Ex Parte Corujo-Martinez et alDownload PDFPatent Trials and Appeals BoardMay 24, 201914445842 - (D) (P.T.A.B. May. 24, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/445,842 07/29/2014 110933 7590 05/24/2019 Carstens & Cahoon, LLP PO Box 802334 Dallas, TX 75380 FIRST NAMED INVENTOR Juan Ignacio Corujo-Martinez 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. CFLA Y. 00941 2078 EXAMINER TRAN, LIEN THUY ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 05/24/2019 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 Ex parte JUAN IGNACIO CORUJO-MARTINEZ, JAMES WILLIAM STALDER, and ALEXA W. WILLIAMS Appeal 2018-005869 Application 14/445,842 Technology Center 1700 Before CATHERINE Q. TIMM, JAMES C. HOUSEL, and JANEE. INGLESE, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner's decision finally rejecting claims 1-12 under 35 U.S.C. § 103 as unpatentable over Martijn2 in view of Brown. 3 We have jurisdiction over the appeal under 35 U.S.C. § 6(b). WeAFFIRM.4 1 Appellant is the Applicant, Frito-Lay North America, Inc., which is identified in the Appeal Brief as the real party in interest (Appeal Br. 2). 2 Martijn W.J. Noort, et al., SALTINESS ENHANCEMENT IN BREAD BY INHOMOGENEOUS SPATIAL DISTRIBUTION OF SODIUM CHLORIDE, J. of Cereal Sci., (2010), doi:10,2016/j.jcs.2010.06.018 ("Martijn"). 3 Brown et al., US 2007/0231430 Al, published Oct. 4, 2007 ("Brown"). 4 Our Decision refers to the Specification ("Spec.") filed July 29, 2014, Appellant's Appeal Brief ("Appeal Br.") filed January 16, 2018, the Appeal 2018-005869 Application 14/445,842 STATEMENT OF THE CASE The invention relates to a savory food product utilizing sodium contrast to achieve sodium reduction without negatively affecting perceived saltiness, wherein the food product is formed from a plurality of food pieces including two cooked portions, the first portion is salted at a first salt intensity and the second portion is salted at a second, different salt intensity. Spec. ,-i,-i 3, 11. Claim 1, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the subject matter on appeal. The limitation(s) at issue is( are) italicized. 1. A savory food product comprising: a mixture of topically seasoned food pieces comprising a first portion of the food pieces and a second portion of the food pieces, wherein: the first portion comprises a first plurality of food pieces that has a first salt intensity applied uniformly and topically to each of the first plurality of food pieces; the second portion comprises a second plurality of food pieces that has a second salt intensity applied uniformly and topically to each of the second plurality of food pieces; the first salt intensity differs from the second salt intensity; and the first portion and the second portion are mixed at an application ratio that increases the perceived saltiness of the savory food product. Examiner's Answer ("Ans.") dated March 20, 2018, and Appellant's Reply Brief ("Reply Br.") filed May 18, 2018. 2 Appeal 2018-005869 Application 14/445,842 ANALYSIS We sustain the Examiner's rejection of claims 1-12 under 35 U.S.C. § 103 as unpatentable over Martijn and Brown based on the findings of fact, conclusions of law, and rebuttals to arguments well expressed by the Examiner in the Final Office Action and the Answer, which we adopt as our own without repetition. The following comments are added for emphasis. For purposes of this appeal, to the extent that the claims on appeal are separately argued, we will address them separately consistent with 37 C.F.R. § 41.37(c)(l)(iv). Claim 1 Appellant argues that the Examiner has not asserted a prima facie case of obviousness because the Examiner's obviousness conclusion is conclusory, wholly lacking in articulated reasoning and devoid of any rational underpinning. Appeal Br. 6. Appellant contends that Martijn fails to teach or suggest the topical application of salt for inhomogeneous spatial distribution of sodium. Id. Appellant also contends that Martijn teaches away from a topically seasoned food product because Martijn teaches the need to incorporate salt into the dough, whereas salty snacks are incapable of being formed in layers of dough with varying salt content and thicknesses. Id. at 6-7. Appellant also argues that the Examiner misinterprets Martijn' s statement that "the principle of sensory contrast may be also applied in other solid food products to enable significant sodium reduction." Appeal Br. 7- 8. According to Appellant, Martijn's statement, when considered in the context of Martijn's disclosure, is limited to food products formed by layers of dough having varying salt content and thicknesses. Id. at 8. Appellant 3 Appeal 2018-005869 Application 14/445,842 asserts that Martijn' s teaching of the principle of sensory contrast "cannot be applied in a topically seasoned food product." Id. In this regard, Appellant contends that topically adding salt on Martijn' s food pieces after manufacture would result in a dough-based product that lacks the desired bread-like characteristics. Id. Appellant's arguments are not persuasive of reversible error. Initially, we note that the Examiner's rejection is based on Martijn's teaching of the principle of sensory contrast, rather than Martijn' s specific application of sensory contrast to bread. See Ans. 5. Martijn teaches spatial inhomogeneous distribution permits a reduction in salt while maintaining perceived salt intensity. Martijn 8. Martijn "demonstrated that spatial heterogeneity of