Ex Parte Bindzus et al

Patent Trial and Appeal Board

Dec 11, 2017

13390293 (P.T.A.B. Dec. 11, 2017)

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