Ex Parte Gimelli et al

Board of Patent Appeals and Interferences

Jun 9, 2009

10795936 (B.P.A.I. Jun. 9, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte KENNETH GIMELLI
and MARC JOSEPH GLASSER
____________

Appeal 2009-002852
Application 10/795,936
Technology Center 1700
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Decided:1 June 9, 2009
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Before EDWARD C. KIMLIN, CHARLES F. WARREN, and
CATHERINE Q. TIMM, Administrative Patent Judges.

TIMM, Administrative Patent Judge.

DECISION ON APPEAL

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).

Appeal 2009-002852
Application 10/795,936

Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 5, 7-9, 11, 13, 19, and 20. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.
I. STATEMENT OF THE CASE
The invention relates to an improved farinaceous-based food product,
such as a pasta composition. (Spec. 1, ll. 2-4). Claim 1 is illustrative of the
subject matter on appeal:
1. A farinaceous-based food product comprising

(a) about 1.0% to about 15.0% by weight of a protein additive;

(b) about 0.25% to about 2.5% by weight of a hydrophobic ester; and

(c) about 65.0% to about 95.0% by weight of a flour mixture with at
least about 50.0% by weight of the flour mixture comprising gluten protein;

(d) about 4.0% to about 18.0% by weight water;

wherein the farinaceous-based food product has a scanning electron
microscopy image that visually displays substantially no protein fiber gaps
or voids at about 2000 times magnification.
The Examiner relies on the following prior art references to show
unpatentability:
Ventres et al. (“Ventres”) EP 0 350 552 A1 Jan. 17, 1990
Oh et al. (“Oh”) US 6,217,918 B1 Apr. 17, 2001

“Emulsifier Technology in Foods,” Wiley Encyclopedia of Food Science and
Technology (2nd Edition), John Wiley & Sons, p. 605 (1999) (“Wiley
Encyclopedia”).

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Appeal 2009-002852
Application 10/795,936

The Examiner maintains the following rejections:
1. Claims 1, 5, 7-9, 11, and 13 rejected under 35 U.S.C. § 102(b) as
anticipated by Ventres, citing Wiley Encyclopedia as additional evidence of
the teachings of Ventres; and
2. Claims 19 and 20 rejected under 35 U.S.C. § 103(a) as obvious
over Ventres in view of Oh.
II. ISSUE ON APPEAL
The dispositive issue on appeal arising from the contentions of
Appellants and the Examiner is: did the Examiner reversibly err in finding
that Ventres explicitly or inherently teaches a food product made from a
flour mixture with “about 50% by weight of the flour mixture comprising
gluten protein,” as recited in claim 1, such that claim 1 is anticipated by
Ventres?
III. FACTUAL FINDINGS
The following Findings of Fact (FF) are relevant to deciding the issue
on appeal:
1. Appellants’ Specification states:
The flour suitable for use to make the farinaceous-
based food product of this invention may be, for
example, bean, barley, oat, potato, soy, durum
semolina, buckwheat, rice, kamut, corn, rye, spelt,
bleached, unbleached, whole wheat, yam, gluten
flour or mixtures thereof, with the proviso that at
least about 50.0%, and preferably, at least about
60.0%, and most preferably, from about 65.0% to
about 100.0% by weight of the flour employed
comprises gluten protein (i.e., prolamines and
glutelins). In an especially preferred embodiment,
the farinaceous-based food product of this
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Appeal 2009-002852
Application 10/795,936

invention comprises 100.0% durum semolina as
the flour source.
(Spec. 5, ll. 1-8).
2. Ventres states:
a feedstock comprised of glutinous flour and water
is utilized. The term “glutinous flour” as used
herein is intended to include and describe flours
which provide a self-supporting paste when mixed
with water. . . . Semolina flour, also referred to as
"semolina” herein, is a common, hard, coarse,
wheat flour obtained from durum wheat. . . .
There are different grades of semolina having
different glutinous properties. Both high grade and
low grade semolina are intended to be included in
the glutinous flours suitable for this invention.
(Ventres 3, ll. 40-48).
IV. PRINCIPLES OF LAW
In situations involving virtually little or no need to make selections, a
reference may be considered to describe the claimed subject matter within
the meaning of 35 U.S.C. § 102. See In re Schaumann, 572 F.2d 312, 316-
17 (CCPA 1978) (Reference anticipated because it embraced a very limited
number of compounds closely related to one another in structure such that
the reference provided a description of those compounds just as surely as if
they were identified in the reference by name, one of those compounds being
the claimed compound).
However, generic descriptions such as the description of a broader
range of values for a parameter, may not be sufficiently specific to constitute
a “description” that anticipates the claimed subject matter. See Atofina v.
Great Lakes Chem. Corp., 441 F.3d 991, 1000 (Fed. Cir. 2006)(broader
prior art temperature range of 100-500°C did not describe the narrower
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Appeal 2009-002852
Application 10/795,936

claimed range of 330-450°C “with sufficient specificity to anticipate” nor
did the overlapping prior art oxygen to methylene chloride molar ratio of
0.001-1.0% describe “with sufficient specificity” the claimed 0.1-5.0 % a
molar ratio).
V. ANALYSIS
The Examiner relies upon the Appellants’ Specification stating that
the farinaceous-based food product of this invention may comprise 100.0%
durum semolina as the flour source, as evidence that Ventres teaches at least
50% by weight of the flour mixture comprising gluten protein (Ans. 8).
Appellants’ Specification states that durum semolina, which is the same
“glutenous flour” taught by Ventres (FF 2), is the preferred flour and may
constitute 100% of the flour source (FF 1). However, this portion of
Appellants’ Specification merely states that the flour source may be pure
durum semolina flour rather than a mixture of flours. Appellants’
Specification does not state that the gluten protein content of durum
semolina flour is necessarily at least 50% by weight. (FF 1.)
Ventres does not specifically disclose using a grade of semolina flour
having at least 50% by weight of gluten protein (FF 2). In this case, the
teaching of “high” and “low” grade semolina flour (with various gluten
properties) (FF 2), is not sufficiently specific enough to teach that the
semolina flour has at least 50% by weight of gluten protein.
Accordingly, the Examiner reversibly erred in finding that Ventres
explicitly or inherently teaches a food product made from a flour mixture
with “about 50% by weight of the flour mixture comprising gluten protein,”
as recited in claim 1, such that claim 1 is anticipated by Ventres.
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Appeal 2009-002852
Application 10/795,936

VI. CONCLUSION
For the reasons discussed above, we cannot sustain the Examiner’s
rejection of claims 1, 5, 7-9, 11 and 13 under 35 U.S.C. § 102(b) as being
anticipated by Ventres. The Examiner rejected dependent claims 19 and 20
under 35 U.S.C. § 103(a) as obvious over Ventres further in view of Oh.
However, the defect discussed above was not remedied in this rejection.
According, we cannot sustain any of the Examiner’s rejections.
VII. DECISION
We reverse the Examiner’s decision.
REVERSED

cam

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