Ex Parte Coleman

Patent Trial and Appeal Board

Jul 25, 2017

14172369 (P.T.A.B. Jul. 25, 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 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
CQKER.3981 2174
EXAMINER
WONG, LESLIE A
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
14/172,369 02/04/2014
110933 7590
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
07/26/2017
Christopher M. COLEMAN
07/26/2017 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 CHRISTOPHER M. COLEMAN
Appeal 2016-007328
Application 14/172,3691
Technology Center 1700
Before DONNA M. PRAISS, AVELYN M. ROSS, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL2
STATEMENT OF THE CASE
Appellant appeals under 35 U.S.C. § 134(a) from a rejection of claims
1—24. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 Appellant identifies The Quaker Oats Company as the real party in interest.
Appeal Br. 2.
2 In our Opinion, we refer to the Specification filed February 4, 2014
(“Spec.”); the Final Action mailed on July 20, 2015 (“Final Act.”); the
Appeal Brief filed on January 6, 2016 (“Appeal Br.”); the Examiner’s
Answer mailed on May 16, 2016 (“Ans.”); and the Reply Brief filed July 18,
2016 (“Reply Br.”).
Appeal 2016-007328
Application 14/172,369
The claims are directed to crunchy granola clusters and creamy
granola, products prepared therefrom, and methods of their preparation.
Claims 1 and 17, reproduced below, are illustrative of the claimed subject
1. Crunchy granola clusters comprising flakes from at least
one grain, crisps from at least one grain, at least one protein, a
starch that comprises an average hold viscosity of between
2000 and 3000 centipoise and a final viscosity of greater than
5000 centipoise when measured using the RVA Protocol, and
syrup.
17. A microwavable crunchy and creamy granola cereal
comprising
a) crunchy granola clusters comprising flakes from at
least one grain, crisps from at least one grain, at least one
protein, a starch that comprises an average hold viscosity of
between 2000 and 3000 centipoise and a final viscosity of
greater than 5000 centipoise when measured using the RVA
Protocol, and syrup; and
b) creamy granola comprising flakes from at least one
grain, at least one protein, sodium bicarbonate, and syrup; and
c) optionally at least one of fruits or nuts.
Appeal Br. 11, 13 (Claims App’x).
The Examiner relies on the following prior art in rejecting the claims
matter:
REFERENCES
on appeal:
Seaborne et al. US 4,820,533
(“Seaborne”)
Apr. 11, 1989
Hansa et al. US 2001/0008646 Al July 19, 2001
(“Hansa”)
Squire et al. US
(“Squire”)
2004/0028797 Al Feb. 12, 2004
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Application 14/172,369
Hoeline et al. US 2006/0130181 Al June 15, 2006
(“Hoeline”)
Schopf et al.
(“Schopf’)
Sleyko et al.
(“Sleyko”)
US 2008/0181991 Al July 31, 2008
US 2010/0021592 Al Jan. 28, 2010
Fox
Mower
WO 03/011052 Al Feb. 13, 2003
WO 2007/084754 A2 July 26, 2007
REJECTIONS
The Examiner rejects and Appellant appeals the rejections of the
claims as unpatentable under 35 U.S.C. § 103(a) as follows:
(1) claims 1—8 and 16 over Squire in view of Hoehne;
(2) claim 9 over Squire in view of Hoehne, and further in view of
Hansa;
(3) claims 10-12 over Squire in view of Hoehne, and further in view
of Seaborne;
(4) claims 13—15 over Squire in view of Hoehne, and further in view
of Schopf;
(5) claims 17—20 over Squire in view of Hoehne, and further in view
of Mower;
(6) claim 21 over Squire in view of Hoehne and Mower, and further
in view of Fox; and
(7) claims 22—24 over Squire in view of Hoehne, in further in view of
Mower, and in further view of Sleyko.
Final Act. 2, 6, 8, 9, 13, and 14.
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OPINION
Appellant groups the claims into Group I, comprising claims 1—16,
and Group II, comprising claims 17—24. Appeal Br. 6, 8. We address each
group separately.
Rejection of claims 1—16 (Group I)
Claims 1—16 all are rejected over at least Squire in view of Hoehne.
Final Act. 2, 6, 8. Appellant argues claims 1—16, as a group. Appeal Br. 6.
We select independent claim 1 as representative of the group. Therefore,
claims 2—16 will stand or fall with claim 1.
With respect to claim 1, the Examiner finds that Squire teaches the
claimed elements, including a starch, except for the claimed viscosities,
which the Examiner finds are taught by Hoehne. Final Act. 2—3. The
Examiner determines that it would have been obvious for one of ordinary
skill in the art at the time of the invention to modify the system of Squire to
include a starch with viscosities as taught by Hoehne “because a more
viscous starch may assist in helping the syrup bind all of the cereal
components together in appropriate sized clusters, and has health benefits to
improve metabolism and fat oxidation after a meal which might appeal to
consumers wanting a healthier breakfast cereal.” Id. at 3.
