Ex Parte Murty et al

Board of Patent Appeals and Interferences

Mar 20, 2006

10253333 (B.P.A.I. Mar. 20, 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written for publication and is not binding precedent of the Board.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 ANNAVARAPU S. MURTY and LISA M. STOIBER
_____________

Appeal No. 2006-0825
Application No. 10/253,333
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ON BRIEF
_______________

Before KIMLIN, PAK and KRATZ, Administrative Patent Judges.

KIMLIN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the final rejection of claims 1-32.
Claim 1 is illustrative:
1. A method of preventing contacting surfaces of frozen
dough from sticking together, the method comprising
disposing an anti-stick material on one or more of the
contacting surfaces, the anti-stick material comprising
edible powder having an average particle diameter in the
rang from 5 microns to 160 microns.

The examiner relies upon the following references as
evidence of obviousness:
Matz 3,397,064 Aug. 13, 1968
Reddy 5,626,893 May 6, 1997

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Application No. 10/253,333

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Appellants’ claimed invention is directed to a method of
preventing the surfaces of frozen dough which contact each other
from sticking together. The method entails providing an edible
powder, such as a flour or starch, as an anti-stick material on
the contacting surfaces of the frozen dough. The anti-stick
powder has an average particle diameter in the range of from
5 microns to 160 microns.
Appealed claims 1-32 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Matz in view of Reddy.
Appellants have not set forth an argument that is reasonably
specific to any particular claim on appeal. Accordingly, all the
appealed claims stand or fall together. In re McDaniel, 293 F.3d
1379, 1383, 63 USPQ2d 1462, 1465 (Fed. Cir. 2002).
We have thoroughly reviewed each of appellants’ arguments
for patentability. However, we are in complete agreement with
the examiner that the claimed subject matter would have been
obvious to one of ordinary skill in the art within the meaning of
Section 103 in view of the applied prior art. Accordingly, we
will sustain the examiner’s rejection for essentially those
reasons expressed in the answer.
The disclosures of Matz and Reddy establish that it was well
known in the art to utilize edible powders of flour, starch,
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Application No. 10/253,333

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etc., as an anti-stick material for foods such as dough and
cheese. Matz exemplifies the use of flour as an anti-sticking
agent for dough that is refrigerated. Matz is silent with
respect to the particle size of the anti-sticking flour. Reddy,
on the other hand, uses flour as an anti-caking (anti-sticking)
agent for chunked, diced and shredded cheese, and teaches that
flour having a particle size within the claimed range improves
the functionality of the anti-caking agent.
In our view, based on the Matz disclosure alone, it would
have been prima facie obvious for one of ordinary skill in the
art to use an edible powder such as flour as an anti-stick
material for frozen dough. While, as urged by appellants, there
is a physical distinction between the surfaces of frozen and
refrigerated dough, it is the presence of the flour particles on
the surface of the dough, be it refrigerated or frozen, which
interrupts contact between the dough surfaces. Accordingly, we
are persuaded that one of ordinary skill in the art would have
reasonably expected that the flour which serves as an anti-
sticking agent for a refrigerated dough would also perform the
same function for frozen dough. Furthermore, and not
insignificantly, appellants’ specification acknowledges that it
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Application No. 10/253,333

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was known in the art to use rice flour as an anti-sticking agent
for frozen dough (see page 1 of specification, last paragraph).
As for the claimed particle size, it is well settled that
where patentability is predicated upon a change in a condition of
a prior art composition, such as a change in concentration or
particle size, the burden is on the applicant to establish with
objective evidence that the change is critical, i.e., it leads to
a new, unexpected result. In re Woodruff, 919 F.2d 1575, 1578,
16 USPQ2d 1934, 1936 (Fed. Cir. 1990); In re Aller, 220 F.2d 454,
456, 105 USPQ 233, 235 (CCPA 1955).
In the present case, appellants have not established on this
record that the use of edible powders having a particle size
within the claimed range achieves a new, unexpected result as an
anti-sticking agent for frozen dough. While appellants make
reference to specification data at pages 14 and 15 of the
specification, appellants have not provided the requisite
analysis of the data which demonstrates that methods and products
within the scope of the broadly drafted claims on appeal produce
unexpected results. It is not within the purview of this Board
to analyze specification data and ferret out results in a light
that is most favorable to appellants. Manifestly, it is
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Application No. 10/253,333

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appellants who must shoulder the burden of establishing results
that would be considered truly unexpected by one of ordinary
skill in the art. In re Merck & Co., 800 F.2d 1091, 1099, 231
USPQ 375, 381 (Fed. Cir. 1986); In re Klosak, 455 F.2d 1077,
1080, 173 USPQ 14, 16 (CCPA 1972).
Also, we agree with the examiner that Reddy, although
directed to cheese products, provides further evidence that one
of ordinary skill in the art would have reasonably expected that
flour having a particle size within the claimed range would have
superior anti-sticking properties relative to flour having a
greater particle size. As explained above, the interrupting
nature of the flour particles would have been reasonably expected
to function similarly on dough and cheese surfaces.
Appellants emphasize an aspect of the Matz invention that is
not directed to the use of anti-sticking powder, i.e., adding
potassium polymetaphosphate to the dough, and insinuate that
dusting with rice flour is only taught by Matz as a prior art
technique (see page 4 of reply brief, first paragraph). However,
as emphasized by the examiner, Matz exemplifies the use of anti-
sticking powder for the disclosed invention (see Examples 1 and
2).
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In conclusion, based on the foregoing, it is our judgment
that the examiner has established a prima facie case of
obviousness for the claimed subject matter that has not been
rebutted by appellants. Accordingly, the examiner’s decision
rejecting the appealed claims is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED

EDWARD C. KIMLIN )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
CHUNG K. PAK ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
PETER F. KRATZ )
Administrative Patent Judge )

ECK:hh
Appeal No. 2006-0825
Application No. 10/253,333

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