do not offer separate substantive arguments with respect to
Rejections III, IV, and V (Appeal Br. 19-20). Accordingly, we will not
address these rejections independently of Rejection II.
DISCUSSION
REJECTION I
"A prior art reference anticipates a patent claim under
35 U.S.C. § 102(b) if it discloses every claim limitation." In re
Montgomery, 677 F.3d 1375, 1379 (Fed. Cir. 2012) (citing Verizon Servs.
Corp. v. Cox Fibernet Va., Inc., 602 F.3d 1325, 1336-37 (Fed. Cir. 2010)).
In this instance, Appellants contend that Selinheimo does not disclose "a
baked product" (Appeal Br. 13-14), as recited in the preamble of claim 53.
Appellants also argue that Selinheimo does not disclose a product having the
claimed amount of water soluble arabinoxylan (1.56 g/100 g dry matter)
(Appeal Br. 14). In particular, Appellants argue that the disclosed total
amount of arabinoxylan in Selinheimo (2.3%) is too low to produce the
claimed amount of 1.56% of water soluble arabinoxylan, as evidenced by
data in the Specification (id.).
The Examiner responds by stating that "[ c ]laim 53 claims a product
having the same characteristics of a product produced according to the
method of claim 34" and that the method of claim 34 necessarily produces
(or makes obvious) a baked product with the claimed amount ofwater-
soluble arabinoxylan (Ans. 20-21 ).
Claim 53 does not depend from claim 34. Moreover, claim 34 does
not recite that its method produces a baked product having at least 1.56 g of
water-soluble arabinoxylan per 100 g dry matter. Appellants have provided
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Application 12/522,148
a reasoned explanation, supported by data in the Specification, that the total
amount of arabinoxylan used in Selinheimo's process would not be
sufficient to produce the claimed amount of water-soluble arabinoxylan in
the final baked product (Appeal Br. 14; Reply Br. 6, citing Spec. Table 2).
The Examiner has not persuasively challenged Appellants' data and
reasoning. Moreover, with respect to the alternative obviousness rejection
of claims 53 and 54, the Examiner's determination that Selinheimo suggests
this limitation relies on the findings made in connection with claim 34, a
claim which does not include the limitation at issue in claim 53 (Ans. 20-
21).
Appellants have demonstrated reversible error in the rejection of
claims 53 and 54 over Selinheimo. Accordingly, we reverse this rejection.
REJECTION II
The Examiner finds that Selinheimo discloses each of the elements in
method claim 34, except that Selinheimo does not explicitly disclose
leavening of the dough with yeast or chemical leavening agents or baking
the leavened dough (Final Act. 5-6). The Examiner finds that these steps
are disclosed by Fiszman, and that it would have been obvious to combine
the relevant teachings in Fiszman with those of Selinheimo because
leavening a dough with yeast and baking it are considered obvious to a
person of skill in the baking art (Final Act. 6-7).
Appellants make several arguments urging reversal of this rejection.
First, Appellants argue that Selinheimo does not teach or make
obvious the use a flour having at least 3% of total arabinoxylan content
(Appeal Br. 15-16).
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Application 12/522,148
The Examiner finds that the combination of Selinheimo, Fiszman, and
Vinkx describes or suggests the use of a flour having an arabinoxylan
content of at least 3% in two ways. In particular, the Examiner finds that
Selinheimo discloses the use of 2-3% pentosan (Final Act. 5 (citing
Selinheimo 154, §3.1)).
"Pentosan," however, is a generic term used to describe
polysaccharides consisting of 5-carbon sugars, i.e., pentose units. Thus
Appellants' Specification correctly states that arabinoxylan is a pentosan.
There are, however, many other pentosans, several of which also occur in
flour. Thus, a person of ordinary skill in the art would have understood
Selinheimo' s description of flour containing 2-3 % pentosan as referring to
the entire group of such compounds. Because the Examiner has not
provided adequate support for the finding that a person of ordinary skill in
the art would have understood Selinheimo as describing a flour containing
3% arabinoxylan, we agree with Appellants' argument that this finding is
incorrect.
In the alternative, the Examiner finds that the combination of
Selinheimo and Vinkx suggests the use of a flour having an arabinoxylan
content of at least 3% (Final Act. 7). In particular, the Examiner finds that
Vinkx discloses the use of a 70:30 mixture of wheat and rye flour, which
would have 3. 86% arabinoxylan, and states that such a mixture is common
(id.) The Examiner further finds that using such a mixture would have been
obvious in Selinheimo' s process because the resulting bread would have had
better quality and provided certain health benefits (id.).
