Ex Parte Nilsson et alDownload PDFPatent Trial and Appeal BoardFeb 21, 201712812568 (P.T.A.B. Feb. 21, 2017) Copy Citation 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. 12/812,568 07/12/2010 Urban Nilsson 88265-8544 8727 28765 7590 02/23/2017 WINSTON & STR AWN T T P EXAMINER PATENT DEPARTMENT TRAN, LIEN THUY 1700 K STREET, N.W. WASHINGTON, DC 20006 ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 02/23/2017 ELECTRONIC 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): patentdocket@winston.com sfanelli @ winston. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte URBAN NILSSON and DEBORAH BELSER1 Appeal 2015-002433 Application 12/812,568 Technology Center 1700 Before CHUNG K. PAK, BEVERLY A. FRANKLIN, and JULIA HEANEY, Administrative Patent Judges. PAK, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal under 35 U.S.C. § 134(a) from the Examiner’s decision2 finally rejecting claims 1-8, 10-23, 27, and 28, which are all of the claims pending in the above-identified application. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. STATEMENT OF THE CASE The subject matter on appeal is directed to a ready-to-use, microwavable cookie dough formulation, a package containing the same, and a method of baking 1 Appellants identify the real party in interest as “Nestec S.A., a Swiss company having a place of business at Avenue Nestle55, 1800 Vevey.” Appeal Brief filed July 23, 2014 (“App. Br.”)atl. 2 Final Action entered Dec. 10, 2013 (“Final Act.”) at 3-10 and the Examiner’s Answer entered Oct. 7, 2014 (“Ans.”) at 3-8. Appeal 2015-002433 Application 12/812,568 the same in a microwave oven. Spec. 1,11. 3-5; claims 1, 15, and 19. Details of the appealed subject matter are recited in illustrative claims 1,15, and 19,3 which are reproduced below from the Claims Appendix of the Appeal Brief: 1. A ready-to-use, microwavable cookie dough formulation comprising a flour mixture of (a) a gluten-containing flour and (b) a gluten-free flour or an ungelatinized starch component in a weight ratio of (a)(b) of 5:1 to 25:1 to provide a controlled starch gelatinization, sugar, water and a spread-controlling agent comprising a cellulose component, a pregelatinized starch, and a humectant in a combined amount effective to impart water retention to the dough formulation but with the combined amount being 10% by weight or less, wherein the dough has sufficient stiffness to retain its shape prior to baking but spreads when subjected to microwave baking, and wherein the cellulose component, pregelatinized starch, and humectants cooperate to control spreading of the dough formulation during microwave baking. 15. A package comprising a cookie dough formulation comprising a flour mixture of (a) a gluten-containing flour and (b) a gluten-free flour or an ungelatinized starch component in a weight ratio of (a)/(b) of 5:1 to 25:1 to provide a controlled-Starch gelatinization, sugar, water and a spread-contolling agent comprising a cellulose component, a pregelatinized starch, and a humectant in a combined amount effective to impart water retention to the dough formulation but with the combined amount being 10% by weight or less, and a susceptor material at least partially in contact with the dough and configured to provide optimal heat distribution during microwave baking of the dough formulation for providing even heating, crisping, or surface browning of the dough formulation to prepare a baked product. 3 For purposes of this appeal, we limit our discussion to the broadest claims on appeal, namely claims 1,15, and 19. 2 Appeal 2015-002433 Application 12/812,568 19. A method of microwave baking which comprises associating the dough formulation of claim 1 in contact with at least a portion of a susceptor material configured to provide optimal heat distribution during microwave baking of the of the dough formulation so that when the dough formulation and susceptor material are subjected to microwaves, the dough formulation exhibits controlled spreading onto the susceptor material during microwave baking to achieve a final baked product. App. Br., Claims App’x 1,3. The Examiner maintains, and Appellants seek review of, the following grounds of rejection: 1. Claims 1-8, 10-14, and 27 under 35 U.S.C. § 103(a) as unpatentable over the disclosure of Stanton (US 2007/0042099 A1 published in the name of Stanton on Feb. 22, 2007); and 2. Claims 15-23 and 28 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Stanton and Halden (W02008/107018 A1 published in the name of Halden et al. on Sept. 12, 2008). Final Act. 3-10; Ans. 3-8; and App. Br. 8. DISCUSSION Upon consideration of the evidence on this appeal record in light of the respective positions advanced by the Examiner and Appellants, we determine that a preponderance of the evidence does not support the Examiner’s determination that the applied prior art would have rendered the subject matter recited in claims 1-8, 10-23, 27, and 28 obvious to one of ordinary skill in the art within the meaning of 35 U.S.C. § 103(a). As pointed out by Appellants, Stanton teaches forming a refrigeration stable batter that is stiff and sliceable at refrigeration 3 Appeal 2015-002433 Application 12/812,568 temperatures (greater than about 1500 Pa @ 4.5° C.), rather than forming a ready- to-use, microwavable cookie dough as required by the claims on appeal. See, e.g., App. Br. 9 and 11 citing Stanton 111; see also Stanton || 3 and 21. Although the Examiner asserts that Stanton’s refrigeration stable batter corresponds to a cookie dough (Ans. 4), Stanton itself distinguishes its refrigeration stable batter from a cookie dough (Stanton 111). In particular, Stanton, at paragraph 11, teaches (emphasis added) that: All of the forgoing listed batter forms are the same or slightly stiffer than typical batters, but none are as stiff as dough. Stiffness can be quantified in terms of yield stress, which is measured in Pascals (Pa).. .The stiffer the batter, the higher the yield stress.. ..To give an idea of the range of yield stresses, pancake batter would have a yield stress value of about 100 Pa, and cookie dough would have a value of over 3,000 pa.. ..Batters of this invention have a yield stress of greater than 1,500 pa. Therefore, in terms of yield stress, these batters appear to be doughs. However, doughs that bake into products with high specific volume have a higher level of gluten development than batters. Therefore, these batters cannot be considered a true dough. FIG. 1 illustrates the difference between a batter and dough in terms of gluten development. Although cookie dough is called a dough, it does not bake into a product with a high specific volume and achieves its stiffness by having a lower water content and therefore a higher solids content. Yet, on this record, the Examiner does not proffer any reason or suggestion to modify the refrigeration stable batter taught by Stanton to form a micro wavable cookie dough. Ans. 3-8. The Examiner does not adequately explain why the composition required for forming a refrigeration stable batter is applicable to forming a cookie dough requiring different properties. Id. The Examiner’s reference to Table 6 of Stanton drawn to brownie batter ingredients (Ans. 5), for example, does not explain why one of ordinary skill in the art would have been led to form the cookie dough recited in the claims on appeal. 4 Appeal 2015-002433 Application 12/812,568 Accordingly, we reverse the Examiner’s § 103(a) rejections of the above claims for the reasons set forth in the Appeal Brief. ORDER In view of the foregoing, the decision of the Examiner to reject claims 1-8, 10-23, 27, and 28 under 35 U.S.C. §103(a) is REVERSED. REVERSED 5 Copy with citationCopy as parenthetical citation