GENERAL MILLS, INC.

Patent Trials and Appeals Board

May 10, 2021

2020002800 (P.T.A.B. May. 10, 2021)

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.
13/860,882 04/11/2013 David J. Domingues 7815US01 5363
30173 7590 05/10/2021
Diederiks & Whitelaw, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
EXAMINER
MUKHOPADHYAY, BHASKAR
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
05/10/2021 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 DAVID J. DOMINGUES
_______________
Appeal 2020-002800
Application 13/860,882
Technology Center 1700
_______________

Before CHRISTOPHER C. KENNEDY, DEBRA L. DENNETT, and
JANE E. INGLESE, Administrative Patent Judges.

DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 2, 4–6, 8–10, 17, 19, 48–50, and 52–
55 of Application 13/860,882. See Final Act. 1; Appeal Br. 3. We have
jurisdiction under 35 U.S.C. § 6.

1 In our Decision, we refer to the Specification filed Apr. 11, 2013 (“Spec.”)
of Application 13/860,882 (“the ’882 Application”); the Final Office Action
dated Mar. 7, 2019 (“Final Act.”); the Appeal Brief filed Aug. 20, 2019
(“Appeal Br.”); the Examiner’s Answer dated Dec, 27, 2019 (“Ans.”); and
the Reply Brief filed Feb. 27, 2020 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies General Mills, Inc. as the real party in interest. Appeal Br. 3.
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For the reasons set forth below, we AFFIRM IN PART.
BACKGROUND
The subject matter of the ’882 Application relates to flour-based batter
compositions packaged as ready-to-use products. Spec. 2, ll. 26–27.
Claim 1 is representative of the ’882 Application’s claims and is
reproduced below from the Claims Appendix of the Appeal Brief.
1. A packaged emulsion product comprising a package
comprising a re-sealable closure and an internal volume that
contains an edible oil-in-water emulsion comprising flour,
sugar, acidic chemical leavening agent, basic chemical
leavening agent, oil, water, an oxidoreductase enzyme and
emulsifier, having a water activity below 0.93, and having a
yield point of not greater than 20 Pascals, wherein the sugar
consists essentially of disaccharides and the package containing
the oil-in-water emulsion, before opening the package, has less
than 20 percent headspace.
Appeal Br. 20 (Claims App.).
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Name Reference Date
Kahn et al.
(“Kahn”)
US 4,154,863 May 15, 1979
Bone US 4,353,932 Oct. 12, 2982
Antrim et al.
(“Antrim”)
US 4,963,368 Oct. 16, 1990
Hahn US 6,217,929 B1 Apr. 17, 2001
Hamilton et al.
(“Hamilton”)
US 2004/0188310 A1 Sept. 30, 2004
Coyle et al.
(“Coyle”)
US 2008/0280003 A1 Nov. 13, 2008
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Name Reference Date
Domingues et al.
(“Domnigues”)
US 2009/0130252 A1 May 21, 2009
REJECTIONS
The Examiner maintains the rejection of the claims under 35 U.S.C.
§ 1033 as obvious over Bone in view of Coyle, Antrim, Domingues, and
Hamilton. Final Act. 3–9.
DISCUSSION
We review the appealed rejections for error based upon the issues
identified by Appellant and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential),
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011))
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the [E]xaminer’s rejections.”). After considering the
evidence presented in this Appeal and each of Appellant’s arguments, we are
not persuaded that Appellant identifies reversible error in the Examiner’s
rejections, except as to claims 53–55, as set forth below.
Appellant argues numerous claims and group of claims separately.
See Appeal Br. 6–19. We address each claim or group of claims below.
Claims 1, 4–6, 8, 19, and 50
Appellant argues claims 1, 4–6, 8, 19, and 50 as a group. Appeal Br.
6. We select independent claim 1 as representative of the group. Claims 4–

