Ex Parte RayDownload PDFPatent Trial and Appeal BoardMar 15, 201713918292 (P.T.A.B. Mar. 15, 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. 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. . .”. 2 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. 3 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). 4 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 5 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). 6 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 7 Copy with citationCopy as parenthetical citation