General Mills, Inc.

Patent Trials and Appeals Board

Jul 6, 2020

2019005353 (P.T.A.B. Jul. 6, 2020)

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.
14/441,200 05/07/2015 Shivakumar Elayedath 7900US01 1084
30173 7590 07/06/2020
Diederiks & Whitelaw, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
07/06/2020 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 SHIVAKUMAR ELAYEDATH, ZORAN TALIJAN, and
AARON P. WLASCHIN

Appeal 2019-005353
Application 14/441,200
Technology Center 1700
____________

Before CATHERINE Q. TIMM, ROMULO H. DELMENDO, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge.

DECISION ON APPEAL
The Appellant1 appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 1–4, 6–14, and 19–23.2 We have
jurisdiction under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42—namely, “General Mills, Inc.” (Application Data Sheet
filed May 7, 2015 at 5), which is also identified as the real party in interest
(Appeal Brief filed February 28, 2019 (“Appeal Br.”) at 3).
2 See Appeal Br. 4–12; Reply Brief filed July 3, 2019 (“Reply Br.”) at 1–6;
Final Office Action entered October 15, 2018 (“Final Act.”) at 2–6;
Examiner’s Answer entered May 3, 2019 (“Ans.”) at 3–14.
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I. BACKGROUND
The subject matter on appeal relates to a method for seasoning a
cooked food product (e.g., a taco shell) and to a cooked food product formed
by such a method (Specification filed May 7, 2015 (“Spec.”) ¶¶ 5–8).
Representative claim 1 is reproduced from the Claims Appendix to the
Appeal Brief, as follows:
1. A method of seasoning a cooked food product comprising
applying a non-aqueous liquid seasoning mixture onto a surface
of a cooked food product, the non-aqueous seasoning mixture
comprising at least 35% wt solids, wherein the applying step
comprises spraying the non-aqueous liquid seasoning mixture
onto the surface of the cooked food product with a spinning disc
sprayer and wherein the spinning disc spray is provided in a
spinning disc spray chamber having a product zone, said method
further comprising:
receiving the non-aqueous liquid seasoning mixture in the
product zone from the spinning disc sprayer; and
continuously moving the cooked food product through the
product zone on a food product conveyor.
(Appeal Br. 13 (emphasis added)).
II. REJECTIONS ON APPEAL
The claims on appeal stand rejected under AIA 35 U.S.C. § 103, as
follows:
A. Claims 1–4, 6–14, and 20–23 as unpatentable over Zimmerman
et al.3 (“Zimmerman”) in view of Burns et al.4 (“Burns”) and
Saturn Spraying Systems: Introducing Spinning Disc

3 US 6,352,730 B1, issued March 5, 2002.
4 US 2013/0259988 A1, published October 3, 2013.
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Technology5 (“Spinning Disc Technology”); and
B. Claim 19 as unpatentable over Zimmerman in view of Burns
and Spinning Disc Technology, and further in view of Kelly et
al.6 (“Kelly”).
(Ans. 3–14; Final Act. 2–6).
III. DISCUSSION
Rejection A. The Appellant provides various arguments under
separate subheadings for: (1) claims 1, 2, 4, and 6–14; (2) claim 3; (3) claim
20; (4) claim 21; (5) claim 22; and (6) claim 23. We select claim 1 as
representative of the claims listed under the first group pursuant to 37 C.F.R.
§ 41.37(c)(1)(iv). Therefore, we address claims 1, 3, and 20–23 on an
individual basis, but claims 2, 4, and 6–14 stand or fall with claim 1.
(1) Claim 1
The Examiner finds that Zimmerman describes a method for
seasoning a cooked food product including most of the steps recited in claim
1 (Ans. 4; Final Act. 2–3). The Examiner acknowledges, however, that
“Zimmerman does not disclose receiving [a] suspension [of food additive
ingredients and edible oil] in [a] product zone from [a] spinning disc sprayer
and continuously moving the product through the product zone as in claim
1” (Ans. 4; Final Act. 3). To resolve this difference, the Examiner relies on
the teachings found in Burns and Spinning Disc Technology (Ans. 5; Final
Act. 3). Based on these findings, the Examiner concludes that a person

