Ex Parte Bauer et al

Patent Trial and Appeal Board

Nov 2, 2017

14221735 (P.T.A.B. Nov. 2, 2017)

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.
14/221,735 03/21/2014 Anna Meta Bauer CQKER.3990 4166
110933 7590
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
DICUS, TAMRA
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
11/02/2017 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 ANNA META BAUER and BRIAN SAMBOR
Appeal 2017-002022
Application 14/221,735
Technology Center 1700
Before LINDA M. GAUDETTE, CHRISTOPHER C. KENNEDY, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1
1 In our Opinion, we refer to the Final Action mailed November 18, 2015
(“Final Act.”); the Appeal Brief filed March 2, 2016 (“Appeal Br.”); the
Examiner’s Answer mailed September 22, 2016 (“Ans.”); and the Reply
Brief filed November 18, 2016 (“Reply Br.”).
Appeal 2017-002022
Application 14/221,735
STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134(a) from a rejection of
claims 1—3 and 5—23. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM
The claims are directed to dry food products containing powdered
yogurt and a stabilizer. Claims 1 and 7, reproduced below, are illustrative of
the claimed subject matter:
1. A shelf-stable dry food product comprising:
yogurt powder;
a stabilizer system, the stabilizer system including a
modified starch and a carrageenan; and
a sweetener;
wherein, when an aqueous liquid is added to the dry food
product, the stabilizer system is selected such that the dry food
product hydrolyzes within less than three minutes to form a
product having the consistency of yogurt.
7. The food product of claim 1, further comprising whole
grain.
Appeal Br. 11 (Claims App’x).
2 Appellant is the applicant, The Quaker Oats Company, which according to
the Appeal Brief, is also the real party in interest. Appeal Br. 2.
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Application 14/221,735
REFERENCES
The Examiner relies on the following prior art in rejecting the claims
on appeal:
Rudin US 4,624,853 Nov. 25, 1986
Cajigas US 4,956,185 Sept. 11, 1990
Foster et al. US 2007/0104854 A1 May 10, 2007
(“Foster”)
REJECTIONS
The Examiner maintains and Appellant seeks review of the following
rejections under 35 U.S.C. § 103(a): (1) claims 1—3, 5, 6, and 8 over Rudin
in view of Cajigas; and (2) claims 7 and 9-23 over Rudin in view of Cajigas
and further in view of Foster. Final Act. 3 and 6.
OPINION
Appellant argues patentability of the claims in two groups: Group I:
claims 1—3, 5, 6, and 8; and Group II: claims 7 and 9-23. Appeal Br. 6 and
8.
Group I: claims 1—3, 5, 6, and 8
Appellant argues for the reversal of the obviousness rejection of
claims 1—3, 5, 6, and 8 on the basis of limitations present in independent
claim 1. See Appeal Br. 6—8. We, therefore, limit our analysis to claim 1.
Claims 2, 3, 5, 6, and 8 will stand or fall with claim 1. 37 C.F.R.
§ 41.37(c)(l)(iv).
With respect to claim 1, the Examiner finds that Rudin discloses a
shelf-stable dry food product comprising yogurt-producing bacteria powder,
a stabilizer system comprising a modified starch and a hydrocolloid
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Application 14/221,735
(carrageenan), and a sweetener, wherein, when an aqueous liquid is added to
the dry food product, the stabilizer system is selected such that the dry food
product hydrolyzes within less than three minutes to form a product having
the consistency of yogurt. Final Act. 3—4, and 5. The Examiner finds that
Rudin does not disclose the use of yogurt powder in the product, but Cajigas
teaches a dry powdered, yogurt formulation that can be reconstituted into a
yogurt meal or a yogurt drink. Id. at 4. The Examiner determines that it
would have been obvious to one of ordinary skill in the art at the time of the
invention to combine the teachings of Rudin and Cajigas to formulate a dry
mix with yogurt powder, as taught by Cajigas, with the stabilizer system and
overall product taught by Rudin. Id.
Appellant argues that Cajigas teaches away from the proposed
combination with Rudin, urging that Cajigas distinguishes the gelling system
used therein from ‘“those using instant starches [or] carrageenan’ by saying
they ‘are not suitable substitutes for the gums in the present [Cajigas]
invention.’” Appeal Br. 7 (citing Cajigas col. 3,11. 30—36).
Appellants argue that teaching away may come from a secondary
reference, citing to Crocs, Inc. v. U.S. Int’l Trade Comm ’n, 598 F.3d 1294
(Fed. Cir. 2010). Id.
The Examiner responds that Cajigas, as a secondary reference, is not
used to teach carrageenan because the primary reference, Rudin, teaches it.
Ans. 15.
The Crocs case is distinguishable because the secondary reference in
the case, the Aguerre ’249 patent [US 6,237,249], was found to teach away
from the use of foam straps in the claimed footwear, but the primary
reference, the Aqua Clog, did not address straps at all. Crocs, 598 F.3d at
