SFC Global Supply Chain, Inc.

Patent Trials and Appeals Board

Apr 28, 2021

2020006435 (P.T.A.B. Apr. 28, 2021)

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.
15/352,183 11/15/2016 Rongxuan Cai 02661.0685USU1 7854
23552 7590 04/28/2021
MERCHANT & GOULD P.C.
P.O. BOX 2903
MINNEAPOLIS, MN 55402-0903
EXAMINER
BADR, HAMID R
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
04/28/2021 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):
USPTO23552@merchantgould.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte RONGXUAN CAI and STACEY FOWLER MEITTUNEN

Appeal 2020-006435
Application 15/352,183
Technology Center 1700
____________

Before LINDA M. GAUDETTE, DONNA M. PRAISS, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL1

Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–41. An oral hearing was held on
April 22, 2021.3 We have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 In this Decision, we refer to the Specification filed Nov. 15, 2016
(“Spec.”), the Final Office Action dated Nov. 19, 2019 (“Final Act.”), the
Appeal Brief filed Mar. 17, 2020 (“Appeal Br.”), and the Examiner’s
Answer dated May 15, 2020 (“Ans.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies SFC Global Supply Chain, Inc., as the
real party in interest. Appeal Br. 2.
3 A transcript of the hearing will be placed in the record when available.
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Application 15/352,183

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STATEMENT OF THE CASE
The invention relates to frozen dough products and methods of
making frozen dough products that have been proofed and include a spent
yeast portion and a preserved yeast portion. Spec. 1:6–8. According to the
Specification, “spent yeast” refers to yeast that has gone through an active
metabolic phase in proofing and is no longer viable. Id. at 4:22–23. The
Specification defines “preserved yeast” as “not used” during proofing, but,
instead, “reserved during proofing.” Id. at 11:27–12:1. The Specification
describes “proofing” as a final fermentation step before baking in the
preparation of yeast-leavened baked goods. Id. at 5:15–16. The Specification
describes both “coated yeast” and “encapsulated yeast” as yeast that has
been coated with a fat, however, “[e]ncapsulated yeast includes granules of
yeast cells” and “is typically available as a flowable granulated material,
whereas coated yeast may be present . . . without the presence of separate
granules.” Id. at 9:7–8, 12:27–13:1. Claims 1 and 13, reproduced below, are
illustrative.
1. A proofed frozen dough comprising:
(a) a dough mixture of flour, water, and optionally
additives, the dough mixture defining a dough matrix;
(b) gas bubbles dispersed throughout the dough matrix;
(c) a spent yeast component; and
(d) a preserved yeast component comprising a fat-coated
yeast, a non-hydrated yeast or a combination thereof.
13. A method for making a frozen dough product, the
method comprising:
(a) mixing dough ingredients to produce a dough
composition, the dough ingredients comprising:
i. water;
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ii. flour;
iii. a first yeast; and
iv. a second yeast;
(b) proofing the dough, wherein during proofing the first
yeast is spent and the second yeast is preserved;
(c) compressing the dough during or after proofing, and
before freezing; and
(d) freezing the dough after proofing
wherein compressing the dough results in an increased
final product volume after the frozen dough product is baked
compared to an identical dough product made without a
compressing step.
Appeal Br. 22, 23 (Claims Appendix) (disputed elements italicized).

ANALYSIS
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”). After considering the
argued claims and each of Appellant’s arguments, we are persuaded of
reversible error in the appealed rejections.
The Examiner’s rejections rely on the following references:
Name Reference Date
Lee US 6,835,397 B2 Dec. 28, 2004
Goedeken US 2003/0104100 A1 June 5, 2003
Bonjean US 2011/033574 A1 Feb. 10, 2011

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The Examiner maintains the following rejections:
Claims
Rejected 35 U.S.C. § Reference/Basis
1–12 112(b) Indefiniteness
1–12 103 Goedeken, Lee
13–41 103 Goedeken, Lee, Bonjean

