Ex Parte Bindzus et alDownload PDFPatent Trial and Appeal BoardDec 11, 201713390293 (P.T.A.B. Dec. 11, 2017) Copy Citation 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* 14S0 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 13/390,293 06/27/2012 Wolfgang Bindzus 7242US0I 2326 7590 Arlene L Homilla PO Box 1113 Minneapolis, MN 55440 12/12/2017 EXAMINER GEORGE, PATRICIA ANN ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 12/12/2017 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 WOLFGANG BINDZUS1 and Stephanie Hahn Appeal 2017-000061 Application 13/390,293 Technology Center 1700 Before MARK NAGUMO, DEBRA L. DENNETT, and JANE E. INGLESE, Administrative Patent Judges. NAGUMO, Administrative Patent Judge. DECISION ON APPEAL Wolfgang Bindzus and Stephanie Hahn (“Bindzus”) timely appeal under 35 U.S.C. § 134(a) from the Final Rejection2 of all pending claims 1- 13, 21, and 31. We have jurisdiction. 35 U.S.C. § 6. We affirm. 1 The real party in interest is identified as General Mills, Inc. (Appeal Brief, filed 14 March 2016 (“Br”), 4.) 2 Office Action mailed 09 November 2015 (“Final Rejection,” cited as “FR”). Appeal 2017-000061 Application 13/390,293 OPINION A. Introduction3 The subject matter on appeal relates to methods of preparing low-salt cooked cereal compositions, especially ready-to-eat (“RTE”) breakfast cereals. Typically in such compositions, 2-4% by weight of salt (i.e., table salt, sodium chloride, NaCl) is said to provide flavorful fully cooked cereal flavors during the traditional extended cooking step.4 The salt is also said to act as a strong flavor potentiator in the finished cereal product, to improve color generation, and to decrease cooking times. (Spec. 1 [0002].) In the words of the '293 Specification, reducing the salt in RTE cereals to obtain the dietary benefits “have been seen as being achieved at the expense [of] . .. less cereal and toasting flavour, a bland taste and also lighter in color,” as well as increased production costs. (Id. at [0004].) Bindzus seeks patent protection for methods of preparing cooked low- sodium cereal compositions having a conductivity of about 0.1-2.8 mS [milli-Siemens], in which the pH is between about 3.5 to 5.7. (Id. at 3 [0008].) These conditions are said to allow the use of about 25% to about 50% less salt than would be conventionally employed (id. at 7 [0027]) without the negative effects of the low salt levels (id. at 3 [0012]). 3 Application 13/390,293, Cooking of salt free or reduced salt breakfast cereals, filed 27 June 2012 as the national stage under 35 U.S.C. § 371 of PCT/US09/053813, filed 14 August 2009. We refer to the “'293 Specification,” which we cite as “Spec.” 4 “[A] a popular brand of. .. wheat flakes has in the past contained as much as 480 milligrams sodium per ounce of product (i.e., about 3% sodium chloride).” (Spec. 1 [0003].) 2 Appeal 2017-000061 Application 13/390,293 Claim 1 is representative and reads: A method for preparing a cooked cereal composition comprising the steps of: A. cooking a blend of 1. about 60% to 98% of a farinaceous material, by dry weight of the blend; 2. about 1.0% to 1.5% of sodium chloride, by dry weight of the blend, such that the blend has a conductivity ranging from about 0.1—2.8 mS/cm; and, 3. an effective amount of an edible acid to provide said blend with a pH ranging from about 3.5 to 5.7; wherein the blend, is cooked with added moisture to form a cooked cereal dough; B. forming the cooked cereal dough into pieces of desired shape and size; and, C. drying and toasting the pieces to form a dried ready-to- eat cereal having a pH ranging from about 3.5-5.7, and a conductivity ranging from about 0.1-2.8 mS/cm and a moisture content of 2-5%. (Claims App., Br. 17; some indentation, paragraphing, and emphasis added.) Remaining independent claim 6 is similar, but specifies in step A “less than about 1.8% sodium chloride, with an effective amount of added total salts to provide a conductivity of about 0.1-28 mS/cm”5, and that “the mixture is extruder cooked under conditions of heat and pressure to 5 The recitation of “28 mS/cm” appears to be a typographical error. Although present in original claim 6, that value appears nowhere else in the Specification. Moreover, although Bindzus quotes this value (Br. 5,1. 