Ex Parte Lonergan

Patent Trial and Appeal Board

Oct 23, 2012

11564428 (P.T.A.B. Oct. 23, 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.
11/564,428 11/29/2006 Dennis A. Lonergan 5720US-D1 2525
7590 10/23/2012
Arlene L. Hornilla, Attorney
General Mills
Number One General Mills Blvd.
P.O. Box 1113
Minneapolis, MN 55440
EXAMINER
CHAWLA, JYOTI
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
10/23/2012 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 PATENT TRIAL AND APPEAL BOARD
________________

Ex parte DENNIS A. LONERGAN
________________

Appeal 2011-005551
Application 11/564,428
Technology Center 1700
________________

Before CHARLES F. WARREN, TERRY J. OWENS, and
JEFFREY T. SMITH, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-005551
Application 11/564,428

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STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 15-20, which are all of the pending claims. We have
jurisdiction under 35 U.S.C. § 6(b).
The Invention
The Appellant claims a frozen, unproofed, yeast-fermented dough
composition. Claim 15 is illustrative:
15. A frozen, unproofed, yeast-fermented dough
composition comprising
flour,
water,
from 0.5 to 5 weight percent hydrated yeast ingredient,
and
from 0.5 to 5 weight percent non-hydrated, dry yeast
ingredient, based on the total weight of the frozen dough.
The References
Ono US 3,894,155 Jul. 8, 1975
Groenendaal US 5,716,654 Feb. 10, 1998
Moder WO 01/78514 A2 Oct. 25, 2001
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows:
claims 15-19 over Ono in view of Moder and claim 20 over Ono in view of
Moder and Groenendaal.
OPINION
We affirm the rejections.
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Claims 15 and 19
Ono teaches that the principal causes of poor storage stability of
frozen bread dough include reduction in yeast activity and leakage of
reducing substances from dead yeast cells (col. 1, ll. 18-41). Ono
preferments dough using 1 wt% or less yeast, which is a sufficiently small
amount that the influence of freezing on its activity would have little effect
on the baking characteristics of the dough even if that yeast became wholly
deactivated during frozen storage and thus generated reducing substances
(col. 2, ll. 30-39). Ono then cools the dough to 2-15 ºC and, either before or
after the cooling, adds to the dough additional yeast in an amount
of 2-6 wt% of the flour in the dough (col. 1, ll. 54-56; col. 3, ll. 1-11). “It is
necessary for the additional yeast to be scarcely activated at the time of
being mixed into the dough and to be frozen while the yeast remains in the
stage of dormancy or induction. The additional yeast takes a principal part
in the proof fermentation which takes place after thawing of the frozen
dough” (col. 3, ll. 3-8). Ono then freezes the dough in a short time such as
30 minutes to inhibit fermentation as much as possible (col. 3, ll. 8-12). Ono
states that “[t]he frozen dough so obtained can produce bread of appearance,
texture and eating quality which are not appreciably degraded” (abstract).
Ono does not disclose that the yeast can be dry yeast (which, the Appellant
states, typically contains less than 10 wt% moisture (Spec. 9:6-7)). In Ono’s
examples the yeast is compressed yeast (which, the Appellant states,
typically contains about 70 wt% moisture (Spec. 9:12-13)).
The Examiner argues that it would have been prima facie obvious to
one of ordinary skill in the art to use dry yeast to make Ono’s dough
because, unlike compressed yeast, dry yeast has a moisture content which is
Appeal 2011-005551
Application 11/564,428

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sufficiently low that the dry yeast remains dormant and, therefore, active, for
a long time during storage at room temperature (Ans. 12-15).
The Appellant argues that the Examiner appears to be relying upon
Groenendaal’s disclosure that “[d]ry yeasts are still commonly used in the
bakery trade because of their extended stability and because refrigeration is
unnecessary” (col. 1, ll. 38-40) (Reply Br. 4), and that the Examiner
improperly is “looking to proofed, baked goods which are designed not to
require refrigeration in order to modify a frozen unproofed dough product”
(Reply Br. 4).
Independently of Groenendaal, the Examiner finds that compared to
compressed yeast, dry yeast, due to its relatively low moisture content,
remains relatively dormant during storage and, therefore, has a relatively
long shelf life at room temperature (Ans. 14). The Appellant points out that
Ono does not state that dry yeast results in a longer shelf life (Br. 8-9), but
the Appellant does not argue that the Examiner’s finding is incorrect. Since
the Examiner’s finding is reasonable and the Appellant has not challenged it,
we accept it as fact. See In re Kunzmann, 326 F.2d 424, 425 n.3 (CCPA
1964). Also, it is Groenendaal’s dry yeast, not the goods baked using the
dry yeast, which does not require refrigeration (col. 1, ll. 38-40; col. 3, l. 65
– col. 4, l. 2).
The Appellant argues that Ono specifically employs compressed yeast
(Reply Br. 4-5).
Ono’s only disclosure of a particular type of yeast is in the examples
wherein the yeast is compressed yeast. Ono, however, is not limited to the
examples. See In re Fracalossi, 681 F.2d 792, 794 n.1 (CCPA 1982); In re
Kohler, 475 F.2d 651, 653 (CCPA 1973); In re Mills, 470 F.2d 649, 651
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Application 11/564,428

