Ex Parte Takizawa et al

Patent Trial and Appeal Board

Jan 8, 2018

13126336 (P.T.A.B. Jan. 8, 2018)

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.
13/126,336 06/02/2011 Hideki Takizawa P40088 2452
7055 7590 01/10/2018
GREENBLUM & BERNSTEIN, P.L.C.
1950 ROLAND CLARKE PLACE
RESTON, VA 20191
EXAMINER
LEBLANC, KATHERINE DEGUIRE
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
01/10/2018 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):
gbpatent@gbpatent.com
greenblum.bernsteinplc@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HIDEKI TAKIZAWA
and TAKAYUKI YAGI
Appeal 2016-007537
Application 13/126,336
Technology Center 1700
Before BRADLEY R. GARRIS, GEORGE C. BEST, and
MONTE T. SQUIRE, Administrative Patent Judges.
BEST, Administrative Patent Judge.
DECISION ON APPEAL
The Examiner finally rejected claims 1—16 of Application 13/126,336
under 35 U.S.C. § 103(a) as obvious. Final Act. (April 8, 2015).
Appellants1 seek reversal of these rejections pursuant to 35 U.S.C. § 134(a).
We have jurisdiction under 35 U.S.C. § 6.
For the reasons set forth below, we affirm.
1 Nissin Foods Holdings Co., Ltd. is identified as the real party in interest.
Appeal Br. 3.
Appeal 2016-007537
Application 13/126,336
BACKGROUND
There are at least two representative methods for manufacturing
instant noodles. Spec. 2. Both of these methods begin by gelatinizing the
raw noodle strands using steam. Id. The gelatinized noodles are then dried
either by deep-frying or using a hot air stream. Id. The air dried instant
noodles have less fat and fewer calories than the deep-fried instant noodles,
but tend to have inferior taste and texture. Id. 13.
The ’336 Application describes a method that uses a high-temperature
hot air stream but yields noodles that have a taste and texture similar to that
of deep-fried instant noodles. Id. 17.
Claims 1 and 7 are representative of the ’336 Application’s claims and
are reproduced below from the Claims Appendix of the Appeal Brief.
1. A method for producing instant noodles dried by a high-
temperature hot air stream, the method comprising:
producing a noodle band from a noodle dough prepared
by adding an edible oil to a noodle dough material comprising a
raw material flour, and then producing raw noodle strands from
the noodle band,
adhering an edible oil to the raw noodle strands, and then
steaming the raw noodle strands to produce steamed noodles,
forming a noodle block by packing a predetermined
amount of the steamed noodles into a retainer, and
swelling and drying the noodle block by blowing a hot
air stream at a temperature of 120°C to 160°C onto the noodle
block from above and below the retainer at a stream speed of
30 m/s to 70 m/s for a period of 3 to 15 minutes.
Appeal Br. 26.
7. A method for producing instant noodles dried by a high-
temperature hot air stream, the method comprising:
producing a noodle band from a noodle dough prepared by
adding an edible oil to a noodle dough material comprising a
2
Appeal 2016-007537
Application 13/126,336
raw material flour, and then producing raw noodle strands from
the noodle band, wherein an amount of the edible oil added to
the raw material flour is within a range from 0.5 to 2.5% by
weight based on a total weight of the raw material flour,
adhering an edible oil to the raw noodle strands, and then
steaming the raw noodle strands to produce steamed noodles,
wherein an amount of the edible oil adhered to the raw noodle
strands is within a range from 1 to 8% by weight based on a
total weight of the raw material flour,
forming a noodle block by packing a predetermined amount of
the steamed noodles into a retainer, and
swelling and drying the noodle block by blowing a hot air
stream at a temperature of 120°C to 160°C onto the noodle
block from above and below the retainer at a stream speed of 30
m/s to 70 m/s for a period of 3 to 15 minutes, wherein the
noodle block is swelled and dried until a moisture content of the
noodle block falls to not more than 6%,
wherein a total amount of the oil used in the producing and in
the adhering is within a range from 3 to 8.5% by weight based
on a total weight of the raw material flour.
