Ex Parte Domingues et al

Board of Patent Appeals and Interferences

Nov 30, 2006

10446483 (B.P.A.I. Nov. 30, 2006)

The opinion in support of the decision being entered today was not written
for publication and is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID J. DOMINGUES
and
DAVID A. KIRK
____________

Appeal 2007-0212
Application 10/446,483
Technology Center 1700
____________

Decided: November 30, 2006
____________

Before KIMLIN, WALTZ, and KRATZ, Administrative Patent Judges.
KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-26. Claim 1 is
illustrative:
1. A dough product comprising raw dough inside a package, the
dough product comprising an oxidoreductase enzyme and a substrate that
reacts with oxygen in the presence of the oxidoreductase enzyme, in
amounts to consume oxygen to inhibit enzymatic discoloration of the dough.
Appeal 2007-0212
Application 10/446,483

The Examiner relies upon the following references as evidence of
obviousness:
Lehtonen US 4,996,062 Feb. 26, 1991
Vaisanen US 5,547,690 Aug. 20, 1996
Narayanaswamy US 6,759,070 B1 Jul. 6, 2004
Appellants' claimed invention is directed to a packaged dough product
and its method of preparation. The product comprises raw dough, an
oxidoreductase enzyme, such as glucose oxidase, and a substrate, such as
glucose, that reacts with oxygen in the presence of the enzyme. The enzyme
and substrate are present in an amount sufficient to consume oxygen and,
thereby, to inhibit the enzymatic discoloration of the dough.
According to the Background section of Appellants' Specification, it
was known in the art that enzymatic oxidation reactions can cause
problematic discoloration of food products during processing and storage
(page 1 of Specification, second paragraph). According to Appellants, the
claimed "enzymatic approach to inhibiting enzymatic discoloration of a
packaged dough is unique because it uses an enzyme and substrate that
competes for oxygen with other enzyme(s) and substrate(s) in a dough that
can cause discoloration" (page 7 of Br., penultimate paragraph). Appellants
explain that the claimed enzymatic approach "can advantageously permit
increased processing efficiencies by eliminating, if desired, the purging of a
packaged dough's headspace with an inert gas (e.g., nitrogen)" (page 7 of
Br., last paragraph).
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Appeal 2007-0212
Application 10/446,483

Appealed claims 1-26 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Narayanaswamy in view of Vaisanen and
Lehtonen.1
Appellants have provided separate arguments only for claims 2, 15
and 16. Accordingly, claims 3-14 and 17-26 stand or fall together with
claim 1.
We have thoroughly reviewed each of Appellants' arguments for
patentability. However, we find ourselves in complete agreement with the
Examiner's reasoned analysis and application of the prior art, as well as his
cogent and thorough disposition of the arguments raised by Appellants.
Accordingly, we adopt the Examiner's reasoning as our own in sustaining
the rejection of record, and we add the following for emphasis only.
There is apparently no dispute that Narayanaswamy discloses a
packaged dough product comprising raw dough and a substrate, glucose, that
reacts with oxygen in the presence of a suitable enzyme. Narayanaswamy
inhibits the deleterious effects of oxygen on the dough by reducing the
residual oxygen content to less than 4% and, for best results, less than 2%
(col. 7, ll.7-9). As appreciated by the Examiner, Narayanaswamy does not
teach the claimed method of incorporating an oxidoreductase enzyme into
the dough for removing the oxygen via chemical reaction with the glucose

1 The statement of the rejection at page 3 of the Examiner's Answer refers to
claims 1-25 rather than appealed claims 1-26. However, since the Examiner
finally rejected claims 1-26 and has not explicitly withdrawn the rejection of
claim 26, we consider the Examiner's omission of claim 26 in the statement
of the rejection to be harmless error. Also, we note that Appellants have not
separately argued claim 26.

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Appeal 2007-0212
Application 10/446,483

substrate. However, we fully concur with the Examiner that Lehtonen
provides ample motivation for one of ordinary skill in the art to employ
Appellants' enzymatic approach to reduce the oxygen level in
Narayanaswamy's package dough.
Lehtonen, like the admitted prior art in Appellants' Specification,
establishes that it was known in the art that the removal of oxygen from
packaged foods has the advantage of reducing spoiling caused by
microorganisms that need oxygen to grow (see Lehtonen at col. 2, ll. 8-13).
Lehtonen specifically states that "[o]xygen removal has been suggested for
the purpose of minimizing detrimental oxidative processes in food" (col. 2,
ll. 14-15). As an improvement over purging the packaging of oxygen with
other gases, such as nitrogen, Lehtonen discloses the use of Appellants'
enzymatic approach, i.e., adding glucose oxidase to the food product to
reduce the oxygen level below 1% (col. 3, ll.8-12). Consequently, although
Lehtonen does not specifically disclose raw dough as the food product, we
are convinced that it would have been obvious for one of ordinary skill in
the art to utilize Lehtonen's enzymatic approach instead of the gaseous
purging method disclosed by Narayanaswamy. We agree with the Examiner
that inhibiting discoloration of the dough product would be an inherent result
that naturally flows from following the teachings of Lehtonen. As explained
by the Examiner, Appellants have advanced no rationale why one of
ordinary skill in the art would not include raw dough within the general class
food products disclosed by Lehtonen. Nor have Appellants established that
the amounts of enzyme fairly taught by Lehtonen would not inhibit
discoloration, particularly with respect to the unspecified degree claimed.
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Appeal 2007-0212
Application 10/446,483

Vaisanen simply provides additional motivation for one of ordinary
skill in the art to include the claimed oxidoreductase enzyme in the packaged
dough of Narayanaswamy, namely, for improving the rheological properties
of the dough. As noted by the Examiner, one cannot obtain patent protection
merely by discovering another advantage of doing what is taught by the
prior art. In re Dillon, 919 F.2d 688, 693, 16 USPQ2d 1897, 1901 (Fed. Cir.
1990); In re Lintner, 458 F.2d 1013, 173 USPQ 560 (CCPA 1972). Of
course, as explained above, Lehtonen teaches the advantage disclosed by
Appellants of adding an oxidoreductase enzyme to a dough-based product.
As for separately argued claims 2, 15 and 16, we agree with the
Examiner's reasoning set forth at pages 13-16 of the Answer.
As a final point, we note that Appellants base no argument upon
objective evidence of nonobviousness, such as unexpected results, which
would serve to rebut the inference of obviousness established by the
Examiner.
In conclusion, based on the foregoing and the reasons well stated by
the Examiner, the Examiner's decision rejecting the appealed claims is
affirmed.
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Appeal 2007-0212
Application 10/446,483

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)(iv)(2006).

AFFIRMED

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