Ex Parte Froseth et al

Board of Patent Appeals and Interferences

Jan 28, 2011

09780273 (B.P.A.I. Jan. 28, 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.
09/780,273 02/09/2001 Barrie R. Froseth 5390USA 8033
30173 7590 01/28/2011
GENERAL MILLS, INC.
P.O. BOX 1113
MINNEAPOLIS, MN 55440
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1782
MAIL DATE DELIVERY MODE
01/28/2011 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 BARRIE R. FROSETH, RAYMOND BOWERS, KATY P.
DICKSON, MIKE E. GEDDIS, MYER JOY, PAUL MULLER,
KIMBERLY A. NELSON, LISA R. SCHROEDER, SHERI M.
SCHELLHAASS, JEFFREY D. THORESEN SEVERTS, BERNHARD
VAN LENGERICH, DAVID E. WILLIAMS, and PHILIP K. ZIETLOW
____________

Appeal 2009-010351
Application 09/780,273
Technology Center 1700
____________

Before CHUNG K. PAK, JEFFREY T. SMITH , and
KAREN M. HASTINGS, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL1

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 2009-010351
Application 09/780,273

2
STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from the non-final rejection
of claims 128, 134, 135, 137-139, and 144-146.2 We have jurisdiction under
35 U.S.C. § 6.
Appellants’ claimed invention relates to a food product comprising
popcorn, flavoring and a sweetener additive. Claims 128 and 138 are
illustrative:
128. A customized food product comprising:
a food ingredient selected by a consumer, said food
ingredient being popcorn;
a flavoring selected by the consumer;
an additive selected by the consumer, wherein the
additive is sucralose; and
a microwave package, selected by the consumer,
containing the food ingredient, the flavoring and the additive,
wherein the food product requires further finishing by the
consumer in order to pop the popcorn with microwaves and
heat the sucralose in the package.
138. A method for preparing a food product comprising:
adding sucralose to unpopped popcorn;
packaging the popcorn and sucralose for distribution; and

2Although the action appealed from was a non-final rejection, we have
jurisdiction pursuant to 35 U.S.C. §§ 6 and 134 since the claims have been
twice presented and rejected. See Ex parte Lemoine, 46 USPQ2d 1420,
1423 (BPAI 1994).

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Application 09/780,273

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requiring the food product to be further finished by a
consumer wherein further finishing of the food product by the
consumer involves microwave cooking the food product in the
packaging in order to pop the popcorn while heating the
sucralose.
The Examiner relied on the following references in rejecting the
appealed subject matter:
Katz et al. ...................US 3,851,574 Dec. 3, 1974
Belleson et al. ............US 4,751,090 Jun. 14, 1988
Bebiak et al. ...............US 6,358,546 B1 Mar. 19, 2002
Brown et al.................US 6,618,062 B1 Sept. 9, 2003
Daenkindt et al...........EP 0335852 A1 Oct. 4, 1989
Ezzat ..........................GB 2 250 255 A Mar. 6, 1992

International Food Information Council, Everything You Need to
Know About Sucralose (May 1998).
Posting of K Horton to
http://groups.google.com/group/misc.health.diabetes/topics?lnk=srg&hl=en
(search “Artificial Sweetener You Can Bake With?”) (June 16, 1999).
Posting of Maguire to
http://groups.google.com/group/alt.support.diet.low-carb/ (search “Make
Your Own LC Gift Basket”) (Dec. 9, 1999).
Posting of Jamie to
http://groups.google.com/group/alt.support.diet.low-carb/ (search “Can
Sucralose be Carmelized?”) (Jan. 21, 2000).
Posting of Debbie Cusick to
http://groups.google.com/group/alt.support.diet.low-carb/ (search “Can
Sucralose be Carmelized?”) (Jan. 22, 2000).
Posting of Danieljsza to
http://groups.google.com/group/misc.health.diabetes/topics?lnk=srg&hl=en
(search “sugar alcohol” and “danieljsza”) (Jan. 19, 2001, 08:48:28 PST).
Appeal 2009-010351
Application 09/780,273

4
Appellants appeal the following rejections as set forth in the
Examiner’s Answer: 3
A. Claims 128, 134 and 144 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the combined teachings of Ezzat, Katz, Google
Groups (12/8/1999), Daenkindt, Belleson, Google Groups (6/16/1999),
Google Groups (1/21/2000), Google Groups (1/22/2000), Google Groups
(1/19/2001), International Food Information Council (IFIC), Brown and
Bebiak.
B. Claims 135, 137-139, 145 and 146 stand rejected under 35 U.S.C. §
103(a) as being unpatentable over the combined teachings of Ezzat in view
of Katz, Google Groups (12/8/1999), Daenkindt et al., Belleson et al.,
Google Groups (6/16/1999), Google Groups. (1/21/2000), Google Groups
(1/22/2000), Google Groups (1/19/2001), and International Food
Information Council (IFIC).
OPINION4
Our review of the Examiner’s obviousness analysis requires that the
claims must first be correctly construed to define the scope and meaning of

