Scott R. Frazer

Patent Trials and Appeals BoardSep 3, 2019

12415277 - (D) (P.T.A.B. Sep. 3, 2019)

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. 12/415,277 03/31/2009 Scott R. FRAZER 505138.000022 2433 25764 7590 09/03/2019 Faegre Baker Daniels LLP PATENT DOCKETING - INTELLECTUAL PROPERTY 2200 WELLS FARGO CENTER 90 SOUTH SEVENTH STREET MINNEAPOLIS, MN 55402-3901 EXAMINER WILLIAMS, LELA ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 09/03/2019 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): PatentDocketing@FaegreBD.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________________ Ex parte SCOTT R. FRAZER ____________________ Appeal 2018-008971 Application 12/415,277 Technology Center 1700 ____________________ Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON, and DEBRA L. DENNETT, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s November 30, 2017 decision finally rejecting claims 19–22, 24–27, 29–31, 33, and 36–39 (“Final Act.”). We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We reverse. 1 Appellant identifies Ardent Mills, LLC as the real party in interest (Appeal Br. 3). Appeal 2018-008971 Application 12/415,277 2 CLAIMED SUBJECT MATTER Appellant’s disclosure relates, inter alia, to methods of assessing the quality of vital wheat gluten (VWG) by rheometric assay and determining how to improve that VWG quality (Spec. ¶¶ 2, 6). The described rheometric assay analyzes the viscosity of a flour/water mixture or a flour blend/water mixture (id. at ¶ 22). VWG is the protein in wheat flour that enables dough to rise and bread to have a soft texture (id. at ¶ 3). If the VWG in flour is poor or damaged, loaf volumes will be low and the bread will have a dense texture (id.). Consequently, VWG is added to many bread formulas to assure good loaf quality (id.). Details of the claimed invention are set forth in representative independent claim 19, which is reproduced below from the Claims Appendix to the Appeal Brief with key limitations italicized: 19. A method of producing flour with improved vital wheat gluten (VWG) quality, the method comprising: subjecting a standard VWG mixture containing a predetermined ratio of VWG to starch (VWG:starch) to rheometric analysis; determining, from the rheometric analysis of the standard VWG mixture, a standard viscosity plateau, a standard starch gelatinization portion, and a standard glutenin viscosity peak that is between the standard viscosity plateau and the standard starch gelatinization portion of the standard VWG mixture, wherein a standard rheometric profile comprises the standard viscosity plateau, the standard starch gelatinization portion, and the standard glutenin viscosity peak; extracting, using one or more processing conditions, a sample of VWG from a production supply of flour to obtain a sample VWG mixture; Appeal 2018-008971 Application 12/415,277 3 adding to the sample of VWG an amount of starch so that the sample VWG:starch ratio is the same as the predetermined ratio of VWG:starch ratio; subjecting the sample VWG mixture to rheometric analysis; determining, from the rheometric analysis of the sample VWG mixture, a sample viscosity plateau, a sample starch gelatinization portion, and a sample glutenin viscosity peak that is between the sample viscosity plateau and the sample starch gelatinization portion, wherein a sample rheometric profile comprises the sample viscosity plateau, the sample starch gelatinization portion, and the [sample] glutenin viscosity peak; comparing at least one of: (i) the standard viscosity plateau to the sample viscosity plateau and (ii) the standard glutenin viscosity peak to the sample glutenin viscosity peak; and adjusting the one or more processing conditions until the difference between at least one of: (i) the standard viscosity plateau and the sample viscosity plateau and (ii) the standard glutenin viscosity peak and the sample glutenin viscosity peak is less than or equal to 0.2 newton meters (Nm). REJECTIONS (1) Claims 19–22, 24–27, 29–31, and 36–39 are rejected under 35 U.S.C. § 101 on the grounds that the claimed invention is directed to a judicial exception. Appeal 2018-008971 Application 12/415,277 