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(CCPA 1972); In re Bozek, 416 F.2d 1385, 1390 (CCPA 1969). Instead, all
disclosures therein must be evaluated for what they would have fairly
suggested to one of ordinary skill in the art. See In re Boe, 355 F.2d 961,
965 (CCPA 1966). Ono’s disclosure that the additional yeast is to be
dormant when mixed into the dough and remain dormant during frozen
storage (col. 3, ll. 3-8) would have led one of ordinary skill in the art,
through no more than ordinary creativity, to use yeast in any form which
tends to remain dormant. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398,
418 (2007) (In making an obviousness determination one “can take account
of the inferences and creative steps that a person of ordinary skill in the art
would employ”). As found by the Examiner (Ans. 14) and not challenged
by the Appellant, dry yeast, due to its low moisture content, tends to remain
dormant.
The Appellant points out that the Appellant’s dough requires both
hydrated and non-hydrated yeast, each in an amount of 0.5-5% by weight
(Br. 10).
As acknowledged by the Appellant, it was known in the art “to add
dry yeast to a wet product and to hydrate the yeast during the mixing
process” (Br. 10). Thus, it would have been apparent to one of ordinary skill
in the art that Ono’s initially-added 1 wt% or less yeast (col. 2, ll. 30-35), if
added in dry form, would become hydrated and, therefore, as disclosed by
Ono, tend to become deactivated during storage (col. 2, ll. 35-39). It also
would have been apparent to one of ordinary skill in the art that due to its
low moisture content, dry yeast, if used as Ono’s 2-6 wt% additional yeast,
would tend to remain non-hydrated due to Ono’s cooling to 2-15 ºC and
rapid freezing of the dough and thereby would undergo Ono’s desired
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maximum inhibition of fermentation (col. 3, ll. 1-3, 8-12). Ono’s 1 wt% or
less of initially added yeast (col. 2, l. 30-32), added in dry form, would be
present after hydration as hydrated yeast in an amount which overlaps the
Appellant’s 0.5-5 wt% hydrated yeast range. Ono’s 2-6 wt% additional
yeast range overlaps the Appellant’s 0.5-5 wt% non-hydrated, dry yeast
range (and the 1-3 wt% range in claim 19). Ono’s ranges, therefore, would
have rendered values within the Appellant’s ranges prima facie obvious to
one of ordinary skill in the art. See In re Geisler, 116 F.3d 1465, 1469-70
(Fed. Cir. 1997); In re Boesch, 617 F.2d 272, 276 (CCPA 1980); In re
Malagari, 499 F.2d 1297, 1303 (CCPA 1974).
Claims 16-18
The Appellant argues that the applied references would not have
suggested a frozen dough having a raw specific volume of 0.9 to 1.3 cubic
centimeters per gram (claim 16), or a frozen dough which can be thawed,
proofed at 30 ºC to a volume which is twice the thawed volume within 15-
120 minutes (claim 17) and then baked to a specific volume of 2.5 to 4 cubic
centimeters per gram (claim 18) (Br. 10-11).
The frozen dough of both the Appellant (Spec. 19:12) and Ono (col. 3,
l. 28; col. 4, l. 14) can be bread dough. The use of dry yeast as Ono’s yeast
would produce a frozen bread dough which, as discussed above regarding
the rejection of claim 15, contains hydrated yeast and non-hydrated yeast in
amounts which overlap those of the Appellant. Thus, it appears that the
frozen, thawed and proofed bread doughs suggested by Ono likewise would
have properties which overlap the ranges recited in the Appellant’s
claims 16-18.
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Claim 20
The Appellant points out that claim 20 requires that the dry yeast
includes granules of dry yeast, but the Appellant relies for patentability on
the arguments set forth with respect to claim 15 (Br. 12; Reply Br. 6). Those
arguments are not convincing for the reasons given above regarding
claim 15.
Accordingly, we are not persuaded of reversible error in the
Examiner’s rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 15-19 over Ono in
view of Moder and claim 20 over Ono in view of Moder and Groenendaal
are affirmed.
It is ordered that the Examiner’s decision 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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