Ex Parte Langford

Patent Trial and Appeal Board

Jan 31, 2018

13953346 (P.T.A.B. Jan. 31, 2018)

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.
13/953,346 07/29/2013 Christopher J. Langford 46071/2:3 1396
3528 7590 02/02/2018
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EXAMINER
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NOTIFICATION DATE DELIVERY MODE
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Please find below and/or attached an Office communication concerning this application or proceeding.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRISTOPHER J. LANGFORD
Appeal 2017-006134
Application 13/953,346
Technology Center 1700
Before ROMULO H. DELMENDO, DONNA M. PRAISS, and
JEFFREY R. SNAY, Administrative Patent Judges.
SNAY, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1 and 3—12. We have jurisdiction under 35 U.S.C.
§ 6(b).
We affirm.
1 We cite to the Specification (“Spec.”) filed July 29, 2013; Final Office
Action (“Final Act.”) dated January 15, 2016; Appellant’s Appeal Brief
(“Br.”) dated September 14, 2016; and Examiner’s Answer (“Ans.”) dated
December 15, 2016.
2 Appellant is Applicant, Trident Seafoods Corporation, which also is
identified as the real party in interest. Br. 3.
Appeal 2017-006134
Application 13/953,346
BACKGROUND
The subject matter on appeal relates to a protein-based edible pet treat.
Spec. 2—\. The inventor describes in the Specification an extruded pet
treat having internal air pockets that are formed by expansion of water vapor
upon heating. Id. 14. Claim 1—the sole independent claim on appeal—
reads:
1. A pet treat, comprising:
a firm puffed segment made from a mixture including
protein, starch, and liquid, the firm puffed segment
characterized by a volume, having a crunchy, air-containing
interior portion with internal air pockets of different sizes, and
having a substantially air pocket-free, hard-baked outer surface
enclosing the air-containing interior portion, the internal air
pockets of different sizes formed in an unorganized structure
within the air-containing interior portion of the firm puffed
segment, the air-containing interior portion characterized by a
void volume occupied by the internal air pockets from about
20% to about 70% of the volume of the firm puffed segment
and characterized by an amount of moisture of less than about
8% by weight to provide the firm puffed segment with a soft
crunch for an animal consuming the pet treat, and the firm
puffed segment characterized by a compressive strength that is
overcome by between about 3.0 kilograms and about 11.3
kilograms of force applied to a portion of the hard-baked outer
surface to cause breakage of the firm puffed segment.
Br. 12 (Claims Appendix).
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Application 13/953,346
REJECTIONS3
I. Claims 1, 3, 4, 6, 8, 11, and 12 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Merriam4 and Moore.5
II. Claims 5 and 7 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Merriam, Moore, and Tan.6
III. Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Merriam, Moore, and Heydtmann.7
IV. Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Merriam, Moore, and Sair.8
OPINION
Rejection I
With regard to Rejection I, Appellant argues the claims as a group,
focusing solely on recitations that appear in claim 1. See Br. 5—11. In
accordance with 37 C.F.R. § 41.37(c)(l)(iv), we select claim 1 as
representative, and decide the appeal based on the representative claim
alone.
The Examiner finds that Merriam discloses an extruded protein-based
food product that meets all of the characterizations recited in claim 1, except
that Merriam is silent regarding the product’s compressive strength and
whether the product exhibits a soft crunch. Final Act. 3—6. Relevant to
3 Final Act. 2—10; Ans. 2—8.
4 US 3,958,032, issued May 18, 1976 (“Merriam”).
5 US 2009/0155447 Al, published June 18, 2009 (“Moore”).
6 US 3,259,503, issued July 5, 1966 (“Tan”).
7 US 2006/0240169 Al, published October 26, 2006 (“Heydtmann”).
8 US 3,904,769, issued September 9, 1975 (“Sair”).
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Application 13/953,346
Appellant’s arguments on appeal, the Examiner particularly finds that
Merriam’s product includes internal air pockets of various sizes that are
formed by expansion of water vapor and air in the extruded composition. Id.
at 4. The Examiner finds that Merriam’s air pockets are unorganized
because they are variously and differently sized. Id. The Examiner further
finds that Merriam’s product includes a hardened glassy outer surface. Id.
(citing Merriam 7:55—60). Regarding the recited compressive strength, the
Examiner finds that Moore exemplifies protein-based puffed foods having a
range of compressive strength values that overlaps the recited range. Id. at
6. The Examiner finds that one of ordinary skill in the art would have had a
reason to adjust moisture content and processing conditions in Merriam
sufficient to yield a product having a desired compression strength, such as a
strength within the range taught by Moore. Id. at 6—7.
Appellant argues that Merriam’s disclosed product requires organized
rather than unorganized internal air pockets and lacks a hard-baked outer
surface. Br. 5—8. We find these arguments unpersuasive of error by the
Examiner.
Appellant contends that the Examiner improperly relies on Merriam’s
disclosure of variously-sized bubbles in connection with pre-extrusion
material, rather than post-extrusion puffed product, and that Merriam
characterizes the product’s air pockets as organized. Id. at 5—6. However,
Appellant does not dispute the Examiner’s finding that differently-sized
bubbles in Merriam’s extrusion material would have generated differently
sized air pockets in the finished product.9 Ans. 10. The Examiner’s findings
in this regard are supported by a preponderance of the evidence. Merriam
