Ex Parte Metzger

Board of Patent Appeals and Interferences

Jan 27, 2006

10315780 (B.P.A.I. Jan. 27, 2006)

The opinion in support of the decision being entered
today was not written for publication and is not
binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
___________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
___________

Ex parte LLOYD E. METZGER
____________

Appeal No. 2006-0379
Application No. 10/315,780
_____________

ON BRIEF
_____________

Before OWENS, DELMENDO, and FRANKLIN1, Administrative Patent
Judges.

FRANKLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal from the examiner’s final
rejection of claims 40-45 and 49-53. A copy of each of these
claims is set forth below:
40. An improved whole wheat flour prepared from peroxide
bleached whole grains of wheat having a white color and a
dietary fiber content of about 10% to 12%.

41. The improved whole wheat flour of claim 40 substantially
free of any bromate bleaching agent.

1 The panel has not changed from the panel in related Appeal No.
2005-1454; rather a name change from Pawlikowski to Franklin has
occurred.
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42. The improved whole wheat flour of claim 41 prepared from
white wheat.

43. The improved whole wheat flour of claim 41 having a pH of
about 6.3 to 6.7.

44. The improved whole wheat flour of claim 43 prepared from
hard white wheat.

45. A finished baked good prepared from the flour of claim 40.

49. The improved whole wheat flour of claim 40, wherein each of
the peroxide bleached whole grains of wheat includes a bran
layer having been treated with peroxide to decrease an exterior
color of the bran layer and an inner endosperm having, at most,
minimal exposure to any peroxide.

50. A lightened grain kernel comprising:

a bran layer having been treated with peroxide to decrease
an exterior color of the bran layer; and

an inner endosperm having, at most, minimal exposure to any
peroxide.

51. The lightened grain kernel according to claim 50, wherein
the grain kernel is selected from the group consisting of wheat,
rice, barley and soybeans.

52. The lightened grain kernel according to claim 51, wherein
the grain kernel is constituted by white wheat.

53. The lightened grain kernel according to claim 52, wherein
the white wheat is hard white wheat.

The examiner relies on the following reference as evidence
of unpatentability:
Devic 5,480,788 Jan. 02, 1996

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Claims 40-45 and 49 stand rejected under 35 U.S.C. § 103 as
being obvious over Devic.
Claims 50-53 stand rejected under 35 U.S.C. § 102(b) as
being anticipated by, or in the alternative, under 35 U.S.C.
§ 103(a) as being obvious over Devic.
With regard to the claims under consideration in this
appeal, to the extent that any one claim is specifically and
separately argued regarding patentability, we will consider such
claim. See 37 CFR § 41.37(c)(1)(vii)(September 2004); formerly
37 CFR § 1.192(c)(7)(2003). Also see Ex parte Schier, 21
USPQ2d 1016, 1018 (Bd. Pat. App. & Int. 1991).

OPINION
I. The 35 U.S.C. § 103 rejection of claims 40-45 and 49
The examiner’s position for this rejection is set forth on
page 2 of the Office Action mailed June 4, 2004 (we note that
the examiner refers to this Office Action as having been mailed
on May 27, 2004, on page 2 of the answer).
The examiner states that Devic discloses peroxide bleached
whole wheat kernels, which are converted into white wheat flour.
The examiner’s position is that finding the optimal fiber
content, and pH, of the wheat flour would require nothing more
than routine experimentation by one reasonably skilled in the
art. Office action of June 4, 2004, page 2.
Beginning on page 5 of the brief, appellant argues that
Devic does not teach to make a white, whole wheat flour,
including whitened bran and endosperm which has not been tainted

