Ex Parte Mesu et al

Board of Patent Appeals and Interferences

May 20, 2009

10919717 (B.P.A.I. May. 20, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte GURBE JELLE MESU and JACOBUS BOOT
____________

Appeal 2009-1506
Application 10/919,717
Technology Center 1700
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Decided:1 May 21, 2009
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Before BRADLEY R. GARRIS, CATHERINE Q. TIMM, and
KAREN M. HASTINGS, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL

Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 8 and 9. We have jurisdiction under 35 U.S.C. § 6.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, begins to run from the Decided Date
shown on this page of the decision. The time period does not run from the
Mail Date (paper delivery) or Notification Date (electronic delivery).
Appeal 2009-1506
Application 10/919,717

We AFFIRM.
Statement of the Case
Appellants claim a method of making a food product such as a snack-
food product which comprises mixing ingredients for the product with a
super-saturated sugar solution, forming the mixture into product precursor
wherein the forming is carried out at elevated temperature while the super-
saturated sugar solution is still liquid, and cooling the precursor to set the
super-saturated solution thereby obtaining the food product.
Claims 8 and 9 (as presented in the Claims Appendix of the Appeal
Brief) read as follows:
8. A method of making a granola or snack-food product,
comprising:

a. mixing ingredients for said granola or snack-food product with a
super-saturated sugar solution to obtain a formable mixture, wherein the
mixing is carried out at an elevated temperature and the super-saturated
sugar solution is liquid at said elevated temperature and the super-saturated
sugar solutions [sic] sets when cooled to room temperature;

b. forming the mixture into product precursor, wherein the forming is
carried out at elevated temperature and whilst the super-saturated sugar
solution is still liquid; and

c. cooling the precursor to set the super-saturated sugar solution,
thereby obtaining the granola or snack-food product.

9. A method of making a food product selected from the
group consisting of a snackbar, a cookie and a breakfast cereal, comprising:

a. mixing ingredients selected from the group consisting of nuts, fruit,
dried fruit, cereals, and cereal products with a super-saturated sugar solution,
said super-saturated sugar solution having a solids content of about 98% by
weight, to obtain a formable mixture, wherein the mixing is carried out at a
temperature of at least 100 degrees C. and the super-saturated sugar solution
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Application 10/919,717

is liquid at said temperature and the super-saturated sugar solution sets when
cooled to a temperature of about 25 degrees C, and

b. forming the mixture into a product precursor, wherein the forming
is carried out at elevated temperature and whilst the super-saturated solution
is still liquid.

The reference set forth below is relied upon by the Examiner as
evidence of obviousness (Ans. 2):
Irma S. Rombauer & Marion Rombauer Becker, Joy of Cooking 790-91 (The
Bobbs-Merrill Col, Inc. 1975) (hereafter “Rombauer”).

The Examiner rejects claims 8 and 9 under 35 U.S.C. § 103(a) as
being unpatentable over Rombauer.2
Issue
Have Appellants shown error in the Examiner’s finding that
Rombauer teaches or at least would have suggested practicing the disclosed
candied popcorn forming step “at elevated temperature and whilst the super-
saturated solution is still liquid” (claims 8, 9)?
Findings of Fact
Rombauer discloses a method of making a candied popcorn food
product (p. 790, last para.) which comprises forming white sugar syrup by
cooking a sugar solution “nearly to the hard-crack stage, about 290°”
(p. 791, left col.), taking the liquid syrup from the heat, pouring it over
popped corn, stirring the corn gently with a spoon until well coated, and,