salt enables up to 28% salt reduction in bread without loss of saltiness intensity." Id. And Martijn suggests that the principle of sensory contrast may be applied to other food products to achieve significant sodium reduction. Id. Although Martijn's specific application of sensory contrast in bread requires inclusion of salt within the bread product rather than topically applied to the product, Appellant fails to direct our attention to any disclosure that limits the principle of sensory contrast to inclusion within the food product or otherwise teaches away from products with topically applied salt. Teaching an alternative or equivalent method does not teach away from the use of a claimed method. See In re Dunn, 349 F.2d 433, 438 (CCPA 1965); see also DePuy Spine, Inc. v. Medtronic Sofamor Danek, Inc., 567 F.3d 1314, 1327 (Fed. Cir. 2009) (citing In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004)) ("A reference does not teach away, however, if it merely expresses a general preference for an alternative invention but does not 4 Appeal 2018-005869 Application 14/445,842 'criticize, discredit, or otherwise discourage' investigation into the invention claimed."). Nor does Appellant direct our attention to any support for the assertion that the principle of sensory contrast cannot be applied to topically seasoned food products. In re Sponnoble, 405 F.2d 578,587 (CCPA 1969) (references in a combination may be said to teach away where their combined teachings would produce a "seemingly inoperative device"). Appellant next argues that Brown teaches away because Brown mixes food pieces having different flavor intensities for reducing or eliminating taste intensity, whereas Appellant's claimed product mixes food portions having different salt contents that increases the perceived saltiness of the food product. Appeal Br. 8. Appellant also contends that the combination of Martijn and Brown to include salt on the food pieces rather than within the food product would render Martijn unsuitable for its intended purpose. Id. Appellant asserts that the Examiner has ignored Martijn's goal to study the effects of spatial salt contrast in bread, which requires the salt be included within the bread dough rather than be topically applied. Id. at 9. These arguments are also not persuasive of reversible error. "[T]he test for combining references is not what the individual references themselves suggest but rather what the combination of disclosures taken as a whole would suggest to one of ordinary skill in the art." In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). It is well established that the obviousness inquiry does not ask "whether the references could be physically combined but whether the claimed inventions are rendered obvious by the teachings of the prior art as a whole." In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985) (en bane); see also In re Keller, 642 F.2d 413,425 (CCPA 1981) (stating "[t]he test for obviousness is not whether the features 5 Appeal 2018-005869 Application 14/445,842 of a secondary reference may be bodily incorporated into the structure of the primary reference"); In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) ("Combining the teachings of references does not involve an ability to combine their specific structures."). Appellant's arguments incorrectly presume that the combination of Martijn and Brown requires bodily incorporation of one reference into the other. As the Examiner indicates (Ans. 5), the rejection is not based upon a bodily incorporation of Brown's topical application into Martijn's bread product or Martijn's inhomogeneous distribution of salt through different layers of varying thicknesses and salt content into Brown's food product, but on the combination of Martijn' s teaching of the principle of sensory contrast and Brown's teaching of topically seasoned food products having portions with different seasoning levels. Appellant does not dispute the Examiner's finding that Brown teaches the flavor intensity is topically applied seasoning. See generally Appeal and Reply Br. We note that Brown teaches that food products are known that have two or more portions, each having a flavor intensity that is different from each other. Brown ,-J 3. Thus, although Brown teaches that an extinguisher food piece may also be included in the food product, food products without the extinguisher piece were known in the art. Moreover, because claim 1 only requires that the food product includes first and second portions having different, topically applied salt intensities that are mixed at an application ratio that increases the perceived saltiness of the product, claim 1 does not exclude the inclusion of an additional portion such as an extinguisher food piece. We further note that Brown also teaches that the product may be a savory food product. Id., claim 3. 6 Appeal 2018-005869 Application 14/445,842 We are, therefore, not persuaded that the Examiner fails to set forth a prima facie case of obviousness of claim 1 based on articulated reasoning with rational underpinning. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) quoted with approval in KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,418 (2007) ("[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."). Because Appellant does not separately argue claims 3-6 and 12, we sustain the Examiner's obviousness rejection as to claims 1, 3-6, and 12. Claims 2 and 11 Claim 2 depends from claim 1, and further requires that the application ratio is 1: 1. Claim 11 depends from claim 1, and further requires that the first salt intensity is greater than the second salt intensity and the application ratio is 30:70. Appellant defines the "application ratio" as the ratio of the amount of the first portion to the second portion of food pieces that are combined to form the savory food product. Spec. ,-J 10. Appellant argues that the Examiner fails to assert that either Martijn or Brown actually provides the recited application ratios. Appeal Br. 12. However, the Examiner determined that it would have been obvious to vary the amount of salt applied to each of the portions and the ratio of the two portions of food pieces to obtain the desired level of saltiness by routine experimentation. Ans. 5. Appellant fails to address or otherwise respond to this 7 Appeal 2018-005869 Application 14/445,842 determination. Accordingly, Appellant's argument fails to persuade us of reversible error in the Examiner's rejection of claims 2 and 11. Claims 7 and 10 Claim 7 indirectly depends from claim 1, and further requires that the application amplitude is between 0.3-0.8 wt.%. Claim 10 indirectly depends from claim 1, and further requires that an upper application amplitude is greater than a lower application amplitude. Appellant defines the "application amplitude" as the difference between the concentration of salt applied to each portion of food pieces in the food product and the average concentration of salt in the food product, with the upper amplitude being the difference between the higher salt concentration and the average concentration and the lower amplitude being the difference between the lower salt concentration and the average concentration. Spec. ,i,i 7-8. Appellant argues that neither the Examiner nor the applied prior art identifies the application amplitude as a result effective variable for sodium reduction by way of sodium contrast. Appeal Br. 11. However, the Examiner finds that the application amplitude relates to the amount of salt that is used on the different portions of food pieces in the food product, and the amount of salt is a result effective variable because the amount of salt determines the degree of saltiness. Ans. 10-11. The Examiner also finds that the desired degree of saltiness varies between individuals. Id. at 11. Appellant responds that these findings are overly broad, encompassing "the conventional wisdom that perceived saltiness is based solely on salt content whereas" Appellant controls perceived saltiness with decreased salt content. Reply Br. 6. However, even if Appellant is correct, 8 Appeal 2018-005869 Application 14/445,842 this distinction does not negate the Examiner's finding that parameters affecting saltiness including the amount of salt applied to each food portion is a result effective variable so as to provide the desired degree of saltiness by routine experimentation. Moreover, the ordinary artisan would have readily understood, within the context of Martijn's teaching regarding the principle of sensory contrast and Brown's teaching of food portions having different topically applied seasoning levels, that the amount of salt, i.e., application amplitude, applied to each portion may be adjusted by routine experimentation to achieve the desired perceived saltiness with the lowest amounts of salt. Accordingly, we sustain the Examiner's rejection of claims 7 and 10. Claims 8 and 9 Claim 8 indirectly depends from claim 1, and further requires the first and second salt intensities be within an application range of at least 0.4 wt.%. Claim 9 indirectly depends from claim 1, and further requires the first and second salt intensities be with an application range of less than 1.0 wt.%. Appellant defines the "application range" as the difference between the upper and lower application amplitudes, i.e., the difference between the salt concentrations of the two food portions. Spec. ,-J 9. The application range is, therefore, directly related to the application amplitudes. Appellant argues that neither the Examiner nor the applied prior art identifies the application range as a result effective variable for sodium reduction by way of sodium contrast. Appeal Br. 11. However, as mentioned above, the Examiner finds that the application amplitude relates to the amount of salt 9 Appeal 2018-005869 Application 14/445,842 that is used on the different portions of food pieces in the food product, and the amount of salt is a result effective variable because the amount of salt determines the degree of saltiness. Ans. 10-11. The Examiner also finds that the desired degree of saltiness varies between individuals. Id. at 11. The ordinary artisan would have understood, within the context of Martijn' s teaching regarding the principle of sensory contrast and Brown's teaching of food portions having different topically applied seasoning levels, that the amount of salt applied to each portion, i.e., the application range, may be adjusted by routine experimentation to achieve the desired perceived saltiness with the lowest amounts of salt. Accordingly, we sustain the Examiner's rejection of claims 8 and 9. DECISION Upon consideration of the record, and for the reasons given above and in the Examiner's Answer, the decision of the Examiner rejecting claims 1- 12 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 3 7 C.F .R. § 1.13 6( a)( 1 ). AFFIRMED 10 Copy with citationCopy as parenthetical citation