Ex Parte Lonergan

Patent Trial and Appeal BoardOct 23, 2012

11564428 (P.T.A.B. Oct. 23, 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. 11/564,428 11/29/2006 Dennis A. Lonergan 5720US-D1 2525 7590 10/23/2012 Arlene L. Hornilla, Attorney General Mills Number One General Mills Blvd. P.O. Box 1113 Minneapolis, MN 55440 EXAMINER CHAWLA, JYOTI ART UNIT PAPER NUMBER 1792 MAIL DATE DELIVERY MODE 10/23/2012 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 DENNIS A. LONERGAN ________________ Appeal 2011-005551 Application 11/564,428 Technology Center 1700 ________________ Before CHARLES F. WARREN, TERRY J. OWENS, and JEFFREY T. SMITH, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2011-005551 Application 11/564,428 2 STATEMENT OF THE CASE The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 15-20, which are all of the pending claims. We have jurisdiction under 35 U.S.C. § 6(b). The Invention The Appellant claims a frozen, unproofed, yeast-fermented dough composition. Claim 15 is illustrative: 15. A frozen, unproofed, yeast-fermented dough composition comprising flour, water, from 0.5 to 5 weight percent hydrated yeast ingredient, and from 0.5 to 5 weight percent non-hydrated, dry yeast ingredient, based on the total weight of the frozen dough. The References Ono US 3,894,155 Jul. 8, 1975 Groenendaal US 5,716,654 Feb. 10, 1998 Moder WO 01/78514 A2 Oct. 25, 2001 The Rejections The claims stand rejected under 35 U.S.C. § 103 as follows: claims 15-19 over Ono in view of Moder and claim 20 over Ono in view of Moder and Groenendaal. OPINION We affirm the rejections. Appeal 2011-005551 Application 11/564,428 3 Claims 15 and 19 Ono teaches that the principal causes of poor storage stability of frozen bread dough include reduction in yeast activity and leakage of reducing substances from dead yeast cells (col. 1, ll. 18-41). Ono preferments dough using 1 wt% or less yeast, which is a sufficiently small amount that the influence of freezing on its activity would have little effect on the baking characteristics of the dough even if that yeast became wholly deactivated during frozen storage and thus generated reducing substances (col. 2, ll. 30-39). Ono then cools the dough to 2-15 ºC and, either before or after the cooling, adds to the dough additional yeast in an amount of 2-6 wt% of the flour in the dough (col. 1, ll. 54-56; col. 3, ll. 1-11). “It is necessary for the additional yeast to be scarcely activated at the time of being mixed into the dough and to be frozen while the yeast remains in the stage of dormancy or induction. The additional yeast takes a principal part in the proof fermentation which takes place after thawing of the frozen dough” (col. 3, ll. 3-8). Ono then freezes the dough in a short time such as 30 minutes to inhibit fermentation as much as possible (col. 3, ll. 8-12). Ono states that “[t]he frozen dough so obtained can produce bread of appearance, texture and eating quality which are not appreciably degraded” (abstract). Ono does not disclose that the yeast can be dry yeast (which, the Appellant states, typically contains less than 10 wt% moisture (Spec. 9:6-7)). In Ono’s examples the yeast is compressed yeast (which, the Appellant states, typically contains about 70 wt% moisture (Spec. 9:12-13)). The Examiner argues that it would have been prima facie obvious to one of ordinary skill in the art to use dry yeast to make Ono’s dough because, unlike compressed yeast, dry yeast has a moisture content which is Appeal 2011-005551 Application 11/564,428 4 sufficiently low that the dry yeast remains dormant and, therefore, active, for a long time during storage at room temperature (Ans. 12-15). The Appellant argues that the Examiner appears to be relying upon Groenendaal’s disclosure that “[d]ry yeasts are still commonly used in the bakery trade because of their extended stability and because refrigeration is unnecessary” (col. 1, ll. 38-40) (Reply Br. 4), and that the Examiner improperly is “looking to proofed, baked goods which are designed not to require refrigeration in order to modify a frozen unproofed dough product” (Reply Br. 4). Independently of Groenendaal, the Examiner finds that compared to compressed yeast, dry yeast, due to its relatively low moisture content, remains relatively dormant during storage and, therefore, has a relatively long shelf life at room temperature (Ans. 14). The Appellant points out that Ono does not state that dry yeast results in a longer shelf life (Br. 8-9), but the Appellant does not argue that the Examiner’s finding is incorrect. Since the Examiner’s finding is reasonable and the Appellant has not challenged it, we accept it as fact. See In re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA 1964). Also, it is Groenendaal’s dry yeast, not the goods baked using the dry yeast, which does not require refrigeration (col. 1, ll. 38-40; col. 3, l. 65 – col. 4, l. 2). The Appellant argues that Ono specifically employs compressed yeast (Reply Br. 4-5). Ono’s only disclosure of a particular type of yeast is in the examples wherein the yeast is compressed yeast. Ono, however, is not limited to the examples. See In re Fracalossi, 681 F.2d 792, 794 n.1 (CCPA 1982); In re Kohler, 475 F.2d 651, 653 (CCPA 1973); In re Mills, 470 F.2d 649, 651 Appeal 2011-005551 Application 11/564,428 5 (CCPA 1972); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Instead, all disclosures therein must be evaluated for what they would have fairly suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d 961, 965 (CCPA 1966). Ono’s disclosure that the additional yeast is to be dormant when mixed into the dough and remain dormant during frozen storage (col. 3, ll. 3-8) would have led one of ordinary skill in the art, through no more than ordinary creativity, to use yeast in any form which tends to remain dormant. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (In making an obviousness determination one “can take account of the inferences and creative steps that a person of ordinary skill in the art would employ”). As found by the Examiner (Ans. 14) and not challenged by the Appellant, dry yeast, due to its low moisture content, tends to remain dormant. The Appellant points out that the Appellant’s dough requires both hydrated and non-hydrated yeast, each in an amount of 0.5-5% by weight (Br. 10). As acknowledged by the Appellant, it was known in the art “to add dry yeast to a wet product and to hydrate the yeast during the mixing process” (Br. 10). Thus, it would have been apparent to one of ordinary skill in the art that Ono’s initially-added 1 wt% or less yeast (col. 2, ll. 30-35), if added in dry form, would become hydrated and, therefore, as disclosed by Ono, tend to become deactivated during storage (col. 2, ll. 35-39). It also would have been apparent to one of ordinary skill in the art that due to its low moisture content, dry yeast, if used as Ono’s 2-6 wt% additional yeast, would tend to remain non-hydrated due to Ono’s cooling to 2-15 ºC and rapid freezing of the dough and thereby would undergo Ono’s desired Appeal 2011-005551 Application 11/564,428 6 maximum inhibition of fermentation (col. 3, ll. 1-3, 8-12). Ono’s 1 wt% or less of initially added yeast (col. 2, l. 30-32), added in dry form, would be present after hydration as hydrated yeast in an amount which overlaps the Appellant’s 0.5-5 wt% hydrated yeast range. Ono’s 2-6 wt% additional yeast range overlaps the Appellant’s 0.5-5 wt% non-hydrated, dry yeast range (and the 1-3 wt% range in claim 19). Ono’s ranges, therefore, would have rendered values within the Appellant’s ranges prima facie obvious to one of ordinary skill in the art. See In re Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir. 1997); In re Boesch, 617 F.2d 272, 276 (CCPA 1980); In re Malagari, 499 F.2d 1297, 1303 (CCPA 1974). Claims 16-18 The Appellant argues that the applied references would not have suggested a frozen dough having a raw specific volume of 0.9 to 1.3 cubic centimeters per gram (claim 16), or a frozen dough which can be thawed, proofed at 30 ºC to a volume which is twice the thawed volume within 15- 120 minutes (claim 17) and then baked to a specific volume of 2.5 to 4 cubic centimeters per gram (claim 18) (Br. 10-11). The frozen dough of both the Appellant (Spec. 19:12) and Ono (col. 3, l. 28; col. 4, l. 14) can be bread dough. The use of dry yeast as Ono’s yeast would produce a frozen bread dough which, as discussed above regarding the rejection of claim 15, contains hydrated yeast and non-hydrated yeast in amounts which overlap those of the Appellant. Thus, it appears that the frozen, thawed and proofed bread doughs suggested by Ono likewise would have properties which overlap the ranges recited in the Appellant’s claims 16-18. Appeal 2011-005551 Application 11/564,428 7 Claim 20 The Appellant points out that claim 20 requires that the dry yeast includes granules of dry yeast, but the Appellant relies for patentability on the arguments set forth with respect to claim 15 (Br. 12; Reply Br. 6). Those arguments are not convincing for the reasons given above regarding claim 15. Accordingly, we are not persuaded of reversible error in the Examiner’s rejections. DECISION/ORDER The rejections under 35 U.S.C. § 103 of claims 15-19 over Ono in view of Moder and claim 20 over Ono in view of Moder and Groenendaal are affirmed. It is ordered that the Examiner’s decision 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). AFFIRMED bar