Indefiniteness Rejection
The Examiner rejects claims 1–12 under 35 U.S.C. § 112(b) as being
indefinite because the Examiner determines both the “spent yeast” and the
“non-hydrated yeast” can be dried yeast, therefore it is unclear how dried
yeast can be both “spent” and at the same time “preserved.” Final Act. 2.
Because claims 2–12 depend from claim 1, we need only consider claim 1 to
resolve this issue.
According to Appellant, the claim language and the Specification are
not confusing or unclear as to which yeasts are suitable for generating the
spent and preserved yeast. Appeal Br. 7. Appellant directs us to
Specification page 12 which describes that the one yeast becomes spent
during a first proofing step and the other yeast remains preserved or unspent
following the first proofing step. Id. at 8 (citing Spec. 12:10–15). Appellant
describes how both yeasts can be dried, but the first yeast gets activated by
being mixed with water when the dough is formed while the second yeast
becomes active after the proofing step is complete by hydrating slowly
within the dough. Id.
We are persuaded by Appellant’s arguments that the claim language is
definite as to what constitutes a preserved yeast. As Appellant notes, the
claim is directed to the dough at a particular snapshot in time when it is
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proofed and frozen, not when it is being mixed or after freezing and before
baking. Appeal Br. 7. The Examiner states that the preserved yeast cannot be
“non-hydrated” as claimed because it would be slowly hydrated and active
by the completion of the proofing stage. Ans. 9. Slowly hydrating the dough
after proofing is complete, however, does not mean that the preserved yeast
is hydrated at the point when the first proofing is complete. Appellant’s
assertion (Appeal Br. 8) that the “second yeast is not activated with water
[when the dough is being formed] but rather gets mixed in separately so that
it hydrates slowly within the dough and becomes active after the proofing
step is complete” is supported by the Specification which provides that the
second yeast is “unavailable during fermentation or proofing.” Spec. 17: 1–
2.
Moreover, the Examiner appears to be arguing the breadth of the
claim. While the disputed language may render the scope of the claims
broad, claims are not indefinite on the basis of their breadth alone. See In re
Gardner, 427 F.2d 786, 788 (CCPA 1970) (“Breadth is not indefiniteness.”).
The preponderance of the evidence in this appeal record therefore
supports Appellant’s position that the terms “spent yeast” and “preserved
yeast,” when read in light of the specification, reasonably apprise those
skilled in the art both of the utilization and scope of the invention. In re
Packard, 751 F.3d 1307, 1313 (Fed. Cir. 2014); Hybritech Inc. v.
Monoclonal Antibodies, Inc., 802 F.2d 1367, 1385 (Fed. Cir. 1986).
Accordingly, we reverse the Examiner’s rejection of claim 1, as well as
claims 2–12, under 35 U.S.C. § 112(b) for the above reasons and those
provided by Appellant.

