Ex Parte Caballero et alDownload PDFPatent Trial and Appeal BoardSep 2, 201512325781 (P.T.A.B. Sep. 2, 2015) 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 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/325,781 12/01/2008 Rogelio Caballero CFLAY.20495 2192 110933 7590 09/02/2015 Carstens & Cahoon, LLP PO Box 802334 Dallas, TX 75380 EXAMINER MCCLAIN-COLEMAN, TYNESHA L. ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 09/02/2015 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 ROGELIO CABALLERO, CYNTHIA MEZA, and KARLA OCHOA _____________ Appeal 2013-010232 Application 12/325,781 Technology Center 1700 ____________ Before TERRY J. OWENS, BEVERLY A. FRANKLIN, and, N. WHITNEY WILSON, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellants1 appeal under 35 U.S.C. § 134 from the Examiner’s November 6, 2012 decision finally rejecting claims 1–11 and 21–24. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We affirm. 1 Appellants identify the real party in interest as Sabritas, S. De R.L. De C.V. (Appeal Br. 2). Appeal 2013-010232 Application 12/325,781 2 CLAIMED SUBJECT MATTER Appellants’ invention is directed to a method for producing a coated, edible composite fruit core (Abstract). A dry mix is created and combined with wet ingredients to create a paste which is extruded to make a fruit paste rope (id.). The rope is divided into individual sections, which are then coated and baked to produce a coated snack product (id.). Details of the claimed method are shown in independent claim 1, which is reproduced below from the Claims Appendix of the Appeal Brief: 1. (Previously Presented) A method for producing a coated, edible composite fruit core, said method comprising: mixing dry ingredients comprising fruit powder, wheat flour, maltodextrin and starch to form a dry mix; mixing said dry mix with wet ingredients comprising water, polydextrose and glycerin to produce a fruit paste with a moisture content by weight between about 7% and about 15%; extruding said fruit paste to produce a fruit paste rope; cutting said fruit paste rope to produce smaller rope sections; after said cutting step, forming each said rope section into a plurality of composite fruit cores, wherein said cores are substantially in the shape of an ellipsoid; cooling said composite fruit cores to produce cooled cores; coating said cooled cores with a coating mixture comprising sugar, water and starch to produce coated cores having a coating; and baking said coated cores until said coating comprises less than about 3 % water based on the weight of said coating and said fruit core comprises more than 6% water based on the weight of said fruit core. Appeal 2013-010232 Application 12/325,781 3 REJECTIONS (1) Claims 1–3, 5–7, 9, 11, and 21 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Michelena2 in view of Arsan,3 Richey,4 and Hay.5 (2) Claims 4, 8, and 22–24 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Michelena in view of Arsan, Richey, and Hay, and further in view of Werner.6 (3) Claim 10 is rejected under 35 U.S.C. §103(a) as unpatentable over Michelena in view of Arsan, Richey, and Hay, and further in view of Runge.7 Appellants does not offer separate arguments with respect to any of the dependent claims (Appeal Br. 8). Accordingly, our analysis will focus on the obviousness rejection of claim 1 over Michelena in view of Arsan, Richey, and Hay. The remaining claims stand or fall with claim 1. DISCUSSION The Examiner finds that Michelena discloses a method of preparing confectionery products which includes extruding a confectionery composition with an extruder to form a rope, cutting the extruded, flexible rope structure into sections, and forming each section into multiple, ellipsoid-shaped pieces (cores) (Final Act. 2, citing Michelena, ¶¶ 1, 11, 20, 29, 33, 66, 105). The Examiner also finds that Michelena does not disclose 2 Michelena et al., WO 2007/130915 A2, published November 15, 2007. 3 Arsan et al., WO 2006/016897 A1, published February 16, 2006. 4 Richey et al., U.S. Patent Pub. 2005/0064087 A1, published March 24, 2005. 5 Hay Jr. et al., U.S. Patent No. 5,340,598, issued August 23, 1994. 6 Werner, U.S. Patent No. 1,206,069, issued November 28, 1916. 7 Runge et al., U.S. Patent No. 7,037,708 B1, issued May 2, 2006. Appeal 2013-010232 Application 12/325,781 4 all of the claimed ingredients in the extrudable food (id.). The Examiner further finds that Arsan discloses a method of preparing a low moisture sweetened fruit or confectionary product which comprises mixing the ingredients and heating the mixture (id., citing Arsan, Abstract, ¶ 24). The Examiner finds that Arsan discloses preparing a dry pre-blend and a wet pre- blend and then mixing them together (id. at 3, citing Arsan, ¶ 25). According to the Examiner, because both Michelena and Arsan teach mixing, heating, extruding, and forming confectionary starch based materials, it would have been obvious to mix dry ingredients comprising fruit powder, maltodextrin, and starch with wet ingredients comprising water and