3 Because this application was filed after the March 16, 2013, effective date
of the America Invents Act, we refer to the AIA version of the statute.
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6, 8, 19, and 50—all of which depend from claim 1—stand or fall with claim
1. 37 C.F.R. § 41.37(c)(1)(iv).
With respect to claim 1, the Examiner finds that Bone teaches the
limitations except for the leavening agents, the oxidoreductase enzyme, the
package having less than 20% headspace, re-sealable packaging, and yield
point. Final Act. 3–5, 7. The Examiner finds that Coyle teaches the
leavening agent limitations, Antrim teaches the oxidoreductase enzyme
limitation, Domingues teaches the headspace limitation, Hamilton teaches
the re-sealable closure limitation, and yield point is inherent. Id. at 5–7.
Appellant first argues that there is no reason to combine the teachings
of Antrim with those of Bone. Appeal Br. 6–8. Appellant argues that the
oxidoreductase enzyme of Antrim is not disclosed or suggested as an agent
for stabilizing an emulsion. Id. at 6. Antrim is Appellant argues that
“Antrim is directed to stabilizing highly unsaturated fatty acids,” and there
are no such highly unsaturated fatty acids in Bone. Id. at 7; see also Reply
Br. 2. Appellant argues that “the saturated fats in Bone are quite different”
from highly unsaturated fatty acids in Antrim. Reply Br. 2. Appellant
argues that Bone provides a stable batter and there is no need to stabilize oils
present in Bone. Appeal Br. 7; Reply Br. 3. Appellant argues that Antrim is
in a different field from Bone, and provide a solution to a problem that does
not exist in Bone. Appeal Br. 7.
Appellant’s arguments are not persuasive. The Examiner’s
explanation of the reasons a person of ordinary skill in the art would have
had to combine the prior art teachings is sufficient when an allowance is
made for “the inferences and creative steps that a person of ordinary skill in
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the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007).
Bone discloses a pancake batter comprising unsaturated oil that is
stabilized by mechanical homogenization. Bone col. 4, ll. 14–19; col. 2, l.
66; col. 6, ll. 12–14. One of ordinary skill in the art would reasonably look
for a way to prevent oxidation of the unsaturated oils in Bone, and employ
the oxidoreductase enzyme of Antrim (teaching prevention of oxidation in
foodstuffs such as fish and edible oils) for such purpose. Stabilizing an
emulsion by mechanical homogenization and stabilizing—or preventing
oxidation of—a double bond are two different things. See, e.g., Bone col. 2,
ll. 64–68 (thorough mechanical homogenization provides sufficient solutes
in suspension in batter mix). The skilled artisan would not have viewed
Bone’s disclosure of stabilizing its emulsion as eliminating a desire or need
to prevent oxidation of its unsaturated fats. “One of ordinary skill in the art
need not see the identical problem addressed in a prior art reference to be
motivated to apply its teachings.” Cross Med. Prods., Inc. v. Medtronic
Sofamor Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005).
As to Appellant’s argument that Antrim is in a different field from
Bone (Appeal Br. 7), we note that our reviewing court directs us to construe
the scope of analogous art broadly. Wyers v. Master Lock Co., 616 F.3d
1231, 1238 (Fed. Cir. 2010). To label a reference as analogous art “merely
connotes that it is relevant to a consideration of obviousness under § 103 as
‘prior art.’” In re Sovish, 769 F.2d 738, 742 (Fed. Cir. 1985). “Two
separate tests define the scope of analogous prior art: (1) whether the art is
from the same field of endeavor, regardless of the problem addressed and,
(2) if the reference is not within the field of the inventor’s endeavor, whether
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the reference still is reasonably pertinent to the particular problem with
which the inventor is involved.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir.
2004) (internal citation omitted). In the instant case, Antrim’s teachings
regarding oxidation of unsaturated oils is reasonably pertinent to the claimed
invention and to Bone’s need to preserve pancake batter.
Appellant next argues that “there is no indication that the packaging
of Domingues would be suitable for the batter composition of Bone”
(Appeal Br. 8), and “it is unclear whether the batter-type dough of
Domingues is similar to the batter of Bone” (Reply Br. 3). Appellant
contends that “the oxidoreductase enzyme manages the headspace in a
closed package.” Reply Br. 3. These arguments are unpersuasive.
Domingues discloses refrigerated, chemically-leavened doughs
packaged in a low pressure flexible package with little or no headspace, i.e.,
having an internal pressure that is typically less than 15 psia. Domingues
¶ 10. These doughs are said to include non-developed types of doughs such
as cakes and brownies. Id. ¶ 15. Thus, as the Examiner finds, Domingues
discloses batter-type doughs that would be expected to have similar
pourability to those in Bone. Ans. 13.
With respect to Hamilton, Appellant argues that the reference
discloses a vented storage bag, and providing a vent in a container would be
counter to the inclusion of the oxidoreductase enzyme. Appeal Br. 8.
Appellant argues that there is no reason why one of ordinary skill in the art
would look to Hamilton to modify the container of Domingues to be vented
or resealable. Reply Br. 4. These arguments are not persuasive.
The Examiner relies on Hamilton to teach a resealable closure for a
food storage package. See Final Act. 6. Although Hamilton teaches a vent
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in a resealable package, the vent is not necessary to the rejection. One of
ordinary skill in the art would have been motivated to make a storage bag
resealable to allow its contents to accessed multiple times. See Cross Med.
Prods., Inc., 424 F.3d at 1323 (“One of ordinary skill in the art need not see
the identical problem addressed in a prior art reference to be motivated to
apply its teachings.”).
Finally, Appellant argues that the Examiner has not shown that the
composition of Bone would necessarily have the claimed yield point.
Appeal Br. 9. This argument is unpersuasive.
The Examiner finds that Bone’s pancake batter is spoonable or
pourable at refrigeration temperature, and that low yield point allows batter
to flow and to be pourable. Ans. 16 (citing Bone col. 2, l. 50; Hahn col. 10,
ll. 31–32, 39–40). The Examiner finds that the amounts of flour, water, and
sugar disclosed in Bone would likely exert the most influence on the yield
point of the batter, and are optimizable. Id. at 17. The Examiner thus finds
that the claimed yield point of not greater than 20 Pascals is inherent. Id.
Choosing to define an element functionally, i.e., by what it does rather
than what it is, carries with it a risk:
[W]here the Patent Office has reason to believe that a functional
limitation asserted to be critical for establishing novelty in the
claimed subject matter may, in fact, be an inherent
characteristic of the prior art, it possesses the authority to
require the applicant to prove that the subject matter shown to
be in the prior art does not possess the characteristic relied on.
In re Swinehart, 439 F.2d 210, 213 (CCPA 1971). Moreover, “when the
PTO shows sound basis for believing that the products of the applicant and
the prior art are the same, the applicant has the burden of showing that they
are not.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990); see also In re
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Best, 562 F.2d 1252, 1256 (CCPA 1977) (“Where, as here, the claimed and
prior art products are identical or substantially identical, or are produced by
identical or substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily or inherently
possess the characteristics of his claimed product.”).
Moreover, the work of the inventor or the patentee can be used as the
evidence of inherency. See, e.g., Alcon Research, Ltd. v. Apotex Inc., 687
F.3d 1362, 1369 (Fed. Cir. 2012) (analyzing inherency based on the
disclosure of the ‘patent itself’); Telemac Cellular Corp. v. Topp Telecom,
Inc., 247 F.3d 1316, 1327–28 (Fed. Cir. 2001) (finding that features were
inherent ‘as evidence by [the patentee]’s own documents’).
Bone discloses amounts of flour, sugar, oil, water, sugar to water
ratio, water activity, and polyhydric alcohols (non-sugar water activity) that
fall within the ranges claimed for these elements in various claims of the
’882 Application.4 Bone discloses uses of a “minor amount” of leavening

