Ex Parte Paloncy et al

Patent Trials and Appeals BoardJun 6, 2019

14966354 - (D) (P.T.A.B. Jun. 6, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/966,354 12/11/2015 57557 7590 06/10/2019 PAULY, DEVRIES SMITH & DEFFNER, L.L.C. Suite 900 121 South 8th Street MINNEAPOLIS, MN 55402-2841 Marianne Paloncy 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 3 l l.05 l 4US01 2474 EXAMINER HEGGESTAD, HELEN F ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 06/10/2019 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): docketing@pdsdlaw.com kds@pdsdlaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARIANNE PALONCY, MICHAEL PLATT, CAROLYN OTTENHEIMER, and BRUCE BECHTEL Appeal2018-009207 Application 14/966,354 Technology Center 1700 Before MARK NAGUMO, JEFFREY R. SNAY, and SHELDON M. McGEE, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 appeals under 35 U.S.C. Â§ 134(a) from the Examiner's decision rejecting claims 1-22. We have jurisdiction. 35 U.S.C. Â§ 6(b ). We affirm. 1 We cite to the Specification ("Spec.") filed December 11, 2015; Final Office Action ("Final Act.") dated November 22, 2017; Appellant's Appeal Brief ("App. Br.") filed May 22, 2018; Examiner's Answer ("Ans.") dated July 26, 2018; and Appellant's Reply Brief ("Reply Br."), filed September 26, 2018. 2 Appellant is Applicant, S-L Snacks National, LLC, which is identified (App. Br. 2) as the real party in interest. Appeal2018-009207 Application 14/966,354 BACKGROUND The subject matter on appeal relates to a process for preparing nuts. Spec. ,r,r 1, 7. Claim I-the sole independent claim on appeal-reads as follows: 1. A method for preparing crunchy nuts comprising: preparing a brine solution; soaking nuts in the brine solution for a duration dependent on one or more factors including at least brine composition, desired flavor, soaking environment, and nut variant, the duration being at least one hour; draining the brine solution from the nuts; and oil roasting the nuts. App. Br. 13 ( Claims Appendix). REJECTION3 Claims 1-22 stand rejected under 35 U.S.C. Â§ I03(a) as unpatentable over Nohe, 4 Smyth, 5 and Shannon. 6 OPINION Appellant solely argues claim 1. See App. Br. 9-11. Each of claims 2-22 therefore stands or falls with claim 1. Relevant to Appellant's arguments on appeal, the Examiner finds that Nohe discloses a process for preparing soy bean nuts, in which soy beans are 3 Additional rejections under 35 U.S.C. Â§Â§ 112 and 103 set forth in the Final Office Action have been withdrawn. Ans. 5-7. Claim 23 has been canceled. See App. Br. 3. 4 US 2,135,593, issued November 8, 1938. 5 US 2013/0177680 Al, published July 11, 2013. 6 Cooking God's Way, Shannon Raw Nuts: How to Soak & Why, http://www.cookinggodsway.com/raw-nuts-how-to-soak-why (Aug. 2009). 2 Appeal2018-009207 Application 14/966,354 soaked in water for about 15-18 hours, after which the beans are dried, boiled in brine for 1-1.3 hours, drained, and cooked. Final Act. 4. The Examiner also finds that Shannon teaches soaking nuts in brine to improve digestibility and flavor. Ans. 8; see also Shannon 3 (explaining that soaking nuts in brine makes them "easier to digest, increases vitamin/mineral absorption, and makes them even more tasty"). Appellant argues Nohe fails to teach "soaking nuts in the brine solution for a duration dependent on one or more factors including at least brine composition, desired flavor, soaking environment, and nut variant, the duration being at least one hour," as is recited in claim 1. App. Br. 9. See also Reply Br. 2-4. Appellant further argues that Shannon fails to cure the purported deficiency in Nohe, and that Smyth teaches away from soaking nuts in a brine solution. Id. at 9-10. Appellant's arguments are not persuasive of reversible error. Appellant acknowledges that Nohe's process includes boiling beans in brine for at least one hour, and that the duration depends on the type of bean. See App. Br. 9 ("Then the beans are boiled in brine for 1-1.3 hours depending on the type of beans."). The Examiner further finds that Nohe teaches soaking nuts with a brine solution sufficient to impart a desired salty taste. Ans. 7 ( citing Nohe 1 :34--40). At the cited passage, Nohe states that"[ o ]ver the beans is poured a heavy solution of sodium chloride, the solution being of such character as to impart to the beans in their finished nut-like form the desired salty taste." Appellant does not present a persuasive argument that the recited step of soaking in brine for a duration dependent on one or more factors including at least brine composition, desired flavor, soaking 3 Appeal2018-009207 Application 14/966,354 environment, and nut variant would not encompass Nohe' s boiling in brine for a duration dependent on bean type and desired saltiness. 7 Because Appellant does not persuade us that Nohe is deficient regarding the recited soaking step, Appellant's argument that Shannon fails to cure the deficiency also is unpersuasive of reversible error. Finally, although Smyth discloses certain advantages of an infusion process compared to soaking (Smyth ,r,r 6, 8), Appellant does not explain why those advantages would have dissuaded one of ordinary skill in the art from using the boiling in brine step expressly taught by Nohe to have been useful for preparing a desired product. For the foregoing reasons, the Examiner's rejection of claims 1-22 is sustained. DECISION 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. Â§ 1.136(a). AFFIRMED 7 The Specification describes an embodiment in which peanuts are soaked in brine at ambient temperature. Spec. 4. Claim 1, however, lacks any recited temperature condition during soaking. Appellant neither contends nor points to language in claim 1 that would preclude Nohe's application of heat during soaking in brine. 4