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Obviousness Rejection of Claims 1–12
The Examiner rejects claims 1–12 under 35 U.S.C. § 103 as
unpatentable over the combination of Goedeken and Lee. Final Act. 3. The
Examiner finds Goedeken discloses yeast leavened proofed frozen doughs,
but is silent regarding the inclusion of encapsulated (protected or preserved)
yeast in the frozen dough product. Id. at 3–4. The Examiner finds Lee
teaches frozen dough comprising encapsulated yeast has improved shelf
stability and the encapsulation of the yeast protects the yeast during shelf
storage. Id. at 4–5. The Examiner finds that Lee’s monoglyceride coating
functions as a barrier to moisture and a person having ordinary skill in the
art would not have expected the encapsulated yeast to start generating
carbon dioxide shortly after the dough is formed in water. Id. at 5 (citing
Lee, Example 1). The Examiner determines it would have been obvious to
one skilled in the art to modify Goedeken product/process by incorporating
encapsulated yeast into the dough before freezing as motivated by Lee to
extend the shelf life of the frozen dough and “enable the dough to
compensate for the lost carbon dioxide during frozen storage before baking.”
Id. at 6; Ans. 7.
Appellant argues that Goedeken and Lee are alternative strategies for
creating frozen dough, with Goedeken’s yeast dough being proofed before
freezing (i.e., the yeast is spent) and Lee’s frozen product being formed
before proofing (i.e., the yeast is preserved until proofing). Appeal Br. 10.
According to Appellant, both yeasts in Goedeken and Lee become spent in
the proofing process and there is no yeast left to remain preserved. Id. at 11.
Appellant asserts the Examiner’s selection of Lee’s encapsulated yeast as
surviving Goedeken’s proofing process is contrary to the prior art teachings
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and is exclusively based on hindsight reconstruction using Appellant’s
disclosure as a guide. Id. Appellant contends that a person with skill in the
art would expect Lee’s encapsulated yeast to start generating carbon dioxide
shortly after the dough is formed in water because Lee’s encapsulated yeast
activate rather than remain preserved when subject to proofing. Id. at 10
(citing Lee, Example 3).
We find Appellant’s above arguments persuasive of reversible error.
While Appellant’s recited “fat-coated yeast” encompasses Lee’s
encapsulated yeast coated with monoglycerides, which is fatty material, the
Examiner’s finding that Lee’s “protected yeast is capable of surviving the
proofing process” is not supported by the record. Ans. 11; Lee 2:8–13. Lee
teaches that the monoglyceride coating functions as a barrier to oxygen and
moisture, thus extending the storage time of yeast. Lee 11:38–41 (Example
1). Lee also teaches “upon exposure of the encapsulated yeast composite
with water, the yeast is released.” Lee 12:11–12. Therefore, the Examiner’s
selection of Lee’s encapsulated yeast to survive proofing and “[t]o
compensate for the lost carbon dioxide during storage” of Goedeken’s
frozen dough by activating after thawing the dough appears to be the result
of impermissible hindsight that Graham v. John Deere Co., 383 U.S. 1, 36
(1966), warns against.
The preponderance of the evidence in this appeal record therefore
does not support the Examiner’s rejection of claim 1. Accordingly, we
reverse the Examiner’s rejection of claim 1 under 35 U.S.C. § 103 for the
above reasons. We also reverse the rejection of claims 2–12, which each
depend from claim 1, based on the same error in the Examiner’s
combination of Goedeken and Lee.
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Obviousness Rejection of Claims 13–41
The Examiner rejects claims 13–41 under 35 U.S.C. § 103 as being
unpatentable over the combination of Goedeken, Lee, and Bonjean. Final
Act. 7. The Examiner finds Bonjean teaches rolling out or compressing
dough before freezing to reduce the thickness of the dough which in turn
optimizes the storage of the dough pieces. Id. The Examiner determines it
would have been obvious to one skilled in the art to compress the dough
comprising free and encapsulated yeast as taught by the combination of
Goedeken and Lee to reduce the volume of the fermented dough pieces to
save storage space as taught by Bonjean. Id.
According to Appellant, neither Goedeken nor Lee teaches a
preserved yeast in any form in a proofed product because Lee’s encapsulated
yeast is added to form a product that has not been proofed and that activates
during proofing upon exposure to water. Appeal Br. 14. Appellant argues
Bonjean does not cure the deficiencies of Goedeken and Lee because it does
not disclose a preserved yeast and Bonjean’s dough product is fully proofed
before freezing. Id. at 15. Appellant also contends that Bonjean teaches the
compressing step has no effect on the final product volume. Id. (citing
Bonjean ¶¶ 86, 97).
We find Appellant’s arguments persuasive of reversible error. As
discussed in connection with claim 1, the Examiner’s finding that Lee’s
“protected yeast is capable of surviving the proofing process” is not
supported by the record. As Appellant argues, the Examiner’s reliance on
Bonjean does not cure the deficiencies of the combination of Goedeken and
Lee. Therefore, the preponderance of the evidence in this appeal record does
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not support the rejection of claim 13. Accordingly, we reverse the
Examiner’s rejection of claim 13, as well as claims 14–41, under 35 U.S.C.
§ 103 for the same reasons.
CONCLUSION
For the above reasons, we reverse the Examiner’s rejections of claims
1–12 under 35 U.S.C. § 112(b) for indefiniteness and claims 1–41 under 35
U.S.C. § 103 over the cited prior art references.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§ Reference(s)/Basis Affirmed Reversed
1–12 112(b) Indefiniteness 1–12
1–12 103 Goedeken, Lee 1–12
13–41 103 Goedeken, Lee, Bonjean 13–41
Overall
Outcome 1–41

REVERSED