Ex Parte Krol

Board of Patent Appeals and Interferences

Feb 15, 2012

10692857 (B.P.A.I. Feb. 15, 2012)

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.
10/692,857 10/27/2003 James D. Krol 6159 9239
6858 7590 02/15/2012
BREINER & BREINER, L.L.C.
115 NORTH HENRY STREET
ALEXANDRIA, VA 22314
EXAMINER
TRAN LIEN, THUY
ART UNIT PAPER NUMBER
1789
MAIL DATE DELIVERY MODE
02/15/2012 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 JAMES D. KROL
____________

Appeal 2011-002261
Application 10/692,857
Technology Center 1700
____________

Before CHUNG K. PAK, LINDA M. GAUDETTE, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

Appeal 2011-002261
Application 10/692,857

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DECISION ON APPEAL

Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s decision1
finally rejecting claims 11-15 and 22-36, the only claims pending in the
Application.2 We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
Claims 11 and 22 are representative of the invention and are reproduced
below from the Claims Appendix to the Appeal Brief:
11. A crustless pizza without a traditional dough crust layer comprising:

a base layer of non-liquid ingredients consisting essentially of a dry
formulated flour mixture and cheese; and

at least one food layer on top of said base layer, wherein said crustless pizza
is lower in carbohydrates than a non-crustless pizza having a dough crust.

22. A method of making a crustless pizza without a traditional dough crust layer
comprising the following sequence of steps:

preparing a dry formulated flour mixture comprising a high gluten flour and
a baking powder;

distributing a pre-measured amount of said dry formulated flour mixture
evenly onto a cooking pan;

distributing a pre-measured amount of a cheese evenly over said dry
formulated flour mixture, wherein said dry formulated flour mixture and said
cheese form a base layer;

distributing a pre-measured amount of a pizza sauce or a tomato sauce
evenly over and on top of said base layer;

1 Final Office Action mailed Sep. 7, 2006.
2 Appeal Brief filed Apr. 12, 2010 (“App. Br.”).
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adding and distributing evenly a pre-measured amount of at least one food
layer over and on top of said pizza sauce or said tomato sauce; and

baking said crustless pizza for a suitable time and at a suitable temperature,
wherein said crustless pizza is lower in carbohydrates than a non-crustless pizza
having a dough crust.

Appellant requests review of the following grounds of rejection (App. Br. 7):
1. claims 11-15 under 35 U.S.C. § 112, second paragraph, as indefinite
(Ans.3 3); and
2. claims 11-15 and 22-36 under 35 U.S.C. §103(a) as unpatentable over
the article of recipes for “Crustless Pizza”4 in view of the Google Groups
disclosure5 (Ans. 4-8).
Rejection of claims 11-15 under 35 U.S.C. §112, second paragraph, as indefinite
The issue we consider with respect to the rejection under 35 U.S.C. §112,
second paragraph, is: Did the Examiner reversibly err in determining that the
claim 11 phrase “non-liquid ingredients” renders claims 11-15 indefinite?
The Examiner maintains the phrase “non-liquid ingredients” is indefinite
because it is not clear what ingredients are excluded or included. (Ans. 3.) In
support of the rejection, the Examiner notes the Specification discloses the base
layer may include vegetables and fruits which are known to contain water. (Id.)
Appellant directs us to Specification paragraphs [00018] and [00019] and
the Examples found on Specification pages 14-17, as well as The American
Heritage Dictionary of the English Language and a NASA publication (see App.

3 Examiner’s Answer mailed Jul. 7, 2010.
4 “Crustless Pizza”, Pizza – Low Carb, http://dreampharm.com/food/helpful-
recipes-081803.2943.html (last visited Aug. 03, 2005).
5 Posting of Stuart Pedazzo to alt.food.diabetic in Google Groups Discussion
Thread, http://groups.google.com/group/alt.food.diabetic/browse_thread/...(Tue,
Apr. 2003, 23:15:04).
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Br. Evidence Appx.), in support of a contention that one of ordinary skill in the art
would understand that a non-liquid ingredient in a crustless pizza is a food item
that does not have a readiness to flow, or take the shape of its container. (See
generally, App. Br. 10-12.) Appellant contends one of ordinary skill of the art
would readily understand from the Specification that foods containing water, such
as vegetables and fruit, are “non-liquid ingredients” because they do not flow (id.
at 12), and are clearly distinguishable from water or milk which are explicitly
identified as liquid (id. at 10 (citing Spec. [00018] and [00019])).
A claim satisfies the definiteness requirement of 35 U.S.C. § 112, second
paragraph, when one skilled in the art understands the claim parameters as read in
light of the specification. BJ Servs. Co. v. Halliburton Energy Servs., 338 F.3d
1368, 1372 (Fed. Cir. 2003) (quoting Union Pac. Res. Co. v. Chesapeake Energy
Corp., 236 F.2d 684, 692 (Fed. Cir. 2001) (“The definiteness inquiry focuses on
whether those skilled in the art would understand the scope of the claim when the
claim is read in light of the rest of the specification.”)).
Appellant has persuasively demonstrated that a preponderance of the
evidence favors a determination that the ordinary artisan would understand the
meaning of the claim 11 term “non-liquid ingredients” when read in light of the
Specification. Therefore, we conclude the Examiner reversibly erred in
determining that the claim 11 phrase “non-liquid ingredients” renders claims 11-15
indefinite.
The rejection of claims 11-15 under 35 U.S.C. § 112, second paragraph, is
reversed.

