Ex Parte Palav et alDownload PDFPatent Trial and Appeal BoardOct 18, 201712590521 (P.T.A.B. Oct. 18, 2017) Copy Citation 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. 12/590,521 11/10/2009 Trupti Palav RICH 200750US01 5546 27885 7590 FAY SHARPE LLP 1228 Euclid Avenue, 5th Floor The Halle Building Cleveland, OH 44115 EXAMINER MUKHOPADHYAY, BHASKAR ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 10/18/2017 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 TRUPTI PALAV, SACHIN BHATIA, and CHERYL PERKS Appeal 2017-000476 Application 12/590,521 Technology Center 1700 Before TERRY J. OWENS, N. WHITNEY WILSON, JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s final decision rejecting claims 1, 2, 4—10, and 12—50. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In this decision, we refer to the Final Office Action mailed December 15, 2015 (“Final Act.”), the Appeal Brief filed May 31, 2016 (“Appeal Br.”), the Examiner’s Answer mailed August 10, 2016 (“Ans.”), and the Reply Brief filed October 11, 2016 (“Reply Br.”). 2 Appellants identify the real party in interest as Rich Products Corporation. Appeal Br. 1. Appeal 2017-000476 Application 12/590,521 Gluten present in wheat provides a protein structure useful for processing baked wheat goods and provides desirable organoleptic properties. Spec. 13. However, in individuals afflicted with celiac disease, consumption of gluten containing food products is not recommended as gluten is considered to generate an undesirable and harmful immune response. Id. Thus, there has been a recent push to develop food items which are gluten free. Id. Currently, gluten-free products are generally pasty and have a gritty mouth-feel, crumbly texture, poor shelf life after baking under ambient conditions, and poor taste as compared to white bread. Id. 14. The subject matter on appeal relates to gluten-free compositions that have a desirable texture and mouthfeel. Id. 1 5. Claim 1, reproduced below from the Claims Appendix of the Appeal Brief, is illustrative of the claims on appeal. 1. A gluten-free composition for bread products comprising: a) 15 to 50 weight percent gluten-free material that includes one or more materials selected from the group consisting of flour and starch, said gluten-free material includes com starch, wherein said com starch in said composition is present from 10 to 30 weight percent; b) 1 to 10 weight percent protein; c) 0.1 to 10 weight percent hydrocolloid; d) 25 to 50 weight percent water; e) 0.5 to 5 weight percent yeast; f) 0.5 to 5 weight percent emulsifier; g) 0 to 12 weight percent fat; h) 0 to 5 weight percent chemical leavening agent; and i) 0 to 15 weight percent sweetener; 2 Appeal 2017-000476 Application 12/590,521 wherein said gluten-free material includes starch granules, wherein at least 50% of said starch granules are 20 microns or less in size and at least 90% of said starch granules are 37 microns or less in size. Appeal Br. 54 (Claims Appendix). REJECTIONS The Examiner maintains the following rejections on appeal: Rejection 1: Claims 1, 2, 4—8, 17, 19, 27—34, 39, 41, 43, 48, and 50 under 35 U.S.C. § 103(a) as unpatentable over Redding JR. et al. (US 2002/0064587 Al, published May 30, 2002) (“Redding”) in view of Jules E. D. Shephard, Nearly Normal Cooking and Nearly Normal Gluten- Free Flour Mix 2 (2006) (“Shephard”), Hegedus et al. (US 4,431,681, issued February 14, 1984), DuRoss et al. (US 3,615,681, issued October 26, 1971) (“DuRoss”), Block et al. (US 3,001,727, issued September 26, 1961), and Okoniewska et al. (US 2006/0263503 Al, published November 23, 2006); Rejection 2: Claims 9, 10, 12—16, 18, and 20—26 under 35 U.S.C. § 103(a) over Redding in view of Shephard, Hegedus, Okoniewska, and Block; Rejection 3: Claims 35—38, 40, 42, 44, and 49 under 35 U.S.C. § 103(a) over Redding in view of Shephard, Hegedus, DuRoss, Block, Okoniewska, and Murphy et al. (US 5,133,984, issued July 28, 1992) (“Murphy”); Rejection 4: Claims 45 and 47 under 35 U.S.C. § 103(a) over Redding in view of Shephard, Hegedus, DuRoss, Block, and Olesen et al. (US 6,110,508, issued August 29, 2000) (“Olesen”); and 3 Appeal 2017-000476 Application 12/590,521 Rejection 5: Claim 46 under 35 U.S.C. § 103(a) over Redding in view of Shephard, Hegedus, DuRoss, Block, Murphy, and Olesen. DISCUSSION Upon consideration of the evidence on this record and each of Appellants’ contentions, we find that the preponderance of evidence supports the Examiner’s conclusion that the subject matter of Appellants’ claims is unpatentable over the applied prior art. We sustain the Examiner’s §103 rejections essentially for the reasons set out by the Examiner in the Final Action and Answer. We add the following. Redding discloses a ready-to-use food product that contains a batter, at least one leavening agent, and at least one oil. Redding Abstract. According to Redding, its batter may include from about 30 wt.