Ex Parte Rossin

Patent Trial and Appeal Board

May 31, 2013

11579402 (P.T.A.B. May. 31, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/579,402 01/22/2007 Angelo Pietro Rossin B-6158PCT 623806-7 3891
36716 7590 05/31/2013
LADAS & PARRY
5670 WILSHIRE BOULEVARD, SUITE 2100
LOS ANGELES, CA 90036-5679
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
05/31/2013 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte ANGELO PIETRO ROSSIN
__________

Appeal 2011-011044
Application 11/579,402
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, PETER F. KRATZ, and
DEBORAH KATZ, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL

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A. STATEMENT OF THE CASE
This is a decision on appeal under 35 U.S.C. § 134 from an Examiner’s
decision finally rejecting claims 1-6, 8-14, and 30. Claims 16-29 are also pending
but have been withdrawn from consideration. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.
The subject matter on appeal is directed to a method for producing bread
including a pre-baking step. Claim 1, reproduced below, is illustrative.
1. A method for producing bread portions having a weight of
between 20 and 200 grams, comprising: a stage in which the bread
mix is prepared, a stage of splitting the mix and dividing into a
plurality of dough parts, and a stage of leavening said parts, and
further comprising subsequent to said stages a further stage of pre-
baking said leavened parts at a temperature of between 100ºC and
250ºC for a time of between 10 and 40 minutes, a subsequent stage of
cooling said pre-baked parts, a subsequent stage of deep-freezing said
cooled parts, and a subsequent stage of packaging predefined
quantities of said deep-frozen parts in a plastic container resistant to
heat and at least partially permeable to gases, said plastic container
including a plurality of holes sized to enable steam to escape during
bread baking.
App. Br., Claims Appendix.1
The Appellant seeks review of the following Examiner’s rejections:2

1 Appeal Brief dated January 18, 2011.
2 The evidence relied on by the Examiner in each of the rejections on appeal is
identified on pages 4-5 of the Examiner’s Answer dated April 8, 2011 (“Ans.”).
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(1) the rejection of claims 1-6, 9, 13, and 30 under 35 U.S.C. § 103(a) as
unpatentable over Doldersum in view of Deighton and further in view of Seneau,
Brummett, Early, and Ravizet;
(2) the rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over
Doldersum in view of Deighton and further in view of Seneau, Brummett, Early,
and Ravizet and further in view of de Bruijne;
(3) the rejection of claim 10 under 35 U.S.C. § 103(a) as unpatentable
over Doldersum in view of Deighton and further in view of Seneau, Brummett,
Early, and Ravizet and further in view of Glaros;
(4) the rejection of claims 11 and 12 under 35 U.S.C. § 103(a) as
unpatentable over Doldersum in view of Deighton and further in view of Seneau,
Brummett, Early, and Ravizet and further in view of Bradshaw, Savelli, Ducharme,
Morikawa, and Applicant’s admission of the prior art3 and further in view of Burn,
Yamada, and Stueber;
(5) the rejection of claim 14 under 35 U.S.C. § 103(a) as unpatentable
over Doldersum in view of Deighton and further in view of Seneau, Brummett,
Early, and Ravizet and further in view of Unbehend;
(6) the rejection of claims 1-6, 9, 13, and 30 under 35 U.S.C. § 103(a) as
unpatentable over Deighton in view of Seneau, Brummett, Early, Ravizet, and
Doldersum;
(7) the rejection of claim 8 under 35 U.S.C. § 103(a) as unpatentable over
Deighton in view of Seneau, Brummett, Early, Ravizet, and Doldersum and further
in view of de Bruijne;