polydextrose, extrude the mixture as a rope, making smaller rope sections (cores), and to cool the resulting cores (id.). The Examiner finds that Richey teaches a method of making a multi- piece food product, in which the formulation used to make the food product includes starch, wheat flour, and glycerin (id., citing Richey, ¶¶ 34–36, 42). The Examiner concludes that because Richey, and Michelena in view of Arsan, teach mixing, heating, and extruding a mixture of similar substances, and Arsan discloses that optional ingredients may be added to improve organoleptic, nutrition, or storage properties, it would have been obvious to use wheat flour or glycerine in the method of Michelena as modified by Arsan (id. at 3–4, citing Richey, ¶¶ 57 and 75). Finally, the Examiner finds that Michelena teaches that its cores may be further processed by curing or coating with a material comprising sugar (id. at 4, citing Michelena, ¶¶ 106 and 110), and that Hay discloses applying a confectionary coating to spherical baked pieces, the coating comprising water, starch, and sugar (id., citing Hay, col. 15, ll. 46–60, col. 16, ll. 65– 68). Therefore, the Examiner concludes that it would have been obvious to Appeal 2013-010232 Application 12/325,781 5 use a mixture comprising water, starch, and sugar to coat Michelena’s core and then bake the coating (id.). The Examiner finds that the water content limitations of claim 1 – that the coating is less than 3% water and the core is more than 6% water – would have been obvious in view of Hay’s teaching that its final products have a water activity of 0.70 and that Arsan’s dried product has a moisture content of 7–17% (id., citing Hay, col. 13, ll. 65–66, col. 15, ll. 48–54, and col. 18, ll. 6–7, and Arsan, ¶¶ 19, 20, and 39). We have carefully considered the arguments set forth by Appellants in the Appeal Brief and the Reply Brief, and conclude, essentially for the reasons set forth by the Examiner in the Answer, that Appellants have not demonstrated error meriting reversal of the obviousness rejection of claim 1. We add the following for emphasis. First, Appellants contend that the Examiner has not demonstrated that a person of skill in the art would have understood, based on the cited art, that the required combination of ingredients from Michelena, Arsan, and Richey would form a multi-texture fruit core with a crispy coating and soft center (Appeal Br. 6). However, as found by the Examiner, the texture properties relied on by Appellants are not recited in claim 1. Accordingly, whether or not these texture properties would have been obvious over the cited art is not germane to the rejection. Appellants also argue that Hay teaches away from baking only the outer crust of the coated product by baking its cookie dough prior to coating (id.). Appellants assert that Hay’s baking step is critical to its product, and that the Examiner has provided no rationale for why a person of skill in the art would have omitted that baking step. However, the presently claimed method does not exclude the possibility of a baking step for the core, as it states that the claimed method “compris[es]†the recited steps. Moreover, Appeal 2013-010232 Application 12/325,781 6 Michelena discloses that its cores may be cured or coated. As determined by the Examiner (Ans. 9) because both Hay and Michelena teach starch based extrudable foodstuffs substantially in the shape of an ellipsoid which may be coated, Hay’s teaching to bake its foodstuffs would have made it obvious to bake the coated cores of Michelena. Appellants have not demonstrated error in this determination. Appellants further argue that Arsan teaches away from using a baking step because it seeks to reduce the cost of production (Appeal Br. 6–7). However, Arsan teaches that its process may be used to produce a dual textured food piece (¶ 42), which suggests the use of a coating, as described by Hay. Because Hay discloses drying a coated core (col. 18, ll. 3–6), it would have been obvious to one of skill in the art to dry a coated core, even though Arsan suggests that doing so is not necessary. Finally, Appellants also suggest that the Examiner is relying on a per se rule against patentability of recipe and food-processing related inventions (Appeal Br. 7). However, as detailed above, the rejection is not based on a per se rule, but instead relies on an analysis of the teachings of the prior art. CONCLUSION We AFFIRM the rejection of claims 1–3, 5–7, 9, 11, and 21 under 35 U.S.C. § 103(a) as being unpatentable over Michelena in view of Arsan, Richey, and Hay. We AFFIRM the rejection of claims 4, 8, and 22–24 under 35 U.S.C. § 103(a) as being unpatentable over Michelena in view of Arsan, Richey, and Hay, and further in view of Werner. Appeal 2013-010232 Application 12/325,781 7 We AFFIRM the rejection of claim 10 under 35 U.S.C. §103(a) as unpatentable over Michelena in view of Arsan, Richey, and Hay, and further in view of Runge. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED bar Copy with citationCopy as parenthetical citation