Ex Parte CHATELDownload PDFPatent Trials and Appeals BoardMay 23, 201914615088 - (D) (P.T.A.B. May. 23, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/615,088 02/05/2015 110933 7590 05/23/2019 Carstens & Cahoon, LLP PO Box 802334 Dallas, TX 75380 FIRST NAMED INVENTOR Robert CHA TEL 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. CQKER.4023 8316 EXAMINER TRAN, LIEN THUY ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 05/23/2019 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 Exparte ROBERT CHATEL Appeal2018-008395 Application 14/615,088 Technology Center 1700 Before BEYERL YA. FRANKLIN, JEFFREY B. ROBERTSON, and CHRISTOPHER C. KENNEDY, Administrative Patent Judges. ROBERTSON, Administrative Patent Judge. DECISION ON APPEAL 1 STATEMENT OF THE CASE Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's Final Rejection of claims 20, 24, and 25. (Appeal Br. 2.) We have jurisdiction pursuant to 35 U.S.C. § 6(b). We REVERSE. 1 This Decision includes citations to the following documents: Specification filed February 5, 2015 ("Spec."); Final Office Action mailed November 8, 201 7 ("Final Act."); Appeal Brief filed April 9, 2018 ("Appeal Br."); Examiner's Answer mailed June 27, 2018 ("Ans."); and Reply Brief filed August 27, 2018 ("Reply Br."). 2 Appellant identifies Quaker Oats Company as the real party in interest. (Appeal Br. 2.) Appeal2018-008395 Application 14/615,088 THE INVENTION Appellant states that the invention relates to food products and methods of preparing food products with fibrous fillings. (Spec. ,r 1.) Claim 20, the only independent claim on appeal is representative and reproduced below from the Claims Appendix to the Appeal Brief ( emphasis added): 20. A food product comprising: an outer shell having a center space therein, wherein said outer shell is formed from cooked dough sheets comprising flour of cereal grains; and a center-fill mat disposed in the center space, the center- fill mat comprising expanded food strands entangled with one another and disposed randomly to form a food product having a lower bulk density than a food product in which the center-fill mat is formed by unexpanded strands, wherein the food strands are expanded prior to being disposed within the center space. (Appeal Br. 13, Claims Appendix.) 2 Appeal2018-008395 Application 14/615,088 REJECTIONS The Examiner rejected claims 20, 24, and 25 under 35 U.S.C. § I03(a) as follows: 1. Claims 20, 24, and 25 as obvious over Leibfred (US 4,696,825; issued September 29, 1987) and Funk (US 2004/0022901 Al; published February 5, 2004); 2. Claims 20, 24, and 25 as obvious over Funk; and 3. Claims 20, 24, and 25 as obvious over Kenneally (US 4,738,859; issued April 19, 1988) and Funk. We limit our discussion to claim 20, which is sufficient for disposition of this Appeal. Rejection 1 ISSUE The Examiner found that Leibfred discloses a food product having an outer shell and a filling disposed in a center space, to form a filled shredded cereal biscuit. (Ans. 3--4.) The Examiner found that Leibfred does not disclose that the filling contains expanded food strands as recited in claim 20. (Id. at 4.) The Examiner found that Funk discloses a food product including a first food portion and a second food portion of expanded puffed particulates, where the expanded particulates can be of particular shapes including cylinders and shreds and are unexpectedly superior in providing a crisp texture over time. (Id.) The Examiner determined that it would have been obvious to add the expanded strands disclosed in Funk to the filling of Leibfred to obtain a food product with enhanced textural feel. (Id.) Regarding the limitation that the expanded strands are "entangled with one another," the Examiner stated: "It would have been obvious to entangle the 3 Appeal2018-008395 Application 14/615,088 strands as a matter of preference when desiring a particular configuration by adding them closer together. Changing the appearance of the product would have been an obvious matter of preference without any effect on the product." (Id. at 4--5.) Appellant argues that the Examiner's obviousness rejection does not rely on a rational basis for support. (Appeal Br. 7 .) Appellant argues that Funk discloses that the expanded puffed particulates are dispersed as a mixture into a major food portion, and that Fund never describes the particulate as being entangled. (Appeal Br. 7 .) Appellant contends that the only way one of ordinary skill in the art would arrive to anything resembling the claimed invention would be to eliminate the "continuous phase" of the food product, in which Funk discloses the particulates are dispersed, and is not an obvious variation of Funk. (Appeal Br. 7-8.) Accordingly, the dispositive issue on appeal is: Has Appellant identified reversible error in the Examiner's position that it would have been obvious to have entangled the puffed particulates of Funk to produce entangled food strands as recited in claim 20? OPINION We are persuaded by Appellant's argument