Ex Parte Mesu

Patent Trial and Appeal Board

Oct 18, 2016

12517307 (P.T.A.B. Oct. 18, 2016)

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.
12/517,307 02/17/2010 Gurbe Jelle Mesu CQKER.2885PCT 5971
110933 7590 10/19/2016
Carstens & Cahoon, LLP
PO Box 802334
Dallas, TX 75380
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
10/19/2016 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 GURBE JELLE MESU
____________________

Appeal 2015-003722
Application 12/517,307
Technology Center 1700
____________________

Before CHUNG K. PAK, CHRISTOPHER C. KENNEDY, and
DEBRA L. DENNETT, Administrative Patent Judges.

DENNETT, Administrative Patent Judge.

DECISION ON APPEAL1
STATEMENT OF THE CASE
Appellant2 appeals under 35 U.S.C. § 134 from a rejection of claims
1, 3–5, 7, and 11–33. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 In our Opinion below, we refer to the Final Action mailed April 25, 2014
(“Final Act.”), the Appeal Brief filed September 25, 2014 (“App. Br.”), the
Examiner’s Answer mailed December 11, 2014 (“Ans.”), and the Reply
Brief filed February 11, 2015 (“Reply Br.”).
2 Appellant identifies The Quaker Oats Company as the real party in interest.
App. Br. 2.
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The claims are directed to a dried cereal bar having a crunchy texture
and methods of making thereof. Claim 1, reproduced below with disputed
limitation italicized, is illustrative of the claimed subject matter:
1. A dried cereal bar comprising dry cereal ingredients and
a binder that is selected from the group consisting of potato
starch, whey protein, and blends thereof,
wherein the dried cereal bar has a crunchy texture, and
wherein the crunchy texture extends throughout the
cereal bar and the crunchy texture is produced by drying the
cereal bar at a temperature between about 110°C and about
150°C for from about 10 to about 60 minutes.
REFERENCES
The prior art relied upon by the Examiner in rejecting the claims on
appeal is:
Murata et al.
(“Murata”)
US 5,091,201 Feb. 25, 1992
Froseth et al.
(“Froseth”)
US 6,592,915 B1 July 15, 2003
Archibald et al.
(“Archibald”)
US 7,763,298 B2 July 27, 2010
Coleman et al.
(“Coleman”)
US 8,110,231 B2 Feb. 7, 2012
Borders et al.
(“Borders”)
US 8,551,544 B2 Oct. 8, 2013
REJECTIONS
The claims stand rejected under 35 U.S.C. § 103(a) as follows: claims
1, 3–5, 7, and 11–33 over Coleman in view of Murata, Froseth, and
Archibald; and claims 1, 3–5, 7, and 11–33 over Borders in view of Murata.
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OPINION
For purposes of this appeal, we select claim 1, the broadest claim on
appeal, as representative of the claims on appeal.
The main issue on appeal is differing interpretations of the Examiner
and Appellant of the “crunchy texture” limitation and whether this limitation
is obvious in view of the cited prior art. App. Br. 6. The claimed product is
a dried cereal bar comprising dry cereal ingredients and a binder that is
selected from the group consisting of potato starch, whey protein, and blends
thereof. Id. at 11.
The Specification states that the cereal bar of the invention should
have a crunchy texture. Spec. ¶ 1. Binders tend to affect the texture of the
cereal bar, with sticky binders yielding a sticky matrix that reduces
crunchiness. Id. ¶ 6. According to the Specification, “[c]runchy texture is a
result of using crunchy ingredients in combination with a binder that does
not interfere with the texture of the bar.” Id. ¶ 10. The Specification
clarifies that the desired cereal bar with a crunchy texture does not include a
sweet or sticky binder. Id. ¶ 8. This crunchy texture, according to claim 1,
must extend throughout its dried cereal bar.
Rejection over Coleman in view of Murata, Froseth, and Archibald
Coleman discloses a method of making chewy, reduced-density cereal
bars. Coleman col. 1, ll. 42–43. Coleman consistently and repeatedly states
that the product created is chewy. See, e.g., id. at col. 1, ll. 12, 34, 42, and
49 (“provide a chewy, moist texture throughout the entire bar”); col. 2, ll. 21
(“cereal bar develops increased chewiness over time”) and 27; col. 3, ll. 16
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(“yielding a uniform chewy and moist texture through shelf life”) and 21;
col. 4, ll. 58–59 (“cereal bars processed according to the present invention
have improved chewiness”); col. 10, ln. 66; and col. 11, ln. 34.
The binder system of Coleman preferably comprises a carbohydrate-
based binder, which may comprise a carbohydrate syrup composition
including corn syrup, high fructose corn syrup, rice syrup, brown rice syrup,
liquid sucrose, evaporated cane juice, molasses, honey, caramel, compound
coating, and the like, which also lending sweetening flavor to the cereal
mixture. Id. at col. 4, ll. 30–38. The binder system may also include a
variety of materials, among them gelatin and hydrolyzed collagen. Id. at col.
4, ll. 41–43. Farinaceous powders, such as dry starch powders, may be used
at least in part as the binder material. Id. at col. 4, ll. 45–47.
The Examiner contends that Coleman teaches a dried cereal product
having a crunchy texture, comprising “the same type of binding ingredients
as claimed.” Final Act. 4. Appellant, citing to numerous instances in
Coleman describing the chewiness of the bar, argues that “nothing in
