Ex Parte CopadoDownload PDFPatent Trials and Appeals BoardJun 14, 201912399179 - (D) (P.T.A.B. Jun. 14, 2019) Copy Citation 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". 2 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 4 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 5 Copy with citationCopy as parenthetical citation