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Rejection of claims 11-15 and 22-36 under 35 U.S.C. §103(a)
as unpatentable over the article of recipes for “Crustless Pizza”
in view of the Google Groups disclosure

Appellant raises several arguments in support of patentability of the claims,
including separate arguments in support of patentability of various dependent
claims6. These arguments present the following issues for our consideration:
1. Did the Examiner reversibly err in finding the “DEEP DISH PIZZA”
recipe of the primary reference discloses a base layer which only includes non-
liquid cheese?
2. Are the facts and reasons relied on by the Examiner sufficient to
support a finding that one of ordinary skill in the art would have been motivated to
modify the base layer of the DEEP DISH PIZZA recipe to include flour and other
dry ingredients such as baking powder, and to add such ingredients so as to achieve
a specific carbohydrate content for the pizza?
Issue 1: Did the Examiner reversibly err in finding the “DEEP DISH PIZZA”
recipe of the primary reference discloses forming a base layer which only includes
non-liquid cheese?
The DEEP DISH PIZZA recipe discloses a method of making a pizza which
includes the steps of: (1) sprinkling Italian cheeses over the bottom of a casserole
dish; (2) pouring a mixture of cream cheese, eggs, parmesan, and spices over the
cheese; (3) baking for 15 minutes and allowing to stand for 5 minutes; (4)
spreading on pizza sauce; (5) sprinkling mozzarella; (6) piling on favorite
toppings; and (7) baking.
The Examiner finds the base layer in the DEEP DISH PIZZA recipe is
formed in step (1) of the above paragraph, while Appellant contends the base layer

6 Claims 12, 13 and 35 (App. Br. 23-26); claims 28 and 30 (id. at 28-29); claims 32
and 34 (id. at 31-32); and claim 36 (id. at 34-35).
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is formed by combining the ingredients of the first two steps. (Rep. Br. 4.)
Appellant argues the ingredients of step (2) are a liquid mixture and, therefore, the
claim limitations related to Appellant’s base layer7 are not met. (App. Br. 22, 27,
30, 33.)
The respective positions of the Examiner and Appellant appear to be based
on a disagreement over the meaning of the claim term “base layer.”
During examination, claim terms must be given their broadest reasonable
construction consistent with the Specification. In re ICON Health and Fitness,
Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007). The broadest reasonable interpretation
of the claims must also be consistent with the interpretation that those skilled in the
art would reach. In re Cortright, 165 F.3d 1353, 1358 (Fed. Cir. 1999).
As an initial matter, we note Appellant has not identified any evidence
which establishes “base layer” is a term of art, or that one of ordinary skill in the
art would understand the term “base layer” as referring to a layer formed by baking
ingredients in a baking step, such as step (3) of the DEEP DISH PIZZA recipe.
We identify the following Specification disclosure as especially relevant to
our interpretation of the claim term “base layer”:
[00018] The low carbohydrate crustless pizza of the present
invention does not contain a traditional dough/crust layer as does a
traditional pizza. . . .
[00019] Instead, the pizza of the present invention has a base
layer which is comprised of a formulated flour (dry ingredients) and a
cheese mixture. . . .
* * * *
[00021] To make the pizza of the present invention, the base layer
mixture is placed onto a suitable cooking pan or cooking sheet by

7 (See claim 11 (“a base layer of non-liquid ingredients”); claim 22 (“wherein said
dry formulated flour mixture and said cheese form a base layer”); and claims 27
and 31 (“a base layer consisting essentially of flour and cheese”)).
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evenly distributing the pre-measured amount of the formulated flour
onto a pan and then evenly distributing the pre-measured amount of
cheese on top of the formulated flour. Optionally, a pre-measured
amount of an additional food product may be evenly distributed on
top of the cheese such that it is also a part of the base layer.