9, citing Spec. 6, paragraph 27, which discloses the range 0.1-2.8 mS/cm), Bindzus argues substantively that “[c]laim 6 also recites a conductivity ranging from 0.1 to 2.8 mS/cm.” {id. at 13, last para.) In any event, we trust this discrepancy will be resolved in the event of further prosecution. 3 Appeal 2017-000061 Application 13/390,293 gelatinize a starch component of the farinaceous material for about 3 to 120 seconds to form a cooked cereal dough.” (Claims App., Br.18.) The Examiner maintains the following grounds of rejection6’7: A. Claims 1-5 and 21 stand rejected under 35 U.S.C. § 112(2). B. Claims 1 and 2 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Wullschleger8 and Klamerus.9 Bl. Claims 3-5 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Wullschleger, Klamerus, and Fan.10 B2. Claim 21 stands rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Wullschleger, Klamerus, and Feneley.* 11 6 Examiner’s Answer mailed 28 July 2016 (“Ans.”). 7 Because this application was filed before the 16 March 2013, effective date of the America Invents Act, we refer to the pre-AIA version of the statute. 8 Richard D. Wullschleger et al., Ready-to-eat cereal containing psyllium and method of producing the same, U.S. Patent No. 5,223,298 (1993). 9 Beata Z. Klamerus, Natural ingredient, color-stable, ready-to-eat colored food product, food composition and method, U.S. Patent Application Publication 2007/0059412 Al (2007). 10 Steve T. Fan & William E. Koski, R-T-E cereal composition and method of preparation, U.S. Patent No. 4,963,373 (1990) (assigned to General Mills, Inc., the real-party-in-interest in this appeal). 11 Amy Marie Usiak et al., Ready-to-eat extruded cereal with toasted grain flavor, EP 1 000 553 Al (2000) (Michael Feneley is named as an inventor; we follow the Examiner and Bindzus in referring to this reference as “Feneley.” 4 Appeal 2017-000061 Application 13/390,293 B3. Claims 6-10 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Wullschleger, Klamerus, and Stauss.12 B4. Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Wullschleger, Klamerus, Stauss, and Fan. B5. Claim 13 stands rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Wullschleger, Klamerus, Stauss, Fan, and Plank.13 B6. Claim 31 stands rejected under 35 U.S.C. § 103(a) in view of the combined teachings of Wullschleger, Klamerus, Stauss, and Fan. B. Discussion The Board’s findings of fact throughout this Opinion are supported by a preponderance of the evidence of record. Rejection A: Indefiniteness The Examiner holds that claims 1-5 and 21 are indefinite because both the blend that is cooked in step A and the dried ready-to-eat cereal resulting from step C are required to have the same conductivity, despite the great difference in moisture and the consequent higher concentration of sodium ions in the dried and toasted RTE cereal. (FR 2-3.) 12 Kirk B. Stauss, Process of making shelf stable, nutrient fortified cereal based food, U.S.-Patent No. 4,478,857 (1984). 13 David W. Plank & Kory M. Kolvig, Food products and food intermediates having low acrylamide content comprising cyclodextrin and amino acids, salts, or derivatives thereof, and methods, U.S. Patent Application Publication 2006/0029707 A1 (2006) (assigned to General Mills, Inc., the real-party-in-interest in this appeal). 5 Appeal 2017-000061 Application 13/390,293 As Bindzus points out, however (Br. 7), the method for measuring the conductivity of a sample, described in the Specification (Spec. 20 [0078]), involves preparing a 10% w/w solution or suspension of the sample in hot water, cooling and filtering the sample, and measuring the conductivity of the filtrate. Thus, the “conductivity” of the blend and of the dried ready-to- eat cereal is something of a misnomer, because it is the conductivity of a solution prepared from the blend or the RTE cereal that is actually measured. The full description is quite a mouthful, and the Specification provides a thorough description of the process of measurement, which the Examiner has not shown to be inadequate to convey to the reader what is meant by the “conductivity” in each case. Accordingly, the Examiner’s concerns with the different concentrations of ions in the different amounts of available water, although perceptive and accurate, are misplaced as to indefiniteness, due to the definition provided in the Specification. Rejection A for indefiniteness is reversed. Rejection B: Obviousness Bindzus urges with respect to Rejection B of claim 1 and Rejection B3 of claim 6 that the Examiner erred harmfully in combining the teachings of Wullschleger and Klamerus because “[t]he advantage discussed by Klamerus of using acid in a red colored food product is not relevant to the product disclosed by Wullschleger.” (Br. 9,11. 