Ex Parte Barnett et al

Patent Trial and Appeal Board

Dec 17, 2012

11696023 (P.T.A.B. Dec. 17, 2012)

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.
11/696,023 04/03/2007 Michelle Latrese Barnett CFLAY.00389 3692
110933 7590 12/18/2012
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
SMITH, PRESTON
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
12/18/2012 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 MICHELLE LATRESE BARNETT, AKHILESH GAUTAM,
LEWIS CONRAD KELLER, DIMITRIOS LYKOMITROS,
JORGE C. MORALES-ALVAREZ, and SCOTT ALAN RICHEY
_________________

Appeal 2011-000462
Application 11/696,023
Technology Center 1700
_________________

Before BRADLEY R. GARRIS, KAREN M. HASTINGS, and
DEBORAH KATZ, Administrative Patent Judges.

KATZ, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-000462
Application 11/696,023

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Statement of the Case
Appellants1 seek our review, under 35 U.S.C. § 134(a), of the
Examiner’s decision to reject claims 1-30. (App. Br. 2.) We have
jurisdiction under 35 U.S.C. § 6(b). We affirm.
The Examiner made the following rejections of the claims:
 Claims 1, 4, 7-9, 11, 15-16, 19, 22-24, 26, and 30 under
35 U.S.C. § 103(a) over Keller2 in view of McKown3 (Ans. 4-
5);
 Claims 2 and 17 under 35 U.S.C. § 103(a) over Keller in view
of Siemensma4 and McKown (Ans. 5-6);
 Claims 3, 12, 18, and 27 under 35 U.S.C. § 103(a) over Keller
in view of Siemensma, McKown, and Prakash5 (Ans. 6-7);
 Claims 10 and 25 under 35 U.S.C. § 103(a) over Keller in view
of Prakash and McKown (Ans. 7-8);
 Claims 5 and 20 under 35 U.S.C. § 103(a) over Keller in view
of Naylor6 and McKown (Ans. 8-9);

1 The real party in interest is said to be Frito-Lay North America, Inc. (App.
Br. 2.)
2 Keller et al., U.S. Patent Application Publication 2006/0019009 A1,
published January 26, 2006. Appellants argue that Keller is disqualified as
prior art under 35 U.S.C. § 103(c). (App. Br. 5-6.) Because Keller was
published on January 26, 2006, and Appellants filed their application on
April 3, 2007, Keller is prior art under 35 U.S.C. § 102(b) and cannot be
disqualified under section 103(c). (Ans. 11.)
3 McKown, et al., U.S. Patent 3,464,826, issued September 2, 1969.
4 Siemensma, et al., U.S. Patent Application Publication 2006/0105938 A1,
published May 18, 2006.
5 Prakash, U.S. Patent 3,922,370, issued November 25, 1975.
6 Naylor, U.S. Patent 3,003,438, issued October 10, 1961.
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Application 11/696,023

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 Claims 6 and 21 under 35 U.S.C. § 103(a) over Keller in view
of Pentzlin7 and McKown (Ans. 9-10);
 Claims 13 and 28 under 35 U.S.C. § 103(a) over Keller, in view
of Budd8 and McKown (Ans. 10);
 Claims 14 and 29 under 35 U.S.C. § 103(a) over Keller in view
of Wisdom9 and McKown (Ans. 10-11).
Appellants’ Specification is directed to making extruded legume
snack food with certain nutritional goals and in certain shapes. (Spec. 2: 2-
6.)
Appellants’ claim 1 is representative and recites:
A method for making an extruded snack, said method
comprising the steps of:
a) mixing a legume based powder and a starch to form an
admix;
b) hydrating said admix;
c) extruding said hydrated admix to form an extrudate in the
plastic melt phase, wherein said extrudate exits the extruder as a high
velocity discharge; and
d) shaping the extrudate prior to the extrudate cooling to below
the glass transition temperature, wherein further said shaping
comprises forming substantially uniform protrusions along an
individual segment of said extrudate to produce a finished product
having an appearance characteristic of the legume of step a).

