Ex Parte Villagran et al

Patent Trial and Appeal Board

Jul 29, 2013

11184161 (P.T.A.B. Jul. 29, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/184,161 07/19/2005 Maria DMS Villagran 51530-00003 9409
59582 7590 07/29/2013
DICKINSON WRIGHT PLLC
2600 WEST BIG BEAVER ROAD
SUITE 300
TROY, MI 48084-3312
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
07/29/2013 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 MARIA DMS VILLAGRAN, MICHAEL JOSEPH SONNY,
CRAIG LYNN HAILEY, and JENNIFER KOSKY NIENABER
____________

Appeal 2012-007700
Application 11/184,161
Technology Center 1700
____________

Before EDWARD C. KIMLIN, PETER F. KRATZ, and JAMES C.
HOUSEL, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL

This is an appeal from the final rejection of claims 8, 9, 14, 30, and
31. We have jurisdiction under 35 U.S.C. § 6(b). Claims 8 and 9 are
illustrative:
8. A plurality of fried snack pieces having no more than about seven
net grams of carbohydrates per 28 grams of fried snack pieces, comprising:

a) one or more types of a carbohydrate ranging from about 25 to about
60% by weight, wherein the carbohydrate comprises potato flakes;

Appeal 2012-007700
Application 11/184,161

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b) a high fat soy protein isolate containing from about 30 to about
70% by weight protein, wherein the high fat soy protein isolate has an oil
content ranging from about 8% to about 25% of said isolate;

c) one or more types of non-digestible carbohydrates ranging from
about 5 to about 30% by weight;

d) one or more types of an emulsifier ranging from about 0.5 to about
2.5% by weight; and

e) said fried snack pieces comprising from about 20% to about 45%
total fat comprising digestible and non-digestible fat.

9. The plurality of fried snack pieces of Claim 8 wherein the non-
digestible carbohydrate comprises one or more types of a resistant starch.

The Examiner relies upon the following references as evidence of
obviousness:
Bladgon et al. (Blagdon) 3,849,582 Nov. 19, 1974
Haralampu et al. (Haralampu) 5,849,090 Dec. 15, 1998
Faa et al. (Faa) US 2006/0003071 A1 Jan. 5, 2006

Appellants’ claimed invention is directed to fried snack pieces
comprising, inter alia, potato flakes, a high fat soy protein isolate, and a non-
digestible carbohydrate such as a resistant starch.
Appealed claims 8, 9, 14, 30, and 31 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over Blagdon in view of Haralampu and Faa.
We have thoroughly reviewed each of Appellants’ arguments for
patentability. However, we are in complete agreement with the Examiner’s
reasoned analyses and application of the prior art, as well as the Examiner’s
cogent and thorough disposition of the arguments raised by Appellants.
Accordingly, we will adopt the Examiner’s reasoning as our own in
Appeal 2012-007700
Application 11/184,161

3
sustaining the rejection of record, and we add the following for emphasis
only.
Appellants contend that Blagdon does not teach the claimed oil
content for the high fat soy protein isolate. However, although Blagdon is
silent regarding the isolates’ oil content, Appellants, in their Appeal Brief,
have not rebutted the Examiner’s reasonable position that since Blagdon’s
soy protein isolate is the same protein presently claimed, it must necessarily,
or inherently, comprise the same oil content. Appellants have not refuted
the Examiner’s position by making any argument that, for example,
demonstrates that there are a variety of high fat soy protein isolates that have
different oil content. Hence, in the absence of such timely argument and
supporting evidence, the Examiner’s position stands unrebutted in the
principal Brief.
Even if Appellants Reply Brief arguments challenging the inherency
position of the Examiner could be considered timely, Appellants do not
address the fat content of the specific Supro 610 isolated soy protein
obtained from Ralston Purina Company disclosed by Blagdon in Example 1.
Moreover, Blagdon places no restriction on the isolate’s oil content.
Consequently, Appellants belated arguments presented in the Reply Brief
are unpersuasive of reversible error in the Examiner’s obviousness
determination in that Appellants do not persuasively articulate why one of
ordinary skill in the art would not have selected another available
commercial source for the isolate of Blagdon, such as those isolate sources
acknowledged to be commercially available by Appellants that have the
claimed oil content (Spec. 9, ll. 7-13 and 24, Table 1).
Appeal 2012-007700
Application 11/184,161

4
Regarding separately argued claim 9 and Appellants’ argument that
“Haralampu teaches swelling and hydrating the starch granules” whereas
Blagdon employs a modifying and complexing agent to prevent hydration of
the starch molecule by water (Prin. Br. 4, third para.), Appellants have not
refuted the Examiner’s position stated at pages 7-8 of the Answer. In
particular, while Blagdon teaches the prevention of hydration of the starch
during its mixing with other ingredients during formulation of the product,
the reference provides no teaching “against hydration of the starch during
the forming of the enzyme modified starch or acid modified starch or
esterified starch” (Ans. 7, penultimate full sentence).
As a final point, we note that Appellants base no argument upon
objective evidence of nonobviousness, such as unexpected results.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner’s decision rejecting the appealed claims is
affirmed.
The decision of the Examiner 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)(1)(iv).
AFFIRMED

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