General Mills, Inc.

Patent Trials and Appeals Board

Sep 27, 2021

2020006180 (P.T.A.B. Sep. 27, 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.
15/049,755 02/22/2016 Pamela J. Pederson 7872US01 1425
106306 7590 09/27/2021
DIEDERIKS & WHITELAW, PLC
4196 Merchant Plaza, #815
Woodbridge, VA 22192
EXAMINER
MUKHOPADHYAY, BHASKAR
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
09/27/2021 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 PAMELA J. PEDERSON,
CHRISTINE M. NOWAKOWSKI, and KYLE RANEY
Appeal 2020-006180
Application 15/049,755
Technology Center 1700
Before GEORGE C. BEST, CHRISTOPHER C. KENNEDY, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–28. Because at least one of the claims
on appeal has been twice rejected, we have jurisdiction under 35 U.S.C.
§ 6(b).

1 In this Decision, we refer to the Specification filed February 22, 2016
(“Spec.”); the Non-Final Office Action dated January 10, 2020 (“Non-Final
Act.”); the Appeal Brief filed March 31, 2020 (“Appeal Br.”); the
Examiner’s Answer dated July 24, 2020 (“Ans.”), and the Reply Brief filed
August 28, 2020 (“Reply Br.”).
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as General Mills, Inc. Appeal Br. 4.
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We AFFIRM IN PART.
CLAIMED SUBJECT MATTER
The claims are directed to a cereal food product. Spec. ¶ 1. Claim 1,
reproduced below, illustrates the claimed subject matter:
1. A method of producing a cereal food product
comprising:
mixing a plurality of ingredients to form an
intermediate cereal food composition;
mixing cocoa or cinnamon with at least one
enzyme to form a mixture; and
combining the mixture with the intermediate cereal
food composition in forming the cereal food product.
Appeal Br. 23 (Claims App.).
REJECTIONS
The Examiner maintains the following rejections on appeal (Non-
Final Act. 4–15; Ans. 3):
Rejection I: Claims 1–7, 9, 11,3 13–23, and 25–28 are rejected under
35 U.S.C. § 103 over Calandro,4 Blondeel,5 and Noburo.6

3 The Examiner’s statement of the rejection does not include claim 11. Non-
Final Act. 4. The body of rejection, however, does address claim 11. Id. at 8.
We, therefore, assume that the omission of claim 11 from the statement of
the rejection is an inadvertent error.
4 Calandro et al., US 5,093,146, issued March 3, 1992.
5 Blondeel et al., US 2009/0263556 A1, published Oct. 22, 2009.
6 Noburo et al., JP H07-79749A, published March 28, 1995. We refer to the
machine translation of record of Noburo as cited by the Examiner.
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Rejection II: Claim 12 is rejected under 35 U.S.C. § 103 over
Calandro, Blondeel, Noburo, and Clanton.7
Rejection III: Claims 8 and 24 are rejected under 35 U.S.C. § 103
over Calandro, Blondeel, Noburo, and Kim.8
Rejection IV: Claims 10 and 25 under 35 U.S.C. § 103 over
Calandro, Blondeel, Noburo, and Van Lengerich.9
DISCUSSION
After review of the cited evidence in light of the Appellant’s and the
Examiner’s opposing positions, we determine that the Appellant has not
identified reversible error in the Examiner’s rejections except where
otherwise explained below. Thus, where we affirm the Examiner's
rejections, we do so for the reasons expressed in the Non-Final Office
Action, the Answer, and below.
Appellant presents separate patentability arguments to the following
groups of claims: (1) claim 1; (2) claims 2–4, 14, and 15; (3) claim 5;
(4) claim 6; (5) claim 7; (6) claim 9; (7) claim 10; (8) claim 13; (9) claim 16;
(10) claim 17; (11) claims 18–21, 27, and 28; (12) claims 22 and 23;
(13) claim 25; (14) claim 26; (15) claim 12; (16) claim 8; (17) claim 24. We
will address each grouping of claims in turn below.

7 Clanton et al., US 5,843,503, issued Dec. 1, 1998.
8 Na Mi Kim et al., Changes of Properties in Cinnamon Extracts Prepared
by Enzyme Hydrolysis and Addition of Salts, Sugars and Antioxidant
Synergists, 4 Applied Biol. Chem. 272–276 (1994).
9 Van Lengerich et al., US 5,015,489, issued May 14, 1991.
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Claim 1
The Examiner rejects claim 1 under 35 U.S.C. § 103 over Calandro,
Blondeel, and Noburo. Non-Final Act. 4.
