Ex Parte Green et al

Patent Trial and Appeal Board

Feb 21, 2017

13362676 (P.T.A.B. Feb. 21, 2017)

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.
13/362,676 01/31/2012 Ramonica GREEN CFLAY.00688 1100
110933 7590
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
02/21/2017 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 PATENT TRIAL AND APPEAL BOARD
Ex parte RAMONICA GREEN, PONNATTU KURIAN JOSEPH, and
BANINDER S. SROAN1
Appeal 2015-000717
Application 13/362,676
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CHUNG K. PAK, and
JULIA HEANEY, Administrative Patent Judges.
PAK, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134(a) from the
Examiner’s decision2 finally rejecting claims 1-15.3 We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
1 Appellants identify the real party in interest as Frito-Lay North America,
Inc., incorporated in the state of Delaware. Appeal Brief filed April 25,
2014 (“App. Br.”) at 2.
2 Final Action entered January 14, 2014 (“Final Act.”) at 2-5 and the
Examiner’s Answer entered August 13, 2014 (“Ans.”) at 2-5.
3 The only other claim pending in the above-identified application is claim
16 which stands withdrawn from consideration by the Examiner. App. Br.
2; Final Act. 1.
Appeal 2015-000717
Application 13/362,676
STATEMENT OF THE CASE
The subject matter on appeal is directed to “a method for cooking
product [such as pita chips] using an electromagnetic oven [such as a
microwave oven].” Spec. ^fl[ 1-2 and 9. The objective of Appellants’
microwave assisted cooking method is reduction of undesirable stress cracks
in the pita chips. Spec. ^fl[ 2-3.
Details of the appealed subject matter are recited in representative
claims 1, 7, 9, and 11,4 which are reproduced below from the Claims
Appendix of the Appeal Brief:
1. A method for cooking a product, said method comprising the steps of:
a. conveying a product to a convection oven;
b. cooking said product in said convection oven to a moisture content
between about 3% and about 20%;
c. conveying said product to an electromagnetic oven;
d. cooking said product in said electromagnetic oven to a moisture
content below 3%.
7. The method of claim 1 wherein said conveying of step a) comprises
conveying pita dough.
9. The method of claim 1 wherein said conveying of step a) comprises
conveying pita bread.
11. The method of claim 9 wherein said pita bread dough comprises about
30 to about 62 percent wheat flour, about 0 to about 31 percent whole wheat
flour, and 1 to about 2 percent white whole wheat flour, about 1 to about 2
4 According to Appellants, the claims are grouped as follows:
Group I-Claims 1-6, 8, and 12-15;
Group II-Claims 7, 9, and 10; and
Group Ill-Claim 11. App. Br. 5-12.
Therefore, for purposes of this appeal, we select claims 1, 7, and 11 as
representative of the claims on appeal. 37 C.F.R. § 41.37(c)(l)(iv) (2012).
2
Appeal 2015-000717
Application 13/362,676
percent sugar, about 0 to about 2 percent salt, about 0 to about 1 percent oat
fiber, about 1 percent yeast, and about 30 to about 34 percent moisture.
App. Br. 14-15, Claims Appendix.
Appellants seek review of the following grounds of rejection
maintained by the Examiner:
1. Claims 1-6, 8, and 12-15 under 35 U.S.C. § 103(a) as
unpatentable over the combined teachings of Volpe (US 5,945,022 issued to
Volpe et al. on August 31, 1999) and Benson (US 5,816,138 issued to
Benson et al. on October 6, 1998); and
2. Claims 7 and 9-11 under 35 U.S.C. § 103(a) as unpatentable
over the combined teachings of Volpe, Benson, and Houraney (US
6,063,413 issued to Houraney et al. on May 16, 2000). App. Br. 4; Final
Act. 2-5 and Ans. 2-5.
DISCUSSION
Upon consideration of the evidence on this appeal record in light of
the respective positions advanced by the Examiner and Appellants, we
determine that a preponderance of the evidence only supports the
Examiner’s determination that the applied prior art would have rendered the
subject matter recited in claims 1-10 and 12-15 obvious to one of ordinary
skill in the art within the meaning of 35 U.S.C. § 103(a). Accordingly, we
affirm the Examiner’s § 103(a) rejections of claims 1-10 and 12-15
substantially for the reasons set forth in the Final Action and the Answer, but
reverse the Examiner’s § 103(a) rejection of claim 11 for the reasons set
forth at pages 11 and 12 of the Appeal Brief. We add the following
primarily for emphasis and completeness.