5 Retrieved from
https://web.archive.org/web/20130623045141/https://www.saturnspraying.c
om/top_spray.html (June 23, 2013).
6 US 2005/0238782 A1, published October 27, 2005.
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having ordinary skill in the art would have combined the references in the
manner claimed by the Inventors because Zimmerman contemplates the use
of conventional sprayers to apply the suspension and the implementation of
a spinning disc sprayer as disclosed in Burns and Spinning Disc Technology
to apply Zimmerman’s suspension would have been obvious to a person
having ordinary skill in the art as a matter of “[u]sing an alternative device
to carry out the same function [disclosed in Zimmerman]” (id.). The
Examiner explains further that “[o]ne would have been motivated to use the
spinning disc sprayer for the advantages disclosed in [Spinning Disc
Technology]” (id.).
The Appellant contends that a prima facie case of obviousness has not
been established because Zimmerman discloses that flavors (i.e., flavoring
components) are added in amounts of up to 1% by weight, whereas claim 1
requires the “seasoning mixture” itself to comprise “at least 35% wt solids”
(Appeal Br. 5–6). According to the Appellant, “Zimmerman teaches away
from higher amounts of seasoning by teaching that salts and seasonings can
disadvantageously adhere to the food surface” (id. at 6). Furthermore, the
Appellant argues that neither Burns nor Spinning Disc Technology teaches
or suggests applying a mixture or seasoning mixture with a solids content of
at least 35% by weight (id.). According to the Appellant, “there is no
apparent reason to combine the references as set forth by the Examiner”
because “Zimmerman specifically teaches advantages in the use of nozzles
to spray an ingredient suspension on all sides of potato chips” while
Spinning Disc Technology “teaches covering ‘top only’ or one side of a
product” (id. at 6–7).
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The Appellant’s arguments fail to identify reversible error in the
Examiner’s rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
We start with claim interpretation. “During . . . original examination,
the PTO must give claims their broadest reasonable construction consistent
with the specification.” In re ICON Health & Fitness, Inc., 496 F.3d 1374,
1379 (Fed. Cir. 2007). Thus, “we look to the specification to see if it
provides a definition for claim terms, but otherwise apply a broad
interpretation.” Id. “As [our reviewing] court has discussed, this
methodology produces claims with only justifiable breadth.” Id.; see also
Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2143, 2144–45 (2016)
(the broadest reasonable interpretation standard “helps ensure precision
while avoiding overly broad claims, and . . . help[s] members of the public
draw useful information from the disclosed invention and better understand
the lawful limits of the claim”).
Applying this standard, we agree with the Examiner’s position
(Ans. 8–9) that the disputed claim limitation “the non-aqueous seasoning
mixture comprising at least 35% wt solids,” as recited in claim 1, reads on
Zimmerman’s suspension including, inter alia, flavoring components and
having a “level of ingredient powder [of] less than 50%” (Zimmerman col.
13, ll. 1–13, 49–54; col. 15, ll. 22–24). The plain meaning of the disputed
claim language would have informed one of ordinary skill in the relevant art
that the Inventors were merely specifying the minimum total solids content
of the “seasoning mixture”—not that all the solids in the seasoning mixture
are made up, exclusively, of seasoning ingredients, as the Appellant would
have us believe. In this regard, a “seasoning mixture” may reasonably be
construed, in the present context, to mean any mixture that is used to season
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a cooked food product—not a mixture that contains only solid seasoning
ingredients and a non-aqueous liquid. The Appellant fails to direct us to any
definition in the Specification that supports its proffered narrower
interpretation. Hence, contrary to the Appellant’s teaching away argument,
Zimmerman explicitly teaches the disputed claim limitation.
