Ex Parte Martorell

Patent Trial and Appeal Board

Oct 31, 2012

10572688 (P.T.A.B. Oct. 31, 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.
10/572,688 03/21/2006 Carlos Galceran Martorell 3608 4928
7590 10/31/2012
Striker Striker & Stenby
103 East Neck road
Huntington, NY 11743
EXAMINER
YOO, HONG THI
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
10/31/2012 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 CARLOS GALCERAN MARTORELL
__________

Appeal 2011-004725
Application 10/572,688
Technology Center 1700
____________

Before ADRIENE LEPIANE HANLON, KAREN M. HASTINGS, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-004725
Application 10/572,688

2
Appellant appeals under 35 U.S.C. § 134 from the final rejection of
claims 5-16. We have jurisdiction over the appeal pursuant to 35 U.S.C.
§ 6(b).
We AFFIRM.
Appellant’s invention is directed to a process of flavoring unpopped
corn kernels that includes an impregnation step of the kernels with a
hypersaturated brine solution (Spec. 1:30-33; 2:1-29).
Claim 5 is illustrative:
5. A process for flavoring raw unpopped kernels,
comprising the steps of introducing in a container water and
sodium chloride to obtain a hypersaturated brine; introducing
raw unpopped corn kernels into the hypersaturated brine
accommodated in the container for swelling the corn kernels;
keeping the un popped corn kernels in the brine for until the
corn kernels absorb the brine and swell; taking the swollen
unpopped corn kernels that have absorbed the brine from the
container and drying the unpopped corn kernels until they
recover their original moisture level; and subjecting the dried
unpopped corn kernels that have absorbed the brine to a surface
coating with a fixing agent for food.
Appellant appeals the following rejection:
Claims 5-16 are rejected under 35 U.S.C. § 103(a) as being unpatentable
over Evans (EP 0217368 published Apr. 8, 1987) in view of Merritt
(US 4,767,635 issued Aug. 30, 1988).

Appellant’s arguments focus on subject matter common to claims 5
and 16 only, of which we select claim 5 as representative (App. Br. 10-12).

Appeal 2011-004725
Application 10/572,688

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FINDINGS OF FACT AND ANALYSES
Appellant argues that Evans and Merritt do not teach a hypersaturated
brine solution as required by claim 5 (App. Br. 10). However, the Examiner
finds that Evans teaches a sodium chloride concentration that overlaps
Appellant’s disclosed hypersaturated concentration (i.e., 25 kg of sodium
chloride per 90 liters of water) (Ans. 4, 7). Appellant does not respond or
otherwise show error in this position of the Examiner.
Appellant argues that Evans teaches that the corn kernels are
impregnated inside and outside which differs from Appellant’s claimed
invention wherein the corn kernels are impregnated only on the inside (App.
Br. 10-11). Appellant contends that Evans does not teach surface coating
the dried unpopped corn kernels that absorbed the brine solution in an earlier
step (id. at 11).
The Examiner’s analysis and response to Appellant’s arguments on
pages 7-9 of the Answer are reasonable and supported by Evans. We adopt
the Examiner’s reasoning and findings as our own. Specifically, the
Examiner finds that Evans teaches that the corn kernels are rinsed after the
impregnation step in order to remove any remaining flavoring solution (Ans.
8). The Examiner finds that Evans’ disclosure and the claimed method
appear to be identical and Appellant has not explained how the claimed
process differs such that only the interior of the kernel is flavored. The
Examiner further determines that the claims do not exclude soaking in a
brine solution to flavor the interior and exterior of the corn kernels. Id.
Appellant does not respond the Examiner’s finding or analysis.
We agree with the Examiner that it is not clear how Appellant’s
impregnation process that flavors the interior of the kernel by absorption of
Appeal 2011-004725
Application 10/572,688

4
the brine through the hull of the kernel into the interior of the kernel would
not also flavor the hull as it passes through it. Appellant has not shown how
Evans’ process differs from the claimed impregnation part of the claimed
process to avoid flavoring the exterior of the kernel (i.e., the hull) (Evans
3:1-6; Spec. 2:6-10).
While Evans discloses that the interior and exterior of the kernel are
flavored, Appellant does not respond to the Examiner’s finding that Evans
teaches that the kernels are rinsed to remove any remaining flavoring
solution from the exterior of the kernels. Indeed, Evans’ teaching indicates
that the outside of the hull is not flavored by the brine as flavoring is
removed by rinsing.
Appellant argues that the teachings of Evans and Merritt are not
combinable because Evans teaches flavoring the interior and exterior of the
kernel whereas Merritt only coats the outer surface of the kernel with the
flavoring (App. Br. 11). However, the Examiner’s rejection is based on
applying Merritt’s external coating as an additional coating to Evans’
impregnated kernel to ensure overall quality of flavor (Ans. 5-6). Appellant
has not fully explained and we fail to see why the teachings of Evans and
Merritt would not have been combinable for the Examiner’s stated reason.
On this record, the preponderance of the evidence favors the
Examiner’s obviousness conclusion. We affirm the Examiner’s § 103
rejection over Evans and Merritt.

DECISION
The Examiner’s decision is affirmed.
Appeal 2011-004725
Application 10/572,688

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.

ORDER
AFFIRMED

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