Ex Parte Bhatia et al

Patent Trial and Appeal Board

Jan 22, 2019

11724377 (P.T.A.B. Jan. 22, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
11/724,377 03/15/2007
27885 7590
FAY SHARPE LLP
1228 Euclid Avenue, 5th Floor
The Halle Building
Cleveland, OH 44115
01/22/2019
FIRST NAMED INVENTOR
Sachin Bhatia
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
RICH 200970US01 3027
EXAMINER
TURNER, FELICIA C
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
01/22/2019 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 SACHIN BHATIA and MOHAMMED M. MORAD
Appeal2018-002504
Application 11/724,377
Technology Center 1700
Before TERRY J. OWENS, N. WHITNEY WILSON, and
JANEE. INGLESE, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant (Rich Products Corporation) appeals under
35 U.S.C. § 134(a) from the Examiner's rejection of claims 21---61. We have
jurisdiction under 35 U.S.C. § 6(b).
The Invention
The claims are to a method for making frozen, sheeted dough.
Claim 21 is illustrative:
21. A method for making a frozen, sheeted dough comprising
the steps of:
(a) mixing flour, a lipid source, chemical leavening
agent, yeast, dairy ingredient, dough conditioner and water to
form a dough;
Appeal2018-002504
Application 11/724,377
(b) adding shortening chips to said dough, mixing said
shortening chips in said dough for 30 seconds to 3 minutes such
that said shortening chips are not fully disintegrated after said
mixing, said shortening chips having a Mettler Dropping Point
of between I30°F and 170°F;
( C) resting said dough for 5 to 50 minutes at 70°F to 80°F
after said shortening chips have been mixed in said dough to
allow said dough to rise;
( d) subjecting said rested dough to a high stress sheeting
process comprising 2 to 5 compression steps such that a height
of said rested dough is reduced by at least 80% after completion
of said high stress sheeting process; and,
( e) without proofing, freezing said dough after said high
stress sheeting process, said frozen dough formulated to
increase in height by at least 100% when baked as compared to
a height of said frozen dough.
Callaghan
Hayashi
Moder
Douaire
Domingues (Domingues '936)
Sadek
Domingues (Domingues '283)
Goedeken
The References
us 2,686,721
us 4,957,426
US 2001/0043978 Al
US 6,419,965 Bl
US 2004/0037936 Al
US 2004/0213883 Al
US 2004/0241283 Al
US 2005/0129821 Al
Aug. 17, 1954
Sept. 18, 1990
Nov. 22, 2001
July 16, 2002
Feb.26,2004
Oct. 28, 2004
Dec. 2, 2004
June 16, 2005
Laura Brandt, Emulsifiers in Baked Goods, Food Product Design 1--4
(Feb. 1, 1996), http://www.foodproductdesign.com/articles/1996/02/
emulsifiers-in-baked-goods.aspx.
The Rejections
The claims stand rejected as follows:
1) Claims 21-29, 33, 38, 40, and 42 under 35 U.S.C. § I03(a) over
Goedeken in view of Callaghan, Domingues '283, and Douaire;
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Application 11/724,377
2) Claims 30-32, 34, 35, 37, 39, 41, 43--48, 50, and 51 under
35 U.S.C. § 103(a) over Goedeken in view of Callaghan, Domingues '283,
Douaire, and Brandt;
3) Claim 36 under 35 U.S.C. § 103(a) over Goedeken in view of
Callaghan, Domingues '283, Douaire, and Sadek;
4) Claims 37 and 49--51 under 35 U.S.C. § 103(a) over a) Goedeken
in view of Callaghan, Domingues '283, Douaire, Brandt, and Sadek, and
b) Goedeken in view of Callaghan, Domingues '283, Hayashi, Moder, and
Sadek;
5) Claims 21-26, 33, 38, 40, and 42 under 35 U.S.C. § 103(a) over
Goedeken in view of Callaghan, Domingues '283, and Hayashi;
6) Claims 27-29, 30-32, 34, 35, 37, 39, 41, 43--48, 50, and 51 under
35 U.S.C. § 103(a) over Goedeken in view of Callaghan, Domingues '283,
Hayashi, and Moder;
7) Claims 52---61 over a) Goedeken in view of Callaghan,
Domingues '283, Douaire, Domingues '936, and Brandt, and b) Goedeken
in view of Callaghan, Domingues '283, Hayashi, Moder, and
Domingues '936; and
8) Claim 57 under 35 U.S.C. § 112, first paragraph, as failing to
comply with the written description requirement.
