Ex Parte Krol

Board of Patent Appeals and Interferences

Jun 21, 2012

10692857 (B.P.A.I. Jun. 21, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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 06/21/2012
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
06/21/2012 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.

DECISION ON REQUEST FOR REHEARING

Appeal 2011-002261
Application 10/692,857

2
Appellant requests reconsideration of our Decision1 affirming the
Examiner’s 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 (Request for Reconsideration (“Req.”) filed Apr. 16, 2012).
We have considered Appellant’s arguments, but determine the points
allegedly misapprehended or overlooked by this Board panel were either fully
addressed in our Decision, or not raised in the appeal briefs such that we now
properly view them as having been waived, see 37 C.F.R. § 41.52(a)(1). We more
fully address the arguments made with respect to each of the points raised by
Appellant, in turn, below.
1. Independent claims 11 and 22, and dependent claims 12, 13, and 25:
Appellant contends this panel (a) overlooked the fact that “The Google
Groups reference does not disclose ‘a dry formulated flour mixture’” (Req. 3-4, 11,
and 19), and (b) failed to identify evidence to support findings that one of ordinary
skill in the art would have been motivated to use a “dry formulated flour mixture
compris[ing] a high gluten flour and a double acting baking powder” (Req. 12
(discussing claim 12) and 19 (discussing claim 22)) in the specifically claimed
amounts (Req. 13-14 (discussing claim 13)), and would have formulated a crustless
pizza having a carbohydrate content as claimed (Req. 14 (discussing claim 35)).
With respect to point (a), Appellant contends “claim 11 requires a ‘dry
formulated flour mixture’ . . . [which] is more than the flour of the Google Groups
reference and is essential to making the base layer of the crustless pizza of the
invention.” (Req. 3.) This argument does not appear to have been made in
Appellant’s appeal brief. Accordingly, we need not consider it at this time as it is
deemed to have been waived. See 37 C.F.R. § 41.37(c)(1)(vii). In any event,

1 DECISION ON APPEAL (“Dec.”) mailed Feb. 15, 2012.
Appeal 2011-002261
Application 10/692,857

3
Appellant has not identified, nor do we find, any basis in the Specification for
limiting the phrase “dry formulated flour mixture” to anything other than dry
ingredients which include, at a minimum, flour (see, e.g., Spec. [00010]). See
Innova/Pure Water, Inc. v. Safari Water Filtration Sys., Inc., 381 F.3d 1111, 1117
(Fed. Cir. 2004) (noting that it is improper to limit claim language to particular
embodiments appearing in the Specification, unless the applicant has demonstrated
a clear intention to limit the claim scope).
With respect to point (b), Appellant is directed to pages 8-9 of our Decision
wherein the evidence relied on in support of these findings is identified.
2. Independent claims 11, 27, and 31:
Appellant maintains this panel (a) did not provide any basis for substituting
“the Google Groups ‘a little flour and some whey Protein’ for the liquid mixture
poured onto the cheese of the DEEP DISH PIZZA” (Req. 11; see also Req. 15) and
(b) did not address the fact that the phrase “consisting essentially of” precludes any
other ingredients that affect the basic and novel properties of the invention. (Req.
11-12, 16, and 18.)
With respect to point (a), Appellant is directed to pages 5-6 of the Answer
which is cited on page 8 of our Decision and wherein support is provided for the
proposed substitution.
Regarding point (b), Appellant has not explained why we erred in finding
the Italian cheese layer of the DEEP DISH PIZZA recipe, as modified to include
the Google Groups flour and whey Protein, meets the limitations of a base layer
“of non-liquid ingredients consisting essentially of a dry formulated flour mixture
and cheese” (claim 11) or “consisting essentially of flour and cheese” (claims 27
and 31). (See Dec. 6-7, and 8 (citing Ans. 5-6).)

Appeal 2011-002261
Application 10/692,857

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3. Independent claims 27 and 31:
Appellants contend this panel overlooked the requirement of a base layer
forming a “support layer.” (Req. 3-4, and 17.)
Appellant has not explained, with any degree of specificity, why the Italian
cheese layer of the DEEP DISH PIZZA recipe, as modified to include the Google
Groups flour and whey Protein, would not function as a support layer.

CONCLUSION
In conclusion, based on the foregoing, we have granted Appellant’s Request
to the extent that we have reconsidered our Decision, but we deny Appellant’s
request to make any change therein.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).

DENIED

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