3
Appeal 2015-000717
Application 13/362,676
I. Claims 1-6, 8, and 12-15
We begin our analysis by determining the broadest reasonable
meaning of claim 1 in light of the Specification. In re Herz, 537 F.2d 549,
551 (CCPA 1976) (“It is axiomatic that claims are given their broadest
reasonable construction consistent with the specification. . . . [A]n applicant
who has not clearly limited his claims is in a weak position to assert a
narrow construction.”); see also In re ICON Health and Fitness, Inc., 496
F.3d 1374, 1379 (Fed. Cir. 2007) (“[A]s applicants may amend claims to
narrow their scope, a broad construction during prosecution creates no
unfairness to the applicant or patentee.”). To interpret claim 1, the
appropriate starting point “is always with the language of the asserted claim
itself.” Comark Commc’ns, Inc. v. Harris Corp., 156 F.3d 1182, 1186 (Fed.
Cir. 1998).
Claim 1, as written, is directed to a method of cooking any product,
which comprises conveying a product having any moisture content to a
convection oven where the product is cooked for an unspecified time period
to obtain a product having a moisture content between about 3% and about
20% and then conveying such product to an electromagnetic oven (inclusive
of a microwave oven) where the product is further cooked to produce a
product having a moisture content below 3%. The transitional term
“comprising” recited in claim 1 permits the inclusion of additional gas-fired
convection, microwave, and/or other heating steps not recited therein so long
as at least one convection heating step produces a product having a moisture
content between about 3% and about 20% and a microwave heating step
subsequent to such convection heating step produces a product having a
moisture content below 3%. In re Baxter, 656 F.2d 679, 686 (CCPA 1981)
4
Appeal 2015-000717
Application 13/362,676
(“As long as one of the monomers in the reaction is [claimed] propylene,
any other monomer may be present, because the term ‘comprises’ permits
the inclusion of other steps, elements, or materials.”) Appellants do not refer
to a definition and/or disclaimer in the Specification to show that the terms
used in claim 1 should be interpreted differently. App. Br. 5-10
With the above meaning in mind, we review the propriety of the
Examiner’s § 103(a) rejections. The Examiner finds, and Appellants do not
dispute, that Volpe discloses a continuous baking process in which goods,
such as dough pieces, are conveyed to a plurality of temperature zones
subjected to microwave (electromagnetic) and non-microwave (gas-fired
convection) heating to produce baked goods, such as crackers, cookies and
snacks. Compare Final Act. 2-3, 5 and Ans. 2-3, 5, with App. Br. 5-10; see
also Volpe, col. 1,11. 5-20, col. 4,11. 5-14 and 36-38, col. 5,1. 66-col. 6,1.
3, col. 6.11. 13-17, col. 10,11. 30-67, col. 11,11. 1-28. The Examiner also
finds, and Appellants do not dispute, that the microwave heating can be used
to produce baked goods having a moisture content below 3%. Compare
Final Act. 2 and Ans. 3 with App. Br. 5-10; see also Volpe, col. 9,11. 49-57
and col. 12,11. 48-52. According to Volpe, “the substantially even removal
of moisture from the dough pieces [accomplished by its microwave-assisted
baking process] helps to reduce ‘checking’ or breakage of the baked
products[,]” addressing the same breakage problem said to be solved by the
claimed microwave-assisted cooking method. Compare Volpe, col. 9,11.
46^48, with Spec. ^fl[ 2-3; see also Volpe, col. 4,11. 31-33.
Appellants contend that “Volpe is concerned with the use of
microwave energy early in the cooking process” and “Volpe, when
considered as a whole, actually teaches away from the presently claimed
5
Appeal 2015-000717
Application 13/362,676
invention.” App. Br. 5 and 9. In support of this contention, Appellants refer
to embodiments in Volpe, which are directed to applying microwave
cooking at the start of the cooking process. Id. at 5-10 referring to Volpe,
col. 5,11. 50-60, col. 6,11. 45-58, col. 7,11. 7-13 and 20-46, and col. 8,11.
13-30.
Although Volpe discusses embodiments drawn to microwave heating
at the start of its baking process as pointed out by Appellants, it is not
limited to such embodiments as explained by the Examiner. App. Br. 5-10;
Final Act. 2, 5; Ans. 2-3 and 5-6. In particular, Volpe, at column 6, lines
13-63 (emphasis added), teaches that:
In accordance with the present invention, a plurality of
dough pieces, partially cut or completely cut from a dough
sheet are continuously passed on an oven band through an oven
comprising a plurality of temperature zones, and are subjected
to microwave energy within at least one zone. The microwave
energy substantially reduces the moisture content of the pieces
so that the moisture content of the pieces is substantially even
across the oven band so that they leaven substantially evenly
across the band. If the moisture content of the pieces across the
oven band differs prior to microwaving, the pieces with the
higher moisture contents absorb more microwave energy
because of the better coupling or better microwave absorption.