The Examiner finds that Calandro teaches all the steps of claim 1’s
method of producing a cereal food product, including mixing cocoa and
cinnamon to form a mixture, but fails to teach the cocoa and cinnamon are
mixed with at least one enzyme to form a mixture as in claim 1. Id. at 5
(citing 11:40–67).
The Examiner finds that one of ordinary skill in the art would have
treated Calandro’s cocoa powder with an enzyme, such as cellulase or
protease, based on Blondeel’s teaching that such enzymatic treatment
increases the solubilization of the cocoa powder. Non-Final Act. 5; Blondeel
¶¶ 537–538; see also Noburo ¶ 17 (teaching a method of producing a
chocolate beverage with a rich chocolate flavor using cacao treated with an
enzyme, such as cellulase, protease, and lipase).
Appellant argues that one of ordinary skill in the art would not have
combined the teachings of Calandro, Blondeel, and Noburo, because
increasing the solubility of cocoa powder in Calandro, as taught by
Blondeel, ignores Calandro’s goal of creating cereal pieces that resist
absorbing moisture. Appeal Br. 8 (citing Calandro 3:21–34, 8:5–27).
Appellant’s argument does not identify reversible error in the
Examiner’s rejection. Blondeel teaches that cocoa powder is not easily
wetted and can impede dispersion and result in lumping. Blondeel ¶ 6. To
address this issue, Blondeel teaches a method for increasing solubilization of
cocoa power that increases the amount of soluble cocoa components and
renders the cocoa powder more water soluble. Id. ¶ 12. Appellant fails to
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explain why improving the solubility of cocoa powder by mixing cocoa
powder with at least one enzyme, as taught by Blondeel, would not have
been viewed by one of skill in the art as advantageous to Calandro’s process
of preparing a ready-to-eat cereal. Likewise, Appellant does not direct us to
sufficient factual evidence or provide an adequate technical explanation that
increasing the solubility of the cocoa powder by mixing the cocoa powder
with an enzyme to form a mixture and then combining the mixture with
Calandro’s “intermediate” cereal food composition (i.e., flour, sugar, fat, or
shortening) would increase the solubility of the resulting baked ready-to-eat
cereal.
Appellant argues that the Examiner has not shown that Blondeel and
Noburo are analogous art. Appeal Br. 9.
Appellant’s argument does not identify reversible error in the
Examiner’s rejection. Two criteria have evolved for determining whether
prior art is analogous: (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 the reference still is reasonably
pertinent to the particular problem with which the inventor is involved. In re
Clay, 966 F.2d 656, 658–59 (Fed. Cir. 1992). The scope of analogous art is
to be construed broadly. Wyers v. Master Lock Co., 616 F.3d 1231, 1238
(Fed. Cir. 2010) (“familiar items may have obvious uses beyond their
primary purposes, and a person of ordinary skill often will be able to fit the
teachings of multiple patents together like pieces of a puzzle” (quoting KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 402 (2007))). With respect to
criteria (1), both Blondeel and Noburo, like the claimed invention, are
directed to food products. Regarding criteria (2), Blondeel, which teaches
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increasing solubilization of cocoa powder, is reasonably pertinent to the
problem Appellant discloses in the Specification: to reduce the viscosity
and/or stickiness of cocoa when used in food products. Spec. ¶¶ 2, 18.
Therefore, we are not persuaded that the Examiner erred in finding that
Blondeel and Noburo are analogous art, and thus can be properly relied upon
by the Examiner in support of the obviousness rejections.
Because we are not persuaded of reversible error in the Examiner’s
rejection, we sustain the rejection of claim 1.
Claims 2–4, 14, and 15
Because Appellant’s arguments regarding this group of claims focus
on claim 2, we will do the same in our discussion below.
Claim 2 depends from claim 1 and requires “mixing the cocoa or
cinnamon with the at least one enzyme includes mixing the cocoa or
cinnamon with at least two enzymes, and the at least two enzymes include at
least two carbohydrates.” Appeal Br. 23 (Claims App.).
The Examiner finds that Blondeel teaches cocoa powder treated
enzymatically with cellulase, xylanase, and pectinase to increase
solubilization. Non-Final Act. 6 (citing Blondeel ¶ 549).
Appellant argues that Blondeel’s teachings are not relevant to
Calandro’s cereal composition and there is no apparent reason to add
enzymes to Calandro’s chocolate liquor. Appeal Br. 11.