Appellants do not directly dispute these conclusions, but offer
alternative reasons as to why a person of skill in the art would not have used
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a flour with at least 3% arabinoxylan (Appeal Br. 16). These arguments are
not persuasive for the reasons set forth at page 23 of the Answer.
Second, Appellants contend that Selinheimo reference provides no
basis for one of skill in the art to utilize the extensive hydrolysis of AX into
very high amount of AXOS with the low DP recited in the presently pending
claims (Appeal Br. 14-15). Appellants further argue that a person of skill in
the art would try to maintain water soluble arabinoxylan with a high degree
of polymerization rather than hydrolyzing it to obtain a product with a low
degree of polymerization as recited in claim 34 (id.).
In response, the Examiner finds that Selinheimo discloses the benefits
of having increased water-extractable arabinoxylan because it benefits
viscosity, while a person of skill in the art would recognize that the
concentration of the enzyme and the consequent viscosity of the bread dough
and other handling properties would be subject to a balance in the
breakdown of WU-AX and the prevention of excess breakdown of WE-AX
(Ans. 21 ). The Examiner further finds that: "the enzyme concentration
disclosed in Selinheimo at least recommends to a skilled practitioner that
such concentrations are useful for improving certain aspects of bread dough
quality. This improvement may come at the expense of other qualities, so a
skilled practitioner would necessarily balance any improvements against any
undesired detriments" (id.). Appellants do not directly dispute this finding.
On balance, we agree with the Examiner's finding that Selinheimo
discloses benefits why a person of skill in the art would have sought to
provide a dough which would increase the level of WE-AX with an average
DP from 5 to 50. That there may be some disadvantages associated with this
increase does not require a reversal of the obviousness rejection. In re
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Application 12/522,148
Fulton, 391 F.3d 1195, 1200 (Fed. Cir. 2004) ("[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," not whether there is
something in the prior art as a whole to suggest that the combination is the
most desirable combination available.")
Third, Appellants contend that Selinheimo does not disclose the
claimed amounts of the thermophilic endoxylanase (Appeal Br. 16-18;
Reply Br. 6-9). The Examiner finds that Selinheimo discloses the use of 2.2
times the amount of a thermophilic endoxylanase needed to confer 90% of
maximum bread volume (Final Act. 6). Appellants argue that Selinheimo is
unclear as to how much thermophilic endoxylanase is used (Appeal Br. 16).
While the Examiner does not dispute that there Selinheimo is "ambiguous"
in terms of the amount of mg of protein content per gram of enzyme powder,
the finding that Selinheimo discloses the claimed amount of thermophilic
endoxylanase is based on the enzymatic activity and the dosage amounts
disclosed by Selinheimo (Ans. 24) and, therefore, is not undermined by the
admitted ambiguities in some of Selinheimo's other reported measurements.
Appellants' remaining arguments regarding the amount of
thermophilic endoxylanase (Appeal Br. 16-18; Reply Brief 7-9) are not
persuasive for the reasons set forth by the Examiner (Ans. 24-28).
CONCLUSION
We REVERSE the rejection of claims 53 and 54 under 35 U.S.C. § 102(b)
as anticipated by or, in the alternative, under 35 U.S.C. § 103(a) as obvious over
Selinheimo
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Application 12/522,148
We AFFIRivI the rejection of claims 34-37, 39, 42-44, 47, 50, 55, 56
and 58-60 under 35 U.S.C. § 103(a) as being unpatentable over Selinheimo
in view of Fiszman and Vinkx.
We AFFIRM the rejection of claims 38, 45, 49 and 52 under
35 U.S.C. § 103(a) as being unpatentable over Selinheimo in view of
Fiszman and Vinkx, and further in view of Van Der Wouw.
We AFFIRM the rejection of claims 40 and 41under35 U.S.C. § 103(a)
as being unpatentable over Selinheimo in view of Fiszman and Vinkx, and
further in view of Monsalve-Gonzalez and Gerrish.
We AFFIRM the rejection of claims 48, 51, 57, and 61 under
35 U.S.C. § 103(a) as being unpatentable over Selinheimo in view of
Fiszman and Courtin.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a). See
37 C.F.R. § l.136(a)(l)(iv).
AFFIRMED-IN-PART
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