3 According to the Examiner’s Answer 2-3, claims 137 and 139 were
inadvertently excluded from the Non Final office action dated April 14,
2008. Claims 137 and 139 have now been included in the rejection
reproduced in paragraph “B” below.
4 Appellants have not presented separate arguments for all of the rejected
claims. Rather, Appellants’ arguments are principally directed to
independent claim 128. Any claim not separately argued will stand or fall
with independent claim 128. See 37 C.F.R. § 41.37(c)(1)(vii) (2010).
Appellants’ arguments directed to the second stated rejection will also be
addressed to the extent that they differ from the arguments presented for the
first stated rejection.
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each contested limitation. See Gechter v. Davidson, 116 F.3d 1454, 1457
(Fed. Cir. 1997). During prosecution before the Examiner, the claim
language should be given its broadest reasonable meaning of the words in
their ordinary usage as they would be understood by one of ordinary skill in
the art, taking into account any definitions or enlightenment contained in the
written description of Appellants’ Specification. See In re Morris, 127 F.3d
1048, 1054 (Fed. Cir. 1997). “[T]he specification ‘is always highly relevant
to the claim construction analysis. Usually, it is dispositive; it is the single
best guide to the meaning of a disputed term.’” See Phillips v. AWH Corp.,
415 F.3d 1303, 1315 (Fed. Cir. 2005) (en banc).
Applying the preceding legal principles to the present case, we
determine that the subject matter of claim 128 is directed to a food product
comprising popcorn, a flavoring, and a sucralose additive. The claimed
invention specifies that the food product is contained in a microwavable
package.
We will treat the claim language “the food product requires further
finishing by the consumer” as a property or characteristic of the food
product composition. Thus, the Examiner can establish a prima facie case of
unpatentability by identifying prior art reference(s) that describe or suggest a
food product comprising popcorn, flavoring, and a sucralose additive in a
microwavable package.
We determine the subject matter of claim 138 is directed to a method
of preparing a food product comprising adding sucralose to unpopped
popcorn and placing the mixture into a package. We will treat the claim
language “for distribution; and requiring the food product to be further
finished by a consumer” as an intended use for the product prepared by the
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described method. Thus, the Examiner can establish a prima facie case of
unpatentability by identifying prior art reference(s) that describe or suggest
adding sucralose to unpopped popcorn and placing the mixture into a
package.
The issue on appeal is: Did the Examiner err in determining that it
would have been obvious to a person of ordinary skill in the art to form a
food product composition that comprises popcorn, sucralose, and a flavoring
additive, as required by independent claim 128 and a method for preparing
such a food product as required by independent claim 138? We answer
these questions in the negative.
We AFFIRM.
The Examiner correctly found that Ezzat discloses a microwavable
package comprising a food product including unpopped popcorn kernels, a
flavoring ingredient, and additives. (Ans. 5-6). Ezzat specifically discloses
the microwavable package contains “corn kernels with the necessary spices
depending on the variety of popcorn to be prepared. They may be salt,
butter, sugar, etc.” (Ezzat, p. 2, ll. 5-7). The Examiner also correctly found
that Katz discloses a microwavable package comprising a food product
including unpopped popcorn kernels, a flavoring ingredient, and a mixture
of sweeteners including carbohydrates. (Ans. 6; Katz, col. 3, ll. 23-25; col.
3, l. 66- col. 4, l. 9). Further, the Examiner correctly found that Belleson
discloses a microwavable package comprising a food product including
unpopped popcorn kernels, a flavoring ingredient, and a mixture of
sweeteners including a variety of saccharides. (Ans. 6; Belleson, col. 2, ll.
2-17). The Examiner correctly found that Daenkindt was evidence that
acesulfame K was a recognized high-intensity sweetener utilized in addition
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to or in place of sugar (sucrose). The Examiner correctly found that Katz,
Daenkindt, Belleson, Google Groups references, and IFIC disclose the use of
alternative sweeteners in combination with one another. The Examiner
concluded, based on the teachings of the cited references, that it would have
been obvious to a person of ordinary skill in the art to utilize known
alternative sweeteners (i.e., sucralose and acesulfame K) in the popcorn
product of Ezzat. (Ans. 6-9).
Appellants’ arguments in rebuttal to the stated rejections have been
fully considered. However, the arguments are not persuasive for the reasons
set forth by the Examiner in the Answer. (Ans. 10-22). We add the
following for emphasis
We agree with the Examiner that a person of ordinary skill in the art
would have had a reason, suggestion or motivation to select sucralose and/or
acesulfame K as one of the sweetening agents, in lieu of or in addition to
some sugar, in the popcorn product of Ezzat due to dietary concerns, with a
reasonable expectation of successfully imparting a desired sweetening effect.
Based on the collective teachings of the prior art references relied upon by
the Examiner, a person of ordinary skill in the art would have recognized the
appropriate utilization or employment of sucralose and/or acesulfame K in a
popcorn product. On this record, Appellant’s have not directed us to
evidence that establishes sucralose was not previously known to be suitable
for utilization in food products that required cooking. Consequently, based
on the prior art cited by the Examiner, a person of ordinary skill in the art
would have reasonably expected that utilizing sucralose in the popcorn
product of Ezzat would have reduced the product’s caloric content and
provide a desired sweetening effect.
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Appellants, Reply Brief 2, argue “[c]laim 128 is specifically directed
to a consumer customized food product.” This argument is not persuasive
because the prior art teaches or suggest a food product embraced by the
claimed consumer customized food product invention. The subject matter of
claim 128 is directed to a food product that comprises popcorn, a flavoring,
and a sucralose additive. Appellants have not established how the method of
selection (i.e., selected by the consumer) distinguishes the claimed food
product from a prior art food product that comprises the same ingredients.
For the foregoing reasons the rejections of claims 128, 134, 135, 137-
139, and 144-146 under 35 U.S.C. § 103(a) are affirmed.
ORDER
The rejections of claims 128, 134, 135, 137-139, and 144-146 under
35 U.S.C. § 103(a) are 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)(v).
AFFIRMED

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GENERAL MILLS, INC.
P.O. BOX 1113
MINNEAPOLIS, MN 55440