Ex Parte Mesu

Patent Trial and Appeal BoardOct 18, 2016

12517307 (P.T.A.B. Oct. 18, 2016)

UNITED STATES PATENT AND TRADEMARK OFFICE 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. 12/517,307 02/17/2010 Gurbe Jelle Mesu CQKER.2885PCT 5971 110933 7590 10/19/2016 Carstens & Cahoon, LLP PO Box 802334 Dallas, TX 75380 EXAMINER TRAN, LIEN THUY ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 10/19/2016 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 GURBE JELLE MESU ____________________ Appeal 2015-003722 Application 12/517,307 Technology Center 1700 ____________________ Before CHUNG K. PAK, CHRISTOPHER C. KENNEDY, and DEBRA L. DENNETT, Administrative Patent Judges. DENNETT, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. § 134 from a rejection of claims 1, 3–5, 7, and 11–33. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 In our Opinion below, we refer to the Final Action mailed April 25, 2014 (“Final Act.”), the Appeal Brief filed September 25, 2014 (“App. Br.”), the Examiner’s Answer mailed December 11, 2014 (“Ans.”), and the Reply Brief filed February 11, 2015 (“Reply Br.”). 2 Appellant identifies The Quaker Oats Company as the real party in interest. App. Br. 2. Appeal 2015-003722 Application 12/517,307 2 The claims are directed to a dried cereal bar having a crunchy texture and methods of making thereof. Claim 1, reproduced below with disputed limitation italicized, is illustrative of the claimed subject matter: 1. A dried cereal bar comprising dry cereal ingredients and a binder that is selected from the group consisting of potato starch, whey protein, and blends thereof, wherein the dried cereal bar has a crunchy texture, and wherein the crunchy texture extends throughout the cereal bar and the crunchy texture is produced by drying the cereal bar at a temperature between about 110°C and about 150°C for from about 10 to about 60 minutes. REFERENCES The prior art relied upon by the Examiner in rejecting the claims on appeal is: Murata et al. (“Murata”) US 5,091,201 Feb. 25, 1992 Froseth et al. (“Froseth”) US 6,592,915 B1 July 15, 2003 Archibald et al. (“Archibald”) US 7,763,298 B2 July 27, 2010 Coleman et al. (“Coleman”) US 8,110,231 B2 Feb. 7, 2012 Borders et al. (“Borders”) US 8,551,544 B2 Oct. 8, 2013 REJECTIONS The claims stand rejected under 35 U.S.C. § 103(a) as follows: claims 1, 3–5, 7, and 11–33 over Coleman in view of Murata, Froseth, and Archibald; and claims 1, 3–5, 7, and 11–33 over Borders in view of Murata. Appeal 2015-003722 Application 12/517,307 3 OPINION For purposes of this appeal, we select claim 1, the broadest claim on appeal, as representative of the claims on appeal. The main issue on appeal is differing interpretations of the Examiner and Appellant of the “crunchy texture” limitation and whether this limitation is obvious in view of the cited prior art. App. Br. 6. The claimed product is a dried cereal bar comprising dry cereal ingredients and a binder that is selected from the group consisting of potato starch, whey protein, and blends thereof. Id. at 11. The Specification states that the cereal bar of the invention should have a crunchy texture. Spec. ¶ 1. Binders tend to affect the texture of the cereal bar, with sticky binders yielding a sticky matrix that reduces crunchiness. Id. ¶ 6. According to the Specification, “[c]runchy texture is a result of using crunchy ingredients in combination with a binder that does not interfere with the texture of the bar.” Id. ¶ 10. The Specification clarifies that the desired cereal bar with a crunchy texture does not include a sweet or sticky binder. Id. ¶ 8. This crunchy texture, according to claim 1, must extend throughout its dried cereal bar. Rejection over Coleman in view of Murata, Froseth, and Archibald Coleman discloses a method of making chewy, reduced-density cereal bars. Coleman col. 1, ll. 42–43. Coleman consistently and repeatedly states that the product created is chewy. See, e.g., id. at col. 1, ll. 12, 34, 42, and 49 (“provide a chewy, moist texture throughout the entire bar”); col. 2, ll. 21 (“cereal bar develops increased chewiness over time”) and 27; col. 3, ll. 16 Appeal 2015-003722 Application 12/517,307 4 (“yielding a uniform chewy and moist texture through shelf life”) and 21; col. 4, ll. 58–59 (“cereal bars processed according to the present invention have improved chewiness”); col. 10, ln. 66; and col. 11, ln. 34. The binder system of Coleman preferably comprises a carbohydrate- based binder, which may comprise a carbohydrate syrup composition including corn syrup, high fructose corn syrup, rice syrup, brown rice syrup, liquid sucrose, evaporated cane juice, molasses, honey, caramel, compound coating, and the like, which also lending sweetening flavor to the cereal mixture. Id. at col. 4, ll. 30–38. The binder system may also include a variety of materials, among them gelatin and hydrolyzed collagen. Id. at col. 4, ll. 41–43. Farinaceous powders, such as dry starch powders, may be used at least in part as the binder material. Id. at col. 4, ll. 45–47. The Examiner contends that Coleman teaches a dried cereal product having a crunchy texture, comprising “the same type of binding ingredients as claimed.” Final Act. 4. Appellant, citing to numerous instances in Coleman describing the chewiness of the bar, argues