3 Page 4, line 22 to page 5, line 6 of the Appellant’s Specification.
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(8) the rejection of claim 10 under 35 U.S.C. § 103(a) as unpatentable
over Deighton in view of Seneau, Brummett, Early, Ravizet, and Doldersum and
further in view of Glaros;
(9) the rejection of claims 11 and 12 under 35 U.S.C. § 103(a) as
unpatentable over Deighton in view of Seneau, Brummett, Early, Ravizet, and
Doldersum and further in view of Bradshaw, Savelli, Ducharme, Morikawa, and
Applicant’s admission of the prior art and further in view of Burn, Yamada, and
Stueber; and
(10) the rejection of claim 14 under 35 U.S.C. § 103(a) as unpatentable
over Deighton in view of Seneau, Brummett, Early, Ravizet, and Doldersum and
further in view of Unbehend.
We sustain each of these rejections for the reasons set forth in the
Examiner’s Answer dated April 8, 2011 (“Ans.”), and add the following for
emphasis.
B. DISCUSION
1. Rejection (1)
The method recited in claim 1 includes a pre-baking step wherein leavened
dough parts are pre-baked “at a temperature of between 100ºC and 250ºC for a
time of between 10 and 40 minutes.” App. Br., Claims Appendix.
The Examiner finds Doldersum discloses a method for producing bread
including the step of partially baking or pre-baking leavened dough at 280ºC for 6-
8 minutes. Although Doldersum does not expressly disclose the time and
temperature recited in claim 1, the Examiner finds, and the Appellant does not
dispute, that time and temperature are result-effective variables in Doldersum’s
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method. Ans. 8-9. However, the Appellant argues Doldersum teaches away from
the time and temperature recited in the claimed pre-baking step. The Appellant
argues the time and temperature disclosed in Doldersum are essential for preparing
“soft” bread rolls and “it is well known in the art [that] bread portions having a
weight of between 20 and 200 grams baked at a temperature between 100ºC and
250ºC for a time between 10 and 40 minutes will have a hard and stiff crust.” App.
Br. 10.
Significantly, the Appellant has not directed us to any evidence establishing
that the time and temperature recited in the claimed pre-baking step results in a
hard and stiff crust. Moreover, Doldersum does not define the terms “thin” and
“soft.” Therefore, Doldersum cannot be said to teach away from the claimed pre-
baking step.
Claim 6 depends from claim 1 and recites that “the pre-baking stage
comprises baking to the extent between about 70% and 90% of the total baking
necessary for producing the bread.” App. Br., Claims Appendix.
The Examiner finds, and the Appellant does not dispute, that the baking
percentage is a result-effective variable. See Ans. 10. However, the Appellant
argues “[i]t is understood that when bread is baked to the extent of between 70%
and 90% to total baking time, its crust will not be as soft as desired by
Doldersum.” App. Br. 10.
The Appellant has not directed us to any evidence to support this argument.
As pointed out above, Doldersum does not define the terms “thin” or “soft.” Thus,
there is no reason to believe that baking to about 70% of the total baking time in
Doldersum’s pre-baking step would not result in the desired “softness.”
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2. Rejection (2)
Claim 8 depends from claim 1 and recites that “cooling takes place at
ambient temperature.” App. Br., Claims Appendix. The Examiner relies on
de Bruijne to teach cooling as recited in claim 8. Ans. 12.
The Appellant argues that a cooling step is not necessary in the method of
Doldersum because the temperature difference between the pre-baking
environment and the freezer employed in Doldersum’s method is not likely to
result in a violent thermal shock. For this reason, the Appellant argues there is no
motivation to combine Doldersum with the cooling step disclosed in de Bruijne.
App. Br. 11.
The Appellant’s argument is not persuasive of reversible error. Doldersum
discloses that a cooling step follows the pre-baking step. Ans. 28; see also
Doldersum 17, l. 17 (the partially baked products are then cooled); Doldersum 21,
ll. 8-9 (after baking and cooling, the products can be frozen).4 The Examiner
merely relies on de Bruijne as evidence that cooling bread at ambient temperature
“has been a conventional expedient for cooling baked bread.” Ans. 12.
3. Rejection (5)
Claim 14 depends from claim 1 and recites the additional step of “storing the
container of deep-frozen parts at a temperature less than or equal to -20ºC.” App.
Br., Claims Appendix. The Examiner relies on Doldersum in combination with
Seneau, Early, and/or Unbehend as teaching this freezing step. Ans. 15-16.

4 In this Decision, we refer to the English translation of Doldersum dated March
2010.
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The Appellant argues that Doldersum and Unbehend only teach one freezing
step whereas claim 14 recites a freezing step in addition to the deep-freezing step
recited in claim 1. App. Br. 12.
Significantly, the Appellant does not direct us to any error in the Examiner’s
findings of fact or conclusions of law as to Doldersum in combination with Seneau
or Early. Id. Moreover, the argument presented by the Appellant fails to consider
the prior art as a whole. The Examiner finds Unbehend teaches storing a pre-
baked, packaged bread product at a temperature as low as -20ºC for extending the
storage life of the bread product. See Unbehend 7, ll. 5-8.5 The Examiner
concludes that it would have been obvious to one of ordinary skill in the art to
store the pre-baked, packaged product of Doldersum at a temperature as low as
-20ºC for the same purpose. Ans. 15-16, 30. The Appellant has failed to establish
otherwise.
4. Rejection (6)
Deighton discloses a method for producing a bread product including the
pre-baking step recited in claim 1. The Appellant recognizes Deighton discloses
that a partially baked bread product can be stored for a longer period of time if
maintained in a frozen state. However, the Appellant argues Deighton does not
disclose that the “packaged” partially baked bread product is maintained in the
frozen state. Thus, the Appellant argues Deighton would have discouraged one of
ordinary skill in the art from deep freezing the pre-baked bread product as recited
in claim 1. App. Br. 12-13.

5 In this Decision, we refer to the English translation of Unbehend dated March
2010.
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Claim 1 recites pre-baking, cooling, deep-freezing, and packaging a bread
product. App. Br., Claims Appendix. Deighton expressly discloses that a partially
baked bread product can be maintained for an extended period of time “if
maintained in the frozen state.” Deighton, para. [0004]. Thus, Deighton cannot be
said to “teach away” from the freezing step recited in claim 1.
The Appellant also argues Deighton teaches away from the cooling step
recited in claim 1. According to the Appellant:
Deighton specifically discloses that “Once partially baked, a number
of bread products are then packaged in a moisture-barrier
thermoplastic film aimed at controlling loss of moisture and undesired
drying up.” . . . This thus teaches away from any step that will delay
the packaging step once the bread parts are partially baked, including
the cooling step performed prior to the packaging step as recited in
claim 1. Further, as understood, the cooling step inevitably causes
moisture loss and drying up the naked partially baked bread to a
certain extent. This may render the packaging step unsatisfactory for
its intended purpose.
App. Br. 13 (emphasis in original omitted).
The Examiner finds, and the Appellant does not dispute, that some cooling
will occur in the Deighton method prior to packaging. Ans. 32. In this regard, we
note that claim 1 does not recite a cooling time or a cooling rate. Moreover, the
Examiner finds, and the Appellant does not dispute, that Seneau teaches cooling is
useful to achieve uniform moisture distribution in a bread product. Ans. 32;
Seneau, col. 4, ll. 47-50. Thus, the Appellant’s argument is not persuasive of
reversible error.
C. DECISION
The decision of the Examiner is affirmed.
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No time period for taking any subsequent action in connection with this
appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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