Christine O'Connor et al.

Patent Trials and Appeals Board

Sep 30, 2019

14894086 - (D) (P.T.A.B. Sep. 30, 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.
14/894,086 11/25/2015 Christine O'Connor 7862US01 1100
106306 7590 09/30/2019
DIEDERIKS &WHITELAW, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
09/30/2019 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):
gmi.mail@dwpatentlaw.com
mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CHRISTINE O’CONNOR and MICHELLE DACEY

Appeal 2018-008759
Application 14/894,086
Technology Center 1700
____________

Before LINDA M. GAUDETTE, KAREN M. HASTINGS, and
JAMES C. HOUSEL, Administrative Patent Judges.

HOUSEL, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–6 and 8–21 under 35 U.S.C. § 103 as
unpatentable over Harte et al. (US 2010/0291265 A1, pub. Nov. 18, 2010
(“Harte”)) in view of Haasl et al. (US 4,297,378, iss. Oct. 27, 1981
(“Haasl”)), Finkel et al. (US 5,466,476, iss. Nov. 14, 1995 (“Finkel”)), and
Kristine (“Mix Your Own Gluten Free Flour—Learn How With This Easy

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as General
Mills, Inc. Appeal Br. 3.
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(and awesome) Guide!”, available at
http://thankheavens.com.au/2013/01/31/mix-your-own-gluten-free-flour-
easy-guide/ (Jan. 31, 2013) (“Kristine”)). We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2

STATEMENT OF THE CASE
The invention relates to formulations and methods of making shelf-
stable, ready-to-bake gluten-free pie dough. Spec. ¶ 9.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the subject matter on appeal.
1. A gluten-free, ready-to-bake pie dough composition
comprising:
a gluten-free flour mixture in an amount from 31% to
50% by weight of the composition, the gluten-free flour
mixture including less than 15% rice flour by weight of the
composition, sorghum flour, and 20% to 35% by weight of the
composition of potato starch, corn starch, or combinations
thereof;
at least one oil in an amount from 4.5% to 5.5% by
weight of the composition;
shortening in an amount from 20% to 30% by weight of
the composition;
fructose in an amount from 1% to 4.5% by weight of the
composition;
water from 20% to 25% by weight of the composition;
and
sucrose in an amount of less than 5% by weight of the
composition, wherein the composition has a water activity of

2 Our Decision refers to the Specification (“Spec.”) filed Nov. 25, 2015,
Appellant’s Appeal Brief (“Appeal Br.”) filed Apr. 26, 2018, the Examiner’s
Answer (“Ans.”) dated July 13, 2018, and Appellant’s Reply Brief (“Reply
Br.”) filed Aug. 30, 2018.
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0.94 or less and a pH of 7 or less.

The remaining independent claim 13 recites a method of
manufacturing a raw dough product comprising combining the ingredients
and amounts of a composition of claim 1, and forming and packaging the
raw dough product made therefrom.

