11615457 (P.T.A.B. Dec. 15, 2015)

Ex Parte Zheng et al

Patent Trial and Appeal BoardDec 15, 2015

11615457 (P.T.A.B. Dec. 15, 2015)

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. 11/615,457 12/22/2006 Zuoxing Zheng 1410-77480-US 1917 48940 7590 12/15/2015 FITCH EVEN TABIN & FLANNERY, LLP 120 SOUTH LASALLE STREET SUITE 1600 CHICAGO, IL 60603-3406 EXAMINER BADR, HAMID R ART UNIT PAPER NUMBER 1791 MAIL DATE DELIVERY MODE 12/15/2015 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 ZUOXING ZHENG, JULIA L. DESROCHERS, and URAIWAN TANGPRASERTCHAI ________________ Appeal 2013-010162 Application 11/615,457 Technology Center 1700 ________________ Before TERRY J. OWENS, KAREN M. HASTINGS, and GEORGE C. BEST, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING The Appellants assert that “[i]n its Brief, Appellants identify four separate groupings of claims and provide separate arguments for each” and that, therefore, we erred in stating that the Appellants argue the claims as a group and limiting our discussion to one claim, i.e., claim 7 (Req. 2). The four claim groupings are: 1) claims 7–17, 2) claims 24–26 and 28–35, 3) claims 36, 37 and 39, and 4) claim 40 (id.). We address the Appellants’ arguments with respect to the sole independent claim in each of those groups (claims 7, 24, 36, and 40). Appeal 2013-010162 Application 11/615,457 2 Claim 24 The Appellants assert that we should have addressed claim 24 separately because it claims a method whereas claim 7 claims a raw dough product (Req. 2–3). The Appellants addressed the raw dough product claims and method claims together in their Appeal Brief, i.e., “the references simply do not teach or suggest a raw dough product or a method of making a raw dough product, in which an antimicrobial broth includes pregenerated bacteriocins and live bacteriocin-producing bacteria capable of in situ production of bacteriocins in the raw dough for at least 8 weeks of refrigerated storage” (App. Br. 21). The Appellants argued claim 24 as follows (App. Br. 23): Independent claim 24 is a method claim which recites some similar features to those found in independent claim 7. The cited references, even if properly combinable, fail to disclose an antimicrobial broth composition that contains both bacteriocins and subsequently in situ generated bacteriocins, live bacteria that are capable of in situ production of bacteriocins at refrigerated temperatures for about 8 weeks. Therefore, for similar reasons as those discussed above with respect to claims 7-17, the cited references also fail to disclose these features found in claims 24-26 and 28-35. Thus, the Appellants argued claims 7 and 24 together. The Appellants also argued (App. Br. 24): Additionally, claim 24 recites that the antimicrobial broth composition comprises about 1 weight % to about 10 weight % of glucose, about 0.1 weight % to about 5 weight % of a nitrogen source and about 0.1% to about 5% of a lactic acid- neutralizer. The cited references also fail to disclose or suggest these features, in combination with the other features recited in the claims. Appeal 2013-010162 Application 11/615,457 3 Moreover, even assuming for the sake of argument that the various elements of Matz, Ando, Li, and Nauth could be combined in the manner necessary to arrive at the claimed raw dough product or method of making a raw dough product, it would not have been obvious to one of ordinary skill in the art to do so for similar reasons as those discussed above with respect to claims 7-17. Again, the Appellants argued raw dough product claim 7 and method claim 24 together. Claim 7 does not recite the broth composition recited in claim 24. However, as stated by the Federal Circuit, Rule 41.37 “require[s] more substantive arguments in an appeal brief than a mere recitation of the claim elements and a naked assertion that the corresponding elements were not found in the prior art.” In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011). Claim 36 With respect to claim 36 the Appellants argued the following (App. Br. 24–25): Independent claim 36 is directed to a raw dough product and recites some similar features to those found in independent claim 7. The cited references, even if properly combinable, fail to disclose an antimicrobial broth composition that contains both bacteriocins and subsequently in situ generated bacteriocins, live bacteria that are capable of in situ production of bacteriocins at refrigerated temperatures for about 8 weeks. Therefore, for similar reasons as those discussed above with respect to claims 7-17, the cited references also fail to disclose these features found in claims 36, 37 and 39. Additionally, claim 36 recites that the antimicrobial broth composition comprises about 1 weight % to about 10 weight % of glucose, about 0.1% to about 5% of a lactic acid-neutralizer and that the antimicrobial broth composition is in an amount of about 0.1 weight % to about 40 weight % of the raw dough product. The cited references also fail to disclose or suggest Appeal 2013-010162 Application 11/615,457 4 these features, in combination with the other features recited in the claims. Moreover, even assuming for the sake of argument that the various elements of Matz, Ando, Li, and Nauth could be combined in the manner necessary to arrive at the claimed raw dough product or method of making a raw dough product, it would not have been obvious to one of ordinary skill in the art to do so for similar reasons as those discussed above with respect to claims 7-17. Hence, the Appellants argued claim 36 together with claim 7.1 Claim 40 Regarding claim 40 the Appellants argued the following (App. Br. 25–26): Independent claim 40 is directed to a raw dough product and recites some similar features to those found in independent claim 7. The cited references, even if properly combinable, fail to disclose an antimicrobial broth composition that contains both bacteriocins and subsequently in situ generated bacteriocins, live bacteria that are capable of in situ production of bacteriocins at refrigerated temperatures for about 8 weeks. Therefore, for similar reasons as those discussed above with respect to claims 7-17, the cited references also fail to disclose these features found in claim 40. Additionally, claim 40 recites that the lactic acid neutralizer comprises calcium carbonate. The cited references also fail to disclose or suggest these features, in combination with the other features recited in the claims. Moreover, even assuming for the sake of argument that the various elements of Matz, Ando, Li, and Nauth could be combined in the manner necessary to arrive at the claimed raw 1 The Appellants provided in the Appeal Brief a mere naked assertion, not a substantive argument, regarding the requirement that the antimicrobial broth composition is in an amount of about 0.1 weight % to about 40 weight % of the raw dough product (App. Br. 25). See Lovin, 652 F.3d at 1357. Appeal 2013-010162 Application 11/615,457 5 dough product or method of making a raw dough product, it would not have been obvious to one of ordinary skill in the art to do so for similar reasons as those discussed above with respect to claims 7-17. Thus, the Appellants argued claim 40 together with claim 7.2 For the above reasons we are not persuaded of error in our Decision. Accordingly, we deny the Appellants’ Request for Rehearing. DENIED bar 2 The Appellants provided in the Appeal Brief a mere naked assertion, not a substantive argument, regarding the requirement that the lactic acid neutralizer comprises calcium carbonate (App. Br. 26). Moreover, we addressed the calcium carbonate requirement in our Decision (Dec’n 6, 8–9).