Appellant argues that Squire and Hoehne are not properly combined
because (1) they are nonanalogous art; (2) there is no objective basis for
combining them; and (3) one combining the references would not arrive at
the claimed invention. Appeal Br. 6. We address each contention in turn.
First, Appellant argues that Squire is directed to crunchy granola
clusters held together by a dry binder mixture containing a pregelatinized
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Application 14/172,369
starch, while Hoehne is directed to genetically modified plants that produce
starch with increased final viscosity and does not disclose that any of the
starches that were analyzed for viscosity therein are pregelatinized. Id.
Appellant contends, therefore, that Hoehne’s disclosure regarding starch
viscosity is not relevant to Squire because Hoehne does not disclose
viscosity characteristics of pregelatinized starch. Id.
In answer, the Examiner finds that Hoehne is directed to starch
wherein starch is conventionally used in food. Ans. 19—20.
The question is not whether references are analogous to each other,
but whether each is analogous to the claimed invention. See In re Bigio, 381
F.3d 1320, 1325 (Fed. Cir. 2004) (stating the two tests defining the scope of
analogous art as (1) whether the art is from the same field of endeavor,
regardless of the problem addressed and, (2) if the reference is not within the
field of the inventor’s endeavor, whether the reference still is reasonably
pertinent to the particular problem with which the inventor is involved)
(citing In re Deminski, 796 F.2d 436, 442 (Fed. Cir. 1986)). Whether a
reference in the prior art is analogous is a fact question. In re Clay, 966 F.2d
656, 658 (Fed. Cir. 1992). The scope of analogous art is to be construed
broadly. Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010)
(“The Supreme Court’s decision in KSR International Co. v. Teleflex, Inc.,
550 U.S. 398 . . . (2007), directs us to construe the scope of analogous art
broadly, stating that ‘familiar items may have obvious uses beyond their
primary purposes, and a person of ordinary skill often will be able to fit the
teachings of multiple patents together like pieces of a puzzle.’” (emphasis
omitted) (quoting KSR, 550 U.S. at 402)).
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Appellant’s argument that Hoehne is irrelevant to Squire is
unpersuasive as an effort to demonstrate nonanalogous art. See Appeal Br.
6. Squire, Hoehne, and claim 1 all address use of starch in food products.
See Squire flj 33, 34; Hoehne flj 3, 12; Appeal Br. 11 (Claims App’x).
Squire, which focuses on an agglomerated cereal product such as granola, is
from the same field of endeavor as the claimed invention. Squire Abstract,
®[ 5. Hoehne discloses pregelatinized and non-pregelatinized starches which
may be used in food, thus Hoehne is at least reasonably pertinent to
Appellant’s granola clusters comprising a starch. Hoehne *[ff[ 12, 94, 96.
Both Squire and Hoehne are analogous art.
Appellant next argues that there is no objective basis for combining
Squire and Hoehne. Appeal Br. 6.
The Examiner responds that Squire and Hoehne are both directed to
utilization of starch in the food industry. Ans. 20. The Examiner further
responds that Squire teaches the claimed crunchy granola in the absence of a
specific hold viscosity and that Hoehne teaches the starch viscosity that is
conventional in the art. Id.
We are not persuaded that the Examiner’s reason for combining the
teachings of Squire and Hoehne is unreasonable. Motivation to combine
references may be found either in the references themselves or in the
knowledge generally available to one of ordinary skill in the art. See In re
Kahn, 441 F.3d 977, 987-88 (Fed. Cir. 2006) (explainin g that a motivation
to combine may be found in implicit factors, such as the “knowledge of one
of ordinary skill in the art, and [what] the nature of the problem to be solved
as a whole would have suggested to those of ordinary skill in the art”
(quoting/?* re Kotzab, 217 F.3d 1365, 1370 (Fed. Cir. 2000)). The skilled
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Application 14/172,369
artisan need not see the identical problem addressed in prior art references to
be motivated to apply their teachings. Cross Med. Prods., Inc. v. Medtronic
Sofamor Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005).
Squire’s recitation of pregelatinized starch is not complete, but
exemplary, such that a skilled artisan would have had good reason to
combine Squire’s teachings with Hoehne’s teachings of starches with
specific viscosities. The reasons one of ordinary skill in the art would have
had to combine the prior art teachings is sufficient when an allowance is
made for “the inferences and creative steps that a person of ordinary skill in
the art would employ.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 418
(2007). In sum, we are not persuaded of reversible error in the Examiner’s
combination on this record.
Finally, Appellant argues that “there is no evidence on the record that
the starch disclosed in Hoehne would fall within Appellant’s claimed
viscosity range if it was first pregelatinized, [meaning] the proposed
combination would not obviously arrive at the claimed invention.” Appeal
Br. 7 (emphasis added); see also Reply Br. 1.
However, claim 1 does not require the starch to be pregelatinized.
