Ex Parte Waldner

Patent Trial and Appeal Board

Jun 7, 2017

13926914 (P.T.A.B. Jun. 7, 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.
13/926,914 06/25/2013 Mary Waldner 51222-00022 1081
25231 7590 06/09/2017
MARSH, FISCHMANN & BREYFOGLE LLP
8055 East Tufts Avenue
Suite 450
Denver, CO 80237
EXAMINER
WILLIAMS, LELA
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
06/09/2017 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):
PTOMail @ mfblaw. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL
AND APPEAL BOARD
Ex parte MARY WALDER
(Applicant: Mary’s Gone Crackers, Inc.)1
Appeal 2016-007120
Application 13/926,914
Technology Center 1700
Before BEVERLY A. FRANKLIN, DONNA M. PRAISS, and
JANE E. INGLESE, Administrative Patent Judges.
FRANKLIN, Administrative Patent Judge.
DECISION ON APPEA
1 Also the Real Party in Interest as identified by Appellant. Appeal Br. 1.
Appeal 2016-007120
Application 13/926,914
Appellant requests our review under 35 U.S.C. § 134 of the
Examiner’s decision rejecting claims 1—22. We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
STATEMENT OF THE CASE
Claim 1 is illustrative of Appellant’s subject matter on appeal and is
set forth below (with text in bold for emphasis):
1. A process for use in making gluten-free baked products,
comprising the steps of: combining whole, unground gluten-
free grains and water in a vat free from any grain flours;
mixing the grains and the water, free from any grain
flours, and cooking to form a cooked grain product by
simultaneously operating grinder blades in the vat to grind
solids and mixer paddles in the vat to circulate the grains
and water while heating the grains and the water; and
pumping the cooked grain product from the vat to dough
depositor equipment for deposition on baking surfaces.
The Examiner relies on the following prior art references as evidence
of unpatentability:
Popel US 3,800,050 March 26, 1974
Brewer et al., US 4,643,904 Feb. 17, 1987
(hereafter “Brewer”)
Wilkinson et al. US 6,025,011 Feb. 15,2000
(hereafter “Wilkinson”)
Karwowski et al. US 7,829,128 B2 Nov. 09, 2010
(hereafter “Karwowski”)
Stratakis US 2011/0027421 Al Feb. 3,2011
Taguchi et al.
(hereafter “Taguchi”)
US 2011/0290121 Al Dec. 01,2011
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Application 13/926,914
Michaels, Coconut Flour Bread, cheeseslave 1—7
((http://www.cheeses.lavexom/coco'ni3t-flom‘-hread./) (2008) (hereafter
‘‘Michaels’’)!
Shaffer Mixers and Processing, Dough Pump (2012) (hereafter “Shaffer
Mixers”).
LadyStiles, Gluten-Free Irish Soda Bread for Bread Baking Babes, The
beauty of life, 2—9 (2011) (hereafter “LadyStiles”).
Kongs, Gluten-Free Challenge: Brown Rice Crust, Mother Earth News
(hereafter “Mother Earth”).
Muchova et al., New Approach to the Study of Dough Mixing Process,
28 Czech J. Food Sci. 94—107 (2010) (hereafter “Muchova”).
THE REJECTIONS
1. Claim 1, and claims dependent thereof, are rejected under 35 U.S.C.
§ 112(a) or 35 U.S.C. § 112 (pre-AIA), first paragraph, as failing to comply
with the written description requirement.
2. Claims 1—3, 5, 6, 9, 10, and 15 are rejected under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Taguchi.
3. Claims 1,3, 5, 7, 8, 10, 15, and 22 are rejected under pre-AIA
35 U.S.C. § 103(a) as being unpatentable over Karwowski in view of
Michaels, Wilkinson, and Shaffer Mixers.
4. Claim 12 is rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Karwowski in view of Michaels, Wilkinson, and Shaffer
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Application 13/926,914
Mixers, and in further view of LadyStiles, Muchova, and Brewer, and in
further view of Mother Earth.
5. Claim 17 rejected under pre-AIA 35 U.S.C. § 103(a) as being
unpatentable over Karwowski in view of Michaels, Wilkinson, and Shaffer
Mixers, and further in view of Stratakis.
ANALYSIS
Rejection 1
It is the Examiner’s position that there is insufficient support for the
claimed phrase “free of any grain flours”. Final Act. 2—3; Ans. 3^4.
However, we are in agreement with Appellant’s stated position in the record.