OPINION
We reverse the rejections under 35 U.S.C. § 103(a) and affirm the
rejection under 35 U.S.C. § 112, first paragraph, written description
requirement.
Rejections under 35 USC§ 103(a)
We need address only the independent claims (21, 44, and 52).
Goedeken makes a leavened dough product by 1) mixing dough
ingredients comprising flour, a liquid component such as oil or water, yeast,
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Application 11/724,377
chemical leavening agents, and optional ingredients including shortening,
dairy products, and dough conditioners, 2) resting the dough to form or
enlarge bubbles and achieve the desired raw specific volume, 3) further
processing the dough by a method which can be sheeting, and 4) freezing the
dough (i1i16, 7, 9, 13, 17, 56). "Examples of suitable shortenings include
animal fats and hydrogenated vegetable oils" (i-f 43). "Fat can typically be
used in amounts less than about 20 percent by weight, often less than
10 percent by weight of a total weight of a dough composition" (i-f 44 ). "The
frozen dough composition can be cooked (e.g., baked) without thawing or
proofing" (i-f 7). The frozen dough's raw specific volume is 1.0 to 1.3 cm3/g,
and the baked dough's specific volume, without thawing or proofing, is at
least about 2.8 cm3/g (i-f 13).
Callaghan discloses a pie crust dough comprising 30-45% total
shortening, about 25-35% of which is soft shortening thoroughly and
uniformly greased onto flour, and 3-15% harder shortening discrete particles
or flakes which are uniformly distributed by gentle mixing into the greased
flour, usually have a melting point of 125-145 QF, and remain intact
throughout the preparation and rolling out of the dough ( col. 1, 11. 1-2;
col. 2, 11. 4--25, 35-37; col. 3, 11. 17-20). The harder shortening particles or
flakes "are found in the pie crust before baking and result in a definite
flakiness [and tenderness] in the pie crust itself' (col. 2, 11. 25-27; col. 3,
11. 68-70). Callaghan teaches that"[ w ]hen flour is mixed with water the
gluten develops to a tough elastic dough. This is the type of structure
desired in the preparation of raised baked products such as bread" ( col. 2,
11. 58-61). Callaghan's soft shortening thoroughly greased onto flour
"reduces the absorption of the flour which is the tendency of the flour to take
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Application 11/724,377
up water when the dough is prepared from the mix" (col. 2, 11. 54--58),
thereby limiting gluten development such that "the tendency for the
development of toughness is reduced" (col. 3, 11. 3---6) and "the most tender
[pie crust] products are obtained" (col. 3, 11. 1-3).
Domingues '283 discloses a dough which "may be yeast-leavenable
or chemically-leavenable, and may be pre-proofed or unproofed" (i-f 11 ),
"can be prepared from ingredients generally known in the dough and bread-
making arts" (i-f 24 ), "can be particularly useful for refrigerated dough
compositions useful for preparing baked dough compositions including
biscuits, bread sticks, crescent rolls, sweet rolls, etc." (i-f 62), and "can
optionally include fat ingredients such as oils and shortenings" (i-f 28).
"Examples of suitable shortenings include animal fats and hydrogenated
vegetable oils" (id.). "If included, fat is typically used in an amount less
than about 20 percent by weight, often less than 15 percent by weight of the
dough composition" (id.). In Example 1, shortening used to make biscuit
dough is in the form of chips (i-f 70). In that example the dough is made by
mixing all dry ingredients except the shortening chips, mixing liquid
ingredients and ice with the dry ingredients, and adding the shortening chips
to the mixture followed by mixing for 30 seconds at slow mixer speed then
120 seconds at high mixer speed (i1i171-77).
