Susan S. Heddleson et al.

Patent Trials and Appeals Board

Aug 30, 2019

14471260 - (D) (P.T.A.B. Aug. 30, 2019)

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.
14/471,260 08/28/2014 Susan S. Heddleson 7844US01 7682
106306 7590 08/30/2019
DIEDERIKS &WHITELAW, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
08/30/2019 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 SUSAN S. HEDDLESON,
APARNA KOTHAPALLI, and STUART B. WILLIAMS
__________

Appeal 2019-000268
Application 14/471,260
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, GEORGE C. BEST, and
DEBRA L. DENNETT, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134 the final rejection of claims
1–3, 6–9, 11–13, and 16–23. We have jurisdiction over the appeal pursuant
to 35 U.S.C. § 6(b).
We AFFIRM.
Appellants’ invention is directed to coated cereal mixtures, and
methods of preparing such mixtures, which contain cereal base pieces and
dried aerated confections (Spec. ¶ 1).

1 The Appeal Brief on page 3 indicates that “General Mills, Inc.” is the
assignee of record.
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Claims 1, 2, 7, and 9 are illustrative:
1. A method for preparing a coated cereal mixture,
comprising:
providing dried aerated confection pieces;
providing cereal base pieces;
admixing the dried aerated confection pieces and cereal
base pieces to form a cereal mixture of individual dried aerated
confection pieces and individual cereal base pieces;
applying a binder liquid to the cereal mixture in a ratio of
10:100 to 20:100, wherein the binder liquid consists essentially
of oil and penetrates surfaces of the dried aerated confection
pieces; and
applying a dry particulate sugar coating to the cereal
mixture.
2. The method of claim 1, wherein the dry particulate sugar
coating consists essentially of sucrose.
7. The method of claim 1, further comprising: applying the
binder liquid and dry particulate sugar coating to the dried
aerated confection pieces and cereal base pieces by enrobing.
9. A coated cereal mixture comprising:
individual dried aerated confection pieces having outer
surfaces provided with a coating of binder liquid, which
penetrates the outer surfaces, and a dry particulate sugar coating
adhered to the coating of binder liquid, wherein the binder
liquid consists essentially of oil; and
individual cereal base pieces having a coating of binder
liquid and a dry particulate sugar coating adhered to the coating
of binder liquid, wherein a ratio of binder liquid to dried aerated
confection pieces and cereal base pieces is 10:100 to 20:100.
Appellants appeal the following rejection:
1. Claims 1–3, 6–9, 11–13, and 16–23 are rejected under 35 U.S.C.
§ 103 as unpatentable over Zietlow et al. (US 6,495,179 B1, issued
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Dec. 17, 2002, “Zietlow”) in view of Green et al. (US 2005/0255218
A1, published Nov. 17, 2005, “Green”).
Appellants argue the subject matter of the following groups of claims:
(1) claims 1, 6, 16, 20 and 22; (2) claims 2 and 3; (3) claims 7 and 8;
(4) claims 9, 17, 19, 21; and 23; (5) claims 11–13; and (6) claim 18 (App.
Br. 4–14). We select claims 1, 2, 7, 9, 11, and 18 as representative of each
group of claims argued. Any claim not separately argued will stand or fall
with our analysis of the rejection of the representative claims.
FINDINGS OF FACT & ANALYSIS
CLAIM 1
The Examiner’s findings and conclusions with respect to claim 1 are
located on pages 2 to 4 of the Final Action.
The Examiner finds that Zietlow exemplifies a method of preparing a
coated cereal mixture comprising the steps of providing dried aerated
confection pieces and then applying an aqueous binder, which can further
include oil, thereto (Final Act. 2–3). The Examiner further finds that
Zietlow exemplifies the step of applying a dry particulate sucrose coating to
the aerated confection pieces and, thereafter, mixing the coated confection
pieces with individual cereal pieces (id. at 3).
With respect to the claimed cereal base pieces, the Examiner finds that
Zietlow teaches that such pieces are preferably coated with sugar and have a
pre-sweetener coating (id.). The Examiner determines that because Zietlow
teaches that sugar coated cereal pieces and similarly coated aerated
confection pieces are desired, it would have been obvious to include the
cereal base pieces along with the confection pieces during the coating
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process (id.). The Examiner reasoned that doing so would have
simultaneously coated the cereal pieces and the aerated confection pieces,
thereby providing the desired homogenous product while avoiding the
additional cost of pre-coated sugar cereal (id.).
The Examiner finds that Zietlow does not explicitly teach that the
binder liquid consists essentially of oil in the claimed ratio of 10:100 to
20:100 (id. at 4). However, the Examiner finds, inter alia, that Green
discloses a low sugar cereal composition comprising an oil binder, which is
applied at a ratio of 5:100 to 40:100 binder oil to base cereal to adhere a low
sugar topical coating to the cereal (id.). The Examiner further finds Green
teaches that an oil binder is preferred over an aqueous binder because: (i) it
eliminates a subsequent drying step, and (ii) an oil binder does not dissolve
the water soluble topcoat layer (id.). The Examiner concludes that it would
have been obvious to use a weight ratio of 5:100 to 40:100 binder oil to
Zietlow’s base cereal because Green teaches that this ratio allows for
sufficient particulate topcoat binding (id.) The Examiner determined that
use of Green’s oil binder would have eliminated a time consuming drying
step, which would have been necessary with Zietlow’s aqueous binder,
while preventing dissolution of Zietlow’s water soluble topcoat (id.).
Appellants argue that coating the cereal base pieces and dried aerated
confection pieces together with oil as a binder unexpectedly reduces the
dusting of the cereal and preserves the bright colors of the dried aerated
confection pieces (App. Br. 5). Appellants contend that simultaneous
tumbling of the cereal base pieces and dried aerated confection pieces in an
enrober dulls the colors of the aerated confections when compared to
separate tumbling of these pieces (see Reply Br. 2–3). Appellants further
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argue that the Specification provides evidence that the claimed order of
process steps provides new and unexpected results (App. Br. 7).
These arguments are not persuasive of reversible error.
As the Examiner finds, Appellants have not provided any data or
examples in the Specification that demonstrate unexpected results (Ans. 10).
Rather, Appellants direct our attention to qualitative assessments of cereal
appearance and dust reduction (see Spec. ¶¶ 14, 20). Appellants,
furthermore, have not compared the claimed invention with the closest prior
art (i.e., Zietlow’s separate tumbling of the cereal base pieces and dried
aerated confection pieces). See In re Baxter Travenol Labs., 952 F.2d 388,
392 (Fed. Cir. 1991) (“[W]hen unexpected results are used as evidence of
nonobviousness, the results must be shown to be unexpected compared with
the closest prior art.”).
Moreover, Appellants’ argument of unexpected results is premised on
the effect of decreased dusting afforded by the described method of
simultaneous coating (App. Br. 5). Claim 1, however, does not require any
particular method or processing conditions for coating. In re Harris, 409
F.3d 1339, 1344 (Fed. Cir. 2005) (Unexpected results must also be
“commensurate in scope with the degree of protection sought by the claims
on appeal.”). On these facts, Appellants have not identified reversible error
in the Examiner’s reasoning that oil, which is thicker than water, would have
been expected to better protect against a cereal dust coating on the dried
aerated confection pieces during simultaneous tumbling (Ans. 10).2