4 (2) Claims 19–22, 24–27, 29–31, and 36–39 are rejected under 35 U.S.C. § 103(a) as unpatentable over Dziedzoave2 in view of Petrofsky,3 as evidenced by Apichartsrangkoon.4 (3) Claim 33 is rejected under 35 U.S.C. § 103(a) as unpatentable over Dziedzoave in view of Petrofsky, as evidenced by Apichartsrangkoon, and further in view of Kerkkonen,5 as evidenced by Experiment Station Record.6 Appellant’s arguments in support of claims 19–22, 24–27, 29–31, and 36–39 are directed to limitations recited in independent claims 19 and 36 (see generally Appeal Br. 1–12; Reply Br. 1–4). We limit our discussion of the independent claims to claim 19, with the understanding that our discussion applies with equal force to independent claim 36. 37 C.F.R. § 41.37(c)(1)(iv). Dependent claims 20–22, 24–27, 29–31, and 37–39 will stand or fall with each of their respective independent claims (id.). 2 N.T. Dziedzoave et al., QUALITY MANAGEMENT MANUAL FOR THE PRODUCTION OF HIGH QUALITY CASSAVA FLOUR, 16 (G.O. Adegoke & L. Brimer eds., International Institute of Tropical Agriculture (IITA)) (2006). 3 K.E. Petrofsky & R.C. Hoseney, RHEOLOGICAL PROPERTIES OF DOUGH MADE WITH STARCH AND GLUTEN FROM SEVERAL CEREAL SOURCES, 72(1) Cereal Chem. 53–58 (1995). 4 A. Apichartsrangkoon et al., DYNAMIC VISCLOELASTIC BEHAVIOR OF HIGH- PRESSURE-TREATED WHEAT GLUTEN, 76(5) Cereal Chem. 777 (1999). 5 Kerkkonen et al., US 3,951,938, issued April 20, 1976. 6 EXPERIMENT STATION RECORD, 39 U.S. Department of Agriculture 469 (1918). Appeal 2018-008971 Application 12/415,277 5 DISCUSSION Rejection 1 - § 101 Legal background. An invention is patent-eligible if it claims a “new and useful process, machine, manufacture, or composition of matter.” 35 U.S.C. § 101. However, the Supreme Court has interpreted § 101 to include implicit exceptions: “[l]aws of nature, natural phenomena, and abstract ideas” are not patentable. E.g., Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 216 (2014). In determining whether a claim falls within an excluded category, the Supreme Court’s two-step framework, described in Mayo and Alice, guides our analysis. Id. at 217–18 (citing Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66, 75–77 (2012)). In accordance with that framework, we first determine what concept the claim is “directed to.” See Alice, 573 U.S. at 219 (“On their face, the claims before us are drawn to the concept of intermediated settlement, i.e., the use of a third party to mitigate settlement risk.”); see also Bilski v. Kappos, 561 U.S. 593, 611 (2010) (“Claims 1 and 4 in petitioners’ application explain the basic concept of hedging, or protecting against risk.”). Concepts determined to be abstract ideas, and thus patent ineligible, include certain methods of organizing human activity, such as fundamental economic practices (Alice, 573 U.S. at 219–20; Bilski, 561 U.S. at 611); mathematical formulas (Parker v. Flook, 437 U.S. 584, 594–95 (1978)); and mental processes (Gottschalk v. Benson, 409 U.S. 63, 67 (1972)). Concepts determined to be patent eligible include physical and chemical processes, such as “molding rubber products” (Diamond v. Diehr, 450 U.S. 175, 191 (1981)); “tanning, dyeing, making water-proof cloth, vulcanizing India Appeal 2018-008971 Application 12/415,277 6 rubber, smelting ores” (id. at 182 n.7 (quoting Corning v. Burden, 56 U.S. 252, 267–68 (1853))); and manufacturing flour (Benson, 409 U.S. at 69 (citing Cochrane v. Deener, 94 U.S. 780, 785 (1876))). In Diehr, the claim at issue recited a mathematical formula, but the Supreme Court held that “a claim drawn to subject matter otherwise statutory does not become nonstatutory simply because it uses a mathematical formula.” Diehr, 450 U.S. at 187; see also id. at 191 (“We view respondents’ claims as nothing more than a process for molding rubber products and not as an attempt to patent a mathematical formula.”). Having said that, the Supreme Court also indicated that a claim “seeking patent protection for that formula in the abstract . . . is not accorded the protection of our patent laws, . . . and this principle cannot be circumvented by attempting to limit the use of the formula to a particular