2 The Examiner’s Answer does not contain the obviousness-type double
patenting rejection set forth in the Final Office Action. We assume,
therefore, that the Examiner has implicitly withdrawn this rejection. As a
result, the only rejection before us in this appeal is the § 103 rejection listed
above.
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“when you are sure the corn is cool enough to handle with lightly buttered
fingers, press it into balls or lollipops” (id.).
With respect to this last mentioned step, the Examiner finds that, “[a]s
in the claimed step b, the mixture [i.e., popped corn and sugar syrup] is
formed into a product precursor while the forming is done at an elevated
temperature and the sugar solution is liquid, then the product is cooled”
(Ans. 5).
Principles of Law
The analysis under § 103 need not seek out precise teachings directed
to the specific subject matter of the claim, for a court can take account of the
inferences and creative steps that person of ordinary skill in the art would
employ. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 417-418 (2007).
Analysis
With regard to claim 8, Appellants present the following argument:
Rombauer does not disclose formation of mixture into
product precursor while the binder is liquid. Rather,
Rombauer specifically discloses waiting until product is
handleable with buttered bare hands. Rombauer is devoid of
a teaching relating to formation of product precursor at
elevated temperature at which the super-saturated sugar
solution is still liquid, as required in claim 8. Indeed,
Rombauer does not disclose or suggest formation of product
precursor at any temperature. Rather, Rombauer discloses
formation of product, not precursor. Further, Rombauer
teaches away from the claimed method by disclosing product
formation at reduced temperature.

(App. Br. 6; see also Reply Br. 3).
As for claim 9, Appellants similarly argue that
Rombauer requires that product formation be done by hand,
and contains no suggestions about forming precursors earlier
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Application 10/919,717

in the cooling cycle (while the super-saturated sugar solution
is liquid) or by other than the hands (as would be required at
the elevated temperature of claim 9, as the liquid super-
saturated sugar solution of Rombauer would be too hot to
handle with the hands)

(App. Br. 8; see also Reply Br. 4-5).
Appellants arguments reveal no error in the Examiner’s § 103
rejection of claims 8 and 9.
Appellants are incorrect in believing that the Rombauer method does
not include forming a precursor product. As correctly indicated by the
Examiner (Ans. 5) and not disputed by Appellants, Rombauer teaches
forming the mixture of popped corn and sugar syrup into balls or lollipops at
an elevated temperature followed by a cooling step. During this formation
step, the candied popcorn balls or lollipops constitute a product precursor
because the ultimate product is not produced until the balls or lollipops
become cooled (i.e., to room temperature).
In addition, Appellants’ arguments reveal no error in the Examiner’s
finding that Rombauer teaches or at least would have suggested the claim
requirement “wherein the forming is carried out at elevated temperature and
whilst the super-saturated solution is still liquid” (claims 8, 9). As support
for this finding, the Examiner logically reasons that “[t]he sugar solution has
to still be hot [and still liquid] or the balls could not be formed” (Ans. 5).
This reasoning has merit. Rombauer’s step of forming balls or lollipops
would not be possible if the sugar solution were cooled to a solution setting
temperature (i.e., room temperature in step (a.) of claim 8 and about 25 °C in
step (a.) of claim 9). It rationally follows that Rombauer’s forming step
must be practiced at elevated temperature while the solution is still liquid.
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Significantly, Appellants’ arguments do not specifically address the
Examiner’s logical reasoning on this matter.
Finally, Appellants seem to believe that Rombauer’s step of forming
balls or lollipops by hand would not have suggested “the elevated
temperature of claim 9, as the liquid super-saturated sugar solution of
Rombauer would be too hot to handle with the hands” (Br. 8). This belief is
not well founded. Appellants point to nothing, and we find nothing
independently, in the forming step of claim 9 which requires an elevated
temperature which “would be too hot to handle with the hands” (id.).
Instead, the “elevated temperature” requirement of claim 9 reads on a
temperature slightly above about 25 °C which is the temperature recited in
claim 9 at which “the super-saturated sugar solution sets”. We do not
consider, and Appellants do not explicitly argue, that a temperature slightly
above 25 °C would be too hot to handle with the hands.
Conclusions of Law
Appellants have not shown error in the Examiner’s finding that
Rombauer teaches or at least would have suggested practicing the disclosed
candied popcorn forming step “at elevated temperature and whilst the super-
saturated solution is still liquid” (claims 8, 9).
As a consequence, we sustain the Examiner’s § 103 rejection of
claims 8 and 9 as being unpatentable over Rombauer.
Order
The decision of the Examiner 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)(1)(v).
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