Caravan Ingredients Inc.

Patent Trials and Appeals Board

Mar 18, 2022

2021001953 (P.T.A.B. Mar. 18, 2022)

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. 14/793,992 07/08/2015 GuoHua Feng 46097 1019 23589 7590 03/18/2022 Hovey Williams LLP 10801 Mastin Blvd., Suite 1000 Overland Park, KS 66210 EXAMINER MUKHOPADHYAY, BHASKAR ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 03/18/2022 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): uspatents@hoveywilliams.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte GUOHUA FENG, EMILY GUILFOYLE, JESSE STINSON, and LAWRENCE SKOGERSON Appeal 2021-001953 Application 14/793,992 Technology Center 1700 Before GEORGE C. BEST, DONNA M. PRAISS, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 24-27, 29, 31-38, and 49-52. See Non- Final Act. 4. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as “Caravan Ingredients, Inc.” Appeal Br. 4. Appeal 2021-001953 Application 14/793,992 2 CLAIMED SUBJECT MATTER Claim 24, reproduced below, illustrates the claimed subject matter: 24. A dough composition comprising a source of starch, yeast, and water, said dough comprising: two different amyloglucosidase enzymes: a thermally-stable amyloglucosidase that exhibits activity during baking at temperatures at which the starch gelatinizes and has a half-life (T1/2) of from about 1 minute to about 30 minutes at about 85°C, wherein said thermally-stable amyloglucosidase is present in said dough at a level of at least 500 AGU/kg flour; and a raw starch degrading amyloglucosidases having a half- life (T1/2) of from about 1 minute to about 20 minutes at about 70°C, wherein said raw starch degrading amyloglucosidase is present in said dough at a level of not more than 5,000 AGU/kg flour; and optionally an anti-staling amylase. Claims App. (Appeal Br. 25). REFERENCES The prior art references relied upon by the Examiner are: Name Reference Date Hirsh US 4,587,215 May 6, 1986 Cooper US 6,896,916 B2 May 24, 2005 Rittig US 2013/0209607 Al Aug. 15, 2013 REJECTIONS Claims 24-27, 29, 31-38, and 49-52 are rejected under 35 U.S.C. § 103 based on Rittig, Hirsh, and Cooper. Non-Final Act. 4. Appeal 2021-001953 Application 14/793,992 3 OPINION We review the appealed rejections for error based upon the issues Appellant identifies and in light of the arguments and evidence produced thereon. Cf. 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 examiner’s rejections.”). After having considered the evidence presented in this Appeal and each of Appellant’s contentions, we are not persuaded that Appellant has identified reversible error, and we affirm the Examiner’s rejection for the reasons expressed in the Non-Final Office Action and the Answer. We add the following primarily for emphasis. Claim 242 Appellant acknowledges the Examiner’s finding that Rittig teaches “a raw starch degrading enzyme, which may be combined with other enzymes.” Appeal Br. 9; Non-Final Act. 4. Appellant, however, argues that the thermally stable amyloglucosidase (“AMG”) taught in Rittig does not exhibit “activity during baking at temperatures at which the starch gelatinizes and has a half-life (T1/2) of from about 1 minute to about 30 minutes at about 85°C” as recited in claim 24. Appeal Br. 9. Appellant also acknowledges that Hirsch teaches “a single thermostable amyloglucosidase allegedly demonstrating the claimed thermostability properties” but argues 2 Appellant argues for the patentability of claims 24-27, 29, 31-38, 51, and 52 as a group with claim 24 as the representative claim. See Appeal Br. 7- 22. Claims 24-27, 29, 31-38, and 49-52 stand or fall together. See id.; see also 37 C.F.R. § 41.37(c)(1)(iv). Appeal 2021-001953 Application 14/793,992 4 that Hirsh does not teach or suggest combining the two recited AMGs or any advantage of such a combination. Id. Appellant’s arguments are unpersuasive of error. Rittig undisputedly teaches a dough having both raw starch degrading enzymes as well as an additional enzyme which may include any type of amyloglucosidase. Rittig ¶¶ 59, 60. Appellant does not identify error in the Examiner’s finding that the recited thermally stable AMG is encompassed by the prior art AMG genus. Compare Reply Br. 3-7, with Ans. 13; cf. In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003) (“[A] prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness.”).. The Examiner’s prima facie case of obviousness is therefore supported by the record. Appellant’s argument that Cooper does not teach or suggest the recited AMG enzymes (Appeal Br. 9) is unpersuasive because the Examiner only relies on Cooper for the teaching of the inclusion of yeast. Non-Final Act. 5. Appellant’s argument that “Cooper