Ex Parte Baker et al

Patent Trial and Appeal Board

Feb 20, 2013

11669751 (P.T.A.B. Feb. 20, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/669,751 01/31/2007 Rosemary Shine Baker CFLAY.00354 5918
110933 7590 02/21/2013
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
DEGUIRE, KATHERINE E
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
02/21/2013 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 ROSEMARY S. BAKER,
BRENDA K. CREMER, THOMAS G. CROSBY,
HENRY KIN-HANG, BRIDGET MANIS,
CARLA MEJIA, KELLY S. MILLER,
NANCY J. MORIARITY, JASON T. NIERMANN,
TIMOTHY F. ROOT, MARK W. SHEPPARD,
JIM STALDER, BEVERLY L. WATERS, and JO ELLEN WAYNE
____________

Appeal 2011-013064
Application 11/669,751
Technology Center 1700
____________

Before BRADLEY R. GARRIS, MICHAEL P. COLAIANNI, and
JAMES C. HOUSEL, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner's
rejection of claims 1-3 and 10-43 under 35 U.S.C. § 103(a) as unpatentable
over Karwowski (U.S. Patent Publication 2006/0246202 A1, pub. Nov. 2,
Appeal 2011-013064
Application 11/669,751

2
2006) in view of Villagran (U.S. Patent Publication 2006/028271 A1, pub.
Dec. 21, 2006)1. We have jurisdiction under 35 U.S.C. § 6.
We AFFIRM.
Appellants claim a vegetable chip dough comprising at least 11%
vegetable powder (claim 1) and a vegetable chip comprising at least 14%
vegetable solids (claim 10) as well as a fruit chip dough comprising at least
12% fruit powder (claim 20) and a fruit chip comprising at least 20% fruit
solids (claim 32).
Claims 1, 10, 20, and 32, the only independent claims on appeal, read
as follows:
1. A vegetable chip dough comprising by weight:
about 5% to about 15% modified starch;
about 10% to about 30% rice flour;
about 3% to about 12% whole oat flour;
about 10% to about 30% potato flakes;
at least 11% vegetable powder;
less than about 3% corn oil;
less than about 1% glycerides; and
about 30% to about 40% water.

10. A vegetable chip comprising by weight:
about 10% to about 16% modified starch dry matter;
about 20% to about 30% rice flour dry matter;
about 5% to about 15% whole oat flour dry matter;
about 20% to about 30% potato flakes dry matter;
at least 14% vegetable solids;
less than about 3% corn oil; and

1 As noted by Appellants (App. Br. 2), this appeal is related to the
appeal (i.e., Appeal 2011-009791) for US Application Serial No.
11/669,736. The related appeal resulted in a Decision (mailed November
29, 2012) affirming a § 103 rejection of similar claim subject matter as
unpatentable over the same prior art (i.e., Karwowski and Villagran).
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Application 11/669,751

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less than about 4% water.

20. A fruit chip dough comprising by weight:
about 5% to about 15% modified starch;
about 8% to about 20% rice flour;
about 3% to about 15% whole oat flour;
about 8% to about 20% potato flakes;
at least 12% fruit powder;
less than about 3% corn oil; and
about 27% to about 37% water.

32. A fruit chip comprising by weight:
about 10% to about 16% modified starch dry matter;
about 15% to about 25% rice flour dry matter;
about 5% to about 15% whole oat flour dry matter;
about 15% to about 25% potato flakes dry matter;
at least 20% fruit solids;
less than about 3% corn oil; and
less than about 4% water.

Initially, we observe that Appellants do not present separate
arguments specifically directed to the dependent claims under rejection. As
a consequence, these dependent claims will stand or fall with their parent
independent claims 1, 10, 20, and 32.
We will sustain the above rejection for the reasons expressed below
and in the Decision for related Appeal 2011-009791 (see note 1 supra).
The Examiner finds that Karwowski discloses chips and chip dough
having a weight ratio of whole grain to fruit or vegetable of about 20:80 to
about 95:5 which yields a fruit/vegetable range of 5 to 80% by weight,
thereby suggesting the fruit and vegetable range is defined by the
independent claims (see, e.g., Ans. 3-6, Karwowski para. [0033]).
Appellants present the following argument in response:
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Application 11/669,751

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One skilled in the art would read Karwowski as indicating that
a relatively dry fruit/vegetable component having a high solids
content (such as a fruit or vegetable powder) would be included
at something closer to the 5% fruit/vegetable to 95% whole
grain ratio because more added water would be needed to
gelatinize the whole grains, whereas a relatively moist
fruit/vegetable component with low solids content (such as a
juice) would be included at something closer to the 80%
fruit/vegetable to 20% whole grain ratio because the vegetable
component would provide most or all of the moisture needed to
gelatinize the whole grains.

(App. Br. para. bridging 8-9; see also id. at 12).
Appellants' argument is not persuasive for the reasons fully explained
in the related-appeal Decision (Dec. 6). In summary, Karwowski contains
no express disclosure that the amount of dried fruit or vegetable should be
closer to 5% as urged by Appellants, and Appellants offer no direct evidence
that one skilled in this art would so interpret Karwowski. Further,
Appellants fail to explain why Karwowski, even if so interpreted, would not
have suggested the fruit and vegetable concentrations defined by the
independent claims since these concentrations are at the lower end of
Karwowski's 5 to 80% range.
With respect to independent dough claims 1 and 20 specifically,
Appellants argue that "Karwowski also fails to teach a dough with high
amounts of fruit or vegetable powder, as the term dough would be
understood by one skilled in the art" (App. Br. para. bridging 10-11).
This argument is contradicted by Appellants' concession regarding
"Karwowski's reference to composite doughs in paragraph [0054]" (id.).
Moreover, Appellants have not provided this record with any evidence that
one skilled in this art would understand the term "dough" to mean something
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other than the dough disclosed by Karwowski. For these reasons, we find no
convincing merit in the argument under review.
We sustain the above § 103 rejection of claims 1-3 and 10-43 as
unpatentable over Karwowski in view of Villagran.
The decision of the Examiner 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).
AFFIRMED

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