Barilla G. e R. Fratelli S.p.A

Patent Trials and Appeals Board

Nov 15, 2021

2020006557 (P.T.A.B. Nov. 15, 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.
15/416,231 01/26/2017 Roberto BUTTINI 405-1047 5180
20311 7590 11/15/2021
LUCAS & MERCANTI, LLP
30 BROAD STREET
21st FLOOR
NEW YORK, NY 10004
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
11/15/2021 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):
info@lmiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERTO BUTTINI,
CORRADO FERRARI, and GIANCARLO RIBOLDI
____________

Appeal 2020-006557
Application 15/416,231
Technology Center 1700
____________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, Administrative Patent Judge.

DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from a Final
Office Action, dated December 16, 2019, rejecting claims 1–24. We have
jurisdiction under 35 U.S.C. § 6(a).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies BARILLA G. ER FRA TELLI S.P.A. as the real party in interest.
Appeal Br. 1.
Appeal 2020-006557
Application 15/416,231

2
The invention relates generally to “a process for production of soft
bakery product, such as a brioche, croissant and the like, which can be stored
at room temperature and is able to keep its softness characteristics for the
entire storage period. Spec. 1. Claim 1, reproduced from the Appeal Brief’s
Claims Appendix, illustrates the invention:
1. A process for the production of a soft bakery
product with a moisture content of at least 11%, said process
comprising:
a) providing a semi-finished product obtained from a
flour-based leavened dough;
b) baking said semi-finished product in an oven,
obtaining a bakery product having a moisture content of
between 10 and 35% by weight of the total weight of said
bakery product; and
c) injecting a hydroalcoholic solution consisting of
ethyl alcohol, water and optionally bakery product flavors, into
said bakery product, in an amount such as to bring about an
increase of at least 10% of the moisture content of said bakery
product whereby the injected bakery product can be stored at
room temperature, while keeping its softness characteristics
substantially unchanged, and whereby the injected
hydroalcoholic solution provides antimicrobial activity to the
bakery product after baking and during storage.
Appeal Br. 7 (Claims App.).
Independent claim 20 recites a method that is similar to the subject
matter of claim 1. Both independent claims recite the optional addition of
bakery product flavors.
Appellant requests review of the Examiner’s rejection of claims 1–24
under 35 U.S.C. § 103 as unpatentable over Eijk (US 2012/0156326 A1,
Appeal 2020-006557
Application 15/416,231

3
published June 21, 2012) and Dogliotti (US 4,159,348, issued June 26,
1979). Appeal Br. 3; Final Act. 2.
Appellant presents arguments for independent claim 1 and does not
present separate arguments for the remaining rejected claims. See generally
Appeal Br. Accordingly, we select claim 1 as representative of the subject
matter claimed and decide the appealed ground of rejection based on the
arguments Appellant makes in support of the patentability of claim 1.

OPINION
After review of the respective positions of Appellant and the
Examiner, we affirm the Examiner’s rejection of claims 1–24 under 35
U.S.C. § 103 for essentially the reasons the Examiner presents in the Final
Office Action and the Answer. We add the following for emphasis.
Claim 1
Claim 1 recites a process for the production of a soft bakery product
comprising the step of injecting a hydroalcoholic solution consisting of ethyl
alcohol, water, and optionally bakery product flavors, into said bakery
product.
We refer to the Examiner’s Final Office Action for a complete
statement of the rejection of claim 1. Final Act. 2–4.
Appellant’s arguments in the Appeal Brief2 focus exclusively on
whether the Examiner’s rejection addresses the claim 1 limitation of
“optional bakery product flavors” as components of a hydroalcoholic
solution to be injected into a bakery product. See generally Appeal Br.

2 Appellant did not file a Reply Brief.
Appeal 2020-006557
Application 15/416,231

4
“As a matter of linguistic precision, optional elements do not narrow
the claim because they can always be omitted.” In re Johnston, 435 F.3d
1381, 1384 (Fed. Cir. 2006). That is, under the broadest reasonable
interpretation, claim 1 reads on instances in which no optional bakery
product flavors are added to a hydroalcoholic solution of ethyl alcohol and
water to be injected into the bakery product.
The Examiner addresses the use of a hydroalcoholic solution
consisting of ethyl alcohol and water recited in claim 1. Final Act. 2
(pointing to Eijk as teaching “injecting a solution containing up to about
10% ethanol in water into the baked goods. . .”). Appellant does not present
any argument disputing this finding by the Examiner. See generally Appeal
Br. Thus, Appellant’s arguments addressing the claimed optional bakery
product flavors are not commensurate with the scope of the claim and,
therefore, unpersuasive of reversible error in the Examiner’s determination
of obviousness.
Accordingly, we affirm the Examiner’s prior art rejection of claims 1–
24 under 35 U.S.C. § 103 for the reasons the Examiner presents and we give
above.

CONCLUSION
The Examiner’s prior art rejection is affirmed.

Appeal 2020-006557
Application 15/416,231

5
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–24 103 Eijk, Dogliotti 1–24

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)(iv).

AFFIRMED