% to about 60 wt.% flour, from about 20 wt.% to about 40 wt.% water, from about 0.1 wt.% to about 2.0 wt.% leavening acid, and from about 0.1 wt.% to about 2.0 wt.% leavening base. Id. 172. In addition, Redding discloses that its batter may also can include yeast, fat (e.g., oils) in an amount of 3 wt.%, emulsifiers, hydrocolloids (e.g., xanthan gum), and sweeteners. Id. 80- 85, 88, 95. Shepard discloses a gluten-free flour that reduces the distinctive taste and gritty texture of rice flour by cutting it with other milder starches and flours. Shepard 1. The Examiner finds, and Appellants do not dispute, that Shepard’s flour mix includes 1 cup or 24.6 wt.% com starch and Vi cup or 12.3 wt.% com flour. Final Act. 5 (citing Shephard 2). Com starch has around 24% amylose. Spec. 143; see also Scott Hegenbart, Understanding Starch Functionality, Natural Products Insider (January 1, 1996), 4 Appeal 2017-000476 Application 12/590,521 https://www.naturalproductsinsider.com/articles/1996/01/understanding- starch-functionality.aspx (“Hegenbart”) (disclosing that “common com starch has 25% amylose”). Shephard’s gluten-free flour mix also includes 4 teaspoons of xanthan gum. Shephard teaches that its gluten-free flour mix is generally a good substitute for wheat flour. Shephard 2. Hegedus discloses a batter formulation for a reduced-calorie cake that includes 0 to 10 wt.% egg solids, 0 to 25 wt.% sugar, up to 2 wt.% of an emulsifier, and from 1 wt.% to 20 wt.% of a water binder (e.g., xanthan gum). Hegedus Abstract, 2:61—68 (Table I), and 4:18—31. Hegedus teaches that the water binder absorbs and tightly holds water, which makes good quality cakes. Id. at 4:18—26. DuRoss discloses flour leavened with yeast to make baked products, such as bread. DuRoss 1:4—10. DuRoss’s dough can include 2.5 wt.% yeast. Id. at 3:24—34. Block teaches that commercial flours generally have a particle size between 15 microns and 150 microns, and wheat flour includes a major portion of starch in the form of granules having diameters of between 2 microns and 50 microns. Block 1:10—12, and 1:64—2:4. Appellants argue that Redding does not teach a gluten-free dough and thus cannot be used as the primary reference to support an obviousness rejection of the pending claims. Appeal Br. 27. Appellants’ argument is not persuasive of reversible error. A reference is analogous prior art if: (1) it is from the same field of endeavor, regardless of the problem addressed, or (2) it is reasonably pertinent to the particular problem with which the inventor was involved. In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004). Appellants attempt to define 5 Appeal 2017-000476 Application 12/590,521 Redding’s disclosure too narrowly as only relating to gluten-containing products. Appeal Br. 26—27. Redding, however, generally relates to culinary food products, such as liquid batter or dough. Redding 12. As the Examiner finds, Redding discloses that various types of flours can be used to make its batter including high amylose flour, such as rice and tapioca flours (i.e., gluten-free flours). Final Act. 4 (citing Redding 175); Okoniewska 123 (teaching rice and tapioca flours as types of high amylose flours). Additionally, Redding teaches that different flours lend different texture, taste, and appearance to a baked good. Redding 175. Thus, we are not persuaded that the Examiner erred in finding that Redding is analogous art, and thus can be properly relied upon by the Examiner to support an obviousness rejection. Appellants argue the Examiner has not established that one skilled in the art would have been motivated to substitute Shephard’s gluten-free flour mix for Reddings’ flour mix containing gluten. Appeal Br. 32. Appellants also argue that the Examiner has not established that the flour mixture of Shephard can be successfully used in the formulations of Redding. Id. Appellants’ arguments are not persuasive of reversible error. Shephard teaches that its gluten-free flour mix is generally a good