Appellant’s argument does not identify reversible error in the
Examiner’s rejection. As discussed in claim 1 above, Appellant fails to show
why improving the solubility of cocoa powder by mixing cocoa powder with
one or more enzymes, such as cellulase and xylanase, as taught by Blondeel,
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would not have been viewed by one of skill in the art as advantageous, as
found by the Examiner, to Calandro’s process of preparing a ready-to-eat
cereal. Thus, we sustain the rejection of claims 2–4, 14, and 15.
Claim 5
Claim 5, which ultimately depends from claim 1, requires “mixing
cocoa with the cellulase, xylanase and at least two additional, soluble fiber
enzymes includes mixing cocoa with cellulase, xylanase, pectinase and
protease.” Appeal Br. 23 (Claims App.).
As with claim 2 above, the Examiner finds that Blondeel teaches
cocoa powder treated with the enzymes recited in claim 5 to increase
solubilization. Non-Final Act. 7 (citing Blondeel ¶¶ 531, 537, 549).
Appellant argues that none of the prior art references teach mixing
cocoa with claim 5’s four enzymes, and the prior art presents no apparent
reason to do so. Appeal Br. 11–12.
Appellant’s argument does not identify reversible error in the
Examiner’s rejection. Blondeel teaches mixing cocoa with claim 5’s
enzymes (Blondeel ¶¶ 186, 235, 537, 549), and the Examiner has provided
an adequate reason, with rational underpinnings, for using Blondeel’s
enzymes in Calandro’s method of preparing a ready-to-eat cereal, i.e.,
increased solubilization of the cocoa powder (Blondeel ¶¶ 537, 549). Thus,
we sustain the rejection of claim 5.
Claim 6
Claim 6 ultimately depends from claim 1 and further requires “mixing
the cocoa with cellulase, xylanase, at least two additional, soluble fiber
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enzymes and at least one fat soluble enzyme.” Appeal Br. 23 (Claims App.).
Appellant’s Specification identifies lipase as a fat soluble enzyme. Spec. ¶ 7.
The Examiner finds that Noburo teaches that it was known to use
lipase as a fat soluble enzyme to solubilize fat in the final cocoa product.
Non-Final Act. 7 (citing Noburo ¶ 10).
As Appellant persuasively argues, the Examiner fails to provide a
reason why one of ordinary skill in the art would have used a fat soluble
enzyme, such as lipase, that is added to a cacao mass or cacao nib, which
includes cocoa butter (fat), at the same time of extraction to increase the
solid content of the extract to treat cocoa powder, which does not include
cocoa butter. Appeal Br. 12; see also Noboru ¶¶ 2, 4 (describing cocoa
powder as “degreased” and discussing how cocoa powder is obtained by
crushing cocoa cake remaining after separating cocoa butter from a cacao
mass). Therefore, we do not sustain the rejection of claim 6.
Claim 7
Claim 7 depends from claim 6, and requires “mixing the cocoa with
cellulase, xylanase, at least two additional, soluble fiber enzymes and at least
one fat soluble enzyme includes mixing cocoa with cellulase, xylanase,
pectinase, protease and lipase.” Appeal Br. 23 (Claims App.).
For the same reasons discussed above with respect to claim 6, we
likewise do not sustain the Examiner’s rejection of claim 7.
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Claim 9
Claim 9 depends from claim 1 and requires that the method further
comprise “deactivating the at least one enzyme in the mixture.” Appeal
Br. 24 (Claims App.).
The Examiner finds that Blondeel teaches inactivating the enzymes
after the enzyme treatment step. Non-Final Act. 7 (citing Blondeel ¶ 241).
Appellant’s argument that the Examiner provides no apparent reason
to apply Noburo’s teaching of deactivating an enzyme in a drink to
Calandro’s cereal is not persuasive because it fails to adequately address the
Examiner’s reason for modifying Calandro based on Blondeel. As the
Examiner finds, Blondeel teaches that after enzymatic treatment, the reaction
may be stopped. Blondeel ¶ 241. Thus, we sustain the rejection of claim 9.
Claim 10
Claim 10 depends from claim 2 and further requires “mixing the
plurality of ingredients in a cooker extruder; and . . . combining the mixture
with the intermediate cereal food composition in the cooker extruder.”
Appeal Br. 24 (Claims App.).
The Examiner rejects claim 10 under 35 U.S.C. § 103 over Calandro,
Blondeel, Noburo, and Van Lengerich. Non-Final Act. 14. The Examiner
finds that Van Lengerich teaches that using a cooker extruder reduces post
extrusion baking time to make a baked product. Id. at 15 (citing Van
Lengerich 2:28–30).