involves temperatures that are incompatible with the ability of the recited enzymes to produce sugar at the various stages” (Appeal Br. 9) is unpersuasive for the same reason. Appellant’s argument that “Cooper teaches away from additional sugar production in its dough” (id. at 10) is unpersuasive because it is incommensurate in scope with product claim 24 which requires only the recited components without requiring any process step such as additional sugar production. Appellant next argues that a skilled artisan would not have had any reason or a reasonable expectation of success in combining the references. Id. at 11. Appellant argues that Hirsh does not teach or suggest using the Appeal 2021-001953 Application 14/793,992 5 thermally stable AMG in food products such as doughs and bakery goods. Id. Appellant’s argument is unpersuasive because it attacks the Hirsch reference individually, rather than considering the combined prior art teaching including Rittig’s teaching of using any type of AMG in a food product. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Appellant’s argument that Hirsh teaches a continuous method of using AMG as opposed to a bath process of making bakery products (Appeal Br. 11) is unpersuasive. Claim 24 is a product claim, not a method claim and Appellant’s argument regarding the prior art process steps is unpersuasive because the argument does not address the claim elements required by claim 24. See In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir. 1993) (rejecting Appellant’s nonobviousness argument as based on limitation not recited in claim). Appellant also cites a Declaration by Dr. GuoHua Feng (“Declaration” or “Decl.”) in support of a lack of reasonable expectation of success. Appeal Br. 12. Dr. Feng states: “It is recognized in the art that different enzymes can have different purposes in baking.” Decl. ¶ 3 (cited in Appeal Br. 12). Dr. Feng provides an overview of the purpose of various enzymes including fungal amylase, shelf life extension enzymes, and shelf life extension enzymes with endo-amylase activity and states: “enzymes are widely used in baking, but different enzymes play different roles in breadmaking and they are not interchangeable.” Id. Appeal 2021-001953 Application 14/793,992 6 Dr. Feng’s statements that different enzymes serve different purposes do not support Appellant’s argument that a skilled artisan would not have had a reasonable expectation of success in arriving at the recited product based on the combined prior art teaching. “The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007). Moreover, “[o]bviousness does not require absolute predictability of success. . . . For obviousness under § 103, all that is required is a reasonable expectation of success.” In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988). In this case, Rittig teaches a product having a raw starch degrading AMG as well as an additional AMG of any type and that different enzymes serve different purposes-which is consistent with Dr. Feng’s declaratory statements. Compare Decl. ¶ 3, with Rittig ¶¶ 26-41, 60 (describing various enzymes and their respective purposes). The Examiner’s finding that it is within the ordinary skill to use different AMGs based on their respective known purposes is therefore supported by the record. Appellant argues that Cooper teaches “the temperature range is important to control because the enzymes ‘become both activated and deactivated during specific bake time applied’” (Appeal Br. 12) but does not adequately explain why the Examiner reversibly erred in finding that Cooper teaches the inclusion of yeast on which basis the obviousness rejection is formed. As noted supra, product claim 24 does not require the bakery product to be produced at a particular temperature, and Appellant’s argument regarding Copper’s temperature requirement is therefore unpersuasive for it is not based on a limitation recited in claim 24. As the Appeal 2021-001953 Application 14/793,992 7 Examiner finds, the product recited in claim 24 is merely “the predictable use of prior art elements according to their established functions,” KSR, 550 U.S. at 417, namely the known AMGs for their respective purposes. Appellant’s arguments with regard to Cooper’s process are unpersuasive. Appellant next argues that the Examiner engaged in impermissible hindsight in finding that it is within the ordinary skill to arrive at the recited amounts of AMG. Appeal Br. 13. According to Appellant, the Examiner notes that “the thermostable amyloglucosidase enzyme generates sugar at the higher baking temperature” but admits that the only teaching that the thermostable amyloglucosidase enzyme has