Appeal Br. 28.
REJECTIONS
On appeal, the Examiner maintains the following rejections:
1. Claims 1, 2, 7, 9, 10, and 13—16 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Hisaki,2
Hatsugai,3 and Akira.4 Answer 3—7.
2 US 4,098,906, issued July 4, 1978.
3 US 4,590,083, issued May 20, 1986.
4 US 5,861,186, issued January 19, 1999.
3
Appeal 2016-007537
Application 13/126,336
2. Claims 3, 5, 8, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Hisaki, Hatsugai, Akira, and
Maningat.5 Answer 7—8.
3. Claims 4, 6, and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Hisaki, Hatsugai, Akira,
Maningat, and Takeuchi.6 Answer 8—10.
4. Claims 1, 2, 7, 9, 10, and 13—16 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Hatsugai, Hisaki,
and Akira. Answer 10—14.
5. Claims 3, 5, 8, and 12 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the accommodation of Hatsugai, Hisaki, Akira,
and Maningat. Answer 14—16.
6. Claims 4, 6, and 11 are rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Hatsugai, Hisaki, Akira,
Maningat, and Takeuchi. Answer 16—17.
DISCUSSION
Appellants present specific arguments for reversal of the rejection of
independent claims 1 and 7. See Appeal Br. 9—22. Dependent claims 2—6
and 8—16 are asserted to be patentable based upon their dependence from an
allowable independent claim. Id. at 20. Accordingly, we limit our
discussion to independent claims 1 and 7. Each dependent claim will stand
or fall with the independent claim from which it depends. 37 C.F.R.
§ 41.37(c)(iv).
5 US 2006/0134295 Al, published June 22, 2006.
6 JP 404210570 A, published July 31, 1992.
4
Appeal 2016-007537
Application 13/126,336
The Examiner rejected the independent claims 1 and 7 as unpatentable
over the combination of Hisaki, Hatsugai, and Akira using two alternative
theories. See Final Act. 2—6; 9—13.
Appellants present a single, consolidated set of arguments against
both rejections. See Appeal Br. 11—24. In particular, Appellants argue that
the Examiner’s rejections should be reversed for any of three reasons:
(1) Hisaki and Hatsugai contradict and undermine each other and, thus, teach
away from the combination of their disclosures, (2) the combined
disclosures of Hisaki and Hatsugai describe or suggest substituting inclusion
of the edible oil in the noodle dough for adhering the edible oil to the outside
of the noodle strands, and (3) the combination of Hisaki, Hatsugai, and
Akira does not render obvious the drying parameters recited in claims 1 and
7. See id. at 11—12. We address these arguments below.
First, Appellants argue that the prior art teaches away from the
combination of Hisaki and Hatsugai. Appeal Br. 11—14. Appellants base
this argument on the following passage in Hisaki:
A process has been known for producing non-fried
instant cooking noodles wherein an oil-in-water emulsion of an
edible oil is mixed in wheat flour to form raw noodles and the
formed raw noodles are boiled and then the boiled noodles are
dried by heating. But the stickiness between the noodles
resulting from excessive swelling upon boiling and the
unevenness of the a conversion degree deteriorates the ability to
cook same with hot water, and also deteriorates the feel and
taste thereof during eating and lowers the value of the product.
This process has not been commercially carried out.
Hisaki col. 1,11. 41—52 (cited by Appeal Br. 13).
We disagree with Appellants’ argument that this passage from Hisaki
teaches away from the Examiner’s proposed combination of Hisaki and
Hatsugai. As explained by the Examiner, this passage describes reasons
5
Appeal 2016-007537
Application 13/126,336
why one of ordinary skill in the art would not substitute Hatsugai’s method
of incorporating an edible oil into the noodle dough for Hisaki’s application
of an oil-in-water emulsion to the outside of the noodles. See Answer 17—
23. We agree with the Examiner that this passage does not constitute a
sufficient “teaching away” to render Appellants’ claimed invention
unobvious. Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir.
