Ex Parte Geng et al

Patent Trial and Appeal Board

Nov 30, 2012

11493875 (P.T.A.B. Nov. 30, 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.
11/493,875 07/26/2006 Qinghuang Geng P5579USD1 8568
7590 12/03/2012
Arlene L. Hornilla, Attorney
General Mills
Number One General Mills Blvd.
P.O. Box 1113
Minneapolis, MN 55440
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
12/03/2012 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 QINGHUANG GENG and DAVID J. DOMINGUES
____________

Appeal 2011-010975
Application 11/493,875
Technology Center 1700
____________

Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and
GEORGE C. BEST, Administrative Patent Judges.

DELMENDO, Administrative Patent Judge

DECISION ON APPEAL

Qinghuang Geng and David J. Domingues, the Appellants,1 seek our
review under 35 U.S.C. § 134(a) of a final rejection of claims 1-4 and 23-26.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.

1 The Appellants identify the real party in interest as “General Mills
Marketing, Inc.,” which is said to be a subsidiary of General Mills, Inc.
Appeal Brief filed February 8, 2011 (“App. Br.”) at 4.
Appeal 2011-010975
Application 11/493,875

2
STATEMENT OF THE CASE

The subject application is a divisional of Application 10/446,481, now
abandoned, in which we affirmed the Examiner’s rejections (Appeal 2011-
006553). Ex parte Geng, available at
http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd2011006553-
08-27-2012-1.
The Appellants claim a packaged dough product. Representative
claim 1 is reproduced below:
1. A packaged dough product comprising raw
chemically leavened, proofed dough composition in a sealed,
flexible unvented package such that gas cannot be expelled
from the package while the package remains sealed, wherein
the sealed, flexible package consists of flexible, gas-
impermeable packaging, wherein the flexible, gas-impermeable
packaging comprises flexible film,
the package does not include a rigid canister;
the package contains less than 5% headspace; and
the package has an internal pressure less than 10 psig.
App. Br. 19 (Claims App’x).
The Examiner rejected claims 1-4 and 23-26 under 35 U.S.C. § 103(a)
as unpatentable over Taylor2 in view of Schumacher,3 the admitted prior art,4

2 U.S. Patent 3,436,232 issued April 1, 1969.
3 U.S. Patent 1,988,091 issued January 15, 1935.
4 Specification (“Spec.”) 1, l. 23 to 2, l. 2.
Appeal 2011-010975
Application 11/493,875

3
Graves,5 and Anderson.6 Examiner’s Answer mailed April 21, 2011
(“Ans.”) 5-15.7

DISCUSSION

The Appellants argue claims 1-4 and 23-26 together. App. Br. 14-18.
Therefore, we select claim 1 as representative of the rejected claims and
confine our discussion to this selected claim. Claims 2-4 and 23-26 stand or
fall with claim 1. 37 C.F.R. § 41.37(c)(1)(vii).
The Examiner found that Taylor describes a packaged dough product
comprising proofed dough in an unvented package made of moisture and gas
impermeable (i.e., sealed) film. Ans. 5-6. The Examiner acknowledged that
Taylor differs from the subject matter of claim 1 in two respects. Id. First,
the Examiner found that Taylor does not describe a chemically leavened
dough. The Examiner, however, concluded that a person of ordinary skill in
the art would have found it obvious to form a chemically leavened dough
product because such a technique was admitted in the Specification to be
conventional in the art. Id. Second, the Examiner found that Taylor does
not describe the packaged product to have a headspace of less than 5%. The
Examiner, however, concluded that a person of ordinary skill in the art
would have been prompted to minimize the volume of gases within the

5 U.S. Patent 2,681,284 issued June 15, 1954.
6 U.S. Patent 2,870,022 issued January 20, 1959.
7 The Examiner withdrew all other rejections. Ans. 3-4.
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Appeal 2011-010975
Application 11/493,875

5
Taylor’s Figures 5 and 6 above depict side views of a packaged dough
product, where Figure 6 shows the product after fermentation and expansion
of the dough have taken place. Col. 2, ll. 37-44; col. 4, ll. 32-37. Taylor
teaches that the quality and shape of the dough are substantially unaffected
by storage. Col. 1, ll. 21-25. Specifically, Taylor discloses:
It is a further object of the present invention to provide a
process for storing and processing uncooked dough in which
the dough can be stored without substantial diminution of the
value of the dough in producing a cooked article, said process
providing for both defrosting and proofing (regardless of the
order) while the dough is contained within a completely sealed
container thereby insuring the proper atmosphere which is
suited for the defrosting and profing [sic, proofing] operations.
Col. 1, ll. 61-70 (emphasis added). According to Taylor, the two
sheets of Taylor’s sealed film can be spot welded at various locations
to maintain the spacing of the dough within the package, if desired.
Col. 4, ll. 70-73.
Like Taylor, Anderson teaches the importance of maintaining a
hermetically sealed atmosphere within a packaged dough product to
maximize shelf life. Col. 1, ll. 15-41, 43-49. Anderson further teaches that
“[i]n order to more thoroughly exclude air from the tube, the gathered ends
of the tube are preferably filled with dough.” Col. 1, ll. 41-43.
Given these teachings in the prior art, we find no error in the
Examiner’s conclusion that a person of ordinary skill in the art would have
been prompted to reduce the amount of air in Taylor’s packaged dough
Appeal 2011-010975
Application 11/493,875

6
product to the greatest extent possible, such as less than 5% by volume, in
order to maximize shelf-life. Although Anderson discloses the desirability
of excluding air in the context of a packaged cookie dough product, a person
of ordinary skill in the art would have understood Anderson’s teachings to
be applicable to any dough product, including dough products that leaven
within the package. Col. 1, ll. 15-16.
We find no merit in the Appellants’ position that the combination of
references would change the principle of operation disclosed in Taylor.
Contrary to the Appellants’ belief, we find that improving shelf-life by
excluding air to the greatest extent possible is entirely consistent with
Taylor’s goal of producing a product that is substantially unaffected by
storage. Col. 1, ll. 21-25. Also, while Taylor teaches the use of spot welds
to maintain some spacing of the dough, the Appellants have not
demonstrated that a headspace of less than 5% cannot be achieved when spot
welds are provided. In any event, Taylor discloses the use of spot welds as
optional. Col. 4, ll. 70-73.
For these reasons and those set forth in the Answer, we uphold the
Examiner’s rejection.

SUMMARY

The rejection under 35 U.S.C. § 103(a) of claims 1-4 and 23-26 as
unpatentable over Taylor in view of Schumacher, the admitted prior art,
Graves, and Anderson is affirmed.
Appeal 2011-010975
Application 11/493,875

7
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED

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