5-7.) Bindzus argues that although Wullschleger discloses certain colorants, “there is no expressed concern with preserving a red colored food product.” {Id. at 1. 9.) 6 Appeal 2017-000061 Application 13/390,293 This argument is not persuasive of harmful error. Bindzus does not dispute the Examiner’s findings that Wullschleger is concerned with RTE cereals and, at least in part, with their colors. Nor does Bindzus dispute the Examiner’s findings that Klamerus is concerned, at least in part (as evidenced by Klamerus claim 4), with color stable cooked RTE flour-based food colored with natural ingredients, with the flour mixture comprising a colored vegetable extract and having a pH of about 4.0 or less. A walk down the boxed cereal aisle of the local grocery store, or a recollection of television commercials for such cereals, will provide plenty of examples of variously colored (including red) cereals and cereal pieces. Bindzus’s suggestion that the ordinary cereal producer would have needed an expressed concern for the stability of a red colored cereal piece from Wullschleger is not well taken given Klamerus’s express solution for such a concern. Bindzus urges further that the Examiner’s conclusion that the similar compositions taught by Wullschleger and by Klamerus would have similar properties, such as the 0.1 to 2.8 mS/cm conductivity is “unsubstantiated.” (Br. 9, 1st full para.) The basis for this conclusion appears to be the silence of the references as to the total amount of salt, i.e., the salt due to the added salt and the salt present in the whole grain kernels, etc., and the silence of these references as to conductivity. (Id., citing Spec. [0027].) We do not find these arguments to be persuasive of harmful error. The cited paragraph of the Specification does indicate that the total conductivity is provided by the salt added as well as “with the other dry ingredients, especially the dry cereal ingredients such as whole grain kernels.” (Spec. [0027].) Bindzus, however, has not directed our attention 7 Appeal 2017-000061 Application 13/390,293 to any evidence that the amount of sodium in the ingredients listed by Wullschleger would, more likely than not, have caused the total amount of sodium to have exceeded the maximum amount allowed by claim 1. Indeed, the Specification teaches, in the paragraph immediately following, that, “[conventionally, salt concentrations, when used for whole wheat flakes, for example, have in the past ranged from about 250 to 400 milligrams per ounce (1428mg/100g) of dried R-T-E cereal.” (Spec. 7 [0028].) “However, since these native levels are typically quite low” the Specification explains, “the principle [sic: principal] source of the finished products ’ sodium content is from the salt commonly added, NaCl, during the cooking step” (Id., emphasis added.) “Generally,” the Specification continues, “to achieve such salt concentrations in the finished product, the make-up cereal blend would comprise about 1.5% to 3.0% by weight added salt. In contrast, in the present invention, the blend essentially comprises from about 1.0% to less than 2% added salt, preferably 1.2% to 1.4%.” (Id.) Review of the Tables cited by the Examiner (FR 5,11. 1-4), who was careful to include the salt added in the coating, indicates that they are well within the range of 1-2% added salt, and that the examples from Tables 4 and 7 have less sodium than the maximum of about 1.5% (claim 1) or 1.8% (claim 6). Thus, the preponderance of the evidence of record, including Bindzus’s own disclosure, indicates that the low-sodium compositions described by Wullschleger meet the sodium requirement. It would have been obvious to use such compositions, colored by a red vegetable dye and stabilized by an edible organic acid, as taught by Klamerus. 