Coleman suggests that the desired chewy texture of its cereal bar should be
totally replaced by a crunchy texture, as required by Appellant’s independent
claims.” App. Br. 6; Reply Br. 2. Based on the facts before us, we agree
with Appellant. Coleman discloses a carbohydrate-based binder, including
corn syrup, which one of ordinary skill in the art at the time of the invention
would reasonably expect to be a binder that interferes with a crunchy texture
that the bar may otherwise have, by making the texture chewy. See Spec.
¶ 10.
The heat-set step of Coleman (col. 7, ln. 65–col. 8, ln. 3) dries the
cereal bar to a final water activity of about 0.4 to about 0.6 (col. 8, ll. 19–
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20). The Examiner turns to Froseth for teaching a layered cereal bar with a
water activity in the range of about 0.35 to 0.55 that has a crispy texture, and
argues that the cereal bar of Coleman must also be crispy based on Froseth.
Final Act. 3–4 (referencing Froseth col. 2, ll. 61–63). However, Appellant
correctly points out that the Examiner’s position ignores the textural
contributions made by ingredients in the binder, such as fats or oils. App.
Br. 7.
The other references cited by the Examiner do not make up for the
deficiencies in Coleman. Accordingly, we reverse the Examiner’s rejection
of claims 1, 3–5, 7, and 11–33 as obvious over Coleman in view of Murata,
Froseth, and Archibald.
Rejection over Borders in view of Murata
The Examiner rejects claims 1, 3–5, 7, and 11–33 over Borders in
view of Murata. Final Act. 5. The Examiner argues that Borders discloses a
protein-based binder system and various food articles comprising the
protein-based binder. Id. The binder comprises modified wheat protein
isolate with at least one additive including protein powder, humectant,
sweeteners, starches, etc. Id. Whey protein is identified as a possible
protein for use in the binder system. Id. Food particles that may be
combined with the wheat protein isolate in Borders comprise “any edible
food part[icles] known in the art.” Borders col. 8, ll. 60–61.
The Examiner acknowledges that Borders does not disclose potato
starch in the binder, and turns to Murata for a binder that comprises potato
starch. Ans. 6–7. Murata teaches use of a binder for manufacturing molded
food comprising pregelatinized cereal powder containing aqueous ethyl
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alcohol and powdery polymer material. Murata col. 2, ll. 55–57. The
particles of processed food which are the main component of the molded
food may be a variety of foods, including dried vegetables, dried processed
vegetables, dried fruits, dried processed fruits, and confections such as
candies, popcorn, and chewing gum. Id. at col. 3, ll. 12–21.
The Examiner urges that it would be obvious to one of ordinary skill
in the art to combine potato starch, as disclosed in Murata, with the wheat
protein isolate of Borders. Final Act. 6.
Borders teaches a binder for a food product, wherein the binder
comprises wheat protein isolate and various food articles. Borders col. 2, ll.
46–47. Appellant relies on Example 3 of Borders, which discloses a binder
system the produces “a soft, chewy, pliable binder.” App. Br. 8. Appellant
further relies on the Abstract of Murata, which states that the molded food
produced with the disclosed pregelatinized cereal powder has a “soft and
pleasant feeling when chewing is obtained.” Id. at 9. Appellant disputes the
Examiner’s conclusion regarding Example 4 of Borders, drawn to an apple
crisp bar, pointing out that Borders provides no information regarding the
texture of the disclosed bar. Id.
The Examiner concludes that the combination of Borders and Murata
discloses a dried cereal product containing the same ingredients as claimed
with the same drying parameters as claimed, thus the product inherently has
a crunchy texture throughout. Ans. at 6–7. We do not agree. Even though
Borders discloses a formulation for a crunchy binder system (Borders
Example 1), as Appellant emphasizes, neither Borders, Murata, nor the
combination of references discloses a dried cereal bar that has a crunchy
texture throughout. See App. Br. 9. Indeed, Borders teaches that the binder
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system may be chewy. Borders col. 18, ll. 32–51. Thus, a crunchy texture
throughout a dried cereal bar is not necessarily the result of Borders or
Borders in view of Murata. See Schering Corp. v. Geneva Pharms., 339
F.3d 1373, 1379 (Fed. Cir. 2003) (limitation is inherent if it is the natural
result flowing from the explicit disclosure of the prior art); MEHL/Biophile
Int’l Corp. v. Milgraum, 192 F.3d 1362, 1365 (Fed. Cir. 1999) (quoting In re
Oelrich, 666 F.2d 578, 581 (CCPA 1981) (“Inherency . . . may not be
established by probabilities or possibilities. The mere fact that a certain
thing may result from a given set of circumstances is not sufficient.”).
A preponderance of the evidence does not support the Examiner’s
determination that Borders in view of Murata would have rendered the
subject matter recited in claim 1 obvious to one of ordinary skill in the art
within the meaning of 35 U.S.C. § 103(a).
DECISION
For the above reasons, the Examiner’s rejection of claims 1, 3–5, 7,
and 11–33 is REVERSED.
REVERSED