Appeal Br. 11 (Claims App’x). Even if the starch in Squire is
pregelatinized, Appellant does not dispute that Hoehne teaches starches that
are not pregelatinized, and which have the claimed viscosities. See Hoehne
till; see generally Appeal Br. Thus a person having ordinary skill in the
art at the time of the invention would not have perceived a need to
pregelatinize all of the starches disclosed in Hoehne. Accordingly, the
Examiner’s determination that it would have been obvious to use the starch
viscosity to help the syrup bind all of the cereal components based on the
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disclosures of Squire and Hoeline to achieve the composition of claim 1 is
supported by a preponderance of the evidence.
Based on the foregoing, we sustain the Examiner’s rejection of claim
1. Claims 2—16 fall with claim 1; we also sustain their rejection.
Rejection of claims 17—24 (Group II)
Claims 17—24 are rejected over at least Squire in view of Hoehne, and
further in view of Mower. Final Act. 9, 11—14. Appellant argues claims 17—
24 as a group. Appeal Br. 8. We select independent claim 17 as
representative of the group. Therefore, claims 18—24 will stand or fall with
claim 17.
Claim 17 includes the limitations of claim 1 as well as “creamy
granola comprising flakes from at least one grain, at least one protein,
sodium bicarbonate, and syrup.” Id. at 13.
The Examiner finds that Mower discloses creamy granola and sodium
bicarbonate. Final Act. 10—11. With respect to creamy granola, the
Examiner finds that Mower discloses baby food in soft finger food form
comprising cereal grains. Id. The Examiner also finds that Mower teaches
sodium bicarbonate as electrolytes and as baking soda. Id.', see also Ans. 21.
Appellant argues that Mower does not disclose creamy granola
comprising sodium bicarbonate, contending that “Mower only hints at the
use of sodium bicarbonate (it is never named specifically), and even then
only discloses its use in a juice drink.” Appeal Br. 8.
Mower discloses sodium and bicarbonate and baking soda, therefore
discloses sodium bicarbonate, contrary to Appellant’s argument. See Mower
13,11. 5—8, 15,1. 4. Given that Mower also discloses a cereal, the reference
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reasonably conveys to one of ordinary skill in the art at the time of the
invention a cereal comprising sodium bicarbonate. Therefore, the
Examiner’s findings are supported by the record cited in this appeal.
Appellant also argues that the Examiner erred in not considering its
alleged evidence of unexpected results (Reply Br. 2) which Appellant
presented in its Appeal Brief as a citation to the Specification to show that
the Examiner’s findings as to Mower are not “a fair reading” of the reference
(Appeal Br. 9). Appellant argues in the Appeal Brief that the cited portion
of the Specification shows that use of sodium bicarbonate “as a dry powder
addition to rapidly hydrate and soften granola in a product heated by a
microwave” was unknown prior to Appellant’s disclosure and that Mower
does not teach or suggest this “technical advantage.” Appeal Br. 9.
Even if we were to consider Appellant’s unexpected results argument
presented for the first time as such in its Reply Brief, we are not persuaded
that such evidence outweighs the evidence of obviousness cited in this
appeal record. Appellant shoulders the burden of establishing unexpected
results. In re Geisler, 116 F.3d 1465, 1469-70 (Fed. Cir. 1997) (whether
evidence shows unexpected results is a question of fact and party asserting
unexpected results has the burden of proving that the results are
unexpected). An examination for unexpected results is a factual, evidentiary
inquiry. In re Inland Steel Co., 265 F.3d 1354, 1366 (Fed. Cir. 2001).
Appellant must establish that (1) the alleged unexpected results presented as
being associated with the claimed invention are, in fact, unexpected; (2) the
comparisons are to the disclosure of the closest prior art; and (3) the supplied
evidentiary showing is commensurate in scope with the claimed subject
matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). There should
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be actual evidence of unexpected results. See In re de Blauwe, 736 F.2d
699, 705 (Fed. Cir. 1984) (“It is well settled that unexpected results must be
established by factual evidence. Mere argument or conclusory statements in
the specification does not suffice.”) (citing In re Lindner, 457 F.2d 506, 508
(CCPA 1972)).
With regard to the cited portion of Appellant’s Specification allegedly
showing unexpected results, it states that “[sjodium bicarbonate is
commonly used to leaven and to soften texture of baked goods and some
cereals, but its use as a dry powder addition to rapidly hydrate and soften
granola in a product heated by a microwave was previously unknown.”
Spec. 194. This conclusory statement does not establish that the effect of
the combination of sodium bicarbonate with granola was unexpected. In
addition, to the extent that the statement discloses any results, it is limited to
products heated by a microwave, which is not required by claim 17. See id.
Therefore, the statement is not commensurate in scope with claim 17.
Appellant directs us to no other evidence of unexpected results.
Appellant having failed to establish that the Examiner reversibly erred
in determining that claim 17 is obvious over Squire in view of Hoehne, and
further in view of Mower, we sustain the Examiner’s rejection of claim 17.
We also sustain the rejection of claims 18—24.
DECISION
For the above reasons, the Examiner’s rejection of claims 1—24 is
affirmed.
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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv) (2013).
AFFIRMED
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