Thus, the pieces with the higher moisture contents before
microwaving tend to lose more moisture during microwaving
thereby tending to equalize dough piece moisture content across
the oven band. . . .
For independent control and adjustment of stack height
and moisture content, at least two microwave applicators are
used, preferably in different temperature zones. In accordance
with embodiments of the invention, all zones may contain both
a non-microwave energy source, such as gas-fired burners, and
one or more microwave applicators. However, it has been
found that microwave applicators generally are not required in
each zone of the oven for the consistent control of stack height
6
Appeal 2015-000717
Application 13/362,676
and moisture content. For example, a multi-zone continuous
oven having at least five temperature zones may contain
microwave applicators in only two zones. ... In certain stages
of the baking process, microwave energy is not efficiently
absorbed by the dough pieces or it has little effect upon stack
height and moisture content. For example, near the entrance to
the oven, dough pieces may be too thin to efficiently absorb
microwave energy and it would be more effective to increase
the dough piece height with gas heat and then adjust the height
with the microwave energy while the surface of the dough is
still flexible.
Volpe also teaches that “[ejxemplary of continuous, multi-zone ovens which
may be equipped with microwave applicators for use in the present invention
are: 1) direct gas-fired continuous multi-zone ovens ... 5) hybrid, forced air
convection, gas fired continuous multi-zone ovens[.]” Volpe, col. 7,11. 1—4
and col. 10,11. 34 42. Volpe further teaches that “[t]he amount of moisture
reduction by the microwave energy input may be from about 5% to about
25%, preferably from about 10% to about 20% of the total moisture removed
in the oven during the baking process.” Volpe, col. 9,11. 49-52. In other
words, Volpe teaches various alternative embodiments with some of those
embodiments being directed to cooking or baking dough pieces in at least
one gas-fired convection heating zone to remove a substantial amount of the
total moisture present in the dough pieces and then in at least one microwave
heating zone to equalize and remove some of the moisture present in the
dough pieces.
It follows that we find no reversible error in the Examiner’s finding
that Volpe, as a whole, would have suggested conveying and cooking dough
pieces in at least one gas-fired convection heating zone or oven and then
conveying and cooking such dough pieces in at least one microwave heating
7
Appeal 2015-000717
Application 13/362,676
zone or oven5 to reduce and evenly distribute the moisture present in the
dough pieces. In re Boe, 355 F.2d 961, 965 (CCPA 1966) (All of the
disclosures in a prior art reference, including non-preferred embodiments,
“must be evaluated for what they fairly teach one of ordinary skill in the
art.”)
Although Volpe does not specifically mention that the partially baked
product resulting from at least at least one gas-fired convection heating zone
or oven has the recited moisture content of 3 to 20% as acknowledged by the
Examiner, it does teach that only about 5% to about 25% of the total
moisture is removed by the microwave energy during the baking process as
indicated supra. Implicit in such teaching in Volpe is that about 75% to
95% of the total moisture in the dough pieces is removed by the non­
microwave energy, e.g., the gas-fired convection heating. Because
Appellants also do not dispute the Examiner’s finding that an initial moisture
content of such product is about 30% (Compare Final Act. 3 and Ans. 3,
with App. Br. 5-10; see also Volpe, col. 9, 52-54), it can be inferred from
Volpe that the partially cooked dough pieces from its gas-fired convection
heating have moisture contents reflective of the removal of 75% to 95%
moisture from the initial moisture content of about 30%, resulting in
partially cooked dough pieces having moisture contents inclusive of those
(3% to 20%) recited in claim 1. In re Peterson, 315 F.3d 1325, 1329—30
(Fed. Cir. 2003) (“In cases involving overlapping ranges, we and our
5 Providing additional partial walls to further delineate different heating
zones in the form of a chamber in a tunnel oven, such as those taught by
Volpe, to form discrete heating zones or ovens was well known, as shown,
for example, by Benson’s Figure 4.
8
Appeal 2015-000717
Application 13/362,676
predecessor court have consistently held that even a slight overlap in range
establishes aprima facie case of obviousness.”)
The Examiner also refers to Benson to show that partially cooking a
product, such as a snack, to obtain a partially cooked product having an
intermediate moisture content that includes the intermediate moisture
content recited in claim 1 prior to finally cooking the product to obtain a
cooked product having a moisture content below 3%. Final Act. 3; Ans. 3.
However, we need not discuss the content of Benson because Benson is
consistent with and cumulative to the teachings of Volpe in terms of
suggesting forming a partially cooked product having an intermediate
moisture content inclusive of that recited in claim 1 before obtaining a
cooked product having a final moisture content below 3%.