technological environment.” Id. (citing Benson and Flook); see, e.g., id. at 187 (“It is now commonplace that an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.”). If the claim is “directed to” an abstract idea, the analysis moves to the second step of the Alice and Mayo framework, where “we must examine the elements of the claim to determine whether it contains an ‘inventive concept’ sufficient to ‘transform’ the claimed abstract idea into a patent- eligible application.” Alice, 573 U.S. at 221 (quotation marks omitted). “A claim that recites an abstract idea must include ‘additional features’ to ensure ‘that the [claim] is more than a drafting effort designed to monopolize the [abstract idea].’” Id. (alterations in original) (quoting Mayo, Appeal 2018-008971 Application 12/415,277 7 566 U.S. at 77). “[M]erely requir[ing] generic computer implementation[] fail[s] to transform that abstract idea into a patent-eligible invention.” Id. The PTO has published revised guidance on the application of § 101. 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Guidance”). Under the Guidance, we first look to whether the claim recites: (1) any judicial exceptions, including certain groupings of abstract ideas (i.e., mathematical concepts, certain methods of organizing human activity such as a fundamental economic practice, or mental processes); and (2) additional elements that integrate the judicial exception into a practical application (see MPEP §§ 2106.05(a)–(c), (e)–(h)). Only if a claim (1) recites a judicial exception and (2) does not integrate that exception into a practical application, do we then look to whether the claim: (3) adds a specific limitation beyond the judicial exception that is not “well-understood, routine, conventional” in the field (see MPEP § 2106.05(d)); or (4) simply appends well-understood, routine, conventional activities previously known to the industry, specified at a high level of generality, to the judicial exception. See Guidance. We will focus our analysis on claim 19. Claim 19 Guidance Step 1 Claim 19 falls within a statutory category, as it recites a method of producing flour with improved VWG quality. Guidance Step 2A, Prong 1 Under Step 2A of the Guidance, we first consider whether the claims recite a judicial exception. Claim 19 recites a number of steps, including, Appeal 2018-008971 Application 12/415,277 8 for example: (a) “subjecting a standard VWG mixture containing a predetermined ratio of VWG to starch (VWG:starch) to rheometric analysis,” (b) “determining, from the rheometric analysis of the standard VWG mixture, a standard viscosity plateau, a standard starch gelatinization portion, and a standard glutenin viscosity peak,” (c) “extracting . . . a sample of VWG from a production supply of flour to obtain a sample VWG mixture,” (d) “adding to the sample of VWG an amount of starch so that the sample VWG:starch ratio is the same as the predetermined ratio of VWG:starch ratio,” (e) “subjecting the sample VWG mixture to rheometric analysis,” (f) “determining, from the rheometric analysis of the sample VWG mixture, a sample viscosity plateau, a sample starch gelatinization portion, and a sample glutenin viscosity peak,” (g) “comparing at least one of: (i) the standard viscosity plateau to the sample viscosity plateau and (ii) the standard glutenin viscosity peak to the sample glutenin viscosity peak,” and (h) “adjusting the one or more processing conditions until the difference between at least one of: (i) the standard viscosity plateau and the sample viscosity plateau and (ii) the standard glutenin viscosity peak and the sample glutenin viscosity peak is less than or equal to 0.2 newton meters (Nm).” While steps (a), (c), (d), (e), and (h) recite “subjecting” a sample or standard VWG mixture to a rheometric analysis and/or physical manipulation of a VWG sample, steps (b), (d), (f), (g), and (h) recite concepts performed in the mind, including: (i) “determining” subparts of a rheometric analysis curve and (ii) “comparing” or evaluating similarities and differences between VWG:starch ratios and subparts of rheometric analysis curves. Such concepts are mental processes, which drives a