ANALYSIS
For purposes of this appeal, to the extent that the claims on appeal are
separately argued, we will address them separately consistent with 37 C.F.R.
§ 41.37(c)(1)(iv).
Claim 1
The Examiner finds that Harte discloses a gluten-free pie dough
composition comprising 1–50% flour, 1–50% fat component including
shortening and vegetable oil, 1–25% starch component including corn
starch, potato starch, 5–75% sweetener component such as sugar, and water
in an amount of from 10–50%. Ans. 4. The Examiner also finds that Harte
teaches that the flour component includes any known gluten-free flour, such
as 5–6 wt.% rice flour and sorghum flour. Id. The Examiner acknowledges
that Harte fails to teach the specifically recited amounts of shortening, oil,
and fructose, and the water activity and pH as recited in claim 1. Id.
For these features, the Examiner finds Haasl discloses a shelf-stable
pie dough having 24–35% shortening, 19–25% total water, and a water
activity between 0.9 and 0.94, and a pH of 5–5.6. Ans. 4–5. The Examiner
further finds that Finkel discloses that fructose can be added as a browning
aid and that sugars such as sucrose and fructose can be added to adjust the
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product’s sweetness. Id. at 5. In addition, the Examiner finds Kristine
discloses that many starches and flours can be used in varying amounts to
form gluten-free flours, including potato starch, corn starch, rice flour, and
sorghum flour. Id.
The Examiner concludes that it would have been obvious, given
Harte’s disclosure of broad ranges of the ingredients to be used, to formulate
a composition with specific amounts of Harte’s ingredients depending on the
product to be made. Ans. 5. Because Harte teaches that the composition
may be used to make pie dough, the Examiner also concludes that it would
have been obvious to use the amounts of shortening and water, and to obtain
the recited water activity and pH, that Haasl teaches for making Harte’s
shelf-stable pie dough, especially since Harte teaches adding salt and citric
acid. Id. Moreover, the Examiner concludes that it would have been
obvious to include sucrose and fructose in the recited amounts in order to
adjust the dough to the desired sweetness and to provide a browning aid as
taught by Finkel. Id. at 6. The Examiner further concludes that it would
have been obvious to form a gluten-free flour for use in Harte’s pie dough
from any of the different materials disclosed in Kristine, especially because
both Harte and Kristine teach rice flour, sorghum flour, corn starch, and
potato starch may be used. Id. Finally, the Examiner cites In re Levin, 178
F.2d 945 (CCPA 1949) in support of the rejection. Id. at 7.
Appellant argues that the Examiner’s reliance on Levin is in error
because the Examiner applies an improper interpretation of this case which
is contrary to the obviousness standard set forth in Graham v. John Deere
Co., 383 U.S. 1 (1966). Appeal Br. 6. In addition, Appellant contends that
the Examiner improperly relies on dicta within Levin which has no legal
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weight in light of Graham v. Deere and subsequent obviousness case law.
Id. at 7. Appellant further contends that the Examiner’s reliance on Levin
represents a per se rule rationale that is improper. Reply Br. 2.
We do not find this argument persuasive of reversible error in the
Examiner’s rejection. Although Levin was decided prior to Graham v.
Deere, we find no inconsistencies between the obviousness standard laid out
in the Deere decision (and explained in KSR v. Teleflex) and the principles
from Levin relied on here by the Examiner. Specifically, the portions of
Levin that the Examiner relies on merely acknowledge that common, known
food ingredients including sugar, flour, oil, salt, etc. have such well known
properties, uses, and effects such that, for example, the inclusion of sugar for
added sweetness generally would have been obvious absent the discovery
that something unexpected results from its inclusion in a particular
composition. Nonetheless, we find, as set forth below, that the Examiner’s
rejection does not rest upon the principles cited from Levin alone, but on the
teachings and suggestions of the prior art considered as a whole by one of
ordinary skill in the art.
Appellant next argues that, absent hindsight, there is no reason why
the ordinary artisan would select the presently claimed gluten-free mixture
including less than 15% rice flour, sorghum flour, and 20–35% corn and
potato starch to form a ready-to-bake gluten-free pie crust based on the prior
art. Appeal Br. 7. Appellant contends that the specifically recited flour
mixture is critical to the gluten-free pie dough as evidenced by the
Specification. Id. In particular, Appellant notes the Specification discloses
that it was found that the flour mixture has a neutral flavor and tender
texture when mixed with the remaining ingredients. Appeal Br. 7; Spec. ¶
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16. Appellant also notes the disclosure that the flour mixture is a substitute
for wheat or other gluten-containing flours typically used in pie dough.
Appeal Br. 7; Spec. ¶ 17. Still further, Appellant notes the disclosure that
sorghum flour provides additional structure and textural properties, and
potato and/or corn starch provides texture similar to wheat without off
flavors. Appeal Br. 7; Spec. ¶¶ 20–21. Based on these disclosures,