Accordingly, we find no reversible error in the Examiner’s rejection
of claims 1-6, 8, and 12-15 under 35 U.S.C. § 103(a) as unpatentable over
the combined teachings of Volpe and Benson.
II. Claims 7, 9, and 10
Although the Examiner finds that Volpe discloses using doughs in
general to produce baked goods, the Examiner acknowledges that Volpe
does not specifically mention pita dough as recited in claim 7. Final Act. 4;
Ans. 4. To remedy this deficiency, the Examiner finds, and Appellants do
not dispute that Houraney teaches baking a dough (pita dough) to produce
pita bread that “has grown in popularity in the United States, especially in
the last decade.” Final Act. 4; Ans. 4-5.
Based on these findings, the Examiner concludes that one of ordinary
skill in the art would have been led to bake doughs in general, including a
9
Appeal 2015-000717
Application 13/362,676
pita dough, to produce baked goods, such as pita bread, in the process
suggested by Volpe and Benson. Final Act. 4-5; Ans. 4-5.
Appellants contend that Houraney teaches away from baking pita
bread in the process of Volpe because it teaches in its Background of the
Invention section that “Pocket Pita Bread requires temperatures far
exceeding the ‘conventional’ oven temperature range in order to bake and
brown properly” and “requires an oven where the heat source is in close
proximity to the dough both on the bottom and the top of the oven.” App.
Br. 10-11; see also Houraney, col. 1,1. 52-col. 2,1. 13. In so arguing,
Appellants ignore not only Houraney as a whole, but also the collective
teachings of the applied prior art. Id. Houraney, for example, teaches using
a tunnel oven equipped with top and bottom heat sources for providing a
temperature of approximately 600°F to 1000°F to produce pita bread. See,
e.g., Houraney, col. 5,11. 1-26. Houraney also teaches using microwaves
and/or a convection oven to produce pita bread. See, e.g., Houraney, col. 9,
11. 25-32 and 40 47. Although Houraney does not specifically indicate that
its pita bread can be baked in Volpe’s retrofitted ovens, Volpe teaches
baking dough in general, inclusive of a pita dough, to produce bakery goods,
inclusive of Pocket Pita Bread, for example, in a tunnel oven having heat
sources (microwave and convection heat sources) on the top and/or bottom
of the oven or the side of the oven. See Volpe, col. 10,11. 53-67, col. 12,11.
1-13. Volpe also teaches that its “baking times and temperatures will vary
for different dough or batter formulations, oven types, etc.” and that its
retrofitted ovens can provide baking temperature of 650°F, a temperature at
which Pocket Pita Bread can be baked. See Volpe, col. 12,11. 30-39. Thus,
we concur with the Examiner that one of ordinary skill in the art would have
10
Appeal 2015-000717
Application 13/362,676
been led to bake doughs in general, including the pita dough taught by
Houraney, at an appropriate temperature in the retrofitted ovens taught by
Volpe, with a reasonable expectation of successfully forming bakery goods,
such as pita bread.
Accordingly, we find no reversible error in the Examiner’s rejection
of claims 7, 9, and 10 under 35 U.S.C. § 103(a) as unpatentable over the
combined teachings of Volpe, Benson, and Houraney.
III. Claim 11
The Examiner determines that one of ordinary skill in the art would
have been led to use the pita bread dough composition recited in claim 11 in
the process suggested by Volpe and/or Benson. Final Act. 5; Ans. 5. In
support of this determination, the Examiner relies on the following
disclosure of Houraney (col. 3,1. 65-col. 4,1. 8):
The type of Pocket Pita Bread desired will determine the
ingredients necessary to prepare the product. . . .The preferred
embodiments are not limited to any type or flavor of Pocket
Pita Bread. Thus the dough can be prepared from any formula
for Pita Bread known to those skilled in the art.
See also Final Act. 5; Ans. 5. However, the Examiner does not show that
the pita bread dough composition recited in claim 11 is a formulation known
to those skilled in the art. Final Act. 5; Ans. 5. Nor does the Examiner
demonstrate that such broad teaching in Houraney would have directed one
of ordinary skill in the art to the specific dough composition or formulation
recited in claim 11. Final Act. 5; Ans. 5.
Accordingly, on this record, we are constrained to reverse the
Examiner’s rejection of claim 11 under 35 U.S.C. § 103(a) as unpatentable
over the combined teachings of Volpe, Benson, and Houraney.
11
Appeal 2015-000717
Application 13/362,676
ORDER
In view of the foregoing, we affirm the decision of the Examiner to
reject claims 1-10 and 12-15 under 35 U.S.C. § 103(a), but reverse the
decision of the Examiner to reject claim 11 under 35 U.S.C. § 103(a).
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED-IN-PART
12