Ex Parte Nilsson

Board of Patent Appeals and Interferences

Mar 12, 2004

09092167 (B.P.A.I. Mar. 12, 2004)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.
Paper No. 35
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte GÖRAN NILSSON
_____________
Appeal No. 2004-0380
Application No. 09/092,167
______________
HEARD: MARCH 2, 2004
_______________
Before GARRIS, OWENS, and TIMM, Administrative Patent Judges.
GARRIS, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal from the refusal of the
examiner to allow claims 40-52 as amended subsequent to the final
rejection. These are all of the claims remaining in the
application.
The subject matter on appeal relates to a process for
providing a pasta product which comprises arranging a plurality
of frozen pasta product segments in a pan and adding a cooking
liquid in the pan with the segments and heating the segments and
cooking liquid, wherein the segments are arranged in the pan and
Appeal No. 2004-0380
Application No. 09/092,167
2
the cooking liquid is added so that individual segments are
arranged adjacent one to another segment-side-to-segment-side and
so that the cooking liquid is present between adjacent segment
sides and so that upon heating the segments and cooking liquid
for preparing the segments for consumption, the segments absorb
the cooking liquid and the segment sides adjacent one to another
tend to join and stick together. This appealed subject matter is
adequately illustrated by independent claim 40 which reads as
follows:
40. A process for providing a pasta product for
consumption comprising obtaining a plurality of individual
frozen pasta product segments from a pack, wherein the
individual frozen segments comprise three pasta sheet layers
and a sauce present between the pasta sheet layers and
wherein edges of the pasta sheets define segment sides,
arranging the plurality of the obtained segments in a pan
and adding a cooking liquid in the pan with the segments and
heating the segments and cooking liquid for preparing the
segments for consumption, wherein the segments are arranged
in the pan and the cooking liquid is added so that
individual segments are arranged adjacent one to another
segment-side-to-segment-side and so that the cooking liquid
is present between adjacent segment sides and so that upon
heating the segments and cooking liquid for preparing the
segments for consumption, the segments absorb the cooking
liquid and the segment sides adjacent one to another tend to
join and stick together.
The references set forth below are relied upon by the
examiner as evidence of obvious:
Appeal No. 2004-0380
Application No. 09/092,167
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F. Gressette, It’s Casserole Time Again Quick and Easy Casseroles
Put Convenience In Your Freezer, Miami Herald, Oct. 12, 1989, at
1E.
M. Hanzel, Beach Week Recipes Cater to Children’s Tastes,
Richmond News Leader (VA), August 15, 1990, at 4.
Korn et al. (Korn), Pasta - The Good Cook Techniques & Recipes,
pp. 52-56 (Time-Life Books, Chicago, IL 1980).
All of the appealed claims are rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hanzel in view of Korn and
further in view of Gressette.
We refer to the brief and reply brief and to the answer for
a complete exposition of the contrary viewpoints expressed by the
appellant and by the examiner concerning the above noted
rejection.
OPINION
For the reasons which follow, this rejection cannot be
sustained.
On page 5 of the answer, the examiner expresses his basic
position as follows:
With respect to claim 40, the recipe disclosed in the
article [i.e., the Hanzel article] meets all the claim’s
limitation[s]. It would have been obvious to one skilled in
the art to cook the lasagna segments side-by-side in a
cooking liquid because this is a conventional way of heating
lasagna as shown by the reference to Korn et al. This is
logical reasoning which would have been readily apparent to
one skilled in the art.
Appeal No. 2004-0380
Application No. 09/092,167
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Contrary to the examiner’s aforequoted assertion, Hanzel
certainly does not meet all of the limitations of appealed
independent claim 40. Rather, this claim unquestionably
distinguishes over Hanzel, inter alia, via the here claimed steps
of “adding a cooking liquid in the pan with the [individual
frozen pasta product] segments and heating the segments and
cooking liquid for preparing the segments for consumption” as
well as via the here claimed consequences of the steps wherein
“the segments absorb the cooking liquid and the segment sides
adjacent one to another tend to join and stick together.” In
fact, none of the applied references contains any teaching or
suggestion regarding these cooking liquid features of the
independent claim on appeal.
In support of his opposing view, the examiner appears to
contend that the applied prior art teaches topping a pasta
product with pasta sauce prior to baking, that pasta sauce is
tantamount to the appellant’s claimed cooking liquid and that the
applied prior art would have suggested topping the frozen lasagna
segments of Hanzel with a pasta sauce prior to cooking the
segments thereby satisfying the requirements of appealed claim
40. The essence of this contention is described on page 7 of the
answer with the following language:
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Application No. 09/092,167
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The reference to Korn et al[.] clearly shows how
lasagna is prepared for consumption. Even leaving the
teaching of the cookbook [i.e., the Korn reference] a side
[sic, aside], it is notoriously well known that lasagna is
typically consumed with a type of sauce and this is even
taught by [sic] in the article by Hanzel. The recipe for
lasagna in the article calls for topping with remaining
sauce and baking. If one were to freeze the lasagna, it
will again be prepared for consumption just the same way as
it would be prepared for consumption before freezing. This
would have been readily apparent to one skilled in the art
in view of the teaching of Korn et al. and what is well
known in the art about eating lasagna.
The deficiency of the examiner’s position is that, as
previously indicated, the applied references contain no teaching
or suggestion of topping frozen pasta product, such as lasagna
segments, with a sauce prior to heating the frozen pasta product.
In each of the respective processes of these references, the
sauce is always added to the pasta product before the product is
initially heated or cooked. For example, in the process taught
by the Hanzel reference, the lasagna ingredients including sauce
are combined, then baked, then frozen and then ultimately
reheated for consumption. Thus, while this process includes
topping the lasagna noodles with pasta sauce, this occurs prior
to the aforementioned baking, freezing and reheating steps. It
follows that neither Hanzel nor the other applied references
would have suggested topping frozen pasta product segments with a
pasta sauce prior to heating the segments for consumption.
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Indeed, an artisan plainly would not have been motivated to
provide the Hanzel process with such a step in view of the fact
that the frozen lasagna segments of Hanzel already include a
pasta sauce topping as earlier explained.
Under these circumstances, it is apparent that the examiner
has failed to establish a prima facie case of obviousness with
respect to the subject matter defined by the independent claim on
appeal. For this reason, we cannot sustain the examiner’s
Section 103 rejection of all appealed claims as being
unpatentable over Hanzel in view of Korn and further in view of
Gressette.
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The decision of the examiner is reversed.
REVERSED

BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
TERRY J. OWENS ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
)
)
)
CATHERINE TIMM )
Administrative Patent Judge )
BRG/hh
Appeal No. 2004-0380
Application No. 09/092,167
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