Having resolved the claim interpretation issue in the Examiner’s
favor, we also agree with the Examiner’s finding that Zimmerman’s
disclosure differs from claim 1’s subject matter only in that a spinning disc
sprayer is not used to spray the suspension including flavoring components
onto a cooked food product. Specifically, Zimmerman describes a method
of adding food-additive ingredients to a food product comprising suspending
the food-additive ingredients in a flowable edible fat, optionally heating the
suspension to a flowable temperature, and applying the ingredient
suspension in a controlled amount to the surface of a food product
(Zimmerman col. 2, l. 66–col. 3, l. 15). Zimmerman discloses that the
ingredient suspension includes not only a blend of powdered fat soluble
vitamins but may also contain other solid and powdered ingredients such as
flavoring components and vegetables (id. at col. 3, ll. 45–48; col. 13, l. 1–
col. 14, l. 24). As discussed above, Zimmermann teaches that “[t]o maintain
flowability, the level of ingredient powder is less than 50%” (id. at col. 15,
ll. 22–24). According to Zimmerman, the suspension is applied to a wide
variety of food products by, e.g., spraying (id. at col. 15, ll. 35–42; col. 20, l.
48–col. 21, l. 17).
Although Zimmerman does not specifically disclose “a spinning disc
sprayer,” as recited in claim 1, we agree with the Examiner that Burns and
Spinning Disc Technology provide the requisite motivation or reason to
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implement such a device in Zimmerman. Burns teaches using a spinning
disc to atomize and apply oil accurately and evenly onto all sides of a food
product on which a batter is coated (Burns ¶¶ 13, 15, 20, 28). Significantly,
Spinning Disc Technology discloses a spinning disc sprayer for food
spraying, wherein the sprayer allows liquids, including slurries, to be
sprayed with the same precision and uniformity as deposition (Spinning Disc
Technology 1–2; Figure). According to the reference, other primary
advantages include blockage resistance and easy maintenance and cleaning
(id. at 2). Given the similarities in the processing systems disclosed in
Zimmerman (Zimmerman Fig. 1; col. 20, l. 48–col. 21, l. 17) and Spinning
Disc Technology (Figure), we share the Examiner’s conclusion that a person
having ordinary skill in the art would have been prompted to implement the
spinning disc sprayer as disclosed in, e.g., Spinning Disc Technology in
Zimmerman with a reasonable expectation of achieving accurate and
uniform coating, sprayer blockage resistance, and easy sprayer maintenance
and cleaning.
For the reasons stated in the Answer (Ans. 10–11), we discern no
persuasive merit in the Appellant’s argument that “Zimmerman specifically
teaches advantages in the use of nozzles to spray an ingredient suspension
on all sides of potato chips” while Spinning Disc Technology “teaches
covering ‘top only’ or one side of a product” (Appeal Br. 6–7). As an initial
matter, claim 1 does not specify any degree of spraying and, therefore, reads
on any degree of spraying. Moreover, although Burns teaches that “oil may
be applied by spraying oil on all the sides of the food product
simultaneously” (Burns ¶ 20), a person having ordinary skill in the art would
have understood that the device shown in Spinning Disc Technology may
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readily be implemented in Zimmerman (compare Zimmerman Figure 1 with
the Figure shown in Spinning Disc Technology).
For these reasons, and those well-stated by the Examiner, we uphold
the Examiner’s rejection as maintained against claim 1 (and claims 2, 4, and
6–14 falling therewith).
(2) Claim 3
Claim 3, which depends from claim 1 through intervening claim 2
(reciting that the “cooked food product comprises cooked corn masa”),
specifies that the “cooked food product is a taco shell” (Appeal Br. 13).
The Examiner finds that Zimmerman teaches applying the coating
process to products made from corn masa and corn chips, and concludes that
this teaching would have suggested applying the process to other corn masa
products such as taco shells (Ans. 5–6; see Zimmerman col. 4, ll. 13–27; col.
15, ll. 35–49). The Appellant argues that Zimmerman’s “coating method is