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by peroxide, as required by claim 49. Appellant also argues
that Devic is not concerned with treating whole grain kernels.
Beginning on page 9 of the brief, appellant also argues
that Devic does not teach a whole wheat flour having a dietary
fiber content of about 10% to 12%. Appellant states “[t]here is
simply no specific teaching in Devic to produce a white, whole
wheat flour having a dietary fiber content of about 10% to 12%
from peroxide bleached whole grains.” Brief, page 10.
Appellant also argues when one considers that common white
flour had a dietary content of about 1-2%, making a white, whole
wheat flour having 10% to 12% dietary fiber is an important and
distinct advancement. Brief, page 10.
With regard to the argument concerning whole wheat flour
prepared from peroxide bleached whole grains, we agree with the
examiner that Devic teaches that “whole grains of cereals” are
treated with peroxide. It is clear that Devic teaches that
whole grains may be treated. See column 2, lines 60-68 of
Devic. Also, Devic teaches in column 1, beginning at line 18
that “[t]he plant materials which can be bleached according to
the invention include all products of vegetable origin, which
are used for nutrition, either in their entirety or parts
thereof [emphasis added].”
Because whole grains of wheat are treated in Devic, we
likewise agree with the examiner that the whole wheat flour will
have a fiber content typical of a whole wheat flour prepared
from whole grains of wheat (which is to be distinguished from
the dietary fiber content of white flour prepared from refined
flour). The burden is upon appellants to show that the fiber
content of the whole wheat flour prepared from peroxide bleached
whole grains according to Devic would somehow have a different
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fiber content than that which is typical of whole wheat flour
prepared from whole grains. In this regard, we incorporate
herein, the examiner’s position, as set forth on page 4 of the
answer, wherein the examiner states that whole wheat flour
naturally has a particular fiber content. The examiner states
that since Devic provides a whole wheat flour, the resultant
product obviously has a dietary fiber content similar to that
claimed by appellant for whole wheat flour. The examiner states
that appellant’s claimed whole wheat flour having a certain
fiber content cannot be said to patentably distinguish over the
whole wheat flour prepared in Devic.
With regard to the claimed pH values of from about 6.3 to
6.7, as recited in appellant’s claim 43, we note that Devic
teaches that the pH of the material after bleaching is less than
or equivalent to 8.5, which suggests appellants’ claimed range.
See column 4, lines 20-24 of Devic.
With regard to claim 49, on page 11 of the brief, appellant
argues that claim 49 specifically limits the wheat flour to be
made from bleached whole grains of wheat, wherein a bran layer
is treated with peroxide, and an inner endosperm is “not
treated”.2 Appellant argues that Devic teaches that all the
plant material, including the endosperm, is soaked in the
bleaching solution. See also pages 2-3 of the reply brief.

2 We note that none of appellant’s claims recite that the inner
endosperm is “not treated”; hence, appellant’s statement here is
incorrect.
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Claim 49 recites that each of the peroxide bleached whole
grains of wheat includes a “bran layer having been treated with
peroxide” and “an inner endosperm having, at most, minimal
exposure to any peroxide”.
In response, on pages 2-3 of the answer, the examiner
states that the disclosure in Devic regarding that the peroxide
solution is absorbed by the plant material or grain kernels is
not contrary to obtaining a grain kernel whose inner endosperm
has had minimal exposure to peroxide. The examiner first notes
that the word “minimal” is a relative term, without clear
meaning in appellant’s invention.3 The examiner states that
appellant produces grain kernels by exposing them to peroxide at
50 to 165°F, for 30 seconds to three minutes, and refers to
appellant’s specification, on page 11, lines 1-4. The examiner
points out that because Devic also treats whole grains of cereal
for a few minutes at a temperature within appellant’s claimed
range, it follows that the inner endosperm of the grain kernels
in Devic is exposed to the same amount of peroxide as
appellant’s endosperm portion.
Devic treats whole grains of cereal for a few minutes at a
temperature overlapping appellant’s claimed range (Devic teaches
that the temperature ranges from 20 to 100°C. See column 3,
lines 43-50). The soaking time is selected depending on the
capacity of the apparatus to ensure homogeneous mixing and to
maintain the desired temperature. In general, a soaking time of
from a few minutes to a few hours is required depending on the
type of apparatus used. See column 4, lines 56-68 of Devic.

3 We note that the word “minimal” is not specific as to a numerical
amount; rather it is a subjective term. In this context, we agree
with the examiner’s position here.
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Devic also teaches that the amounts and concentrations of the
reactants of the alkaline aqueous hydrogen peroxide solution is
selected such that all the solution is absorbed by the plant
material over the course of the soaking. Devic also teaches
that the heating time depends on the nature of the material and
the amount of peroxide. See column 5, lines 5-6 of Devic.
Devic teaches an amount of hydrogen peroxide varies from 1% to
20% by weight relative to the dry weight of the material. See
column 4, lines 1-5.
In view of the above, it is therefore clear that Devic
suggests overlapping temperature and time values (as well as
amount of hydrogen peroxide) in comparison with the time and
temperature disclosed in appellant’s specification. As such, we
agree with the examiner’s position that “minimal” exposure of
the endosperm of the kernel to the peroxide is suggested by
Devic.
In view of the above, we affirm the 35 U.S.C. § 103
rejection of claims 40-45 and 49 as being obvious over Devic.

