Ex Parte Lykomitros et al

Patent Trial and Appeal BoardNov 7, 2012

12021959 (P.T.A.B. Nov. 7, 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. 12/021,959 01/29/2008 Dimitrius Lykomitros CFLAY.00463 4819 22858 7590 11/08/2012 CARSTENS & CAHOON, LLP P.O. Box 802334 DALLAS, TX 75380-2334 EXAMINER DEGUIRE, KATHERINE E ART UNIT PAPER NUMBER 1791 MAIL DATE DELIVERY MODE 11/08/2012 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 DIMITRIUS LYKOMITROS, KEVIN Oâ€™SULLIVAR, V.N. MOHAN RAO, and BARBARA VAZQUES DEL MERCADO ____________ Appeal 2011-009785 Application 12/021,959 Technology Center 1700 ____________ Before BRADLEY R. GARRIS, BEVERLY A. FRANKLIN, and DEBORAH KATZ, Administrative Patent Judges. GARRIS, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. Â§ 134 from the Examiner's rejections under 35 U.S.C. Â§ 103(a) of independent claim 1 as unpatentable over Strong (US 5,194,278, issued Mar. 16, 1993) in view of Schnieber et al. (US 2006/0134285 A1, published Jun. 22, 2006), of independent claim 27 as unpatentable over Strong, and of dependent claims 2-6, 8-14, and 28-42 as unpatentable over these references alone or further in view of other prior art. We have jurisdiction under 35 U.S.C. Â§ 6. Appeal 2011-009785 Application 12/021,959 2 We REVERSE. Appellants claim a method for making a coating food product comprising: par coating a food center with dough, pre-roasting the par-coated food product to a food center moisture content of between about 3% and about 4% by weight, panning the par-coated food product with a heat-susceptible coating, and cooking the coated food product to a food center moisture content of less than about 3% by weight (claim 1). Appellants also claim a method for making a coated food product comprising panning a food center with a heat-susceptible coating to make a coated food product wherein the panning comprises first coating with a heat- susceptible coating followed by multiple coats of a non heat-susceptible coating (claim 27). Representative claims 1 and 27, the only independent claims on appeal, read as follows: 1. A method for making a coated food product, said method comprising the sequential steps of: a) par coating a food center with a dough such that said dough comprises between about 10% to about 15% of a par-coated food product; pre-coating said par-coated food product to a food center moisture content of between about 3% and about 4% by weight; b) panning the par-coated food product with a heat-susceptible coating to make a coated food product; and Appeal 2011-009785 Application 12/021,959 3 c) cooking said coated food product to a food center moisture content of less than about 3% by weight. 27. A method for making a coated food product, said method comprising the sequential steps of: a) providing a food center; b) panning the food center with a heat-susceptible coating to make a coated food product wherein said panning comprises first coating with a heat-susceptible coating followed by applying multiple coats of a non heat-susceptible coating; and c) cooking said coated food center to a food center moisture content of less than about 3% by weight. In rejecting claim 1, the Examiner concludes that it would have been obvious to provide the food center of Strong with the claimed dough coating in view of Schnieber (Ans. 4), to pre-roast the dough coated food center to obtain a food center moisture content of between about 3% and about 4% by weight as claimed in view of the teachings of both Strong and Schnieber (id. at 5-6), and to provide the resulting dough coated food center with the claimed outer heat-susceptible coating followed by the claimed cooking step wherein the resulting coated food product has a food center moisture content of less than about 3% by weight in view of Strong (id. at 4-6). Appellants argue that Strong and Schnieber contain no teaching or suggestion of combining them in the manner proposed by the Examiner (App. Br. 6-8) and that a proper combination of these references would not yield the claim 1 method (id. at 8). We agree. Appeal 2011-009785 Application 12/021,959 4 The Examiner's obviousness conclusion is based on selective combinations of isolated teachings from Strong and Schnieber. However, the Examiner fails to identify any disclosure in these references which provides a convincing rationale for such combinations. For example, the Examiner does not convincingly explain why an artisan would have combined Strong's teaching of a food product having a heat-susceptible outer layer with Schnieber's teaching of a food product having a dough outer layer to thereby obtain a food product having an intermediate dough layer and a heat-susceptible outer layer as required by claim 1. More significantly, the rejection does not include an acceptable reason for pre- roasting the dough coated food product to the claimed food center moisture content. Neither Strong nor Schnieber discloses a pre-roasting step for obtaining a food center moisture content of any amount. For the above stated reasons, the Examiner's proposed combination of Strong and Schnieber appears to be based on impermissible hindsight rather than the prior art disclosures of these references. The Â§ 103 rejections based on Strong and Schnieber will not be sustained. The Â§ 103 rejection of independent claim 27 is premised on the Examiner's determination that Strong's disclosure of coating the food product with a carbohydrate material such as a sugar would have suggested a non heat-susceptible carbohydrate coating such as food starch (Ans. 10). The Examiner's determination is not well-founded. As correctly pointed out by Appellants, "food starches are not mentioned anywhere in Strong as possible 'carbohydrates' to be used in the final coating" (App. Br. 15). Furthermore, the rejection of claim 27 would be improper even if Appeal 2011-009785 Application 12/021,959 5 Strong's carbohydrate disclosure were considered to teach or suggest food starches. This is because the Examiner has given no explanation why an artisan would have provided Strong's food center with the claimed first heat- susceptible coating (e.g., sugar) followed by non heat-susceptible coatings (e.g., food starches). It follows that the Â§ 103 rejections of claim 27 and the claims which depend therefrom also will not be sustained. The decision of the Examiner is reversed. REVERSED cam