Appellant argues that Van Lengerich does not teach separate mixing
steps in a cooker extruder as in claim 10. Appeal Br. 21.
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Appellant’s argument does not identify reversible error in the
Examiner’s rejection. Appellant admits that the preparation of cooked cereal
dough using a cooker extruder “has become commonplace.” Spec. ¶ 14.
Because using cooker extruders for preparing cooked cereal dough is well-
known in the art, one of ordinary skill in the art, using no more than ordinary
creativity, would have used a cooker extruder to mix the plurality of
ingredients to form Calandro’s “intermediate” cereal food composition
(claim 10’s “mixing step”) as well as combining a mixture of cocoa or
cinnamon and at least one enzyme with Calandro’s “intermediate” cereal
food composition (claim 10’s “combining” step). See In re Nomiya, 509
F.2d 566, 570–71 (CCPA 1975) (explaining that Appellants’ representations
in their Specification may be used in determining the patentability of a
claimed invention); see also KSR, 550 U.S. at 418 (explaining that in making
an obviousness determination one “can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ”). Thus,
we sustain the rejection of claim 10.
Claim 13
Claim 13 depends from claim 2, and further requires “forming the
intermediate cereal food composition into a plurality of cereal pieces,
wherein combining the mixture includes applying the mixture as a coating
onto the plurality of cereal pieces.” Appeal Br. 24 (Claims App.).
The Examiner finds that Calandro teaches a confectionery glazing
solution is applied over the cereal pieces to provide a sweet taste and an
appealing appearance. Non-Final Act. 8 (citing Calandro 11:22–25). The
Examiner finds that because claim 13 depends from claim 1, and claim 1
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uses the “comprising” transitional phrase, claim 13’s mixture can include
cocoa or cinnamon as well as a sugar solution used for sweet taste and
appealing appearance. Id.
Appellant argues that Calandro’s glazing solution is not a “mixture”
as recited in claim 13, and the Examiner has failed to explain why any
enzymes would be mixed in Calandro’s glazing solution. Appeal Br. 13–14.
Appellant’s argument identifies reversible error in the Examiner’s
rejection. Claim 13 ultimately depends from claim 1. Thus, “the “mixture”
in claim 13 is the mixture formed in claim 1, which includes cocoa or
cinnamon and at least one enzyme. Appeal Br. 23 (Claims App.). Calandro’s
glazing solution is generally a sugar solution (Calandro 11:23–27). The
glaze is preferably applied to the cereal by spraying as the cereal exits the
baking oven. Calandro 11:24, 12:23–24. The Examiner has not identified
sufficient factual evidence that Calandro’s glaze solution includes cocoa or
cinnamon and at least one enzyme. Thus we do not sustain the rejection of
claim 13.
Claim 16
Claim 16 depends from claim 15 and further requires “deactivating
the at least one enzyme after reducing the viscosity of the mixture.” Appeal
Br. 24 (Claims App.).
As with claim 9 above, the Examiner finds that Blondeel teaches that
the enzymes are inactivated after the enzyme treatment step. Non-Final Act.
9 (citing Blondeel ¶ 241).
Appellant argues that the inactivation in Blondeel’s paragraph 241 is
not done to the same enzyme treatment in Blondeel’s paragraphs 537 and
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538 and there is no apparent reason for combining these two embodiments in
Blondeel. Appeal Br. 14.
Appellant’s argument does not identify reversible error in the
Examiner’s rejection. Even if the inactivation in Blondeel’s paragraph 241 is
not done on the same enzyme treatment as in Blondeel’s paragraphs 537 and
538, Blondeel generally teaches treating cocoa with a number of degrading
enzymes, including cellulases and proteases (Blondeel ¶ 234), and Blondeel
teaches that after enzymatic treatment, the reaction may be stopped (id.
¶ 241). Thus, we are not persuaded that the Examiner reversibly erred by
relying on Blondeel’s teachings in paragraphs 241, 537, and 538 in rejecting
claim 16. Accordingly, we sustain the rejection of claim 16.
Claim 17
Independent claim 17 is reproduced below.
A method of producing a cereal food product comprising:
mixing cocoa or cinnamon with at least one enzyme to
form a mixture;
deactivating the at least one enzyme; and
combining a cereal food composition with the mixture,
after the at least one enzyme is deactivated, in forming the cereal
food product.
Appeal Br. 25 (Claims App.).
As Appellant points out, the Examiner’s rejection of claim 17 relies
on the same factual findings and reasoning set forth regarding the rejection
of claim 1. Appeal Br. 14.