not acceptable for coating taco shells, which must be coated on all sides to
obtain a thorough coating” (Appeal Br. 7).
We agree with the Examiner’s analysis (Ans. 11–12), which we adopt
as our own. As the Examiner explains, “the conclusion that taco shells must
be coated on all sides to obtain a thorough coating is [the A]ppellant’s own
conclusion” and lacks evidentiary support (id. at 11). In re Geisler, 116 F.3d
1465, 1470 (Fed. Cir. 1997) (“An assertion of what seems to follow from
common experience is just attorney argument and not the kind of factual
evidence that is required to rebut a prima facie case of obviousness.”); In re
Lindner, 457 F.2d 506, 508 (CCPA 1972) (“[M]ere conclusory statements in
the specification and affidavits are entitled to little weight when the Patent
Office questions the efficacy of those statements.”).
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Accordingly, we also sustain the rejection as maintained against claim
3.
(3)–(6) Claims 20–23
Claims 20–23 recite the phrase “consists essentially of” in defining
the “at least 35% wt solids” (Appeal Br. 14). The Appellant argues that the
phrase “consists essentially of” excludes unrecited materials that would
affect the “35% wt solids” (id. at 8–11).
Again, we agree with the Examiner’s analysis (Ans. 12–13), which we
adopt as our own. In particular, the Appellant fails to direct us to
evidentiary support for the proposition that any of the materials disclosed in
Zimmerman, such as the vitamins, would materially affect the novel and
basic properties of the invention as recited in the claims. PPG Industries v.
Guardian Industries Corp., 156 F.3d 1351, 1355 (Fed. Cir. 1998); In re
Herz, 537 F.2d 549, 551–52 (CCPA 1976); In re De Lajarte, 337 F.2d 870,
873 (CCPA 1964).
Therefore, we sustain the rejection as maintained against these claims.
Rejection B. Claim 19, which depends from claim 1, recites
“providing the non-aqueous liquid seasoning mixture to the spinning disc
sprayer with a progressive cavity pump” (Appeal Br. 14).
The Examiner finds that Zimmerman, Burns, and Spinning Disc
Technology do not disclose using a progressive cavity pump to deliver a
suspension, but finds further that Kelly would have suggested that such a
device would be suitable for delivering such a suspension (Ans. 7). The
Examiner concludes that “[u]sing a known device for [an] art-recognized
function would have been obvious to one skilled in the art” (id.).
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The Appellant, on the other hand, argues that “Kelly is directed to a
process for preparing an alginate or low-methoxy pectate gel and is
completely unrelated to seasoning or coating food products” (Appeal Br.
12). According to the Appellant, “[t]here is no indication that the apparatus
described for mixing gel would improve or even function properly with the
suspension and spinning disc sprayer of the Examiner’s combination” (id.).
The Appellant’s argument does not persuade us of any reversible error
in the Examiner’s rejection. The mere fact that Kelly’s disclosure uses the
pump for a different suspension in a different environment than that
disclosed in Zimmerman does not necessarily preclude an obviousness
conclusion, because the rejection is based on what the collective teachings
would have suggested to a person having ordinary skill in the art. In re
Merck & Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness
cannot be established by attacking references individually where the
rejection is based upon the teachings of a combination of references.”). See
also Ryco, Inc. v. Ag-Bag Corp., 857 F.2d 1418, 1425 (Fed. Cir. 1988)
(“[I]mproved brake means alone was not patentable” because “[t]he brake
perform[ed] the same function as in the references, albeit in a different
environment”).
Accordingly, we also uphold the rejection as maintained against claim
19.

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IV. CONCLUSION
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–4, 6–14,
20–23
103 Zimmerman, Burns,
Spinning Disc
Technology
1–4, 6–14,
20–23

19 103 Zimmerman, Burns,
Spinning Disc
Technology, Kelly
19
Overall
Outcome
1–4, 6–14,
19–23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED