Ex Parte Stevens et al

Patent Trial and Appeal Board

Mar 28, 2016

12258219 (P.T.A.B. Mar. 28, 2016)

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.
12/258,219 10/24/2008 Cheree L. B. Stevens ADV012 P305F 8588
277 7590 03/28/2016
PRICE HENEVELD LLP
695 KENMOOR SE
P O BOX 2567
GRAND RAPIDS, MI 49501
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
03/28/2016 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 CHEREE L. B. STEVENS, JOHN F. STEVENS, and
ROBERT O. ROSKAM1
____________

Appeal 2013-010341
Application 12/258,219
Technology Center 1700
____________

Before PETER F. KRATZ, GEORGE C. BEST, and
WESLEY B. DERRICK, Administrative Patent Judges.

DERRICK, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner’s maintained final rejection of claims 1, 6, 9, 10, 12–14, 17, and
20.2 We have jurisdiction pursuant to 35 U.S.C. § 6.
We AFFIRM.

1 Appellants identify Advanced Food Technologies, Inc. as the Real Party in
Interest. Appeal Brief filed November 5, 2012 (“App. Br.”), 3.
2 The Examiner has withdrawn a rejection of claims 1, 6, 9, 10, 12‒14, 17,
and 17‒20 under 35 U.S.C. § 112, first paragraph (Answer mailed June 20,
2013 (“Ans.”), 3), and only maintains a rejection as to a portion of the
earlier-rejected claims under 35 U.S.C. § 112, second paragraph (Ans. 3‒4).
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BACKGROUND
Appellants’ invention relates to a food product derived from dough or
batter having a coating including a starch, a starch derivative, or a mixture
thereof, which coating provides a moisture barrier. Spec. Abstract.
Independent claims 1, 14, and 20 are directed to glazed bakery
products with “a moisture barrier layer comprising a dry dusting coating
composition” (claim 1) or “comprising . . . a dry dusting composition”
(claims 14 and 20) wherein the dry dusting coating composition provides a
moisture barrier to moisture transfer from the doughnut substrate into the
crystalline glaze (claims 1, 14, and 20).
Independent claims 1 and 14 are illustrative:
1. A bakery product comprising:
a doughnut substrate at least partially derived from a
dough or a batter, wherein the dough or batter is at least
partially derived from wheat and the doughnut substrate has a
surface and is formed by yeast raising or chemical raising of the
dough or the batter to form a doughnut substrate and thereafter
frying the doughnut substrate;
a moisture barrier layer comprising a dry dusting
coating composition; and
a crystalline glaze; and
wherein the dry dusting coating composition comprises:
a first component chosen from the group
consisting of a modified starch and a dextrin;
wherein the dry dusting coating composition is applied to
the surface of the doughnut substrate and at least partially
covers the surface of the doughnut substrate prior to application
of the crystalline glaze and the doughnut substrate and the
crystalline glaze have different water activities and the dry
dusting coating composition provides the moisture barrier to
moisture transfer from the doughnut substrate into the
crystalline glaze.

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14. A bakery product comprising:
a doughnut substrate formed by yeast raising or chemical
raising of a dough or a batter comprising wheat to form a
doughnut substrate;
a dry dusting coating composition; and
a crystalline glaze comprising crystalline sugar and
water; and
wherein the dry dusting coating composition comprises a
modified and pregelatinized waxy maize starch or a potato
dextrin;
wherein the dry dusting coating composition at least
partially covers the surface of the doughnut substrate prior to
application of the crystalline glaze; the doughnut substrate and
the crystalline glaze have different water activities; and the dry
dusting coating composition provides a moisture barrier to
moisture transfer from the doughnut substrate into the
crystalline glaze.
App. Br. 30‒31 (Claims Appendix, emphasis added). We select claim 14 as
representative of independent claims 14 and 20 as these are subject to the
same grounds of rejection and Appellants argue these claims together.
Appeal Br., generally.
THE REJECTIONS
1. The Examiner maintains the rejection of claims 1, 6, 9, 10, 12,
13, and 20 under 35 U.S.C. § 112, second paragraph as being indefinite.
The Examiner maintains prior art rejections under 35 U.S.C. § 103(a)
as follows:
2. Claims 1, 9, 12, and 13 over Higgins ’6073 in view of Mori4;

3 Higgins et al., US 5,976,607, issued November 2, 1999.
4 Mori et al., US 6,106,879, issued August 22, 2000.
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3. Claims 6 and 10 over Higgins ’607 in view of Mori and
Higgins ’2865;
4. Claims 14 and 20 over Higgins ’607 in view of Mori and
optionally Villwock6;
5. Claim 17 over Higgins ’607 in view of Mori, Higgins ’286, and
optionally Villwock;
6. Claims 1, 9, 12, and 13 over Doyle7 in view of Baur8;
7. Claims 6 and 10 over Doyle in view of Baur and Higgins ’286;
8. Claims 14 and 20 over Doyle in view of Baur and
Higgins ’607; and
9. Claim 17 over Doyle in view of Baur, Higgins ’607, and
Higgins ’286.
DISCUSSION9
Upon consideration of the evidence and opposing contentions of the
Appellants and the Examiner, we are persuaded the Examiner erred
reversibly in rejecting claims 1, 6, 9, 10, 12, 13, and 20 as indefinite.
We are, however, unpersuaded of reversible error in the Examiner’s
decision concluding that at the time of the invention, one of ordinary skill in
the art, armed with knowledge of the cited prior art, would have been led to

5 Higgins, US 5,753,286, issued May 19, 1998.
6 Villwock, US 2002/0172754 A1, published November 21, 2002.
7 Doyle et al., US 2002/0119219 A1, published August 29, 2002.
8 Baur et al., WO 94/21143, published September 29, 1994.
9 We refer to the Final Office Action (mailed December 5, 2011, “Final
Act.”), the Appeal Brief (filed November 5, 2012), the Examiner’s Answer
(mailed June 20, 2013), and the Reply Brief (filed August 20, 2013, “Reply
Br.”).
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the claimed subject matter. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir.
2011) (“[E]ven assuming that the examiner had failed to make a prima facie
case, the Board would not have erred in framing the issue as one of
‘reversible error.’”).
We begin our analysis by determining the meaning of the claims,
giving terms the broadest reasonable interpretation consistent with the
Specification as it would be interpreted by one of ordinary skill in the art.
See, e.g., In re Suitco Surface, Inc., 603 F.3d 1255, 1259–60 (Fed. Cir.
2010). It is well established that “the PTO must give claims their broadest
reasonable construction consistent with the specification. . . . Therefore, we
look to the specification to see if it provides a definition for claim terms, but
otherwise apply a broad interpretation.” In re ICON Health & Fitness, Inc.,
496 F.3d 1374, 1379 (Fed. Cir. 2007). “[A]s applicants may amend claims
to narrow their scope, a broad construction during prosecution creates no
unfairness to the applicant or patentee.” Id.
With the above principles of law in mind, we consider whether the
claimed bakery product comprising a dry dusting coating composition,
where the dry dusting coating composition provides a moisture barrier,
necessarily excludes moisture the portion of the product provided by the
coating composition or whether it encompasses products in which a dry
dusting coating composition combines with moisture resulting in a moisture
barrier. Having carefully considered the Specification, we find it describes
applying a dry dusting coating composition to raw dough (Spec. 51‒56) as
well as to fried doughnuts (Spec. ¶¶ 57‒59), describes that the coating is a
“water-soluble coating” (Spec. Abstract), and describes that the dry dusting
composition can be a “water-soluble moisture barrier dry dusting
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composition” (Spec. ¶ 59). As both the raw dough and fried doughnuts
include moisture and the dry dusting coating composition is described as
being in contact with the raw or fried doughnut, we determine that one of
ordinary skill in the art would understand the dry dusting coating
composition to combine with moisture in the inventive bakery product.
Accordingly, we conclude a “dry dusting coating composition” is a
composition that can be applied as a dry dusting, but is not necessarily dry
after having been applied or after the moisture barrier is formed.
Further, we conclude the claims are product-by-process claims, as
does the Examiner. Ans. 19‒20, 24; Final Act. 10. In particular, the
independent claims recite that the product is formed by providing the dry
dusting composition to cover the surface of the doughnut substrate prior to
application of the crystalline glaze. See claims 1, 14, 20. The recited
process, however, is not determinative of patentability, rather, patentability
must be established on the basis of the product. See In re Thorpe, 777 F.2d
695, 697 (Fed. Cir. 1985) (“[E]ven though product-by-process claims are
limited by and defined by the process, determination of patentability is based
on the product itself.”).
Rejection 1: Rejection under 35 U.S.C. § 112, second paragraph
The Examiner determines the recited dry coating renders the claims
indefinite. Ans. 4, 17‒18 (claims 1, 20). In particular, the Examiner finds
the recited “a moisture barrier layer comprising a dry dusting coating
composition” open to inclusion of water and that this is at odds with the “the
dry dusting composition provid[ing] the moisture barrier.” Ans. 4 (citing
claim 1).
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Appellants argue that the claims are not indefinite as one of ordinary
skill in the art would understand a dry dusting coating is made of dry
components and must be sufficiently dry to be capable “of being dry dusted
onto the substrate.” App. Br. 12‒13; see also Reply Br. 11‒12. Further,
Appellants contend “there is no written or intended limitation that the dry
dusting composition, only, provides the moisture barrier.” Reply Br. 12.
As explained above, we conclude the claims do not exclude moisture
from the moisture barrier layer and do not require that the dry dusting
coating composition remains dry after application or in providing the
moisture barrier. For this reason, we reverse the Examiner’s maintained
indefiniteness rejection.
Rejections under 35 U.S.C. § 103(a)
Rejection 2: Higgins ’607 in view of Mori
Appellants argue claims 1, 9, 12, and 13 subject to the rejection as a
group. App. Br. 14‒16. We select claim 1 as representative and reach our
decision as these claims on the basis of claim 1.
The Examiner relies on Higgins ’607 for its disclosure of a coating
composition for fried foods containing potato dextrin where the coating
provides a moisture barrier to prevent loss of moisture from the food. Final
Act. 5‒6 (citing Higgins ’607 Abstract; col. 1, ll. 55‒60; col. 3, ll. 34‒44;
col. 6, ll. 27‒32). The Examiner finds Higgins teaches the coating can
formed by dispersing a dry mixture in an aqueous medium to the desired
solids content. Final Act. 6 (citing col. 6, ll. 61‒64; col. 7, ll. 27‒36). The
cited portion of Higgins describes the desired concentration of solids
dispersed in the aqueous medium as being between about 20% and 90%
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(Higgins ’607 col. 7, ll. 29‒32), although more typical or desired solids
content would be between 30% and 60 or 70% (Higgins ’607 col. 7, ll. 32‒
34).
The Examiner concedes Higgins is silent as to the substrate being a
raised doughnut product containing wheat with a crystalline glaze applied on
top of the moisture barrier coating (Final Act. 6), but relies on Mori for its
teaching that doughnuts are fried foods known to have undesirable loss in
crispness due to moisture loss (Final Act. 6, citing Mori col. 1, ll. 29‒43).
The Examiner determines one of ordinary skill at the time of the invention
would have found Higgins ’607 and Mori both reasonably pertinent to the
problem the present application seeks to solve as both are attempting to
solve the loss of crispness due to moisture migration in fried food products.
Ans. 18‒19 (citing Higgins ’607 col. 1, ll. 55‒60; Mori col. 1, ll. 29‒43).
The Examiner relies on it being well known in the art to use wheat,
yeast or chemical raising agents, and crystalline glazes as these are
conventional ingredients and their use was known and routine (Final Act. 6‒
7). The Examiner further determines it would have been obvious to one of
ordinary skill in the art at the time of the invention to have placed the
coating between doughnut and the glaze as conventional glazes are on the
outside of the doughnut. Ans. 21‒22.
The Examiner concludes that one of ordinary skill in the art would
have found it obvious at the time of the invention to provide a moisture
barrier by applying a coating composition to a doughnut substrate prior to
applying a crystalline glaze to obtain the benefit of blocking moisture
transfer. Ans. 19. The Examiner further concludes there is no patentable
distinction between a bakery product according to claim 1 and that suggested
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by the relied on combination of Higgins ’607 and Mori because one of
ordinary skill in the art would expect that a dry dusting composition applied
to a doughnut as a slurry or applied as a powder and then moistened by
moisture from the doughnut or subsequent glaze coating would provide the
same product. Ans. 19‒20. The Examiner emphasizes that “[s]ince both the
moisture barrier of the present invention (due to the moisture from the glaze)
and that of Higgins would comprise water, there seems to be no difference
between the present invention and the prior art” and that Appellants have
“never countered the argument that the ‘dry coating’ limitation refers more
to the process of making and does not materially affect the properties of the
final product.”10 Ans. 21. Relying on claim 1 being a product-by-process
claim, the Examiner concludes the claims are prima facie obvious and that
the burden is shifted to Appellants to show that the products are not the
same. Ans. 20.
Appellants contend the Examiner has failed to establish a prima facie
case of obviousness. Appellants proffer several general arguments, none of
which persuade us the Examiner erred reversibly.
First, Appellants argue that Higgins ’607 provides no teaching or
suggestion for coating a bakery product emphasizing its disclosed usefulness
as a coating for French fried potatoes. App. Br. 14; Reply Br. 2‒3.
Having carefully considered the record, we find Appellants’ argument
unpersuasive because it fails to address the relied on combination of
references and knowledge of one of ordinary skill in the art or that the

10 We note that the Examiner treated limitations as to the dry coating as
product-by-process claim limitations prior to the Final Office Action. See,
e.g., Non-Final Office Action mailed January 13, 2011, 4‒5.
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Examiner erred in combining the teachings of Higgins ’607 and Mori. As
highlighted by the Examiner, both cited references address the same problem
in fried products due to moisture migration, both are reasonably pertinent to
the applicants’ field of endeavor, and Appellants have failed to adequately
support the position that the products—or the problem arising from moisture
migration—are fundamentally different with persuasive evidence. Ans. 18‒
19. It is well established that in evaluating references “it is proper to take
into account not only the specific teachings of the references but also the
inferences that one skilled in the art would reasonably be expected to draw
therefrom.” In re Preda, 401 F.2d 825, 826 (CCPA 1968). Further, it is
axiomatic that “one cannot show non-obviousness by attacking references
individually where . . . the rejections are based on combinations of
references.” In re Keller, 642 F.2d 413, 426 (CCPA 1981).
In the Reply Brief, Appellants raise further arguments directed to the
disparate use of a coating in Higgins ’607 to provide a textured coating
(Reply Br. 2‒4), however, we find the argument waived (37 C.F.R.
§ 41.41(b)(2) (2012)).
Second, Appellants argue Higgins ’607 teaches use of a slurry in
contrast to the present claims directed to a moisture barrier coating
comprising a dry-dusting coating composition. App. Br. 14‒16.
Appellants’ argument is unpersuasive of reversible error because it
fails to address the rejection of the claims as product-by-process claims
rendered unpatentable by products obtained by a differing process. In
particular, Appellants fail to rebut the Examiner’s well-founded
determination that the relied-on combination of teachings would have led
one of ordinary skill in the art at the time of the invention apply the coating
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composition as a slurry and that the baked product obtained would be the
same as if the coating composition had been applied as a dry dusting coating
composition. Ans. 19‒21. See In re Thorpe, 777 F.2d 695, 697 (Fed. Cir.
1985). Appellants proffer no persuasive evidence with the Appeal Brief in
support of any patentable distinction between a baked product obtained
when the coating composition is applied as a slurry or as a dry dusting
coating composition. App. Br., generally.
In the Reply Brief, Appellants cite to evidence11 they contend
demonstrates “the coating of . . . [Higgins] ’607 patent will not adhere to a
doughnut substrate containing wheat flour.” Reply Br. 9‒11. Appellants
contend the Declaration and Exhibits are provided “to rebut arguments in the
Examiner’s Answer.” Reply Br. 9.n2. The evidence and related argument is
waived, however, as the particular portion of the Answer that Appellants cite
to and reproduce as a block quote had earlier been set forth in the Final
Office Action (compare Answer 12 to Final Act. 13) and Appellants have
failed to show good cause why it is not untimely and should be considered
(37 C.F.R. § 41.41(b)(2)).
Third, Appellants argue the cited references fail to teach or suggest a
doughnut with a moisture barrier between the doughnut and glaze as Mori
merely shows that fried doughnuts can lose moisture emphasizing its
teaching to use a particular shortening oil to reduce moisture loss. App. Br.
16; Reply Br. 2. Appellants argue there is “no talk about a glaze of any sort
or a coating used on the fried doughnut.” App. Br. 16; see also Reply Br. 2,
4‒5.

11 Declaration of Cheree Stevens and Exhibits filed with an earlier Response
entered in PAIR on June 13, 2011 (“Stevens Declaration and Exhibits”).
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Appellants’ argument directed to the cited prior art is unpersuasive of
reversible error as it fails to address the relied on combination of teachings
from the prior art as modified by the Examiner in light of what was found to
be general knowledge of one of ordinary skill in the art at the time of the
invention. See, e.g., DyStar Textilfarben GmbH & Co., Deutschland KG v.
C.H. Patrick Co., 464 F.3d 1356, 1361 (Fed. Cir. 2006) (The rationale for
combining or modifying the prior art “may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself.”). As to arguments grounded on the contention
that Mori’s disclosure is particularly limited to teaching a fried doughnut can
lose moisture (App. Br. 16), it is unpersuasive as the Examiner relied not
only on what is explicitly taught by Mori alone (Final Act. 6‒7; Ans. 21‒
22). As to Mori’s emphasis on use of a particular shortening oil as a
solution to the problem of moisture loss, it is of no import as it is no
teaching away. See, e.g., DyStar Textilfarben Gmbh & Co. Deutschland KG
v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006) (“We will not
read into a reference a teaching away from a process where no such
language exists.”).
For the reasons above, we are unpersuaded of reversible error in the
Examiner’s rejection of claims 1, 9, 12, and 13 over Higgins ’607 and Mori.
Rejection 3: Higgins ’607 in view of Mori and Higgins ’286
Claims 6 and 10 both further require the dry dusting coating
composition is capable of passing through a US #40 sieve (claim 6) as claim
10 depends from claim 6 (claim 10). The Examiner relies on
Higgins ’286—directed as is Higgins ’607 to like coating compositions—for
its teaching to adjust particle size to pass through a US #40 mesh and up to a
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US #80 sieve to produce a suitable uniform coating and avoiding problems
with dust. Final Act. 8 (citing Higgins ’286 col. 7, l. 24 to col. 8, l. 5).
Appellants reiterate their general arguments raised as to the rejection
of independent claim 1 over Higgins ’607 in view of Mori arguing that
neither Higgins ’607 or Higgins ’286 teach a coating for a bakery product
(App. Br. 17‒18) and that both use a water-containing batter while the
claimed invention does not incorporate a water-containing batter for forming
the moisture barrier (App. Br. 18).
Appellants’ reiterated arguments are not persuasive for the same
reasons as discussed above in regard to the rejection of independent claim 1.
See also Ans. 22.
Emphasizing one food of many disclosed as suitable to be coated in
Higgins ’286—French fries—Appellants point to the Specification ¶ 3 for
the statement that “clear coats formulated for [F]rench fry products do not
typically adhere to wheat based substrates, such as pastries or dough.” App.
Br. 17. Appellants argue that the Examiner has not shown that the coating
of the ’286 patent can be used on a doughnut surface as claimed. App. Br.
19. Appellants further argue that the coating in Higgins ’286 is a two-part
system with application of a powder followed by a batter which system
includes particular components, i.e. pectate and calcium compounds to form
a gel and that it is unknown if such a two-part coating could be applied to a
doughnut. App. Br. 18‒19.
Appellants’ arguments are unpersuasive because the rejection was not
grounded on literal incorporation of the coating of Higgins ’286, but rather
the additional reference was relied on for its teaching of particle size for the
benefit, inter alia, of avoiding problems with dust. See Final Act. 8; Ans.
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23. As to Appellants’ statements as to the lack of suitability of the disclosed
coatings in Higgins ’286 (or of Higgins ’607), the statement relied on from
the Specification falls short where it merely states what is typical for a clear
coat formulated for French fries and the cited prior art teachings are not
shown to be limited to such a clear coat. App. Br. 17.
As to Appellants’ reliance on the Stevens Declaration and Exhibits
(Reply Br. 9‒11), as explained above, the argument and evidence is waived
(37 C.F.R. § § 41.41(b)(2)). Further illustrating its untimeliness, when
proffered in the Reply Brief (9‒10), it is proffered to support an argument
already made in the Appeal Brief (App. Br. 17‒18, citing Spec. ¶ 3) and the
Evidence Appendix submitted with the Appeal Brief states “[n]o evidence
submitted during this application under 37 C.F.R. §§ 1.130, 1.131 or 1.132
is relied upon in this appeal” (App. Br. Evidence Appendix).
For the reasons above, we are unpersuaded of reversible error in the
Examiner’s rejection of claims 6 and 10 over Higgins ’607, Mori, and
Higgins ’286.
Rejection 4: Higgins ’607 in view of Mori or Higgins ’607 in
view of Mori and Villwock
Appellants argue claims 14 and 20 subject to the rejection as a group.
App. Br. 19‒21. We decide these claims on the basis of claim 14 on the
basis of the Higgins ’607 in view of Mori.
The Examiner relies on Higgins ’607 and Mori for the same teachings
as applied in the rejection of independent claim 1 (compare Final Act. 5‒7 to
Final Act. 8‒11) including that the dextrin included in the coating
composition is potato dextrin (Final Act. 8) as recited in claim 14. Also as
in the rejection of claim 1 over Higgins ’607 and Mori, the Examiner
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reasonably determines that there is no patentable distinction between the
claimed product—defined as a product-by-process in the claims—and that
formed by use of a wet slurry according the relied on combination rejection.
Final Act. 10‒11; Ans. 24‒25.
It follows, therefore, that we find Appellants’ arguments unpersuasive
as they are again grounded on the coating being applied as a dry dusting as
distinct from being applied as a slurry and that there is no teaching in the
cited references of using a coating on a doughnut substrate, adding only that
Villwock is not properly combinable and fails to remedy the deficiencies in
the combination applied to claim 1. App. Br. 19‒21; Reply Br. 15‒16.
For the reasons above, we are unpersuaded of reversible error in the
Examiner’s rejection of claims 14 and 20 over Higgins ’607 and Mori.
Rejection 5: Higgins ’607 in view of Mori and Higgins ’286 or
Higgins ’607 in view of Mori, Higgins ’286, and Villwock
Claim 17 subject to the rejection further requires the dry dusting
coating composition is capable of passing through a US #40 sieve as did
claim 6 subject to Rejection 3. As in Rejection 3, the Examiner relies on
Higgins ’286 for the limited purpose of the particle size. Final Act. 11‒12.
We decide on the basis of the Higgins ’607 in view of Mori and
Higgins ’286.
Appellants’ arguments are in essence the same as those proffered for
claim 6 (compare App. Br. 21‒24 to App. Br. 17‒19) and like the earlier
arguments fail to persuade us of reversible error because they do not address
the relied on basis of the rejection as set forth by the Examiner in which
Higgins ’286 was relied on for a limited purpose, for its teaching of particle
size for the benefit, inter alia, of avoiding problems with dust (Final Act.
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11‒ 12; Ans. 26‒27). Appellants’ arguments as to Villwock not remedying
deficiencies in the other references (App. Br. 19‒21; Reply Br. 6‒7) are
without persuasive merit where we are unpersuaded of any deficiencies and
sustain the rejection on the basis of Higgins ’607, Mori, and Higgins ’286
alone (see also Ans. 26‒27).
Rejection 6: Doyle in view of Baur
Appellants argue claims 1, 9, 12, and 13 subject to the rejection as a
group. App. Br. 24‒28. We select claim 1 as representative and reach our
decision as these claims on the basis of claim 1.
The Examiner relies on Doyle for its disclosure of a food product
formed of dough that can include wheat flour that is provided with a coating
and fried to provide a desirable crispiness and crunchiness. Final Act. 12
(citing Doyle Abstract, ¶¶ 7, 21). The Examiner cites the Specification for
its broad definition of “doughnut” as “any dough-based or batter-based
product that is fried or otherwise thermally processed prior to consumption.”
Final Act. 12‒13 (quoting Spec. ¶ 17).
The Examiner relies on Baur for its disclosure of a water soluble,
clear moisture barrier coating for imparting a desirable crispiness and
crunchiness (i.e. a fresh texture) on food substrates, including cereal
products, and for including dextrin in the coating. Final Act. 13 (citing Baur
Abstract, Example 1, 2, ll. 1‒8; 5, ll. 1‒15; 6, ll. 7‒21).
The Examiner relies on it being well known in the art to use wheat,
yeast or chemical raising agents, and crystalline glazes as these are
conventional ingredients and their use was known and routine. Final Act.
13‒14. The Examiner further determines it would have been obvious to one
of ordinary skill in the art at the time of the invention to have included
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dextrin in the coating as taught by Baur for its desirable crispiness and
crunchiness as taught by both Doyle and Baur and to place the coating