4 Table comparing disclosures in ’882 Application with those in Bone:
component/
parameter
’882 Application Bone
flour

23-27 wt% (claim 10)

26% (col. 5, Ex. III)

sugar, consists
essentially of
disaccharides
2-10 wt% (claim 2)
sucrose (claim 4)
3-7 wt% (claim 10)
7% sucrose (col. 6, Ex. IV;
see also col. 5, Ex. III)
oil 6-10 wt% (claim 10) 10-15% (col. 2, ll. 65–66)
water 36-40 wt% (claim 10) 35-40% (col. 2, l. 61)
water activity below 0.93 (claim 1) less than 0.925 (col. 2, ll.
50–51)
sugar:water 0.3-0.7:1 (claim 2) 0.3-0.6:1 (col. 2, l. 45)
acidic chemical 0.4-1 wt% (Spec. 12, ll. minor amount of leavening
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agents, and the ’882 Application discloses 0.4–1.0 wt% acidic chemical
leavening agent and 0.55–0.95 wt% basic chemical leavening agent. Id.
These facts support that the allegedly inherent characteristic (yield
point of not greater than 20 Pascals) necessarily flows from the teachings of
Bone. Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990) (“In relying
upon the theory of inherency, the examiner must provide a basis in fact
and/or technical reasoning to reasonably support the determination that the
allegedly inherent characteristic necessarily flows from the teachings of the
applied prior art.”). Appellant provides no evidence to counter this
conclusion. See Spada, 911 F.2d at 708; Best, 562 F.2d at 1256. The
conclusion is further supported by Hahn’s teaching that a batter that is
pourable or flowable right out of the freezer has a yield stress of about 11
Pascals. See Hahn col. 10, ll. 36–37, 39–40.
We sustain the rejection of claim 1 as obvious. We also sustain the
rejection of claims 4–6, 8, 19, and 50 pursuant to 37 C.F.R.
§ 41.37(c)(1)(iv).

