Ex Parte Ray

Patent Trial and Appeal Board

Mar 15, 2017

13918292 (P.T.A.B. Mar. 15, 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.
CQKER.2624 5743
EXAMINER
BEKKER, KELLY JO
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
11/264,719 10/31/2005
110933 7590
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
03/15/2017
David Foster
03/15/2017 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 DAVID FOSTER, MARCUS PARSONS,
ROBERT MESCHEWSKI, CHRISTOPHER TRUE,
JESSICA JANNING, and CLAUS MORAW
Appeal 2016-003638
Application 11/264,719
Technology Center 1700
Before JEFFREY T. SMITH, CHRISTOPHER L. OGDEN, and
JANE E. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the final rejection
of claims 23, 26-40, and 43^49.2 We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 Appellants identify the real party in interest as The Quaker Oats Company.
Appeal Brief filed April 15, 2015 (“App. Br.”), 2.
2 Final Office Action entered December 18, 2014 (“Final Act.”), 2.
Appeal 2016-003638
Application 11/264,719
STATEMENT OF THE CASE
The subject matter on appeal is generally directed to a stable, retorted
food product. App. Br. 3. Details of the appealed subject matter are recited
in representative independent claim 23, which is reproduced below from the
Claims Appendix to the Appeal Brief:
23. A stable, retorted food product3:
from about 90% to about 99.25% by weight of food
ingredient and water, said food ingredient comprising a starch-
based food material, said starch-based food material comprising
a grain-based material selected from the group consisting of
pasta, rice, oatmeal, oats, barley, and combinations thereof; and
from about 10% to about 0.75% by weight of a gel
composition comprising:
i. a first mixture comprising:
(a) at least 70% by weight gelatin, based on the total
weight of the first mixture;
(b) about 0.5% by weight to about 10% by weight
maltodextrin, based on the total weight of the first mixture;
(c) from about 0.5% by weight to about 10% by
weight food starch, based on the total weight of the first
mixture;
(d) from about 0.05% by weight to about 10% by
weight gum, based on the total weight of the first mixture;
(e) up to 10% by weight anionic surfactant, based on
the total weight of the first mixture; and
(f) up to 10% by weight sugar, based on the total
weight of the first mixture;
the food ingredient being suspended in a gel formed from the
gel composition and subjected to retort processing.
3 We note that a transitional phrase is not included in the version of claim 23
presented in the Claim Appendix of the Appeal Brief. However, Appellants
indicate in the Appeal Brief that claim 23 is directed to a stable, retorted
food product that “comprises . . . .” App. Br. 6. Accordingly, we interpret
claim 23 consistent with the Appeal Brief and prosecution history as
including the transitional phrase “comprising” after “A stable, retorted food
product. . .”.
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Appeal 2016-003638
Application 11/264,719
App. Br. 10 (Claims Appendix).
Appellants request review of the following grounds of rejection
maintained by the Examiner in the Answer entered December 28, 2015
(“Ans.”):
I. Claims 23, 26-40, and 43^49 under 35 U.S.C. § 103(a) as
unpatentable over Kaneda et al. (JP 2001-275626 A, machine translation4),
Jacobson et al. (US 6,893,675 Bl, issued May 17, 2005), Igoe et al.,
Dictionary of Food Ingredients 3rd Edition (1996), and Tsen et al. (US
4,466,985, issued August 21, 1984).
II. Claims 23, 26, 28, 30—39, 43—45, and 47^49 under 35 U.S.C. §
103(a) as unpatentable over Kaneda, Gimelli et al. (US 6,596,336 Bl, issued
July 22, 2003), and Huang et al. (US 5,204,135, issued April 20, 1993).
III. Claims 23, 26, 28, 30-40, and 43^49 under 35 U.S.C. § 103(a)
as unpatentable over Kaneda, Gimelli, Huang, and Appelqvist et al. (WO
03/049548 Al, published June 19, 2003).
IV. Claim 27 under 35 U.S.C. § 103(a) as unpatentable over
Kaneda, Gimelli, and Huang or alternatively unpatentable over Kaneda,
Gimelli, Huang, Appelqvist, and Igoe.
V. Claim 29 under 35 U.S.C. § 103(a) as unpatentable over
Kaneda, Gimelli, and Huang or alternatively unpatentable over Kaneda,
Gimelli, Huang, Appelqvist, and Fonteneau et al. (US 4,597,974, issued July
1, 1986).
4 The translation was included with the May 12, 2014 Non-Final Office
action.
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Appeal 2016-003638
Application 11/264,719
DISCUSSION
Upon consideration of the evidence on this appeal record and each of
Appellants’ contentions, we affirm the rejections of claims 23, 26-40, and
43 49 under 35 U.S.C. § 103(a) for the reasons set forth in the Final Action
and the Answer. We add the discussion below primarily for emphasis.
We note initially that Appellants do not separately address rejections
I—V, and do not assert the separate patentability of individual claims. App.
Br. 6—8. Instead, Appellants provide one set of arguments directed to the
disclosures of Kaneda and Tsen, and argue all of the pending claims as a
group.5 Id. Therefore, because Rejections II—V are cumulative to Rejection
I, which is directed to all of the pending claims, we select Rejection I as
representative, and decide the propriety of Rejections I—V based on
Rejection I alone.
The Examiner finds that Kaneda discloses a sauce for pasta that
comprises gelatin and is prepared by retort processing. Final Act. 2—3;
Kaneda 4, 8. The Examiner acknowledges that Kaneda does not disclose
that the sauce includes food starch, gum, an anionic surfactant such as