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Application 14/221,735
1308-09. Thus, the combined teachings of the prior art taught away from
use of the claimed foamed straps.
In contrast to Crocs, in the instant case, the primary reference, Rudin,
teaches use of carrageen as a viscosity control agent (Rudin col. 3,11. 5—7),
while the secondary reference, Cajigas, teaches that gel systems using, e.g.,
carrageenan, are not suitable for Cajigas’ invention (Cajigas col. 5,11. 32—
36). The Examiner cites to Rudin, not Cajigas, in finding carrageenan is
taught in the prior art. Considering the references in their entireties as would
one of ordinary skill in the art, we are not persuaded that one of ordinary
skill in the art would have understood Cajigas’ teaching regarding the
unsuitability of carrageenan as applicable to all systems containing yogurt
powder. Rather, one of ordinary skill in the art would have understood this
teaching as applicable to Cajigas’ particular system, and would not have
been dissuaded from using yogurt powder in Rudin’s particular system
containing carrageenan. See In re Keller, 642 F.2d 413, 425 (('C PA 1981)
(“The test for obviousness is not whether the features of a secondary
reference may be bodily incorporated into the structure of the primary
reference. . . . Rather, the test is what the combined teachings of the
references would have suggested to those of ordinary skill in the art.”). The
combined teachings of the prior art do not “criticize, discredit, or otherwise
discourage the solution claimed” by Appellants. In re Fulton, 391 F.3d
1195, 1201 (Fed. Cir. 2004). Appellant’s argument that the prior art teaches
away from use of carrageenan is unpersuasive of reversible error. While the
secondary reference may in one sense teach away from the invention at
issue, the clear suggestions in the references of the desirability, and thus, the
obviousness, of the claimed combination out weigh any contrary suggestion.
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Application 14/221,735
Group II: claims 7 and 9—23
Dependent claim 7 and independent claims 12 and 19 differ from
claim 1 in that, inter alia, they require whole grains. Appeal Br. 11, 13, and
14.
Appellant does not make separate arguments for the claims in Group
II. We select claim 7 as representative of the group. Claims 9-23 will stand
or fall with claim 7. 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner finds that Rudin in view of Cajigas renders the food
product of claim 1 obvious but do not teach whole grains required by claim
7. Final Act. 6. The Examiner finds that Foster teaches a shelf-stable cereal
product that contains yogurt and whole grains. Id. The Examiner
determines that it would have been obvious to one of ordinary skill in the art
at the time of the invention to combine the teachings of Rudin, Cajigas, and
Foster, i.e., by adding whole grains to the system of Rudin as modified by
Cajigas, because combining whole grains with yogurt can increase the
textural feel of the product and thereby its consumer appeal. Id. at 6—7.
Appellant argues that the ordinary artisan would not have combined
Cajigas’ yogurt powder with Rudins’s system for the same reasons argued
for claim 1. Appeal Br. 8—9. Appellant also argues that Foster fails to make
up for the deficit in the combination of Rudin and Cajigas because Foster
only discloses combining its cereal product with yogurt, not yogurt powder.
Id. at 9. These arguments are not persuasive of reversible error for the
reasons given above.
Appellant further argues that Foster “teach[es] away from the use of
yogurt powder and from Applicant’s claimed dry mixes because it is
directed to a Tong shelf-life, high moisture content cereal product.’” Id.
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Application 14/221,735
One cannot show nonobviousness by attacking references individually
when the rejection is based on a combination of references. In re Merck &
Co., Inc., 800 F.2d 1091, 1097 (Fed. Cir. 1986). Each reference cited by the
Examiner must be read, not in isolation, but for what it fairly teaches in
combination with the prior art as a whole. Id.
The cited prior art, taken as a whole, teaches all elements of claim 7.
In addition, we do not find that Foster criticizes, discredits, or otherwise
discourages use of whole grain in a system containing yogurt powder. See
In re Fulton, 391 F.3d at 1201.
On the record before us, Appellant has not shown reversible error in
the rejection of claim 7 over Rudin in view of Cajigas and Foster. For the
same reasons given for claim 7, Appellant has not shown reversible error in
the Examiner’s conclusion of obviousness with respect to claims 9—23.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—3 and 5—
23 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)(l)(iv).
AFFIRMED
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