between doughnut and the glaze as conventional glazes are on the outside of
the doughnut. Final Act. 13‒14.
Appellants argue that Doyle only describes a potato dough substrate,
which is different than a potato dough substrate that includes wheat (App.
Br. 25), however, we find the argument wholly unsupported where the
Specification defines doughnut broadly (Spec. 17) and Doyle is not limited
to potato dough or to even to require that the dough include potato (Doyle
Abstract, ¶¶ 7, 21).
Appellants further argue that Doyle always includes application of a
batter or slurry coating (App. Br. 25‒26) and that Baur’s glaze is formed by
combining components with water for application to a food substrate (App.
Br. 26) to support the position that the Examiner has erred in determining
that one of ordinary skill in the art would have been led to the claimed
invention (App. Br. 25‒28). In particular, Appellants argue the Examiner
improperly relies on hindsight to select portions of the references’ teachings
and improperly assumes without support that components of Baur’s glaze
can be used as a dry dusting component to provide a moisture barrier
between a doughnut substrate and a crystalline glaze. App. Br. 27. Further,
Appellants argue that even if so combined, the combined teachings of Doyle
and Baur to use only the dry components of the glaze would be limited to
use of the optional pre-dusting step and that neither reference teaches or
suggests the dry dusting alone provides a moisture barrier and neither
reference teaches the application of a crystalline glaze over such a coating.
App. Br. 27‒28.
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Having carefully considered Appellants’ further arguments, we also
find them unpersuasive of reversible error. As the Examiner has determined,
the use of a batter or slurry coating in combination with a dry pre-dusting
step is not excluded by the claims as the dry dusting coating limitations are
product-by-process limitations that do not distinguish the product. Ans. 27.
Further, we find that Appellants’ arguments, in failing to squarely address
that these are product-by-process claims, also fail to squarely address the
relied on basis of the rejection which properly does not exclude use of a
batter or slurry. Nor do we find such a position justified where Appellants
contend—in regard to the indefiniteness rejection—that “there is no written
or intended limitation that the dry dusting composition only, provides the
moisture barrier.” (Reply Br. 12). As to the further application of a glaze
over such a coating, Appellants’ arguments directed solely to the cited
references fall short as the rejection was further grounded on what the
Examiner found to be general knowledge of one of ordinary skill in the art at
the time of the invention.
As discussed above, Appellants’ further arguments and the Stevens
Declaration and Exhibits proffered in support (Reply Br. 8‒11) are untimely
and waived.
For the reasons above, we are unpersuaded of reversible error in the
Examiner’s rejection of claims 1, 9, 12, and 13 over Doyle and Baur.
Rejections 7‒9
Appellants argue these rejections together. App. Br. 28‒29.
Appellants rely on their arguments as to Rejection 6 that the
combination of Doyle and Baer is improper and proffer further skeletal
arguments that Higgins ’286 and Higgins ’607 cannot properly be combined
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Application 12/258,219

19
with Doyle and Bauer and do not cure the deficiencies of the Doyle and
Bauer. App. Br. 28‒29.
Having considered the arguments, we find them unpersuasive of
reversible error because they are grounded on the claimed product being
patentably distinct from that made by a process that includes use of a batter
where the Examiner has determined that “the product by process limitation
does not limit the final coating composition to be in the dry form” and
reasonably determined that the product obtained by the relied on
combination is patentably indistinct. Ans. 28.
As discussed above, Appellants’ further arguments and the Stevens
Declaration and Exhibits proffered in support (Reply Br. 8‒11) are untimely
and waived.
For the reasons above, we are unpersuaded of reversible error in the
Examiner’s rejection of claim 6 and 10 over Doyle, Baur, and Higgins ’286,
of claims 14 and 20 over Doyle, Bauer, Higgins ’607, and of claim 17 over
Doyle, Baur, Higgins ’607, and Higgins ’286.
CONCLUSION
The Examiner’s rejection of claims 1, 6, 9, 10, 12, 13, and 20 under
35 U.S.C. § 112, second paragraph is REVERSED.
The Examiner’s rejections of claims 1, 6, 9, 10, 12‒14, 17, and 20
under 35 U.S.C. § 103(a) 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)(1).

AFFIRMED