Ex Parte Domingues

Board of Patent Appeals and Interferences

Feb 25, 2011

09945204 (B.P.A.I. Feb. 25, 2011)

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.
09/945,204 08/31/2001 David J. Domingues P5725US (PIL0060/US) 4507
33072 7590 02/25/2011
KAGAN BINDER, PLLC
SUITE 200, MAPLE ISLAND BUILDING
221 MAIN STREET NORTH
STILLWATER, MN 55082
EXAMINER
TRAN LIEN, THUY
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
02/25/2011 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 2009-012604
Application S.N. 09/945,204
Technology Center 1700
____________

Before BRADLEY R. GARRIS, BEVERLY A. FRANKLIN, and
LINDA M. GAUDETTE, Administrative Patent Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant appeals under 35 U.S.C. § 134 from the Examiner's
rejection of claims 1, 3, 8, 10-13, 15, 16, 20, 22, 23, 25, 26, 36, 43, and
59-70. We have jurisdiction under 35 U.S.C. § 6.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-012604
Application 09/945,204

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STATEMENT OF THE CASE
Claim 1 is representative of the subject matter on appeal and is set
forth below:
1. A packaged dough product comprising a low pressure container
having therein at least two individual portions of a chemically leavened
dough product, wherein each portion comprises an encapsulated basic active
ingredient, a non-encapsulated acidic active ingredient, and a barrier
material, wherein

at below baking temperature the barrier material encapsulates the
basic active ingredient and separates the basic active ingredient from the
non-encapsulated acidic active ingredient to inhibit reaction of basic active
ingredient and acidic active ingredient,

the non-encapsulated acidic active ingredient is selected to have a
solubility of greater than 35 kcal/mole in the dough composition below
baking temperature and to be substantially soluble in the bulk dough
composition during baking,

the barrier material degrades at or above the baking temperature to
allow the basic active ingredient and the acidic active ingredient to come
into contact in the dough composition and react to substantially leaven the
dough composition during baking.

The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Gulstad 3,767,421 Oct. 23, 1973
Lonergan 5,672,369 Sep. 30, 1997
Ray 6,004,595 Dec. 21, 1999
Rea 6,053,400 Apr. 25, 2000
Narayanaswamy 6,261,613 B1 Jul. 17, 2001
Schaible, II (Schaible) 6,365,210 B1 Apr. 2, 2002

Appeal 2009-012604
Application 09/945,204

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THE REJECTIONS
1. Claims 1, 3, 8, 10-13, 15, 16, 20, 22, 23, 25, 26, 36, 43, 59, and 60-65
are rejected under 35 U.S.C. § 103(a) as being unpatentable over
Narayanaswamy in view of Ray and Gulstad.
2. Claim 66 is rejected under 35 U.S.C. § 103(a) as being unpatentable
over Narayanaswamy in view of Ray and Gulstad as applied to claims
1, 3, 8, 10-13, 15, 16, 20, 22-23, 25-26, 36, 43, 59, 60-65, and 67 above, and
further in view of Schaible.
3. Claims 67-70 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Narayanaswamy in view of Ray and Gulstad as applied to
claims 1, 3, 8, 10-13, 15, 16, 20, 22-23, 25-26, 36, 43, 59, and 60-65 above,
and further in view of Rea and Lonergan.
ISSUE
Did the Examiner err in determining that the combination of
Narayanaswamy and Gulstad suggests the aspect of claim 1 wherein a “non-
encapsulated acidic active ingredient is selected to have a solubility of
greater than 35 kcal/mole in the dough composition below baking
temperature and to be substantially soluble in the bulk dough composition
during baking”?
We answer this question in the negative and AFFIRM.
ANALYSIS
(with Findings of Fact and Principles of Law)

Appeal 2009-012604
Application 09/945,204

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We essentially adopt the Examiner’s findings pertinent to the issue
raised by Appellant for this rejection. We, therefore, incorporate the
Examiner’s position as set forth in the Answer. We add the following for
emphasis only.
As an initial matter, Appellant’s arguments are similar for each
rejection such that our determination of the above-mentioned issue addresses
each of the rejections. We, thus, focus on Rejection 1, and claim 1, and our
determination made with respect to Rejection 1 is dispositive for all of the
rejections. We also focus on the combination of Narayanaswamy in view of
Gulstad only in resolving the above-mentioned issue. Any claim not
separately argued will stand or fall with its respective independent claim.
See 37 C.F.R. § 41.37(c)(1)(vii).
1. The Rejection of Claims 1, 3, 8, 10-13, 15, 16, 20, 22-23, 25-26, 36,
43, 59, and 60-65 under 35U.S.C. § 103(a) as being unpatentable over
Narayanaswamy in view of Ray and Gulstad
Appellant admits that Narayanaswamy uses the same acidic leavening
agent (the non-encapsulated acidic active ingredients as recited in
Appellant's claim 1) as recited in claim 8 (sodium aluminum phosphate (col.
8, ll. 52-54 of Narayanaswamy). Br. 12-13. Yet, Appellant argues that
because Narayanaswamy does not disclose that the non-encapsulated acidic
active ingredient must have a solubility of greater than 35 kcal/mole, the
Examiner’s position is in error. Br 12.
The Examiner rightly points out that Narayanaswamy teaches use of
sodium aluminum phosphate as the non-encapsulated acidic active
ingredient and therefore meets Appellant’s claim regarding the solubility
requirement because this is the same compound as set forth in Appellant’s
Appeal 2009-012604
Application 09/945,204

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claim 8, and, therefore, will have the claimed solubility requirement as set
forth in Appellant’s claim 1. Ans. 9.
Additionally, the Examiner states that Gulstad teaches that sodium
aluminum phosphate is only nominally active at room temperature. Ans. 9.
Gulstad teaches to effect leavening after storage and during the final cooking
of the dough, and that leavening during cooking can be accomplished either
by using leavening agents which are only nominally active at room
temperature or by protecting the leavening ingredients from the moisture in
the dough during storage and releasing them during cooking. Gulstad, col.
3, ll. 54-62. Gulstad teaches that sodium aluminum phosphate is a leavening
agent that is only nominally active at room temperature. Gulstad, col. 3, ll.
63-67. The Examiner concludes that this teaching by Gulstad would have
made it obvious to have chosen a nominally active acidic ingredient, such as
sodium aluminum phosphate, as the non-encapsulated acidic active
ingredient, for the reasons provided by Gulstad as discussed by the
Examiner in the paragraph bridging pages 9-10 of the Answer.
For the reasons stated by the Examiner, we agree with the Examiner’s
implicit position that a non-encapsulated acidic active ingredient selected to
have the solubility as recited in claim 1 would have naturally flowed from
following the suggestion of the combination of Narayanaswamy in view of
Gulstad. See Ex parte Obiaya, 227 USPQ 58, 60 (BPAI 1985), aff'd mem.,
795 F.2d 1017 (Fed. Cir. 1986) (holding that the recognition of another
advantage flowing naturally from following the suggestion of the prior art
cannot be the basis for patentability when the difference would otherwise be
obvious). See also In re Best, 562 F.2d 1252 (CCPA 1977) and In re
Wilder, 429 F.2d 447 (CCPA 1970).
Appeal 2009-012604
Application 09/945,204

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We therefore agree with the Examiner’s conclusion of obviousness
and affirm all of the rejections.
CONCLUSIONS OF LAW AND DECISION
Each rejection is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).
AFFIRMED

cam

KAGAN BINDER, PLLC
SUITE 200, MAPLE ISLAND BUILDING
221 MAIN STREET NORTH
STILLWATER, MN 55082