II. The 35 U.S.C. § 102(b) or § 103(a) rejection of claims
50-53 over Devic

On pages 2-3 of the Office Action mailed June 4, 2004, the
examiner states that wheat kernels naturally have a bran layer
and an inner endosperm. The examiner states that the bran layer
is contacted with peroxide in Devic. The examiner states that
exposure of the inner endosperm of the wheat kernels in Devic is
inherently minimized since the peroxide concentration is as low
as 30% strength, the amount used is as low as 1%, and the
treatment time and temperature is for a few minutes at a low
temperature, and refers to column 3, lines 63 to column 4, line
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67 of Devic. The examiner states that these conditions are
consistent with what appellant discloses in the specification
that are necessary for minimal exposure of the endosperm to
peroxide, and refers to page 11 of appellant’s specification.
Beginning on page 6 of the brief, appellant argues that
claim 50 is directed to a lightened grain kernel and requires
that the grain kernel has an inner endosperm having at most a
minimal exposure to any peroxide. On page 7 of the brief,
appellant also argues that Devic is concerned with treating
ground material. Appellant argues that Devic lacks any
disclosure of treating a whole grain.
With regard to the “ground material” argument, we are not
convinced by this line of argument for the reasons discussed
supra, in the previous art rejection. While we appreciate
appellant’s discussion of other disclosures of Devic, regarding
treatment of powdered pulp, etc., the reference is not so
limited. We note that one of ordinary skill in the art would
have evaluated Devic’s disclosure as a whole, rather than solely
the working examples or preferred embodiments, because a prior
art disclosure is not limited to its working examples or to its
preferred embodiments. Merck & Co. Inc. v. Biocraft Labs. Inc.,
874 F.2d 804, 807, 10 USPQ2d 1843, 1846 (Fed. Cir. 1989); In re
Fracalossi, 681 F.2d 792, 794 n.1, 215 USPQ 569, 570 n.1 (CCPA
1982); In re Lamberti, 545 F.2d 747, 750, 192 USPQ 278, 280
(CCPA 1976); In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510
(CCPA 1966).
With regard to the “minimal” exposure to peroxide argument,
the examiner has found that Devic teaches a soak time and
temperature that is similar to the soak time and temperatures
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disclosed in appellant’s specification.4 Devic’s process
conditions overlap appellant’s process conditions as disclosed
in the specification.5 As such, we agree with the examiner’s
position that “minimal” exposure of the endosperm of the kernel
to the peroxide is suggested by Devic. While we appreciate
appellant’s discussion in the paragraph bridging pages 7 and 8
of the brief (as well as the discussion in the reply brief), as
stated supra, we agree with the examiner’s assessment in this
regard.
On page 9 of the brief, appellant argues the obviousness-
type portion of the rejection, and argues that the examiner has
not identified any differences, but simply states that if there
are any differences, they would be obvious. We believe an
example of the examiner’s position in this regard is that, with
respect to claim 52 (for example), “the grain kernel is
constituted by white wheat”. Devic teaches that the plant
materials that can be bleached include all products of vegetable
origins which are used for nutrition, either in their entirety
or parts thereof. Exemplary of such products are cereal grains
(wheat, maize, oats, barley, rice, etc.), peels, skins, pips of
fruits, bran from oil plants, such as sunflowers, bran from
cereals”. See column 1, lines 18-24 of Devic. In view of this

4 Devic discloses that the soaking time ranges from a “few minutes to a
few hours”. Column 4, lines 65-67. The hydrogen peroxide is
typically used in the form of an aqueous solution of 30% to 70%
strength. See column 3, lines 64-65. The temperature during the
soaking phase ranges from 20o to 100oC. See column 4, lines 57-58.
5 We note that, in related Appeal No 2005-1454 (a copy is provided
herewith), the Board determined that although Devic discloses
overlapping ranges among the three parameters, a certain amount of
picking and choosing would be necessary in order to anticipate the
claimed subject matter of process claim 13 of related application S.N.
10/315,763. The Board rejected claim 13, anew, under 35 U.S.C. § 103
as being obvious over Devic.
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disclosure, we agree with the examiner that it would have been
obvious to have selected the type of wheat (white wheat) as
recited in claim 52.
In view of the above, we reverse the 35 U.S.C.
§ 102(b) rejection of claims 50-53, but affirm the rejection of
these claims under 35 U.S.C. § 103 as being obvious over Devic.

III. Conclusion

The rejection of claims 40-45 and 49 under 35 U.S.C. § 103
as being obvious over Devic is affirmed.
The anticipation rejection of claims 50-53 under 35 U.S.C.
§ 102(b) as being anticipated by Devic is reversed.
The obviousness rejection of claims 50-53 under 35 U.S.C.
§ 103(a) as being obvious over Devic is affirmed.

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No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a)(iv)(effective Sept. 13, 2004).

AFFIRMED

Terry J. Owens )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Romulo H. Delmendo ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
Beverly A. Franklin )
Administrative Patent Judge )

BAF/cam

Appeal No. 2006-0379
Application No. 10/315,780

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General Mills, Inc.
Number One General Mills Blvd.
Minneapolis, MN 55426