Ex Parte Domingues

Board of Patent Appeals and Interferences

Jul 18, 2012

11614215 (B.P.A.I. Jul. 18, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/614,215 12/21/2006 David J. Domingues P5772US-C1 8992
7590 07/18/2012
Arlene L. Hornilla
General Mills
Number One General Mills Blvd.
P.O. Box 1113
Minneapolis, MN 55440
EXAMINER
BADR, HAMID R
ART UNIT PAPER NUMBER
1781
MAIL DATE DELIVERY MODE
07/18/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID J. DOMINGUES
__________

Appeal 2011-002828
Application 11/614,215
Technology Center 1700
____________

Before HUBERT C. LORIN, LINDA M. GAUDETTE, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

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Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
22, and 26-44. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM-IN-PART.
Appellant’s invention is directed to a method of incorporating
encapsulated chemical leavening agent into dough ingredients (Spec. 1).
Claims 22 and 36 are illustrative:
22. A method of preparing a chemically leavened dough
composition, the method comprising
combining dough ingredients comprising flour, water,
non-encapsulated acidic chemical leavening agent, and fat, by a
mixing process comprising a low speed mixing step followed
by a high speed mixing step, to produce a dough ingredient
mixture, and
uniformly distributing encapsulated basic chemical
leavening agent into the dough ingredient mixture by a low
shear mixing method comprising a low speed mixing step
followed by a high speed mixing step.
36. A method of preparing a chemically leavened dough
composition, the method comprising steps of
combining dough ingredients comprising
flour,
water,
non-encapsulated acidic chemical leavening agent
selected from the group consisting of sodium aluminum
phosphate, sodium acid pyrophosphate, and mixtures thereof,
and
fat, to produce a dough ingredient mixture, and
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uniformly distributing encapsulated basic chemical
leavening agent into the dough ingredient mixture by a low
shear mixing method comprising a low speed mixing step
followed by a high speed mixing step.
Appellant appeals the following rejections:
1. Claims 22, 26-31, 33, and 34 are rejected under 35 U.S.C. § 102(e) as
being unpatentable over Kuechle (US 6,436,458 B2 issued Aug. 20,
2002).
2. Claims 22, 32, and 35-44 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Kuechle in view of Selenke (US 4,022,917
issued May 10, 1977).

ISSUE
1. Did the Examiner reversibly err in finding that Kuechle or Kuechle in
view of Selenke teaches or would have suggested the method of
preparing the chemically leavened dough composition of claim 22?
We decide this issue in the affirmative.
2. Did the Examiner reversibly err in determining that Kuechle in view
of Selenke would have rendered obvious the subject matter of
independent claim 36? We decide this issue in the negative.

FINDINGS OF FACT AND ANALYSES
Issue (1)
Claim 22 requires a first step of combining dough ingredients by a
mixing process that comprises a low speed mixing step followed by a high
speed mixing step to form a dough ingredient mixture and a second step of
uniformly distributing encapsulated basic chemical leavening agent into the
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dough ingredient mixture by a low shear mixing method comprising a low
speed mixing step followed by a high speed mixing step (Claim Appendix).
The plain meaning of claim 22 includes a low speed and high speed mixing
step in the first step of combining the ingredients and a low speed and high
speed mixing step in the second step of uniformly distributing the
encapsulated basic chemical leavening agent. In other words, four mixing
steps are required by claim 22.
The Examiner finds that claim 22 is open-ended and does not preclude
adding the encapsulated basic chemical leavening agent during the
combining step (Ans. 7). The Examiner finds that Kuechle teaches a low
speed mixing process followed by a high speed mixing process and thus
anticipates the claim. Id.
With regard to the § 103 rejection over Kuechle in view of Selenke,
the Examiner relies on the same findings regarding Kuechle made with
regard to the § 102(e) rejection (id. at 4). The Examiner does not rely on
Selenke to address the additional low speed and high speed mixing steps
required by claim 22 (id. at 4-5; 9-15).
However, claim 22 plainly requires two mixing steps per method step
for a total of four mixing steps as argued by Appellant (App. Br. 11-13;
Reply Br. 2-8). Because the Examiner has not directed us to where Kuechle
teaches or suggests the four mixing steps recited in the claim 22, we reverse
the Examiner’s § 102(e) rejection of claims 22, 26-31, 33, and 34 over
Kuechle. We further reverse the Examiner’s § 103(a) rejection of claims 22,
32 and 35 over Kuechle in view of Selenke.

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Issue (2)
Claim 36 recites a method of preparing a chemically leavened dough
composition comprising combining dough ingredients and uniformly
distributing encapsulated basic chemical leavening agent by a low shear
mixing method comprising a low speed mixing step followed by a high
speed mixing step (Claim Appendix). In contrast to claim 22, claim 36 does
not require four mixing steps. Rather, we construe claim 36 as a step of
combining the ingredients to form a dough ingredient mixture and a low
speed mixing step followed by a high speed mixing step to uniformly
distribute the encapsulated basic chemical leavening agent.
Appellant’s arguments regarding the § 103 rejection focus primarily
on the “multiple” mixing steps that require low and high shear mixing which
is a feature of claim 22, not claim 36 (App. Br. 13). Appellant contends that
Kuechle and Selenke do not teach that damage may result to the
encapsulating coating of the chemical leavening composition by using a high
shear mixing step, so there is no reason to modify Kuechle to arrive at the
claimed combination of high and low speed mixing steps (id. at 13-17).
However, properly construed claim 36 merely requires a step of
combining the ingredients and a low speed mixing step and a high speed
mixing step to uniformly distribute the encapsulated basic chemical
leavening agent. As found by the Examiner (Ans. 3, 9), Kuechle teaches
low shear mixing of the ingredients to form an initial mixture that is then
subjected to a low shear mixing step followed by a high shear mixing step of
material (Kuechle, col. 12, ll. 1-17). Kuechle teaches the disputed feature as
recited in claim 36.
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Appellant’s argument that there is no reason to modify Kuechle to
arrive at the claimed invention that uses a low speed mixing process to
protect the encapsulated chemical leavening agent is not persuasive in light
of Kuechle’s teaching to use low shear mixing followed by a high shear
mixing step as claimed by Appellants.
Appellant argues that Kuechle’s low shear mixing which occurs at 32-
40 rpm should be considered high speed mixing, as Appellant describes on
page 26 of the Specification that high speed mixing includes from 36-40 rpm
(Reply Br. 8). We note that the particular rpm range for what is considered
“low speed” mixing is not expressly recited in claim 36. Nevertheless,
Appellant further discloses that low shear mixing includes rates less than 36
rpm (Spec. 27:2-3). Accordingly, Kuechle’s rpm range overlaps with
Appellant’s disclosed low shear rpm range, which establishes a prima facie
case of obviousness with regard to the claimed subject matter. In re
Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
On this record, the preponderance of the evidence favors the
Examiner’s conclusion of obviousness. Therefore, we affirm the Examiner’s
§ 103(a) rejection of claims 36-44 over Kuechle in view of Selenke.

DECISION
The Examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

ORDER
AFFIRMED-IN-PART

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