leavening
agent
26–28) agent (col. 4, ll. 52–53)
basic chemical
leavening
agent
0.55–0.95 wt% (Spec. 12,
ll. 14–15
minor amount of leavening
agent (col. 4, ll. 52–53)
polyhydric
alcohol (non-
sugar water
activity
reducing agent)
non-sugar water activity
reducing agent consisting
essentially of polyhydric
alcohol have 6 or fewer
carbons (claim 5);
9-13 wt% (claim 10)
polyhydric alcohols less than
15 wt% (col. 2, ll. 37–41)

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Claim 2
Claim 2 is an independent claim, and differs from claim 1 in requiring
2–10 weight percent sugar and a sugar to water ratio in a range from 0.3/1 to
0.7/1, but not requiring a yield point of not greater than 20 Pascals. Appeal
Br. 20 (Claims App.).
Although Appellant nominally argues claim 2 separately from claim
1, the arguments made for patentability of claim 2 are repetitions of those
made in relation to claim 1. Compare Appeal Br. 6–8, with id. at 9–12.
Indeed, Appellant provides no additional argument for the elements of claim
2 (weight percentage sugar and sugar to water ratio) that are not present in
claim 1. Compare id. at 9–12, with id. at 20 (Claims App.).
We sustain the rejection of claim 2 as obvious.
Claim 9
Claim 9 depends from claim 1 and further recites a yield point of not
greater than 20 Pascals after a refrigerated storage period of four weeks.
Appeal Br. 21 (Claims App.).
Appellant argues that Bone lacks any teaching of a yield point or any
other property after a storage period of four weeks. Id. at 12.
The Examiner’s relevant finding is that a yield point of not greater
than 20 Pascals after a refrigerated storage period of four weeks is inherent.
Final Act. 7.
As discussed supra, we agree that the claimed yield point is inherent
in the composition. We sustain the rejection of claim 9 as obvious.
Claim 10
Claim 10 depends from claim 1 and further requires specific weight
percentages of flour, sugar, non-sugar water-activity reducing agent, acidic
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chemical leavening agent, basic chemical leavening agent, oil, and water.
Appeal Br. 21 (Claims App.). Claim 10 recites 0.4 to 1 weight percent
acidic chemical leavening agent and 0.5 to 1 weight percent basic leavening
agent. Id.
The Examiner relies on Coyle to teach the required amounts of acidic
and basic chemical leavening agents. Final Act. 5. Specifically, the
Examiner finds that Coyle discloses that batter composition contains both
acidic and basic leavening agents in a ratio of 1:1 to about 1.5:1 (acid:base),
and the total leavening system can make up about 0.4 to 1.0 % by weight of
the batter composition. Id. (citing Coyle ¶¶ 106, 116). The Examiner
concludes that one of ordinary skill in the art would have been motivated to
use Coyle’s leavening system to modify Bone in order to have the reaction
between basic and acid leavening agents to produce carbon dioxide which is
retained by the batter-like composition to expand which is known as
leavening action and to provide stability at refrigeration. Id. (citing Coyle
¶ 117).
Appellant argues that the Examiner fails to establish that the addition
of the claimed leavening agents in the amounts claimed and corresponding
production of carbon dioxide and expansion would be desirable in the batter
of Bone. Appeal Br. 13. Appellant also argues that leavening agents would
affect the pourability of Bone, thus it would be counterintuitive to add
leavening agents to expand the composition of Bone. Id. These arguments
are unpersuasive.
Bone discloses a pancake batter spoonable or pourable at refrigeration
temperatures that is formulated to include a leavening system and stable
under storage for weeks. Bone col. 2, ll. 49–50, 55–58. Bone teaches that
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“leavening agents may be used in minor amounts as known in the art.” Id.
col. 4, ll. 52–53. Contrary to Appellant’s argument, it would not have been
counterintuitive to use leavening agents in Bone, as Bone teaches use of
leavening agents and leavening agents are known to expand a batter-like
composition.
One of ordinary skill in the art, given Bone’s teaching of using
leavening agents in minor amounts as known in the art, would reasonably
turn to a reference such as Coyle to select a useful amount of leavening
agent. One of ordinary skill can use his or her ordinary skill, creativity, and
common sense to make the necessary adjustments and further modifications
to result in a properly functioning product. See KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007) (“a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ”).