Appellant urges that the recited flour mixture exhibits particularly
advantageous attributes and is critical to the dough mixture. Appeal Br. 8.
This argument is not persuasive of reversible error. As the Examiner
responds, Harte teaches a flour mixture including rice and sorghum flour, as
well as at least one of corn and potato starch. Ans. 7–8; Harte ¶ 13. In
addition, Harte teaches that the rice flour can be 5–6% and that the starch
component is typically from 1–25%. Harte ¶¶ 14, 19. Because Harte
teaches the specific components of the flour mixture and amounts in ranges
overlapping with those recited in claim 1, the Examiner has established a
prima facie case that the flour mixture would have been obvious without
resort to improper hindsight. See E.I. DuPont de Nemours & Co. v. Synvina
C.V., 904 F.3d 996 (Fed. Cir. 2018) (“[A] prima facie case of obviousness
typically exists when the ranges of a claimed composition overlap the ranges
disclosed in the prior art.” (quoting In re Peterson, 315 F.3d 1325, 1329
(Fed. Cir. 2003))).
As for Appellant’s contention that the specific flour mixture of claim
1 exhibits particularly advantageous attributes and is critical to the gluten-
free pie dough, we note that the disclosures Appellant directs our attention to
fail to establish such criticality or any unexpected results. Merely noting
properties of a particular combination of known ingredients is insufficient in
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this regard. Further, Harte’s purpose for a gluten-free dough composition at
least overlaps Appellant’s desire to provide a gluten-free pie dough that has
similar taste, texture, and rheology as gluten-containing pie dough. See, e.g.,
Harte ¶¶ 13 (“may be used to replace wheat flour”), 15 (“may also be used to
replace the functionality of gluten (from wheat)”). We thus find Appellant’s
assertion of criticality unpersuasive.
Appellant next argues that there is no apparent reason why one would
look to Haasl to modify Harte, because the ingredients and amounts in a
gluten-containing product would be inapplicable to a gluten-free product
because of fundamental differences in wheat and other gluten-containing
dough products versus gluten-free products. Appeal Br. 8. Appellant notes
that Haasl discusses the importance of the protein, i.e., gluten, level in the
dough to prevent excessive cracking. Id.
We do not find this argument persuasive because Appellant fails to
provide support for the view that Haasl’s teachings regarding the amounts of
shortening, water, water activity, and pH are inapplicable to Harte’s gluten-
free dough composition merely because Haasl otherwise includes gluten-
containing flour components. As the Examiner explains, Haasl teaches that
water activity is controlled by salt which is added for flavor and to reduce
the water activity, and that pH is controlled by the addition of citric acid to
prevent molding. Ans. 4–5. The Examiner notes that Harte also includes
salt and citric acid in the gluten-free composition. Id. at 5–6. Moreover, the
Examiner finds that the ordinary artisan would look to Haasl for guidance in
the amounts of water and shortening to use when modifying Harte to form a
pie dough. Id. at 5. The ordinary artisan would not be dissuaded from
following Haasl’s teachings for the above ingredients merely because
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Haasl’s flour component is not gluten-free since Harte teaches ways to
replace the functionality of gluten in the gluten-free dough.
Appellant next argues that there is no basis for the Examiner’s
reasoning with regard to the use of fructose as a browning aid in Harte’s
composition. Appeal Br. 9. Appellant contends that Harte fails to teach or
suggest that a brown color is desired, and thus there would be no reason to
look to Finkel to add fructose to Harte’s composition. Id. Appellant also
contends that there is no suggestion that the amount of fructose which would
be used for browning is the same as the amount recited in claim 1, which is
used to produce a soft texture and avoid dough cracking. Id.
The Examiner responds that Harte teaches the addition of a sweetener
component, listing a variety of sweeteners without limitation, and that Finkel
teaches that sucrose and fructose may be added to pie dough in amounts
adjusted to the desired sweetness. Ans. 9–10. Therefore, even if Harte did
not desire the use of a browning aid, Finkel reasonably suggests to the
ordinary artisan the use of sucrose and fructose as the sweetener component
in Harte’s composition. That fructose may also serve as a browning aid does
not detract from this suggestion, especially considering that browning is a
well-known desired feature on many baked pastry products including pie.
We, therefore, do not find Appellant’s argument in this regard to be
persuasive of reversible error.
With regard to Kristine, Appellant argues that this article fails to teach
a flour mixture suitable for a pie crust or a mixture that includes the recited
components of the claimed gluten-free mixture. Appeal Br. 10. Appellant
contends that the Examiner fails to provide a reason why the ordinary artisan
would select the specific ranges of flours recited in claim 1, and that “simply
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stating that it would [have been] obvious to vary the combination of
ingredients and amounts based on a taste, flavor and texture desired is
insufficient to establish a prima facie case of obviousness.” Id.
This argument misapprehends the rejection in that the Examiner does