that “nothing in Coleman suggests that the desired chewy texture of its cereal bar should be totally replaced by a crunchy texture, as required by Appellant’s independent claims.” App. Br. 6; Reply Br. 2. Based on the facts before us, we agree with Appellant. Coleman discloses a carbohydrate-based binder, including corn syrup, which one of ordinary skill in the art at the time of the invention would reasonably expect to be a binder that interferes with a crunchy texture that the bar may otherwise have, by making the texture chewy. See Spec. ¶ 10. The heat-set step of Coleman (col. 7, ln. 65–col. 8, ln. 3) dries the cereal bar to a final water activity of about 0.4 to about 0.6 (col. 8, ll. 19– Appeal 2015-003722 Application 12/517,307 5 20). The Examiner turns to Froseth for teaching a layered cereal bar with a water activity in the range of about 0.35 to 0.55 that has a crispy texture, and argues that the cereal bar of Coleman must also be crispy based on Froseth. Final Act. 3–4 (referencing Froseth col. 2, ll. 61–63). However, Appellant correctly points out that the Examiner’s position ignores the textural contributions made by ingredients in the binder, such as fats or oils. App. Br. 7. The other references cited by the Examiner do not make up for the deficiencies in Coleman. Accordingly, we reverse the Examiner’s rejection of claims 1, 3–5, 7, and 11–33 as obvious over Coleman in view of Murata, Froseth, and Archibald. Rejection over Borders in view of Murata The Examiner rejects claims 1, 3–5, 7, and 11–33 over Borders in view of Murata. Final Act. 5. The Examiner argues that Borders discloses a protein-based binder system and various food articles comprising the protein-based binder. Id. The binder comprises modified wheat protein isolate with at least one additive including protein powder, humectant, sweeteners, starches, etc. Id. Whey protein is identified as a possible protein for use in the binder system. Id. Food particles that may be combined with the wheat protein isolate in Borders comprise “any edible food part[icles] known in the art.” Borders col. 8, ll. 60–61. The Examiner acknowledges that Borders does not disclose potato starch in the binder, and turns to Murata for a binder that comprises potato starch. Ans. 6–7. Murata teaches use of a binder for manufacturing molded food comprising pregelatinized cereal powder containing aqueous ethyl Appeal 2015-003722 Application 12/517,307 6 alcohol and powdery polymer material. Murata col. 2, ll. 55–57. The particles of processed food which are the main component of the molded food may be a variety of foods, including dried vegetables, dried processed vegetables, dried fruits, dried processed fruits, and confections such as candies, popcorn, and chewing gum. Id. at col. 3, ll. 12–21. The Examiner urges that it would be obvious to one of ordinary skill in the art to combine potato starch, as disclosed in Murata, with the wheat protein isolate of Borders. Final Act. 6. Borders teaches a binder for a food product, wherein the binder comprises wheat protein isolate and various food articles. Borders col. 2, ll. 46–47. Appellant relies on Example 3 of Borders, which discloses a binder system the produces “a soft, chewy, pliable binder.” App. Br. 8. Appellant further relies on the Abstract of Murata, which states that the molded food produced with the disclosed pregelatinized cereal powder has a “soft and pleasant feeling when chewing is obtained.” Id. at 9. Appellant disputes the Examiner’s conclusion regarding Example 4 of Borders, drawn to an apple crisp bar, pointing out that Borders provides no information regarding the texture of the disclosed bar. Id. The Examiner concludes that the combination of Borders and Murata discloses a dried cereal product containing the same ingredients as claimed with the same drying parameters as claimed, thus the product inherently has a crunchy texture throughout. Ans. at 6–7. We do not agree. Even though Borders discloses a formulation for a crunchy binder system (Borders Example 1), as Appellant emphasizes, neither Borders, Murata, nor the combination of references discloses a dried cereal bar that has a crunchy texture throughout. See App. Br. 9. Indeed, Borders teaches that the binder Appeal 2015-003722 Application 12/517,307 7 system may be chewy. Borders col. 18, ll. 32–51. Thus, a crunchy texture throughout a dried cereal bar is not necessarily the result of Borders or Borders in view of Murata. See Schering Corp. v. Geneva Pharms., 339 F.3d 1373, 1379 (Fed. Cir. 2003) (limitation is inherent if it is the natural result flowing from the explicit disclosure of the prior art); MEHL/Biophile Int’l Corp. v. Milgraum, 192 F.3d 1362, 1365 (Fed. Cir. 1999) (quoting In re Oelrich, 666 F.2d 578, 581 (CCPA 1981) (“Inherency . . . may not be established by probabilities or possibilities. The mere fact that a certain thing may result from a given set of circumstances is not sufficient.”). A preponderance of the evidence does not support the Examiner’s determination that Borders in view of Murata would have rendered the subject matter recited in claim 1 obvious to one of ordinary skill in the art within the meaning of 35 U.S.C. § 103(a). DECISION For the above reasons, the Examiner’s rejection of claims 1, 3–5, 7, and 11–33 is REVERSED. REVERSED