Furthermore, “if a technique has been used to improve one device, and a
person of ordinary skill in the art would recognize that it would improve
similar devices in the same way, using the technique is obvious unless its
actual application is beyond his or her skill.” See id. at 417.
We sustain the rejection of claim 10 as obvious.
Claim 17
Claim 17 depends from claim 2 and further recites that the claimed
oxidoreductase enzyme is glucose oxidase enzyme. Appeal Br. 21 (Claims
App.).
The Examiner finds that Antrim discloses glucose oxidase as and
oxidoreductase enzyme used in an oil-in-water composition. Final Act. 5.
Appellant argues that there is no apparent reason one would look to
Antrim and select glucose oxidase to add to the pancake batter of Bone. Id.
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at 13. Appellant argues that the Examiner fails to establish a prima facie
case of obviousness of claim 17. Id.
Relying on our discussion supra regarding the combination of
Antrim’s teachings with those of Bone, we sustain the rejection of claim 17
as obvious.
Claims 48, 49, and 52
Appellant argues claims 48, 49, and 52 as a group. Appeal Br. 17.
Claims 49 and 52, which depend from claim 48, stand or fall with claim 48.
37C.F.R. § 41.37(c)(1)(iv).
Claim 48 includes the same components as claim 1 but recites specific
weight percentages of flour, sugar, non-sugar water-activity reducing agent,
acidic chemical leavening agent, basic chemical leavening agent, oil, and
water. Appeal Br. 21–22 (Claims App.).
The Examiner relies on the same findings in the prior art for claim 48
as for claims 1, 2, and 10. See Final Act. 3–7.
Appellant reiterates the same arguments relating to Coyle, Antrim,
Domingues, Hamilton, and yield point that are made in relation to clams 1,
2, and 10, and that we addressed supra. Compare Appeal Br. 13–17 with id.
at 6–13. Appellant’s arguments do not overcome the rejection of claims 1,
2, or 10, and are not persuasive in relation to claim 48.
We affirm the rejection of claim 48, as well as claims 49 and 52.
Claims 53, 54, and 55
Claims 53, 54, and 55 each recite that “the packaging container
maintains a pressure of between 13 and 16 psi after opening and reclosing
during a refrigerated storage period of at least 2, 4, or 6 weeks at a
temperature of 38 to 45 degrees F.” Appeal Br. 22 (Claims App.). Claim 53
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depends from claim 1, claim 54 depends from claim 2, and claim 55 depends
from claim 48. See id. Although Appellant nominally argues claims 53, 54,
and 55 separately, the arguments for each claim are identical (see id. at 17–
19), thus we address the claims together.
The Examiner finds that Domingues discloses a refrigerated
chemically leavened dough composition packaged at an internal pressure of
at least 15 psig which is substantially air-tight, and an internal pressure
therefore, remains at approximately 1 atm (14.6 psi) with little or no
headspace. Final Act. 8. The Examiner also finds that Domingues discloses
a low pressure package that includes a pressure valve to allow gas to escape
during refrigeration. Id. The Examiner finds that one of ordinary skill in the
art could have maintained the pressure in the packaging by adjusting the
pressure relief valve. Id. The Examiner determines that one of ordinary
skill in the art would understand Domingues’s disclosure that the packaged
dough is refrigerator stable for weeks to months implies that the pressure in
the refrigerated dough remains after many times of opening and reclosing
the container. Id. at 9.
Appellant argues that the applied references fail to teach the
limitations. Appeal Br. 17–18. Appellant argues that the psi referenced in
Domingues does not refer to the psi after opening and reclosing the
container. Id. at 18.
Although Domingues discloses a packaging container with an initial
pressure that is within the claimed range, the reference does not teach
opening and reclosing the container while maintaining the pressure.
Therefore, Domingues does not imply that the disclosed pressure remains
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“after opening and reclosing during a refrigerated storage of at least 2, 4, or
weeks at a temperature of 38 to 45 degrees.”
We do not sustain the rejection of claims 53–55.
CONCLUSION
In summary:
Claim(s)
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2, 4–6, 8–10,
17, 19, 48–50,
52–55
103
Bone, Coyle,
Antrim,
Domingues,
Hamilton
1, 2, 4–6,
8–10, 17,
19, 48–50,
52
53–55
Overall
Outcome
1, 2, 4–6,
8–10, 17,
19, 48–50,
52
53–55
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 IN PART