enzyme activity at these higher baking temperatures is “evidenced by applicants own specification (in PGPUB [0057] e.g. this prior art is applicants own disclosure in [0057]).” Id. (citing Non-Final Act. 6). The argument is unpersuasive for multiple reasons. From the outset, Appellant does not dispute that the amount of the enzyme is a result effective variable. Nor does Appellant adequately explain why the “enzyme activity” relates to the recited amounts of AMG. Appellant does not adequately explain whythe Examiner reversibly erred in finding that it requires no more than routine experimentation to arrive at the recited amounts. See Rittig ¶ 56 (“The raw starch degrading enzymes are added to the flour in an ‘amount effective’ to correct the flour or improve the flour quality or flour based product quality. As used herein, ‘an effective amount’ is a concentration of enzyme or enzymes sufficient for the intended purpose of improving the flour quality or flour based product quality.”). Moreover, contrary to Appellant’s assertion, the Examiner found,: It is understood that the thermostable amyloglucosidase enzyme would have the inherent property of enzyme activity at Appeal 2021-001953 Application 14/793,992 8 temperature at which starch gelatinizes and having half -life as claimed in claim 24 and is also evidenced by applicants own specification (in PGPUB [0057] e.g. this prior art is applicants own disclosure in [0057]). Non-Final Act. 6. “The discovery of a new property or use of a previously known composition, even when that property and use are unobvious from the prior art, can not impart patentability to claims to the known composition.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990). The Examiner’s finding that both Hirsch and the Specification show that the recited thermally stable AMG is known in the art is supported by the record. Appellant’s arguments that none of the references disclose both recited AMGs (Appeal Br. 14-15) are unpersuasive again because these arguments attack the references individually, rather than considering what the combined references would have suggested to the person of ordinary skill in the art. “Non-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references.” Merck, 800 F.2d at 1097. Appellant’s arguments that the recited product exhibits unexpected results (Appeal Br. 15-22) are unpersuasive for multiple reasons. “To be particularly probative, evidence of unexpected results must establish that there is a difference between the results obtained and those of the closest prior art, and that the difference would not have been expected by one of ordinary skill in the art at the time of the invention.” Bristol-Myers Squibb Co. v. Teva Pharms. USA, Inc., 752 F.3d 967, 977 (Fed. Cir. 2014). In this case, as the Examiner points out, the purported unexpected results are not based on a comparison to the closest prior art. Ans. 21. Appellant does not challenge this finding. See, e.g., Reply Br. 3-7. Appeal 2021-001953 Application 14/793,992 9 Moreover, neither Appellant nor Dr. Feng explain what would have been expected. “[B]y definition, any superior property must be unexpected to be considered evidence of non-obviousness. Thus, in order to properly evaluate whether a superior property was unexpected, the [fact-finder] should have considered what properties were expected.” Pfizer, Inc. v. Apotex, Inc., 480 F.3d 1348, 1371 (Fed. Cir. 2007) (citations omitted). In this case, the record before us is devoid of such evidence of what the skilled artisan would have expected. Specifically, Dr. Feng presents Figures 4-6 showing certain purported “surprising effect of the thermally-stable AMG in making sugar during the baking process.” Decl. ¶ 5; see also Appeal Br. 18 (showing annotated Figure 5). Dr. Feng presents Figure 9 which “show[s] the results of the sugar profile in bread baked with and without the combination of AMGs (thermally-stable AMG (‘TS-AMG’), and raw starch degrading AMG (‘RSD-AMG’).” Decl. ¶ 6; see also Appeal Br. 18 (showing annotated Figure 5). Dr. Feng presents Figures 7 and 8 showing “reducing or removing added-sugar from bread dough formula can significantly improve the performance of the shelf-life extension enzyme.” Decl. ¶ 7. Dr. Feng also presents Figures 2 and 3 and stating that “comparing to the classic AMG, AMG 1100, the thermally-stable AMG, Po-AMG, can significantly improve crumb resilience and reduce crumb adhesiveness in the finished bread.” Decl. ¶ 8. Appellant additionally presents Figure 1 showing “the use of a thermally-stable amyloglucosidase (‘Po-AMG’) in amounts of at least 500 AGU/kg flour in a dough provides a bakery product having higher-than- expected