8 Appeal 2017-000061 Application 13/390,293 We are not persuaded of harmful error in Rejections B and B3 of independent claims 1 and 6. With respect to Rejection B1 of claim 3, which depends ultimately from claim 1, and which requires, inter alia, a potassium ion concentration of 0.05% to 0.1%, (Claims App., Br. 17), Bindzus urges that Fan teaches away from the use of potassium due to the “objectionably metallic taste” some consumers report it adds to cereal (Br. 10). The Examiner finds that Fan teaches that “[o]f course, the blend can additionally comprise modest amounts of sodium chloride substitutes or replacers such as potassium chloride,” and that Fan also teaches the objectionable metallic taste perceived by some consumers. (Ans. 8.) The Examiner concludes that Fan does not teach away from using potassium chloride. (Id.) While we find no evidence supporting the Examiner’s finding that Fan discloses the range required by claim 3, we are not persuaded that the amount of 0.05% to 0.1% potassium chloride would have been non-obvious given the result-effective taste limitation disclosed by Fan.14 Bindzus argues further with respect to claim 3 that “there is no indication [in Wullschleger] that ‘fully cooked’ is intended to mean ‘gelatinized by at least 90%.’” (Br. 10.) The Examiner responds that, in addition to teaching that the cereal blend be fully cooked, Wullschleger 14 Incidentally, the only disclosure of this range in the Specification appears to be in original claim 3, now amended. In the event of further prosecution, the description should be amended to include this disclosure, in compliance with 35 U.S.C. § 112(1) (written description requirement) and 37 C.F.R. § 1.71(b) (requiring a complete description in the Specification). 9 Appeal 2017-000061 Application 13/390,293 describes cooling temperatures high enough to raise the extruded cereal blend to the range of 350°F, well in excess of the gelatinization temperature of starch. (Ans. 9.) Bindzus replies that the water content of the blend is a critical factor for gelatinization, and that “Wullschleger warns that excess moisture and heat can lead to undesirable psyllium flavors.” (Reply15 4, last para.) We find Bindzus’s arguments are based on overlooking or misapprehending the last sentence of the Abstract of Wullschleger, which reads, “[t]he psyllium intermediate is preferably added during the process of making the final cereal product after the typical cereal grain components have been totally or partially cooked.” (Wullschleger, Abstract (emphasis added); see also id. at col. 4,1. 50 through col. 6,1. 20.) Thus, Wullschleger teaches avoiding the problem Bindzus cites as negating the obviousness rejection posed by the Examiner. Similarly, Bindzus urges the Examiner erred in rejecting claim 5, which depends from claim 1, and which requires a total pyrazine concentration of about 5 to 15 ppm.16 (Br. 10-11.) In particular, Bindzus urges that the Fan cooking process takes place in a steam cooker or extruder, which would develop the undesirable flavors of the psyllium. {Id. at 11.) We reject this argument for the reasons given regarding claim 3, namely, Wullschleger teaches blending the psyllium after the cooking step, so the problem raised by Bindzus is avoided. Substantially the same arguments are 15 Reply Brief, filed 23 September 2016 (“Reply”). 16 “The desirably high cooked cereal flavor is generally due to the presence of various pyrazine and pyrazine derivative compounds.” (Spec. 11 [0041].) 10 Appeal 2017-000061 Application 13/390,293 raised against Rejection B6 of claim 31, which depends from independent claim 6 and which also requires the same total pyrazine concentration. (Br. 15-16.) We find these arguments unpersuasive for essentially the same reasons. Bindzus urges further that Fan teaches that low pH conditions facilitating acid inversion of sucrose are to be avoided, and concludes that Fan is incompatible with the low pH required by the claims. {Id. at 11, citing Fan, col. 3,1. 66 to col. 4,1. 3.) However, as the Examiner points out (Ans. 12), Fan, in the same passage, also teaches that the pH drops during the cooking step, and that Fan emphasizes that the low pH is desired only for the initial conditions. We note further that Fan teaches that a malt syrup, typically having a pH in the range of 4.8 to 5.4, may be used as a flavoring agent in an amount of about 3% to 5%. (Fan, col. 6,11. 