that the Examiner has not provided sufficient reasoning with rational underpinnings to support the position that it would have been obvious to entangle the particulates of Funk as recited in claim 20. Funk discloses a composite food product having a first major portion and about 1 % to 15% by weight of a second food portion of expanded puff particulates intermixed with the first portion. (Funk, ,r 7 .) Funk discloses 4 Appeal2018-008395 Application 14/615,088 puffed particulates that may be of "random and irregular shape or can be of particular shapes, e.g., in the form of cylinders, shreds, ovals, cones, crescents, stars, and mixtures thereof." (Funk, ,r 50.) Although the Examiner contends that the claims do not contain closed "consisting of' language, which would exclude the "first major portion" in Funk (Ans. 9-- 10), the Examiner's position, with which we do not disagree, does not address the Appellants' argument that there is insufficient explanation and support for the position that in Funk's food product, it would have been obvious to have entangled the puff particulates. In this regard, the Examiner determined that the way the strands are placed to form the center-fill mat is just by depositing the strands, and Funk's disclosure of dispersing the shreds into the major food portion is the same as depositing. (Ans. 9--10.) However, although the Examiner stated that entangled strands would be a matter of preference and could be obtained by adding the puffed particulates of Funk closer together (Ans. 4--5), the Examiner does not provide a sufficiently supported explanation as to how the entangled strands could have been or would have been obtained. In this regard, Funk discloses only that the first food portion is mixable with the puffed particulate second portion, and that with respect to fillings, the particulates are dispersed therein. (Funk, ,r,r 20, 61.) In view of Funk's disclosure, we have not been directed to sufficient explanation supporting the Examiner's position that depositing the puffed particulate close together would necessarily result in the puffed particulate strands being entangled. (See Spec. ,r 32 (describing how entangled strands are obtained).) Thus, we agree with the Appellant that there is insufficient evidence that entangled strands would ever be obtained. (Reply Br. 2.) 5 Appeal2018-008395 Application 14/615,088 Accordingly, the Examiner's obviousness determination is not based on sufficient rational support, but rather relies on conclusory statements for support. "' [R ]ejections on obviousness grounds cannot be sustained by mere conclusory statements; instead, there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness."' KSR Int 'l. Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007), (quoting In re Kahn, 441 F.3d 977,988 (Fed. Cir. 2006)). Therefore, we reverse the Examiner's decision to reject claim 20, and claims 24 and 25 dependent therefrom. Rejection 2 The Examiner relies on similar rationale in Rejection 2 with respect to Funk disclosing entangled strands as discussed with respect to Rejection 1. (See Ans. 6.) Even under the rationale that it would have been obvious to add more puffed particulates as disclosed in Funk (Ans. 6), we have not been directed to sufficient explanation that entangled strands would be obtained. (Reply Br. 2.) Accordingly, we reverse Rejection 2 for similar reasons as discussed above for Rejection 1. Rejection 3 For Rejection 3, Examiner found that Kenneally discloses a food product with an outer shell with a center space having a filling made of edible bits dispersed in the center space. (Ans. 6.) The Examiner found that Kenneally does not disclose that the filing is expanded food strands. (Id.) The Examiner found that Funk discloses expanded strands and that it would have been obvious to add the expanded strands of Funk as the edible bits 6 Appeal2018-008395 Application 14/615,088 disclosed in Kenneally. (See Ans. 6-7.) The Examiner stated "[i]t would have been obvious to entangle the strands as a matter of preference when desiring a particular configuration by adding them closer together. Changing the appearance of the product would have been an obvious matter of preference without any effect on the product." (Id. at 7.) Thus, the Examiner's reasoning with respect to combining the disclosure in Funk with Kenneally is similar to that of Rejection 1. As discussed above, we have not been directed to sufficient explanation or evidentiary support given the disclosure in Funk to support the Examiner's position that depositing the puffed particulates of Funk closer together would result in entangled strands as recited in claim 20, even in the absence of a major food portion as further discussed by the Examiner. (Ans. 11-12; see also Appeal Br. 10.) Accordingly, we reverse Rejection 3 for similar reasons as expressed for Rejection 1. DECISION We reverse the Examiner's decision rejecting claims 20, 24, and 25. REVERSED 7 Copy with citationCopy as parenthetical citation