The Examiner finds that Callaghan is "relevant [ for modifying
Goedeken] because flakiness is often a desirable characteristic in baked
products like rolls and pastries" (Ans. 60), and "Domingues ['283] also
includes shortening chips as relevant to making biscuits, bread sticks,
crescent rolls, sweet rolls, etc .... [Domingues 0062]" (id.). The Examiner
concludes that it would have been prima facie obvious to one of ordinary
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Application 11/724,377
skill in the art "to modify Goedeken to include the fully hydrogenated
vegetable shortening chips of Callaghan in the dough composition disclosed
in Goedeken because the shortening chips with a melting point of between
125QF and 145QF would have provided a level of flakiness and tenderness to
the finished product [col. 3, lines 55-75]" (Ans. 5---6), and "it would have
been obvious to further modify Goedeken to add the shortening chips at the
end of the mixing step as in Domingues ['283] and Callaghan in order to
maintain the integrity of the flakes, since the flakes are intended to produce a
desirable cell structure in the dough and the shortening is not meant to melt
or blend into the dough until the dough product is baked [Callaghan col. 2,
lines 15-27]" (Ans. 6).
Setting forth a prima facie case of obviousness requires establishing
that the applied prior art would have provided one of ordinary skill in the art
with an apparent reason to modify the prior art to arrive at the claimed
invention. See KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007).
Callaghan discloses that pie crust made from Callaghan's dough is
flaky and tender because, unlike raised product dough which has desired
toughness and elasticity due to gluten development resulting from water
absorption by the dough's flour, Callaghan's flour, before it is mixed with
water, has soft shortening thoroughly greased onto it to reduce water
absorption and the resulting gluten development and dough toughness; then,
harder shortening particles or flakes are gently mixed into the greased flour
( col. 2, 1. 53 - col. 3, 1. 6; col. 3, 11. 17-20). The Examiner does not establish
that in view of Callaghan's disclosure of imparting flakiness and tenderness
to pie crust dough, which is not a raised product dough, one of ordinary skill
in the art would have had an apparent reason to grease soft shortening onto
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Goedeken's flour used to make raised product dough (i-f 9), thereby reducing
the dough's desired toughness and elasticity, and then mix harder shortening
particles or flakes into the greased flour. The Examiner finds that
Domingues '283 is relevant to raised product dough (Ans. 60), but the
Examiner does not establish that Callaghan and Domingues '283 would have
provided to one of ordinary skill in the art with an apparent reason to use
shortening chips as Goedeken's shortening. Callaghan's disclosure that
raised product dough has desired toughness and elasticity due to gluten
development resulting from water absorption by the dough's flour (col. 2,
11. 58-61) indicates that Domingues '283's dough made by mixing flour with
water before shortening is added to the dough is tough and elastic due to
gluten development resulting from water absorption by the flour (i1i1 102-
109) and, therefore, lacks Callaghan's dough's limited gluten development
which contributes to the pie crust's flakiness and tenderness (col. 2, 11. 53-
58; col. 3, 11. 1---6).
Thus, the Examiner has not set forth a factual basis that is sufficient to
support a conclusion of obviousness of the Appellant's claimed method. See
In re Warner, 379 F .2d 1011, 1017 (CCP A 1967) ("A rejection based on
section 103 clearly must rest on a factual basis, and these facts must be
interpreted without hindsight reconstruction of the invention from the prior
art."). Accordingly, we reverse the rejections under 35 U.S.C. § 103(a).
Rejection under 35 USC§ 112,first paragraph,
written description requirement
For an applicant to comply with the 35 U.S.C. § 112, first paragraph,
written description requirement the applicant's specification must "convey
with reasonable clarity to those skilled in the art that, as of the filing date
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sought, he or she was in possession of the invention." Carnegie Mellon
Univ. v. Hoffmann-La Roche Inc., 541 F.3d 1115, 1122 (Fed. Cir. 2008)
(quoting Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563---64 (Fed. Cir.
1991 )).
Claim 57 requires an ingredient mixing time for dough formation of
"at least 4 minutes."
The Appellant asserts that possession of a mixing time of at least
4 minutes is indicated by the Appellant's disclosure that "the ingredients can
be mixed for about 2 to 4 minutes on a first speed (low) and then for about 5
to 20 minutes on a second speed (high)" (Spec. 9:24--25) (App. Br. 17).
The Appellant's claim 57's "at least 4 minutes" includes times longer
than the disclosed maximum of 24 minutes. The Appellant does not
establish that the Specification shows possession of mixing for those longer
times. Hence, we affirm the rejection under 35 U.S.C. § 112, first
paragraph, written description requirement.
DECISION
The rejections under 35 U.S.C. § 103(a) are reversed. The rejection
under 35 U.S.C. § 112, first paragraph, written description requirement, is
affirmed.
The Examiner's decision is affirmed-in-part.
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-IN-PART
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