Appellant explains that the Specification discloses a “non-flour” baking
process, and the disclosed process is without flour because the whole grains
are not milled into flour, in support of the phrase “free of any grain flours”.
Spec., Title, p. 4,11. 1—8, p. 9,11. 6—15, p. 10,11. 8—25; Appeal Br. 3; Reply
Br. 2—3. As best stated by Appellant on page 3 of the Reply Brief, when the
claim recites adding whole grain free from grain flour, and mixing/grinding
the grains free from grain flour, it is understood within the context of the
Specification and claims that it is the physical state of the grains that is
meant.
In view of the above, we reverse Rejection 1.
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Application 13/926,914
Rejection 2
It is the Examiner’s position that Taguchi discloses a method wherein
whole, unground gluten-free grains and water are combined in a “vat.”
Taguchi, paras. [0008], [0058-0065]. Final Act. 3. The Examiner finds that
grains and water are mixed and heated (para. [0064]) and form a “cooked”
grain product (paras. [0065—0083]). Id. The Examiner finds that Taguchi
teaches the grinding and mixing steps are sequentially performed (para.
[0071 ]), but does not expressly teach simultaneously operating grinder
blades in the vat to grind solids and mixer paddles in the vat to circulate the
grains and water while heating the grains and water. Id.
The Examiner states that because Taguchi teaches substantially the
same product produced by the substantially the same method as claimed by
Appellant, where the claimed and prior art products are produced
by substantially the identical processes, a prima facie case of obviousness
has been established. Id. The Examiner also states that to switch the order
of performing process steps, i.e., performing the step simultaneously as
opposed to sequentially, would be obvious absent any clear and convincing
evidence and/or arguments to the contrary, and that one would have been
motivated to perform the steps simultaneously as opposed to sequentially to
save in processing time. Id. at 3^4.
Appellant argues, inter alia, that Taguchi does not teach substantially
the same product produced by the same method as the present invention
because Taguchi requires the sequential operation of a grinding blade
followed by a mixing blade for processing of a gluten-rich product. Appeal
Br. 7. Appellant explains that Taguchi is not equipped to simultaneously
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Application 13/926,914
operate the grinding blade and the mixing/kneading blade in any regard. Id.
at 10. Appellant states that, rather, the grinding blade of Taguchi is replaced
with a mixing/kneading blade in order to proceed from the grinding process
(Taguchi at Fig. 9) to the mixing/kneading process (Taguchi at Fig. 10). Id.
Appellant argues that this sequence of steps is not an optional design choice
of Taguchi, but is necessary for the system to function because the grains
have to be ground before they can be mixed with the other ingredients. Id.
Notably, the Examiner does not adequately address the
aforementioned point raised that the order of steps in Taguchi is necessary to
achieve the objectives in Taguchi. Final Act. 3—5, 25—28; Ans. 4—6. The
Examiner states that “some mixing” must occur because Taguchi’s container
includes a lid to prevent grains and liquid from flying out. Taguchi, para.
[0067]; Ans. 4. However, it is clear from the disclosure of Taguchi that
grains are flying out during a grinding process and not a mixing process.
Para. [0067]. In paragraph [0067], it is disclosed that the grinding blade
grinds the grains and that protrusions 50a located on the inner surface of the
bread container restrict the movement of the grain and liquid mixture to
assist in the grinding. Paragraph [0068] of Taguchi discloses that the
grinding blade is stopped when the grinding pattern is achieved. Paragraph
[0070] of Taguchi discloses that after the grinding process, the mixing
process is performed, and in order to do so, the grinding blades are replaced
by the mixing blade.
Also, as correctly pointed out by Appellant on page 4 of the Reply
Brief, Appellant’s claim does not disclose using a single set of blades to
accomplish grinding and mixing, but requires grinding blades and mixing
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paddles simultaneously. Further, Taguchi’s method is contrasted with
Appellant’s method, which simultaneously grinds solids and mixes grains
free from any flour (free from milled grains, i.e., free from grains ground
into flour).2 As stated, supra, Taguchi’s objective is to grind grains into
flour in the grinding step. Thus, we are persuaded by Appellant’s stated
position in the record.
In view of the above, we reverse Rejection 2.
Rejection 3
Rejection 3 involves the rejection of claims 1,3, 5, 7, 8, 10, 15, and
22 as being obvious over Karwowski in view of Michaels, Wilkinson,
and Shaffer Mixers.
The Examiner relies upon Karwowski for teaching a process for
making gluten-free baked products. Karwowski, Abstract, col. 3,1. 66 — col.