44-54.) On the present record, we are not persuaded that the weight of the evidence supports harmful error in the combination of the teachings of Fan with the other references. Regarding Rejection B2 of claim 21, Bindzus urges the Examiner erred harmfully because “there is no apparent reason why one . .. would look to Feneley to increase the amount of trisodium phosphate [“TSP”] in the bran flakes of Wullschleger based on Feneley’s teachings of extruder expanded cereals.” (Br. 12.) As the Examiner finds, Wullschleger. exemplifies a single value of TSP, 0.05 wt%, and does not discuss the range of 0.1 to 0.5 wt% TSP required by claim 21. (FR 12.) The Examiner finds further that Feneley teaches that TSP enables short cooking times for RTE cereal compositions. 11 Appeal 2017-000061 Application 13/390,293 (FR 12; see also Feneley 3 [0019].) Wullschleger teaches that “[o]ther proportions and types of bulk cereal ingredients known to the art in the manufacture of cereal flakes can be used in formulating the resultant mixture with the psyllium-containing nuggets.” (Wullschleger, col. 5, 11. 56-59.) Bindzus does not direct our attention to credible teachings that the higher amounts of TSP taught by Feneley would have been considered improper for RTE cereals taught by Wullschleger. Accordingly, we are not persuaded of harmful error in the rejection of claim 21. Bindzus urges the Examiner erred harmfully in Rejection B4 of claim 11 because “the Examiner has not pointed to any teaching in Fan of puffing pellets to form dried puffed ready-to-eat cereal pieces.” (Br. 14.) Rather, in Bindzus’s view, “[e]ach of the examples of Fan is directed to flakes, and there is no teaching of a puffing step.” (Id.) This objection is not persuasive of harmful error. Bindzus does not direct our attention to any teachings that either Wullschleger or Fan is limited to their preferred embodiments of cereal pieces. Indeed, Wullschleger mentions “puffed products” (Wullschleger col. 3,1. 62, alerting the reader to the necessity of using distinct process to achieve distinct shapes), and Fan teaches that “[t]he present cereal compositions can also be formulated and fabricated so as to provide puffed cereals of various shapes and sizes” (Fan, col. 7,11. 41-43). It is hornbook law that, in a rejection for obviousness, a reference is not limited to the exemplified or preferred embodiments. With respect to Rejection B5 of claim 13, which requires less than 250 ppb of acrylamides in the cereal product, Bindzus urges that the 12 Appeal 2017-000061 Application 13/390,293 Examiner has provided insufficient reasoning to combine the teachings of Wullschleger and Plank. (Br. 15.) More particularly, Bindzus urges that it is not clear how the introduction of cyclodextrins and amino acids taught by Plank would affect the properties of the psyllium-containing food product described by Wullschleger. (Id.) The Examiner finds that Plank teaches that the acrylamide content of ready-to-eat cereals may be reduced by incorporating both cyclodextrins and amino acids in the blend prior to cooking. (FR 20-21, citing Plank, claim 4, and [0018].) While we acknowledge the possibility that special circumstances may arise that might dissuade a person having ordinary skill in the art from combining the teachings of these references, the references indicate that their teachings are quite general. A challenge to the generality of their teachings raises questions of fact, which must be supported by evidence. Particularly when references are assigned to the real party in interest, such as Fan and Plank, vague intimations of uncertainty seldom, if ever, rise to the level of evidence supporting the unsuitability of the general teachings. Finally, we observe that Bindzus has not raised arguments for patentability based on so-called “secondary considerations” such as unexpected results or commercial success. All Rejections B-B6 for obviousness are therefore affirmed. 13 Appeal 2017-000061 Application 13/390,293 C. Order It is ORDERED that the rejection of claims 1-13, 21, and 31 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 14 Copy with citationCopy as parenthetical citation