Ex Parte Awad

Patent Trial and Appeal Board

Sep 17, 2012

10679714 (P.T.A.B. Sep. 17, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/679,714 10/06/2003 Aziz Chafic Awad Healthtreat 4.1-1 2884
7590 09/17/2012
Butzel Long
Suite 1100
110 West Michigan Ave.
Lansing, MI 48933
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
09/17/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte AZIZ CHAFIC AWAD
____________

Appeal 2010-008860
Application 10/679,714
Technology Center 1700
____________

Before CATHERINE Q. TIMM, ROMULO H. DELMENDO, and
GEORGE C. BEST, Administrative Patent Judges.

BEST, Administrative Patent Judge

DECISION ON REHEARING
Appellant requests rehearing of the Decision on Appeal (“Decision”)
dated June 28, 2012, affirming the Examiner’s decision that claims 1, 2, 4,
7-14, and 16-25 of Application 10/679,714 are unpatentable over the prior
art of record.
A request for rehearing must state with particularity the points
believed to have been misapprehended or overlooked by the Board.
Arguments not raised in the briefs before the Board and evidence not
previously relied upon in the briefs are not permitted in a request for
Appeal 2010-008860
Application 10/679,714

2
rehearing except as permitted by 37 C.F.R. §§ 41.52(a)(2) and (a)(3). See 37
C.F.R. § 41.52(a)(1) (2010).

I
Appellant seeks rehearing based on two alleged misapprehensions of
fact by the Board.
First, Appellant argues that the Board “erred by finding that it would
have been obvious to a person of ordinary skill in the art to add yeast extract
in Hilton’s process on the grounds that the skilled artisan ‘would have
recognized that the growth of the microorganism could have been enhanced
by the use of a protein containing supplement, such as a yeast extract.’”
Reh’g Req. 2 (quoting Decision at 7).
Second, Appellant argues that the Board erred “by finding that the use
of added yeast extract without added sugar would have been obvious to the
person having ordinary skill in the art.” Id. at 3.
For the reasons set forth below, we do not find Appellant’s
contentions persuasive, and we deny Appellant’s request that we alter our
decision.

II
The Examiner’s finding that it would have been obvious to combine a
yeast extract with the process described in Hilton is supported by a
preponderance of the evidence. The Examiner found that it was well known
to use yeast extract to provide nutrients in a microorganism growth medium.
Ans. 9. To support this finding, the Examiner found that it was well-known
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Application 10/679,714

3
to the person of ordinary skill in the art that yeast and other microorganisms
require nutrients to ferment food. Id. at 9-10.
Appellant argues that the person of ordinary skill in the art would
have recognized that Hilton taught that yeast extract was not needed and that
Hilton was trying to avoid yeasty or fermented taste in the fermented food
product. Reh’g Req. 2. Appellant therefore concludes that the person of
ordinary skill in the art would not add yeast extract to Hilton’s process. Id.
Appellant’s arguments are not persuasive. While Hilton does not
describe the use yeast extract or other supplemental nutrients, neither does
Hilton specifically exclude their use. As discussed in the Decision, the
Examiner found that a person of ordinary skill in the art also would have
known that supplementing the nutrients could have facilitated or increased
the rate of growth of the microorganisms, thus improving the rate of
fermentation. Ans. 35-36. On appeal, Appellant speculated that
supplemental nutrients “could have been counterproductive.” Awad Decl. 6
(emphasis supplied). Appellant’s speculation, however, was not supported
by any actual evidence. Thus, it is not sufficient to rebut the Examiner’s
finding.
Appellant, moreover, did not argue that Hilton’s desire to avoid a
yeasty taste in the fermented food product taught away from the addition of
yeast extract in either the Appeal Brief or the Reply Brief. Therefore, this
argument will not be considered on rehearing. 37 C.F.R. § 41.52(a)(1).
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Application 10/679,714

4
III
The Examiner’s finding that it would have been obvious to use yeast
extract in the process described in Hilton without the addition of extra sugar
is supported by a preponderance of the evidence.
Appellant argues that “[t]he applied prior art consistently teaches
adding sugar whenever yeast extract is added during fermentation of a food
material.” Reh’g Req. 3. Appellant attempts to distinguish Champagnat’s
description of an inoculum prepared with yeast extract for subsequent
addition to a hydrocarbon feedstock on the basis that Champagnat describes
a process for producing food yeast rather than a food fermentation process.
Id. at 3-4.
This argument is not persuasive for at least two reasons. First, a
person of ordinary skill in the art would recognize that the fermentation
process described in Hilton uses a fermentation medium—in the form of
potatoes with a high reducing sugar content, Hilton col. 2, ll. 38-44—that
already has an adequate supply of carbohydrate food material to support
microorganism growth. Indeed, Appellant has argued that the skilled artisan
would recognize that the fermentation medium described by Hilton does not
need to have any additional nutrients added to it. See, e.g., Reply Br. 28;
Awad Decl. ¶ 6. Thus, a skilled artisan would recognize that additional sugar
is not needed to support the microorganisms in the fermentation medium
described in Hilton. This is especially true in view of Hilton’s teaching that
it is desirable to reduce the sugar content of the fermented food product to
less than 1% by weight to reduce browning upon frying of the fermented
food product. Hilton col. 3, l. 43-col. 4, l. 2.
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Application 10/679,714

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Second, Appellant appears to be arguing that the combination of
Hilton with Champagnat and the other references that describe the use of
yeast extract is improper because Hilton describes fermentation, while the
other references are concerned with miroorganismal growth and culturing.
Reh’g Req. 3-4 (“The Board’s original decision rests on finding that it would
have been obvious to modify a process disclosed in a primary reference by
using means relevant to solving a problem in the prior art
(cultivation/growth) that is entirely different from that addressed by the
primary reference (fermentation).”). Appellant, however, did not argue that
these references were from non-analogous arts in either the Appeal Brief or
the Reply Brief. Therefore, this argument will not be considered on
rehearing. 37 C.F.R. § 41.52(a)(1).

IV
The Appellant’s Request for Rehearing has been granted to the extent
that the Decision has been reconsidered in light of the Appellant’s
arguments. However, the Request ultimately is denied because the Decision
is not modified in any respect.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.
REHEARING DENIED

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