(App. Br. 18, Claims App’x.)
The main issue that Appellants raise is whether the prior art teaches a
method for making an extruded snack that comprises “forming substantially

7 Pentzlin, U.S. Patent 2,960,045, issued November 15, 1960.
8 Budd and Fowler, U.S. Patent 4,680,191, issued July 14, 1987.
9 Wisdom, U.S. Patent 5,132,127, issued July 21, 1992.
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Application 11/696,023

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uniform protrusions along an individual segment of said extrudate to
produce a finished product having an appearance characteristic of the
legume of step a)” as recited in claim 1. (E.g., App. Br. 6-7.) According to
Appellants, the product depicted in Keller Figure 3B would not be
recognized or associated with a legume and neither Keller nor McKown
teach substantially uniform protrusions along an individual segment of the
extrudate. (Id. at 7.)
As the Examiner noted, the phrase “having an appearance
characteristic of [a] legume” is a very broad term. (See Ans. 12.)
Appellants’ claims are not limited to the shape Appellants provide in the
picture on page 2 of their Reply Brief. The Examiner’s finding that it was
known in the art to shape dough products into a plurality of shapes,
including shapes with uniform protrusions, is supported by McKown. (Id. at
4-5.) Merely because Keller teaches that its products are smooth or uniform,
we do not consider Keller to teach away from what was known in the art
about shaping dough products, as Appellants argue (App. Br. 8.)
Appellants argue further that their Specification teaches creating a
legume based product with a shape characteristic of a legume presents
“unique challenges,” wherein
[t]he rapid transition from the plastic melt stage and the glass
transition stage and rapid throughput makes prior art food
molding technology, such as is used with cookies, pastas, and
bread product, impractical.

(App. Br. 8, citing Spec., 5, ¶ [0013].) Appellants argue that because
McKown teaches creating shapes from cereal products, without including
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any legumes, soy, or protein, McKown provides evidence of these “unique
challenges.” (App. Br. 8-9.)
We are not persuaded by Appellants’ argument because they have not
addressed the Examiner’s rejection, which relies on McKown only for the
teaching that shaping dough with protrusions would have been obvious. The
Examiner found that the methods taught in Keller, including shaping the
dough to some extent, are encompassed by Appellants’ claimed method.
(Ans. 4.) Appellants have failed to explain why shaping the dough into
shapes with particular features would not have been obvious or would have
presented “challenges” over the steps taught in Keller.
Appellants argue for the separate patentability of claims 7-8 and 22-23
as a group. (App. Br. 9-10.) We focus on claim 7, which recites: “The
method of Claim 1 wherein the extruding step c) comprises extruding the
extrudate through an orifice having a shape approximating a linear cross-
section of a legume pod.” (Id. at 19, Claims App’x.) Appellants argue that
Figure 2B of Keller, which was relied upon by the Examiner, is not the same
as Figure 6 of the application. (Id. at 9-10.) As the Examiner notes,
Appellants’ claim 7 is not limited to the exact structure of Figure 6. (Ans.
13.) Both figures show a face-cut of die insert orifices for extruding dough.
(See Keller, ¶ [0015]; Spec., 7.) Because Appellants have not directed us to
a definition of what “a linear cross-section of a legume pod” is, and the
product of Keller produced by extrusion through this orifice could be
considered to be roughly like a legume (see Keller, Fig. 3B and ¶¶ [0029]
and [0031]), Appellants have failed to persuade us that the method of their
claim 7 was unobvious.
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Appellants argue that several of the references cited by the Examiner
in the rejection of the dependent claims do not render the claimed methods
obvious. (See App. Br. 10-16.) We rely on the Examiner’s findings of fact,
conclusions of law, and rebuttals to arguments expressed in the Answer in
regard to these arguments. In general, we note that Appellants do not point
to an error in how the Examiner relied on these secondary references,
arguing instead that each reference must independently render the claimed
method obvious. “Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986).
In regard to claims 6 and 21, Appellants argue that the term “track
molding” is defined in the Specification as a device with “opposed molding
belts,” but that Pentzlin teaches a device with only a singular belt. (App. Br.
14-15.) We are not persuaded that “track molding” as defined in the
Specification must include more than one belt because the Specification
indicates that a track molding device uses “opposed molding belts, rather
than opposed rollers. . . .” (Spec. 15:23-16:1 (emphasis added).) We are not
persuaded that the use of the term “belts” indicates that more than one belt
must be used. Appellants have not persuaded us that methods taught in
Pentzlin, wherein the product is guided through a tube, which folds to form
the desired hollow shape (Pentzlin, 2:9-11; see Ans. 16), is not encompassed
by “track molding,” as claimed.
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Conclusion
Upon consideration of the record and for the reasons given, the
rejections of the claims are sustained. Therefore, we affirm the decision of
the Examiner.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

AFFIRMED
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