2 Appellants argue that the Examiner has not found that the applied prior art
teaches that oil would have penetrated the surfaces of the dried aerated
confections (Reply Br. 3). Appellants, however, do not specifically show
error in the Examiner’s reasoning “the mere act of applying an oil coating to
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Therefore, Appellants have not persuasively demonstrated that changing
Zietlow’s order of steps provides unexpected results.
Appellants argue that the Examiner’s applied prior art does not teach
directly substituting water for oil as the binder liquid because Zietlow
merely discloses using 1–3% oil as a “‘minor variation’” of water (App. Br.
8; see Zietlow 8:3). Appellants further argue that Zietlow teaches away
from using the claimed oil amount because Zietlow discloses that “[w]hen
the coating particles . . . are soluble carbohydrates especially applying lower
levels of coating particulates, smaller quantities of added moisture are
employed such as 0.1% added moisture” (App. Br. 8, citing Zietlow 7:64–
67). Appellants argue that one of ordinary skill in the art would not have
used the claimed ratio of 10:100 to 20:100 binder oil to cereal mixture
because this amount is 3 times larger than Zietlow’s recommended oil
amount (App. Br. 8). Appellants assert that there would have been no
reasonable expectation of success from combining Green’s suitable oil
amount as a binder for Zietlow’s aerated confections (id. at 8–9).
These arguments are not persuasive of reversible error.
At issue is the following passage in Zietlow regarding suitable binder
liquids:
The amount of moisture is small such as on the order of
0.1 to 7% preferably about 3 to 7%. For example, an edible
binder solution comprising about 20 to 40% edible binders in
water. Suitable binders can include film forming
carboxymethyl cellulose, starches, edible glue, maltodextrins
and mixtures thereof. When the coating particles, however are
soluble carbohydrates especially applying lower levels of
coating particulates, smaller quantities of added moisture are

