Ex Parte Palav et al

Patent Trial and Appeal Board

Oct 18, 2017

12590521 (P.T.A.B. Oct. 18, 2017)

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.
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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;
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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
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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),
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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
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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)
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(“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.
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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,
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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.
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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.
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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
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