Based on the above, we interpret the claim term “base layer” as
encompassing any layer which replaces the traditional dough/crust layer of a
traditional pizza. The term base layer reads on sub layers of food ingredients, such
as a layer of flour, a layer of cheese and a layer of meat. (See Spec. [00021]
supra.) The ingredients need not be baked to form a “base layer” within the
meaning of the claims. (See, e.g., Spec. [00021-00027] (describing forming a
“base layer,” adding layers, then baking the pizza).)
Having determined the claim term “base layer” does not require baked
ingredients, we are in agreement with the Examiner that the Italian cheese layer of
the DEEP DISH PIZZA recipe is properly relied on for a teaching of a “base layer”
of a pizza. In other words, we are not persuaded the Examiner reversibly erred in
finding the “DEEP DISH PIZZA” recipe of the primary reference discloses a base
layer which only includes non-liquid cheese.8

8 In any event, even if the DEEP DISH PIZZA recipe were properly viewed as
teaching a base layer that includes the liquid mixture described in step (2) of the
recipe, we do not agree with Appellant’s contention that the claim limitations
requiring non-liquid, or dry ingredients would not be met. The claims do not
preclude baking the base layer ingredients. Baking the combination of ingredients
in steps (1) and (2) of the DEEP DISH PIZZA, as required in step (3), would result
in a non-liquid layer. We also take this opportunity to note that, contrary to
Appellant’s contention (Rep. Br. 7-8), Appellant’s method, as recited in claim 22,
does not preclude the additional baking step which would result from the
Examiner’s proposed combination of the DEEP DISH PIZZA recipe and the
Google Groups disclosure. Where the term “comprising” is used to introduce the
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Issue 2: Are the facts and reasons relied on by the Examiner sufficient to support
a finding that one of ordinary skill in the art would have been motivated to modify
the base layer of the DEEP DISH PIZZA recipe to include flour and other dry
ingredients such as baking powder, and to add such ingredients so as to achieve a
specific carbohydrate content for the pizza?
With respect to independent claims 11, 22, 27, and 31, the Examiner
concedes the DEEP DISH PIZZA recipe fails to teach the addition of flour to the
base layer. (Ans. 5.) The Examiner maintains it would have been obvious to one
skilled in the art to add flour to the Deep Dish Pizza base layer, i.e., a layer of
cheese, to obtain different texture and flavor based on the Google Groups
disclosure that it was known in the art to make low carbohydrate pizza crust using
a little flour and some whey protein. (Id. at 5-6.) With respect to argued
limitations found in the dependent claims, such as using a specific dry formulated
flour mixture in the base layer, comprising high gluten flour and baking powder
(claims 12, 28, 32) in specific amounts (claim 13), and formulating a pizza having
a specific carbohydrate content (claims 30, 34, 35, 36), the Examiner finds these
are known, result effective variables in the art and, therefore, that “[i]t would have
been obvious to add baking powder to create bubbling appearance or to give little
rising to make a firm structure,” “[i]t would have been obvious to select specific
amount of flour depending on the carbohydrate content wanted,” “[i]t would have
been obvious to use double acting baking powder when one wants a faster
reaction,” etc. (See Ans. 7-8.)
Appellant contends the Examiner’s rejections are based on “a number of
conclusory statements which are not supported by the references of record or any
other evidence.” (Rep. Br. 4.) Appellant notes the Google Groups disclosure is

steps in a method claim, there is a presumption that the claim is open to including
additional, unrecited steps. See In re Crish, 393 F.3d 1253, 1257 (Fed. Cir. 2004).
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“minimal” (App. Br. 18) and “so sparse that it is not clear what is disclosed” (Rep.
Br. 6), and that the references fail to explicitly teach the limitations found in the
dependent claims (id. at 7).
Under the flexible obviousness inquiry set forth by the Supreme Court, it is
appropriate for the examiner to take account of the “inferences and creative steps,”
or even routine steps, that an ordinary artisan would employ. Ball Aerosol and
Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir.
2009) (quoting KSR Int’l Co. v. Teleflex, Inc. , 550 U.S. 398, 417-18 (2007)).
Appellant’s arguments are not persuasive of error on the part of the
Examiner because they fail to fully address the facts and reasons relied on by the
Examiner in rejecting the claims. The Examiner’s § 103 rejection is based not only
on the explicit teachings of the references, but also on the level of skill and
knowledge of the ordinary artisan. (See, e.g., Ans. 11 (“A 103 rejection must take
into consideration the level of skill of one in the art. If the recipe is for low carb
pizza crust, it would have been readily apparent to one skilled in the art to use very
little flour because flour is the main source of carbohydrate in pizza crust.”); and
13 (noting “it is common to add baking powder to product containing flour”).) We
view the Examiner’s findings with respect to the knowledge and skill level of the
ordinary artisan to be reasonable. We further determine the Examiner’s fact
finding and reasoning is sufficient to support a finding that one of ordinary skill in
the art would have been motivated to modify the base layer of the DEEP DISH
PIZZA recipe to include flour and other dry ingredients such as baking powder,
and to add such ingredients so as to achieve a specific carbohydrate content for the
pizza.
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Accordingly, we affirm the rejection of claims 11-15 and 22-36 under 35
U.S.C. §103(a) as unpatentable over the article of recipes for “Crustless Pizza” in
view of the Google Groups disclosure.

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

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