conclusion that the claim recites an abstract idea. Appeal 2018-008971 Application 12/415,277 9 Guidance Step 2A, Prong 2 Having determined that the claims recite a judicial exception, our analysis under the Guidance turns to determining whether there are additional elements that integrate the exception into a practical application. See MPEP §§ 2106.05(a)–(c), (e)–(h). The additional elements in claim 19 are: (a) “subjecting a standard VWG mixture containing a predetermined ratio of VWG to starch (VWG:starch) to rheometric analysis;” (b) extracting, using one or more processing conditions, a sample of VWG from a production supply of flour to obtain a sample VWG mixture; (c) “adding to the sample of VWG an amount of starch so that the sample VWG:starch ratio is the same as the predetermined ratio of VWG:starch ratio,” (c) “subjecting the sample VWG mixture to rheometric analysis,” and (d) “adjusting the one or more processing conditions until the difference between at least one of: (i) the standard viscosity plateau and the sample viscosity plateau and (ii) the standard glutenin viscosity peak and the sample glutenin viscosity peak is less than or equal to 0.2 newton meters (Nm).” These additional elements include very specific requirements (for example the specific 0.2 Nm maximum difference requirement between rheometric analysis curves generated from a standard and sample VWG/starch mixtures), such that they cannot be considered as having an overall high level of generality. These additional elements, for example adjusting processing conditions, adding VWG to start, and conducting various rheometric analyses, integrate the abstract idea into a practical application of producing flour with improved VWG quality, which are said to preclude time consuming gluten quality testing by baking test loaves of Appeal 2018-008971 Application 12/415,277 10 bread (see Spec. ¶¶ 3, 5). Thus, although the claim recites some abstract ideas, overall such abstract ideas are integrated into a practical application. We agree with Appellant that the claim here is similar to the claim in Diehr, 450 U.S. 175 (see also Appeal Br. 7–8). In that case, the claim at issue related to a process for “molding raw, uncured synthetic rubber into cured precision products” based on the mold’s temperature. Diehr, 450 U.S. at 177. The claim recited a number of different, manipulative steps to which the rubber was subjected, and the process “lessen[ed] the possibility of ‘overcuring’ or ‘undercuring’” common in the art. Id. at 187. Likewise, in this case, the sample is similarly subjected to a number of different manipulative steps based on the sample’s viscosity, which results in what is described as a better way of determining the quality of VWG. Because we determine, based on the analysis under Step 2A Prong 2, that the claimed invention is not directed to patent ineligible subject matter, we need not and do not address the rest of the steps recited in the Guidance. We reverse the rejection under §101. Rejections (2) and (3) - § 103(a) The Examiner finds Dziedzoave teaches that “it was known that ‘one or more characteristics of a product was examined, measured or tested and compared with specified requirements to assess its conformity’” (Final Act. 3, citing Dziedzoave 61). The Examiner further finds Dziedzoave teaches that such “[p]roducts which do not conform to specification may be scrapped, reworked, or sold as lower quality items” (Final Act. 3, citing Dziedzoave 61). Although the Examiner finds that this passage does not Appeal 2018-008971 Application 12/415,277 11 refer to examining, measuring, or testing VWG/starch mixtures specifically, the Examiner concludes that it would have been obvious to one of ordinary skill in the art at the time of the invention to have measured or tested and compared any product, especially those related to human consumption with specified requirements to assess its conformity, and if the product did not meet quality standards, then the sample would be reworked (Final Act. 3–4). The Examiner finds that Petrofsky teaches rheological testing of VWG/starch mixtures in which starch/gluten blends were compared with a VWG/starch control (Final Act. 4, citing Petrofsky 54). The Examiner further finds Petrofsky teaches that the source of gluten significantly effects the food product outcome (Final Act. 4, citing Petrofsky 57). Based on these findings, the Examiner concludes that “it would have been obvious to one of ordinary skill in the art to have examined, measured or tested the gluten mixture to be used in mass production and compared the mixture with specified requirements to assess its conformity with mixtures of a similar nature” (Final Act. 4). The Examiner finds that although Apichartsrangkoon provides evidence that it was known to measure and compare the viscoelastic behavior of gluten, the applied prior art does not explicitly disclose that a rheometric profile comprises a viscosity plateau (Final Act. 4, citing Apichartsrangkoon Abstract). Nevertheless, the Examiner finds that because “the prior art . . . disclose[s] obtaining the viscoelastic profile[,] it is expected for the profile to inherently comprise a viscosity plateau.” (Final Act. 4). Appeal 2018-008971 Application 12/415,277 12 Appellant argues that the prior art fails to teach or suggest the claimed determining of a sample viscosity plateau, a sample starch gelatinization portion, and a sample glutenin viscosity peak from a rheometric analysis (Appeal Br. 10–11). Furthermore, Appellant asserts that the Examiner reversibly erred in finding that the prior art teaches or suggests adjusting one or more processing conditions until “the difference between at least one of: (i) the standard viscosity plateau and the sample viscosity plateau and (ii) the standard glutenin viscosity peak and the sample glutenin viscosity peak is less than or equal to 0.2 newton meters (Nm),” as recited in claim 19 (id.). In particular, Appellant contends the Examiner has misapplied the laws on inherency. Id. Appellant’s argument is persuasive. “[I]n order to rely on inherency to establish the existence of a claim limitation in the prior art in an obviousness analysis[,] the limitation at issue necessarily must be present, or the natural result of the combination of elements explicitly disclosed by the prior art.” PAR Pharm., Inc. v. TWI Pharm., Inc., 773 F.3d 1186, 1195–96 (Fed. Cir. 2014). To properly rely on the doctrine of inherency in a rejection, “the examiner must provide a basis in fact and/or technical reasoning to reasonably support the determination that the allegedly inherent characteristic necessarily flows from the teachings of the applied prior art.” Ex parte Levy, 17 USPQ2d 1461, 1464 (BPAI 1990). In this instance, the Examiner has not identified adequate support, evidence, facts, or technical reasoning, based on the teachings of Dziedzoave and Petrofsky, with Apichartsrangkoon’s evidence, that a person of skill in the art would have sought to adjust one or more processing conditions of a Appeal 2018-008971 Application 12/415,277 13 VWG sample until “the difference between at least one of: (i) the standard viscosity plateau and the sample viscosity plateau and (ii) the standard glutenin viscosity peak and the sample glutenin viscosity peak is less than or equal to 0.2” Nm. Accordingly, we agree with Appellant that the claimed adjustment “does not necessarily flow from the applied prior art because such art admittedly does not disclose the claimed rheometric profile and viscosity plateau” (Appeal Br. 11). Therefore, we determine that, based on the preponderance of the evidence of record, Appellant has demonstrated reversible error in the obviousness rejection of claim 19. We reverse the rejections under §103(a). CONCLUSION We REVERSE the rejection of claims 19–22, 24–27, 29–31, and 36– 39 under 35 U.S.C. § 101 on the grounds that the claimed invention is directed to a judicial exception. We REVERSE the rejection of claims 19–22, 24–27, 29–31, and 36–39 under 35 U.S.C. § 103(a) as unpatentable over Dziedzoave in view of Petrofsky, as evidenced by Apichartsrangkoon. We REVERSE the rejection of claim 33 under 35 U.S.C. § 103(a) as unpatentable over Dziedzoave in view of Petrofsky, as evidenced by Apichartsrangkoon, and further in view of Kerkkonen, as evidenced by Experiment Station Record. REVERSED