2006) (“a given course of action often has simultaneous advantages and
disadvantages, and this does not necessarily obviate motivation to
combine”).
Second, Appellants argue that
the examiner’s rejection is additionally inappropriate at least
because the combined disclosures of Hisaki et al. and Hatsugai
et al., at best, disclose substituting “adding” of the edible oil
(during the production of the noodle band) instead of
“adhering” the edible oil (to the produced noodle strands) or
vice versa, but clearly contained no disclosure that teaches both
adding the edible oil and adhering the edible oil.
Appeal Br. 12.
We are not persuaded by this argument. We do not discern error in
the Examiner’s conclusion that it would have been obvious to a person
having ordinary skill in the art at the time of the invention to modify
Hatsugai’s method of including an edible oil in the noodles by additionally
adhering an oil in water emulsion to the noodles’ exterior. See Answer 11.
As the Examiner explained, the skilled artisan would have been motivated to
make the modification to obtain the benefits provided by Hisaki’s method.
Id. (citing Hisaki col. 2,11. 3 — 28). Furthermore, the skilled artisan would
have been motivated to use Hisaki’s method as a remedy to any residual
stickiness of the noodles during the boiling process.
6
Appeal 2016-007537
Application 13/126,336
Third, Appellants argue that the combination of Hisaki, Hatsugai, and
Akira does not describe or suggest the drying parameters recited in
independent claims 1 and 7. Appeal Br. 16—19. In rejecting claims 1 and 7,
the Examiner found that, although Hatsugai teaches drying the noodles, it
does not teach the specific temperature, airspeed, or drying time recited in
claim 1 or 7. Answer 12. The Examiner further found that Akira describes,
in relevant part, drying noodle strips that have been steamed using hot air
flowing at a speed of 10—35 m/s at a temperature of 100—200°C in a retainer.
Id. The Examiner also found that Akira describes a drying time of 2.5
minutes, which is less than the claimed time of 3—15 minutes. Id. The
Examiner, however, concluded that it would have been obvious to a person
of ordinary skill in the art at the time of the invention to modify the drying
time depending on the desired final moisture content of the dried noodles.
Id. at 12—13.
We do not discern error in the Examiner’s conclusion that the
differences between the drying time set forth in claims 1 and 7 would been
obvious to a person of ordinary skill in the art at the time of the invention.
The airspeed range described in Akira overlaps the claimed range of 30—70
m/s, and Akira’s temperature range overlaps the claimed range of 120-
160°C. The Federal Circuit has “consistently held that even a slight overlap
in range establishes aprima facie case of obviousness.” In re Peterson, 315
F.3d 1325, 1329 (Fed. Cir. 2003); see also In re Geisler, 116 F.3d 1465,
1469 (Fed. Cir. 1997) (overlap only at end points). With respect to the
claimed drying times, we agree with the Examiner that it would have been
obvious to a person having ordinary skill in the art at the time of the
invention to adjust the drying time to obtain the desired degree of dryness.
7
Appeal 2016-007537
Application 13/126,336
In view of the foregoing, we affirm the rejection of claims 1 and 7 as
unpatentable over the combination of Hisaki, Hatsugai, and Akira. Thus, we
also affirm the rejection of claims 2, 9, 10, and 13—16 as unpatentable over
this combination of references. We further affirm the rejection of claims 3,
5, 8, and 12 as unpatentable over the combination of Hisaki, Hatsugai,
Akira, and Maningat (Final Act. 13—14) and the rejection of claims 4, 6, and
11, as unpatentable over the combination of Hisaki, Hatsugai, Akira, and
Takeuchi (id. at 14—16).
CONCLUSION
For the reasons set forth above, we affirm the rejection of claims 1—16
of the ’336 Application.
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
8