not rely on Kristine for a teaching of a pie crust flour mixture or the flour
mixture recited in claim 1. The Examiner relies on Harte’s teaching that a
gluten-free flour mixture can include 5–6 % rice flour, sorghum flour, and
1–25% corn and/or potato starch. Instead, Kristine is merely relied on as a
teaching reference of known properties of these ingredients that can be
combined in varying amounts to form gluten-free flour mixtures.
Appellant raises substantially the same arguments for independent
claims 1 and 13. Therefore, for the same reasons as given above with regard
to claim 1, we do not find these arguments persuasive as to claim 13. In
addition, Appellant does not separately argue dependent claims 2, 3, 10–12,
and 14–16. Accordingly, we sustain the Examiner’s obviousness rejection
of claims 1–3 and 10–16.
Claims 4 and 17
These claims recite that the composition or raw dough product
comprises sucrose in an amount from 1–3 wt.%.
Appellant raises substantially the same argument for claims 4 and 17.
Appellant argues that Harte, alone or in combination, fails to teach the
amount of sucrose recited in these claims. Appeal Br. 10, 13. Appellant
further argues that Finkel fails to teach reducing sugar to 1–3 wt.%. Id.
However, the Examiner responds that although Harte teaches 5–75 %
sweetener, Harte further teaches that this amount may be varied by plus or
minus 5%, 10%, or more. Ans. 11. Based on this teaching, the Examiner
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finds that Harte’s disclosure suggests amounts of sweetener as low as 0%.
Id. As such, the Examiner concludes that, based on this finding, a prima
facie case of obviousness exists over Harte based on overlapping ranges,
especially given that Harte teaches that the amount of sweetener can be
varied to arrive at the desired sweetness intensity. Id.
Appellant argues that the Examiner’s reasoning violates In re Ochiai,
71 F.3d 1565, 1572 (Fed. Cir. 1995), and is contrary to Genetics Institute,
LLC v. Novartis Vaccines and Diagnostics, Inc., 655 F.3d 1291, (Fed. Cir.
2011). Reply Br. 4. We disagree. The Examiner is not applying a per se
rule, but is instead applying a legal principle supported by legal precedent.
Peterson, 315 F.3d at 1329. This principle holds that a broad range in the
prior art typically, but not always, renders obvious a narrower claimed range
where overlap exists between the broad and narrower ranges. Appellant
fails to establish or explain why, in this case, obviousness does not lie.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 4 and 17.
Claims 5 and 18
These claims recite that the composition or raw dough product
comprises 4–15 wt.% rice flour.
Appellant raises substantially the same argument for claims 5 and 18.
Appellant argues that the Examiner fails to provide any reason why 4–15
wt.% rice flour is desirable. Appeal Br. 11, 13.
However, the Examiner reiterates the finding that Harte discloses that
the composition may include 5–6 wt.% rice flour. Ans. 12. Appellant fails
to identify error in, or otherwise address, this finding. Therefore, we sustain
the Examiner’s obviousness rejection of claims 5 and 18.
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Claim 6 and 19
These claims recite that the composition or raw dough product
comprises 4.5–8 wt.% sorghum flour.
Appellant raises substantially the same argument for claims 6 and 19.
Appellant argues that Harte, alone or in combination, fails to teach the
amount of sorghum recited in these claims. Appeal Br. 11, 13.
However, the Examiner reiterates the finding that Harte discloses that
the composition includes 1–50 wt.% flour, which may include sorghum
flour. Ans. 12. Absent unexpected results, the recited range of sorghum
flour would have been prima facie obvious over the overlapping prior art
range of flour, including sorghum flour, of Harte. Peterson, 315 F.3d at
1329. Therefore, we sustain the Examiner’s obviousness rejection of claims
6 and 19.
Claim 8 and 20
Claims 8 and 20 recite that the composition or raw dough product
comprises 13–15 wt.% potato starch.
Claims 9 and 21 recite that the composition or raw dough product
comprises 12–16 wt.% corn starch.
Appellant raises substantially the same argument for claims 8, 9, 20,
and 21. Appellant argues that Harte fails to teach the amount of potato and
corn starches recited in these claims. Appeal Br. 11–14. Appellant asserts
that the Examiner relies on Haasl for a teaching of the recited amounts of
these starches, but argues that there is no disclosure of the claimed
composition or raw dough product. Id.
However, the Examiner reiterates the finding that Harte discloses that
the composition or raw dough product includes 1–25 wt.% starch, which
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may include potato and/or corn starch. Ans. 12. Absent unexpected results,
the recited range of potato starch would have been prima facie obvious over
the overlapping prior art range of starch, including potato starch, of Harte.
Peterson, 315 F.3d at 1329. Therefore, we sustain the Examiner’s
obviousness rejection of claims 8, 9, 20, and 21.

DECISION
Upon consideration of the record, and for the reasons given above and
in the Examiner’s Answer, the decision of the Examiner rejecting claims 1–6
and 8–21 is 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).

CONCLUSION
In summary:
Claims
Rejected
Basis Affirmed Reversed
1–6, 8–21 § 103 over Harte,
Haasl, Finkel, and
Kristine
1–6, 8–21

AFFIRMED