9 Appellant did not file a Reply Brief.
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Application 13/953,346
teaches that air pockets in the finished food product are formed by expansion
of water and air bubbles during and after extrusion. Merriam 1:11—28. See
also id. at 2:36—39 (“Balloon-puffing may be initiated within the [extrusion]
die and may be continued upon or after emergence of the viscous
proteinaceous mass (e.g., extrudate) from the die.”); id. at 9:67—10:6 (“The
balloon-puffing referred to in part if), above, is initiated by the formation or
presence of small air bubbles (e.g., present as micro voids or microscopic air
pockets) within the confined, advancing melt, which bubbles are
substantially increased in size by the reduction of pressure of or in the
confined, advancing melt, without requiring the substantial or significant
boiling of contained available water.”). Because the differently-sized
bubbles serve as the genesis of the expanded pockets within the extruded
product, we are not persuaded of error in the Examiner’s finding that the
resulting air pockets also would have been differently-sized.
Appellant points to column 2, lines 1—6, as evidence that Merriam’s
air pockets are organized and, therefore, fail to meet the recitation that the
air pockets are “formed in an unorganized structure.” Br. 6. There, Merriam
refers to “organized balloon-puffed cells” and states that “[t]he balloon-
puffed cells preferably are arranged in substantially coaxially defined,
laminar layers.” Merriam 2:4—6. The term “unorganized” does not appear
in Appellant’s Specification. Appellant relies on Figure 5 of the
Specification as an illustration of “one embodiment of unorganized structure
of internal air pockets.” Br. 6—7. Figure 5 shows in cross-section a food
product having internal air pockets of different sizes and shapes in
apparently a disordered arrangement. However, Appellant fails to present
any argument or evidence that the claims or the term, “unorganized,” should
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Application 13/953,346
be interpreted as being limited to what is shown in the depicted embodiment.
On this appeal record, we are not persuaded of reversible error in the
Examiner’s finding that Merriam’s internal air pockets are “unorganized” by
virtue of the fact that they are present in different sizes within the extruded
product.
Neither are we persuaded by Appellant’s argument (Br. 7) that
Merriam’s glassy skin fails to meet the recitation of a hard-baked surface.
Merriam plainly discloses a similar food production process involving
extrusion at elevated temperature, followed by drying and, optionally,
freezing. Merriam 10:35—36. The product’s surface is further characterized
as a “three-dimensional structure characterized by disulfide bonding and
remaining intact following retorting.” Id. at 7:55—58. Appellant fails to
present credible evidence against the Examiner’s finding, in light of these
teachings, that Merriam’s glassy surface falls within the meaning of hard-
baked.
Appellant also argues that Moore fails to disclose a product having a
soft-crunch, that the Examiner fails to identify a reason for modifying
Merriam in light of Moore, and that Moore fails to enable one of ordinary
skill to attain either a soft crunch or the recited compressive strength. Br. 8—
10. These arguments also are not persuasive.
Appellant acknowledges that the recited soft-crunch results from the
combination of a hard surface and internal air pockets, which “creates a
sensation of softness combined with crunchiness.” Id. at 9. As noted, a
preponderance of the evidence supports the Examiner’s findings that
Merriam discloses a product having a hard glassy surface and internal air
pockets. Appellant fails to present persuasive evidence that the Examiner
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Application 13/953,346
erred in finding that Merriam’s product, therefore, would have exhibited a
soft crunch sensation.
Regarding compressive strength, the Examiner finds that one skilled
in the art would have had a reason to adjust moisture content and the
extrusion process parameters to produce a product have a desired hardness,
including a hardness within the range disclosed by Moore. Final Act. 6—7.
That finding is supported at least by Merriam’s teaching of a “desirable
structure, texture and chewability.” Merriam 2:54—55 (emphasis added).
Merriam further acknowledges that process parameters, including the
amount of balloon-puffing, extrusion temperature, and pressure can be
adapted to provide “a desired density” of the product. Merriam 5:12—25.
Appellant’s contention that “[njeither Moore nor Merriam instructs the
skilled person that hardness is desirable,” (Br. 9), ignores the general
proposition, acknowledged by the foregoing teachings in Merriam, that one
skilled in the art of producing food products would have been motivated to
provide any degree of hardness or density deemed desirable to the end user.
Notwithstanding Appellant’s general contention that Moore lacks a specific
teaching as to how to attain a given compressive strength, Appellant does
not persuasively dispute the Examiner’s finding that one skilled in the art
would have known how to vary a product’s hardness by adjusting moisture
content and extrusion process conditions (e.g., temperature and pressure).
Because Appellant does not persuade us of reversible error in the
Examiner’s rejection of claim 1, we sustain Rejection I.
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Rejections II—IV
Appellant does not present any argument against Rejections II—IV
beyond what is argued in connection with Rejection I. Accordingly, these
Rejections also are sustained.
DECISION
The Examiner’s decision rejecting claims 1 and 3—12 under 35 U.S.C.
§ 103(a) is 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).
AFFIRMED
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