carboxymethyl cellulose, maltodextrin, and dextrose (sugar) as recited in
claim 1, and the Examiner relies on Jacobson’s disclosure that these
ingredients are conventionally included in sauces that can be retort
processed. Final Act. 3^4; Jacobson col. 4,11. 48—50; col. 4,1 64—col. 5,1. 1;
col. 9,11. 9-12; col. 10,11. 38-39, 48-52.
5 Because Appellants argue all of the pending claims (23, 26-40, and 43^49)
as a group (see generally App. Br. 6—8), for the purposes of this appeal we
select claim 23 as representative, and decide the propriety of the rejection of
all of the pending claims based on claim 23 alone. 37 C.F.R.
§ 41.37(c)(l)(iv).
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Appeal 2016-003638
Application 11/264,719
The Examiner further acknowledges that Kaneda does not disclose
retort processing the sauce together with pasta as recited in claim 1, and the
Examiner relies on Tsen’s disclosure of retort processing pasta and sauce
together to produce a complete convenience food that only needs to be
heated and served. Final Act. 3—\\ Tsen col. 1,11. 30-35; col. 2,11. 61—65;
col. 3,11. 9-12. Tsen discloses that such pasta is not excessively soft, but
instead is firm and has enhanced organoleptic properties such as texture and
mouth feel. Tsen Abstract; col. 1,11. 7—11, 15—18; col. 2,11. 18—24. The
Examiner concludes that it would have been obvious to one of ordinary skill
in the art at the time of Appellants’ invention to retort process a pasta sauce
comprising gelatin and other conventional ingredients as disclosed in
Kaneda and Jacobson, together with pasta as disclosed in Tsen, to produce a
complete food product that can be conveniently prepared by heating only a
single item. Final Act. 4, 6—8.
Appellants argue in their Appeal Brief that Kaneda’s intended purpose
is to produce a sticky rice or pasta product by coating the surface of the rice
or pasta with a retort-processed, gelatin-containing sauce before cooking the
pasta or rice. App. Br. 7. Appellants contend that retort processing the rice
or pasta together with the sauce as disclosed in Tsen would change Kaneda’s
underlying principle of operation and would render the pasta or rice non-
sticky, making Kaneda inoperable for its intended purpose of producing a
sticky starch product. App. Br. 7—8.
We note initially that Appellants explain in their Reply Brief6 that the
arguments directed to Kaneda presented in their Appeal Brief are not
6 We do not consider the arguments that Appellants present for the first time
in their Reply Brief directed to Tsen and Huang because the arguments
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Appeal 2016-003638
Application 11/264,719
actually based on the disclosures of Kaneda, but are mistakenly directed to
the disclosures of a different reference. Rep. Br. 1. Nevertheless,
Appellants assert that the arguments in their Appeal Brief are still applicable
because Kaneda and the reference discussed in the Appeal Brief both
disclose retorting a gel sauce before combining it with pasta or rice. Rep.
Br. 1—2. Therefore, we address the arguments directed to Kaneda in
Appellants’ Appeal Brief to the extent they are applicable to the actual,
applied reference.
As discussed above, Kaneda discloses a sauce that comprises gelatin,
and Kaneda discloses preparing the sauce by retort processing followed by
refrigeration. Kaneda Tflf 4, 8. Kaneda discloses that when the refrigerated
sauce is added to pasta and then cooked, the sauce spreads easily on the
pasta and adheres well to it. Kaneda 118. Appellants do not direct us to
any disclosure in Kaneda indicating that the pasta is sticky, or any disclosure
or suggestion in Kaneda that the intended purpose of the reference is to
produce a sticky pasta product. Instead, Kaneda indicates that the purpose
of the disclosed method for preparing a pasta sauce by retort processing is to
produce a gel-like, retorted sauce, which solves the problem in the art of
gelatin thickening agents in sauces being decomposed by retort processing
the sauce, causing the retorted sauce to lose its thick, gel-like consistency.
Kaneda H 3—7.
could have been raised earlier in the Appeal Brief, and Appellants do not
show good cause for why the new arguments should be considered. 37
C.F.R. § 41.37(c)(l)(iv); 37 C.F.R. § 41.41(b)(2) (arguments raised for the
first time in the Reply Brief that could have been raised in the Appeal Brief
will not be considered by the Board unless good cause is shown).
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Appeal 2016-003638
Application 11/264,719
One of ordinary skill in the art at the time of Appellants’ invention
reasonably would have reasonably expected that retort processing a gelatin-
containing sauce as disclosed in Kaneda together with pasta as disclosed in
Tsen would yield a sauce having a thick consistency that spreads easily on
the pasta and adheres well to it, as disclosed in Kaneda, and would yield
pasta that would be firm and have enhanced texture and mouth feel, as
disclosed in Tsen. Appellants’ arguments are therefore unpersuasive of
reversible error in the Examiner’s factual findings and conclusion of
obviousness, and we accordingly sustain the Examiner’s rejection of claims
23, 26-40, and 43^19 under 35 U.S.C. § 103(a).
DECISION
In view of the reasons set forth above and in the Final Action and the
Answer, we affirm the rejection of claims 23, 26-40, and 43 49 under
35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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