substitute for wheat flour. Shephard 2. Based on this teaching, one of ordinary skill in the art looking to prepare a gluten-free bakery product would have been motivated to substitute Shephard’s gluten-free flour mix for Reddings’ flour mix containing gluten. Moreover, one of ordinary skill in the art would have had a reasonable expectation that this substitution would have been successful. In re O’Farrell, 853 F.2d 894, 903-04 (Fed. Cir. 1988) 6 Appeal 2017-000476 Application 12/590,521 (“Obviousness does not require absolute predictability of success . . . [A]ll that is required is a reasonable expectation of success.”). Appellants argue that Okoniewska’s high amylose flour must include at least 40% amylose by weight of its starch, and thus teaches away from a starch having a total amylose content as recited in the claims. Appeal Br. 33; see also, e.g., claim 27 (requiring a gluten-free material that includes starch having “an amylose content of 17%—30%”). Appellants also argue that the starch in Okoniewska’s flour has a much larger particle size than recited in the claims. Appellants’ arguments are not persuasive of reversible error. Appellants are attacking Okoniewska individually when the rejection is based on a combination of references. See In re Keller, 642 F.2d 413, 426 (CCPA 1981). Shephard’s gluten-free flour includes com starch, and com starch has around 24% amylose. Spec. 143; see also Hegenbart. Additionally, Block teaches that commercial flours generally have a particle size between 15 microns and 150 microns, and flour can include starch in the form of having diameters of between 2 microns and 50 microns. Block 1:10—12, and 1:64—2:4; see also Hegenbart (disclosing that the granule size for common com starch ranges from between 5 microns and 20 microns). Appellants argue that Hegedus’s cake batter is different from Reddings’ food product batter, and thus there is no reasonable expectation of success that the amount of egg white solids, emulsifier, and hydrocolloid used in Hegedus’s cake batter could be successfully used in Reddings’ batter. Appeal Br. 34—35. 7 Appeal 2017-000476 Application 12/590,521 Appellants’ argument is not persuasive of reversible error. Reddings’ batter can be used to produce a variety of baked food products including a cake. Redding 138. Moreover, Redding teaches that its batter can include standard batter ingredients, for example, eggs. Redding | 63. Based on those teachings, one of ordinary skill in the art would reasonably expect that using the same amounts of egg white solids, emulsifier, and hydrocolloid as used in Hegedus’s cake batter could produce a good quality cake when in Reddings’ batter. Appellants argue that Block does not teach starch particles sizes, controlling starch particle size, or any advantage associated with the selection of any type of starch particle size. Appeal Br. 38. Appellants’ argument is not well-taken. As discussed above, com starch, which is the starch in Shepard’s gluten-free flour mix, has a granule size in a range between 5 microns and 20 microns. Hegenbart. Regarding claim 27, Appellants argue that the Examiner has not identified that any of the cited references teach: 1) starch having an amylose content of 17%—30%, 2) at least 80% of the starch granules are 30 microns or less in size, and 3) a volume weight mean of the starch granules size is 15—45 microns. Appeal Br. 39. Appellants make similar arguments regarding claims 9, 20, and 39. Appeal Br. 41, 44-45. We find these arguments unavailing. The Examiner finds, and Appellants do not dispute that Shepard’s flour mix includes 1 cup or 24.6 wt.% com starch. Final Act. 5 (citing Shephard 2); see generally Appeal Br. As discussed above, com starch, which is the starch used in Shepard’s gluten-free flour mix, has around 24% amylose, and a granule size in a range between 5 microns and 20 microns. Hegenbart. Moreover, 8 Appeal 2017-000476 Application 12/590,521 Shephard teaches that using cornstarch in gluten-free flour will not leave behind any gritty texture. Shephard 2. Thus, Shephard would have reasonably suggested to a person of ordinary skill to use com starch granules having a volume weighted mean of 15 microns to 45 microns. Appellants’ arguments regarding claims 2, 4—10, 12—26, and 28—503 are not persuasive. Appeal Br. 39-52. As discussed above, the combination of references teach the ingredients in the amounts required by claims 4, 9, 12, 20, and 45—50. Redding || 63, 72—73, 80-85 (disclosing a batter that includes about 30 wt.