the aerated confection pieces causes penetration of the surfaces of aerated
confection” (Final Act. 3).
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employed such as 0.1% added moisture. Care should be
expressed to avoid excessive moisture addition which can
undesirably result in the pieces adhering to each other.
In a minor variation, a small quantity (1 to 3%) of edible
oil can be used as a fixative for the particulate coating.
(Zietlow 7:59–8:4) (emphasis added).
Zietlow’s teaching to use water or oil undercuts Appellants’ argument
that Zietlow does not teach directly substituting water for oil as the binder
liquid. The Examiner, furthermore, persuasively finds that the 0.1%
moisture that Zietlow refers to is not oil, but water (Ans. 13).
Teaching away requires that a reference “criticize, discredit, or
otherwise discourage the solution claimed” by Appellant. In re Fulton, 391
F.3d 1195, 1201 (Fed. Cir. 2004). Here, we find that Zietlow does not teach
away from the claimed subject matter because Appellants have not identified
any disclosure that disparages using oil in concentrations higher than 1–3%.
Rather, the combined teachings in Zietlow and Green would have suggested
using a ratio of 5:100 to 40:100 binder oil to adhere sugar to Zietlow’s cereal
base pieces and aerated confection pieces because Green teaches that this
ratio: (i) provides an effective binder for a particulate sugar top coat,
(ii) prevents an additional drying step necessary for aqueous binders, and
(iii) obviates potential dissolution of particulate sugar topcoat (see Ans. 14).
CLAIM 2
The Examiner’s findings and conclusions with respect to claim 2 are
located on pages 2 to 4 of the Final Action.
Appellants question the Examiner’s reliance on Zietlow for teaching
that the dry particulate sugar may be sucrose (App. Br. 9). Appellants argue
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that the applied prior art does not disclose or suggest coating cereal base
pieces with a sugar consisting essentially of sucrose (id.).
Appellants do not specifically show error with the Examiner’s finding
regarding Zietlow’s teachings to use: (i) sucrose as the particulate coating
for aerated confection pieces, as taught in Example 1, and (ii) sugar coated
cereal pieces (Ans. 15 (citing Zietlow 6:37–53)). We note that Green
teaches that coating cereal base pieces with a sugar consisting essentially of
sucrose is well known in the art (Green ¶ 8; Abstract). In other words, the
combined teachings of the references would have suggested coating a cereal
mixture comprising cereal base pieces and aerated confection pieces with a
sugar coating consisting essentially of sucrose.
CLAIM 7
The Examiner’s findings and conclusions with respect to claim 7 are
located on page 5 of the Final Action.
Appellants argue that enrobing the aerated confections of Zietlow
together with the cereal base pieces would have resulted in the base pieces
and aerated confections sticking or clumping together (App. Br. 10).
Appellants further argue that it would not have been obvious to mix the
confections with the cereal pieces prior to coating the confections because
adding the cereal pieces would have interfered with the coating of the
confections by introducing cereal dust to the process (id.).
We are not persuaded by these arguments as Appellants have not
presented evidence other than attorney argument.3 As set forth above,

3 To the extent that Appellants’ evidence is based on Zietlow’s teachings
that tumbling dried confection pieces in an enrober with added moisture
renders the surfaces of these pieces sticky (App. Br. 9, citing Zietlow 7:51–
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Appellants rely on evidence in the Specification for showing that the
claimed subject matter is not obvious, but the Specification lacks any data or
examples that adequately demonstrates unexpected results. Therefore, the
preponderance of evidence supports the Examiner’s conclusion that Zietlow,
in view of Green, would have suggested applying the binder liquid and dry
particulate sugar coating to the dried aerated confection pieces and cereal
base pieces by enrobing.
CLAIMS 9 and 18
The Examiner’s findings and conclusions with respect to claim 9 are
located on pages 5 to 7 of the Final Action. With regard to claim 18, the
Examiner’s findings and conclusions are located on pages 2 to 4 of the Final
Action.
Appellants’ arguments for reversal of the Examiner’s rejection of
claims 9 and 18 are substantially similar to the arguments for reversal of the
rejection of claim 1 (compare App. Br. 10–12, 12–14 with id. at 5–9).
For the reasons set forth above, Appellants have not identified
reversible error in the Examiner’s reasoned determination that it would have
been obvious to use Green’s oil as the sole binder to prevent Zietlow’s water
soluble particulate sugar top coat from dissolving in the binder (Ans. 16–17;
see also id. at 9–15).

53), this evidence does not persuasively demonstrate that such stickiness
would have resulted in the base pieces and aerated confections sticking or
clumping together. Following Appellants’ logic, Zietlow’s aerated
confection pieces would have stuck together, thereby precluding Zietlow’s
described effective coating of such pieces.
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CLAIM 11
Claim 11 recites:
11. The coated cereal mixture of claim 9, wherein the dry
particulate sugar coating consists essentially of sucrose.
The Examiner’s findings and conclusions with respect to claim 11 are
located on page 7 of the Final Action.
Appellants’ arguments for reversal of the Examiner’s rejection of
claim 7 are substantially similar to the arguments for reversal of the rejection
of claim 2 (compare App. Br. 12 with id. at 9).
For the reasons set forth above, Appellants have not identified
reversible error in the Examiner’s reasoned determination that the combined
teachings of the references would have suggested a cereal mixture
comprising cereal base pieces and aerated confection pieces coated with a
sugar consisting essentially of sucrose.
On this record, we affirm the Examiner’s § 103 rejection over Zietlow
in view of Green.
DECISION
The Examiner’s decision is affirmed.
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).
AFFIRMED