4,1. 7. Final Act. 7. The Examiner finds that Karwowski teaches the
process comprising the steps of combining whole, gluten-free grains (the
whole cereal grain particles may be in the form of whole, non-comminuted
whole grains which can be gluten-free) (col. 10,11. 27—35 and 2—6) and
water in a vat (see combining step in step 1 of claim 1; col. 5,11. 37-44);
cooking the grains and water to form a cooked grain product (see cooking
step in step 1 of claim 1; col. 5,11. 37—44; Figure 2); and forming the cooked
grain product into discrete dough units and baking the discrete dough units
(see steps 2 and 3 of claim 1), thus teaching that the cooked grain product is
2 Pages 13—14 of the Specification are illustrative and disclose that the
mixture is blended to have many pieces of chopped whole grain measuring
1—2 mm in size.
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transported to a “dough depositor” in that the dough is divided into units and
that the dough units are transported onto “baking surfaces” since the dough
units are baked. Final Act. 7—8.
Regarding the limitation of “free from any grain flours”, the Examiner
states that the addition, substitution, or subtraction of flour would have been
a choice that depended on the final product. Id. at 8. On page 8 of the Final
Office Action, the Examiner states that Karwowski discloses
[t]he present invention provides a method for making whole grain-
containing composite products, such as savory or sweet snacks (e.g.,
chips, crackers, wafers, biscuits, and so forth) and ready-to-eat
cereals, and other food products. The products may be made with
100% whole grains can be formulated to have an excellent source of
whole grain nutrition and good source of fiber.
Karwowski, col.4,1. 65—col. 5,1. 5. The Examiner further adds that if one
were making a baked good which did not require grain flour or if one did not
desire grain flour, then it would have been obvious to not have any
grain flour in the composition. Final Act. 8. The Examiner also states that a
skilled artisan would know that there are many alternatives for grain flour
such as non-grain flour, and refers to Michaels as an example for teaching
that coconut flour is a gluten-free option. Id.
The Examiner then relies upon Wilkinson for teaching using mixing
paddles (plow-shaped agitators) and grinding blades (separately actuated
choppers) which provide additional mixing and chopping to break up
large lumps, and to promote uniform mixing and heating of the mixture (col.
4,11. 55—67), which can be used simultaneously (col. 5,11. 21—24). Final
Act. 9.
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Application 13/926,914
The Examiner states that Wilkinson teaches mixing grains and water
while cooking the mixture in a mixer (col. 6,11. 26—33). The Examiner
states that Karwowski teaches that even cooking and reduced lumping are
desirable (col. 14,11. 63—65), to thus modify Karwowski and to similarly
apply the mixing technique using “grinding blades” and “mixing paddles”
during cooking as taught by Wilkinson, in the cooking step of Karwowski,
would have been obvious to promote uniform mixing and heating of the
mixture and to break up lumps. Final Act. 9.
Appellant argues that the combination of applied art applied in
Rejection 3 does not suggest the claimed subject matter. Appeal Br. 13;
Reply Br. 4. In this regard, Appellant points out that claim 1 is a method
claim and specifically recites operating grinder blades “to grind solids”, and
the grinder blades are further described as part of the process for mixing “the
grains” and water (i.e., the whole, unground gluten-free grains). Appeal Br.
13—14, 16—17; Reply Br. 4. Appellant argues that, with specific regard to
the reference of Wilkinson, Wilkinson describes use of the choppers for
“breaking” large clumps in a flour mixture. Appellant points out that
Wilkinson’s choppers do not operate on whole grains as whole grains are not
used in the relevant process of Wilkinson because the com is preground.
Wilkinson, col. 4,11. 2—15. Appellant argues that, thus, Wilkinson does not
disclose “grinding solids” or “mixing whole grains” as required by claim 1.
Reply Br. 4. We agree. As such, in a similar manner as discussed with
regard to Rejection 2, supra, Appellant’s method simultaneously grinds
solids and mixes grains free from any flour (free from milled grains, i.e., free
from grains ground into flour), and we are convinced by Appellant that the
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applied art does not make obvious the claimed method in this regard, and
therefore, for the reasons stated in the record and as emphasized herein, we
also reverse Rejection 3.
Rejections 4 and 5
Because the Examiner does not rely upon the additionally applied
references of Rejections 4 and 5 to cure the aforementioned deficiencies of
the applied art, we also reverse Rejections 4 and 5.
DECISION
Each rejection is reversed.
ORDER
REVERSED
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