Because Appellant’s argument regarding claim 17 is similar to
Appellant’s argument regarding claim 1 (id.), we sustain the rejection of
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claim 17 for the same reasons as we sustain the rejection of claim 1
discussed above.
Claims 18–21, 27, and 28
Appellant’s arguments focus on claim 18. Appeal Br. 18.
Claim 18 depends from claim 17 and is identical to claim 2 discussed
above. Compare Appeal Br. 25 (Claims App.), with id. at 23.
For the same reasons as discussed above with respect to claim 2, we
sustain the rejection of claims 18–21, 27, and 28.
Claims 22 and 23
Appellant’s arguments focus on claim 22. Appeal Br. 19.
Claim 22 ultimately depends from claim 17 and is identical to claim 6
discussed above. Compare Appeal Br. 25 (Claims App.), with id. at 23.
For the same reasons as discussed above with respect to claim 6, we
do not sustain the rejection of claims 22 and 23.
Claim 25
Claim 25 ultimately depends from claim 17 and is similar to claim 10.
Compare Appeal Br. 26 (Claims App.), with id. at 24.
For the same reasons as discussed above with respect to claim 10, we
sustain the rejection of claims 25.
Claim 26
Claim 26 depends from claim 17 and is similar to claim 13. Compare
Appeal Br. 26 (Claims App.), with id. at 24.
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For the same reasons as discussed above with respect to claim 13, we
sustain the rejection of claims 25.
Claim 12
Claim 12 ultimately depends from claim 10 and requires “the
intermediate cereal food composition constitutes a marbit composition.”
Appeal Br. 24 (Claims App.).
The Examiner finds that Clanton teaches that extrudable foods can
include aerated confections (e.g., for the fabrication of marbits). Non-Final
Act. 13 (citing Clanton 10:45–60).
Appellant argues that the references relied on in the rejection fail to
teach adding a marbit before claim 10’s combining step. Appeal Br. 20.
Appellant’s argument does not identify reversible error in the
Examiner’s rejection. Clanton teaches or at least suggests that marbit
compositions, like Calandro’s cooked cereal dough, are cereal food
compositions used for producing cereal food products. Clanton 10:43–51.
Appellant has not provided persuasive reasoning or evidence why one of
ordinary skill in the art, using no more than ordinary creativity, would not
have predictably used a marbit composition in place of Calandro’s cookie
dough, and that such substitution would still allow for preparing (extruding)
a ready-to-eat cereal. Thus, we sustain the rejection of claim 12.
Claim 8
Claim 8 depends from claim 3 and further requires “mixing cinnamon
with cellulase, xylanase and pectinase.” Appeal Br. 24 (Claims App.).
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Appellant argues that Kim is directed to cinnamon extracts prepared
from dried cinnamon and the art fails to teach mixing a cinnamon extract
with an intermediate cereal food composition to form a cereal food product
as in claim 8. Appeal Br. 20–21.
Appellant’s argument does not identify reversible error in the
Examiner’s rejection because Appellant is attacking the references
individually when the rejection is based upon a combination of prior art
disclosures. In re Keller, 642 F.2d 413, 426 (CCPA 1981) (“[O]ne cannot
show non-obviousness by attacking references individually where, as here,
the rejections are based on combinations of references”). Appellant fails to
explain why increasing the cinnamon flavor (cinnamic aldehyde content) by
mixing cinnamon with at least one enzyme, such as cellulase, as taught by
Kim, would not have been viewed by one of skill in the art as advantageous
to Calandro’s process of preparing a ready-to-eat cereal. Thus, we sustain
the rejection of claim 8.
Claim 24
Claim 24 depends from claim 19 and is identical to claim 8. Appeal
Br. 21. Compare Appeal Br. 25 (Claims App.), with id. at 24.
For the same reasons as discussed above with respect to claim 8, we
sustain the rejection of claims 24.

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CONCLUSION
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–7, 9, 11,
13–23, 25–
28
103 Calandro,
Blondeel, Noburo
1–5, 9, 11,
14–21, 25–
28
6, 7, 13, 22,
23
12 103 Calandro,
Blondeel, Noburo,
Clanton
12
8, 24 103 Calandro,
Blondeel, Noburo,
Kim
8, 24
10, 25 103 Calandro,
Blondeel, Noburo,
Van Lengerich
10, 25
Overall
Outcome
1–5, 8–12,
14–21, 24–
28
6, 7, 13, 22,
23

TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv) (2019).
AFFIRMED IN PART