% to about 60 wt.% flour, from about 20 wt.% to about 40 wt.% water, from about 0.1 wt.% to about 2.0 wt.% leavening agent, 0.1 to 3.0 wt.% oil, and additionally may include yeast, emulsifiers, hydrocolloids, and standard batter ingredients such as eggs); Shephard 2 (teaching a gluten-free flour that produces baked good with less gritty texture); Hegedus 2:61—3:5 (teaching a cake batter that includes 0-25 wt.% sugar, 0-10 wt.% egg white solids, 0-2 wt.% emulsifier, 1—20 wt.% water binder (hydrocolloid)). In addition, with regard to the acidulant in claims 2, 10, 21 and 28, Redding teaches that its batter can include an acidulant that may serve also as a fungistatic agent, such as acetic acid or sorbic acid, in an amount of 0.3 wt.% (Redding || 63, 139-140). Further, with regard to 3 In claims 48—50, the phrase “consisting essentially of’ limits the scope of a claim to the specifically recited ingredients plus others that do not materially affect the basic and novel characteristic(s) of a composition. AK Steel Corp. v. Sollac, 344 F.3d 1234, 1239 (Fed. Cir. 2003) (The phrase “consisting essentially of’ in a patent claim “has long been understood to permit inclusion of components not listed in the claim, provided that they do not ‘materially affect the basic and novel properties of the invention.”’). On this record, Appellants have not identified sufficient evidence to show that the additional ingredients taught by the prior art materially affect the basic and novel characteristics of the compositions recited in claims 48—50. 9 Appeal 2017-000476 Application 12/590,521 dough conditioners in claims 45^47, Olesen discloses using lipase as a dough conditioner and anti-staling agent in an amount of about 1—5 wt.%. Olesen 3:1—28, 7:5—10. Thus, a preponderance of the evidence supports the Examiner’s findings that the combination of cited references teach or suggest each and every element of claims 2, 4—10, 12—26, and 28—50. Moreover, based on the combined teachings of the cited references, we are not persuaded by Appellants’ argument that one of ordinary skill in the art would not have been motivated to substitute Shephard’s flour for Reddings’ flour, and to use other standard batter ingredients in Reddings’ batter in the amounts disclosed in Shephard and Hegedus to produce a quality gluten-free baked food product with less gritty texture. Additionally, Appellants’ arguments that the combination of references do not teach that the hydrocolloid includes xanthan gum, guar gum, pectin, and methyl cellulose as required by claims 30 and 35, or the weight percentages of the guar gum and other hydrocolloids also required by claim 35, are unpersuasive. Appeal Br. 41, 48. Hegedus teaches that good quality cakes have been make with xanthan gum, guar gum, pectin, and methyl cellulose. Murphy teaches using combinations of xanthan gum and guar gum at a weight ratio of 1:4 to 4:1, preferably 1:3 to 3:1, in batters for baked goods. Murphy 3:5—7. Based on those disclosures, one of ordinary skill in the art would have been led to use xanthan gum, guar gum, pectin, and methyl cellulose as hydrocolloids in Redding’s batter, as modified by Shephard, and to use guar gum in a weight percent less than the weight percent of the other hydrocolloids, to produce a quality gluten-free food product. 10 Appeal 2017-000476 Application 12/590,521 We are not persuaded by Appellants’ argument that the limitation that “starch has a water holding capacity of 65—75% at 25-C,” as required by claims 24, 31, and 36, is not inherent from the teachings of the cited prior art. Appeal Br. 41, 46. As the Examiner finds, and Appellants do not dispute, Shepard’s flour mix includes the same starch, com starch, in an amount that falls within the range recited in the claims (1 cup or 24.6 wt.% com starch). Final Act. 5 (citing Shephard 2). Therefore, the Examiner has established a reasonable basis that Shephard’s starch has a water holding capacity of 65—75% at 25-C. Final Act. 8. On this record, Appellants have not persuaded us of error in the Examiner’s findings and reasoning. Accordingly, we affirm the prior art rejections of claims 1, 2, 4—10, and 12—50 for the reasons set out by the Examiner and given above. DECISION For the above reasons, the rejections of claims 1, 2, 4—10, and 12—50 are 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 11 Copy with citationCopy as parenthetical citation