Ex Parte Copado

Patent Trials and Appeals Board

Jun 14, 2019

12399179 - (D) (P.T.A.B. Jun. 14, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/399, 179 03/06/2009
110933 7590 06/14/2019
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
FIRST NAMED INVENTOR
Luis Fernando Trejo Copado
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
CFLAY.20499 1521
EXAMINER
ZILBERING, ASSAF
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
06/14/2019 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 LUIS FERNANDO TREJO COP ADO
Appeal2018-006416
Application 12/3 99, 179 1
Technology Center 1700
Before JEFFREY T. SMITH, MARK NAGUMO, and
N. WHITNEY WILSON, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
This decides an appeal under 35 U.S.C. § 134(a) from the Examiner's
June 13, 2017 Final Rejection of claims 10-22. We have jurisdiction
pursuant to 35 U.S.C. § 6(b ).
We affirm.
1 According to the Appeal Brief, the Real Party in Interest is Sabritas, S. De
R.L. De C.V. App. Br. 2.
Appeal 2018-006416
Application 12/399, 179
BACKGROUND
Appellant's appealed invention is directed to a reduced fat potato
chip. Claim 10 is reproduced below from the Claims Appendix to the
Appeal Brief:
10. A reduced fat potato chip produced by the steps of:
a) slicing raw potato stock to produce potato pieces;
b) marinating said potato pieces in a brine solution
comprising at least 3 % by weight acacia gum; and
c) frying said potato pieces to a moisture content of less
than 2% by weight after the marination step b ), wherein said
potato pieces are fried to a fat content of less than 33% by
weight;
wherein the potato chip further comprises absorbed
acacia gum.
The Examiner maintains, and Appellant appeals the following
rejections:
Claims 10-15 and 17-22 under 35 U.S.C. § I03(a) as obvious over
Barber et al. (US 2003/0183092 Al published Oct. 2, 2003) in view of
Annapure et al., "Screening ofhydrocolloids for reduction in oil uptake of a
model deep fat fried product", Gold (US 3,424,591 issued Jan. 28, 1969) and
Neel et al. (US 4,933,199 issued Jun. 12, 1990).
Claim 16 is rejected under 35 U.S.C. § I03(a) as obvious over Barber,
Annapure, Gold, Neel, and Smith et al., "Gum Arabic".
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Appeal 2018-006416
Application 12/399, 179
OPINI0N2
We affirm the appealed rejections for the reasons presented by the
Examiner in the Final Action and the Answer. We add the following.
This is the second time rejected claims based on this application have
come before us for adjudication over the same prior art references. Only the
final limitation has been added to independent claim 1. We incorporate the
findings and discussions presented in our prior decision on appeal for
Application 12/399,179, Appeal 2014-007099, mailed June 16, 2016 ("Prior
Decision" ( aff' d.) ).
Appellant's arguments in rebuttal to the appealed rejections are
principally directed to the process limitations. (See App. Br. generally).
Appellant argues there is no suggestion or motivation to combine the
teachings of Gold and Annapure. (App. Br. 8-13). Appellant argues: (1)
Gold discourages the use of acacia gum because acacia gum does not form a
thermally reversible gel and therefore lacks the essential thermal gel point;
(2) Gold and Annapure teach away from each other; and (3) the combination
of references would render the prior art unsatisfactory for its intended
purpose. (App. Br. 7-13).
The issue of whether the cited prior art renders obvious the claimed
reduced fat potato chip product has been previously addressed in this record
in the Prior Decision. As set forth in the Prior Decision, the prior art cited
2 Appellant has not presented arguments addressing separately claims 10-15
and 17-22 or separately rejected claim 16. (App. Br. 5-13). We limit our
discussion to the independent claim 10.
3
Appeal 2018-006416
Application 12/399, 179
throughout the prosecution of this Application establishes the suitability of
formulating a potato chip product having potato pieces fried to a fat content
less than 33% and a moisture content of less than 2%. Appellant has not
come forward with a preponderance of the evidence in the record to rebut
these determinations. The present record does not support Appellant's
arguments that there is no suggestion or motivation to combine the teachings
of Gold and Annapure. Gold describes a hydrocolloid brine solution for
treatment of potato pieces prior to deep fat frying producing products having
reduced oil content. (Gold col. 1, 11. 53---67). The disclosure by Gold that the
viscosity of a hydrocolloid is governed by the nature of the hydrocolloid
does not discourage the use of acacia gum. Gold specifically states that the
choice of film forming hydrocolloid governs the process factors. ( Gold col.
2, 11. 68-70). Acacia gum is a hydrocolloid that is also recognized to reduce
oil uptake in deep fat fried products. (See Annapure ). Knowledge generally
available to one skilled in the art can provide the motivation to combine the
relevant teachings. Ashland Oil, Inc. v. Delta Resins & Refractories, Inc.,
776 F.2d 281,297 n.24 (Fed. Cir. 1985). The motivation to combine the
relevant teachings of references may come from knowledge of those skilled
in the art that certain references, or disclosures in the references, are known
to be of special interest or importance in the particular field. Pro-Mold and
Tool Co. v. Great Lakes Plastics, Inc., 75 F.3d 1568, 1573 (Fed. Cir. 1996).
As such, a person of ordinary skill in the art would have reasonably expected
that acacia gum, a known hydrocolloid, would have been suitable for
treatment of potato pieces prior to deep fat frying. A person of ordinary skill
in the art would have recognized the use of acacia gum as the hydrocolloid
would have required adjustment of processing parameters as described by
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Appeal 2018-006416
Application 12/399, 179
Gold. "For obviousness under§ 103, all that is required is a reasonable
expectation of success." In re O 'Farrell, 853 F.2d 894, 904 (Fed. Cir.
1988).
Accordingly, we sustain the Examiner's rejections under 35 U.S.C.
§ 103(a) for the reasons given by the Examiner and presented above.
SUMMARY
The Appealed rejections are affirmed.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a)(l).
AFFIRMED
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