amounts of glucose, as compared to a similar dough formed Appeal 2021-001953 Application 14/793,992 10 without the thermally-stable amyloglucosidase.” Appeal Br. 16.3 Appellant also presents Figure 10 showing that the recited product is sweeter “than conventional bakery products formed from doughs without the enzymes.” Id. at 19-20. Appellant has not carried their burden to show unexpected results because “it is not enough to show that results are obtained which differ from those obtained in the prior art: that difference must be shown to be an unexpected difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). The figures presented by Dr. Feng and Appellant do not show what would have been expected and why these results are unexpected. See Pfizer, 480 at 1369 (holding that a proper evaluation of a showing of unexpected results considers what properties were expected). The figures do not support Appellant’s arguments also because the data is incommensurate in scope with the claim language which requires both enzymes at recited amounts and does not exclude the presence of additional ingredients such as sugar. See In re Lindner, 457 F.2d 506, 508 (CCPA 1972) (“It is well established that the objective evidence of nonobviousness must be commensurate in scope with the claims.”). Appellant lastly argues that certain objective eivdence secondary considerations supports patentability. Appeal Br. 21-22. Appellant does not support the argument with evidence showing, for example, commercial success or long-felt need. See id. at 22. Appellant argues only that “the existence of the Rittig amyloglucosidases was known for over 25 years prior to the filing of the present invention” and “the Examiner has cited nothing to 3 We note that Figure 1 is limited to an amount of AMGs of between 0 and 5000 AUG/kg flour. See Fig. 1. Appeal 2021-001953 Application 14/793,992 11 suggest that such enzymes had been used in dough compositions or baking processes, alone or in combination with other enzymes.” Id. “The mere age of the references [in this case, Rittig] is not persuasive of the unobviousness of the combination of their teachings, absent evidence that, notwithstanding knowledge of the references, the art tried and failed to solve the problem.” In re Wright, 569 F.2d 1124, 1127 (CCPA 1977). Because Appellant’s arguments are not persuasive of error, we affirm the rejection of claim 24. Claim 49 Claim 49 depends from claim 24 and additionally recites: “wherein the ratio of the level of said thermally-stable amyloglucosidase present in said dough (in AGU/kg flour) to the level of the raw starch degrading amyloglucosidase present in said dough (in AGU/kg flour) is in the range of from about 2:l to about 1:2.” Appellant’s arguments with regard to claim 49 mirror those raised for claim 24. See Appeal Br. 22-23 (arguing that none of the references individually disclose the recited combination of enzymes and that Hirsh does not use the enzyme in food products). Based on the analysis with regard to claim 24 supra, we affirm the rejection of claim 49. See also Non-Final Rejection 7 (rejecting claim 49 finding that the amount of the recited enzyme is a result effective variable and “it is within the skill of one of ordinary skill in the art to optimize their amounts and ratio in a way so that the desired amount of sugar can be achieved by the end of the baking process of the finally baked product”). Appeal 2021-001953 Application 14/793,992 12 Claim 50 Claim 50 depends from claim 24 and additionally recites: “wherein the level of said thermally stable amyloglucosidase in said dough is in the range of from 500 to 1000 AGU/kg flour and the level of said raw starch degrading amyloglucosidase in said dough is in the range of from 500 to 1000 AGU/kg flour.” Appellant argues that the Examiner erred because Rittig teaches an amount of 0.2-70 AGU/kg flour which is lower than the recited range. Appeal Br. 23. Appellant, however, does not dispute the Examiner’s finding that the amount of the enzyme is a result effective variable and “it is within the skill of one of ordinary skill in the art to optimize their amounts and ratio in a way so that the desired amount of sugar can be achieved by the end of the baking process of the finally baked product.” Non-Final Act. 7; see Appeal Br. 23. Based on the analysis with regard to claim 24 supra, we affirm the rejection of claim 50. CONCLUSION The Examiner’s rejection is affirmed. Appeal 2021-001953 Application 14/793,992 13 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 24-27, 29, 31-38, 49- 52 103 Rittig, Hirsh, Cooper 24-27, 29, 31-38, 49- 52 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). AFFIRMED