Ex Parte WaldnerDownload PDFPatent Trial and Appeal BoardAug 30, 201813097247 (P.T.A.B. Aug. 30, 2018) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/097,247 04/29/2011 25231 7590 09/04/2018 Marsh Fischmann & Breyfogle LLP 8055 East Tufts A venue, Suite 450 Suite 450 Denver, CO 80237 UNITED ST A TES OF AMERICA FIRST NAMED INVENTOR Mary Waldner 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 51222-00010 6156 EXAMINER PRAKASH, SUBBALAKSHMI ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 09/04/2018 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): ptomail@mfblaw.com ptomail@mfblaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte MARY WALDNER Appeal2017-011684 Application 13/097 ,24 7 Technology Center 1700 Before BEYERL YA. FRANKLIN, JEFFREY R. SNAY, and JENNIFER R. GUPTA, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims 1, 4, 11, 12, and 19. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 We refer to the Specification ("Spec.") filed April 29, 2011; Final Office Action ("Final Act.") dated September 23, 2015; Appellant's Appeal Brief ("Br.") filed October 24, 2016; and Examiner's Answer ("Ans.") dated March 6, 2017. 2 Appellant identifies Mary's Gone Crackers, Inc. as the real party in interest. Br. 1. Appeal 2017-011684 Application 13/097,247 BACKGROUND The subject matter on appeal relates to use of hydrated chia as an ingredient in gluten-free food. Spec. 1. Claim I-the sole independent claim on appeal-is illustrative: 1. A method for use in making baked products in an industrial process, comprising the steps of: hydrating chia seeds to obtain a hydrated chia seed component by forming a mixture of about 10-20% whole unground chia seeds and 80-90% water by weight and allowing the mixture to stand a length of time so that water is absorbed by the seeds, wherein said step of hydrating comprises combining said water and said chia seeds in an industrial vat and allowing the mixture to stand in said vat at a temperature between about I3°C and 21 °C for between 30 minutes and 3 hours so as to form a hydrated chia colloid gel; and using the hydrated chia seed component as an emulsifier and texturizer in preparing a baked product, wherein said step of using involves combining the hydrated chia seed component with gluten-free flour ingredients, free from any emulsifier other than said hydrated chia seed component, to create a dough or batter, said hydrated chia seed component being combined with the flour ingredients free from any intervening processing such that said hydrated chia colloid gel retains a colloid gel structure as it is combined with flour ingredients, and baking said dough or batter to yield said baked product. Br. 10 ( Claims Appendix) ( emphasis added to highlight the recitations in dispute). REJECTIONS I. Claims 1, 11, 12, and 19 stand rejected under 35 U.S.C. § I03(a) as unpatentable over Gluten Intolerance Group. 3 3 "Salba Seed Bread," published at https://www.gluten.net/recipe/salba-seed- bread/, dated June 26, 2008 ("Gluten Intolerance Group") (last visited Feb. 2 Appeal 2017-011684 Application 13/097,247 II. Claim 4 stands rejected under 35 U.S.C. § 103(a) as unpatentable over Salba and Pietrzkowsi. 4 OPINION We review the appealed rejections for error based upon the issues identified by Appellant and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 107 5 (BP AI 2010) (precedential), cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections .... "). After considering the evidence presented in this Appeal and each of Appellant's arguments, we are not persuaded that Appellant identifies reversible error. Thus, we affirm the Examiner's rejections for the reasons expressed in the Final Office Action and Answer. We add the following primarily for emphasis. Rejection I With regard to Rejection I, Appellant argues the claims as a group, directing the arguments to recitations found in claim 1. See Br. 3-7. We select claim 1 as representative of the rejected claims. Each of claims 11, 12, and 19 stands or falls with claim 1. Relevant to Appellant's arguments on appeal, the Examiner finds that Gluten Intolerance Group discloses combining hydrated chia seed with gluten-free flour ingredients to make a dough or batter in which the hydrated chia component acts as an emulsifier and texturizer. Final Act. 3. 4, 2015). Appellant does not challenge the status of the relied-upon information as available prior art. 4 WO 2004/022725 A2, published March 18, 2004 ("Pietrzkowski"). 3 Appeal 2017-011684 Application 13/097,247 Appellant argues that the phrase, "free from any emulsifier other than said hydrated chia seed component," in claim 1 precludes the starch ( e.g. potato and tapioca), rice bran, honey, and yeast ingredients listed in the Gluten Intolerance Group because, Appellant contends, these ingredients are emulsifiers. Br. 4. Appellant generally points-without explanation-to information submitted in Appendices 1 and 2 to support the contention that certain starches, rice bran, yeast, and honey were known for use as emulsifiers. However, Appellant fails to explain how the submitted information demonstrates that the noted ingredients are provided as emulsifiers or necessarily serve as emulsifiers in the Gluten Intolerance Group recipe. 5 Moreover, Appellant's interpretation that the claim precludes these ingredients is contrary to the Specification, which identifies rice, potato, tapioca, and yeast as suitable ingredients. Spec. 3 :4--9; 4: 1--4. Additionally, Appellant does not respond to the Examiner's determination that it would have been obvious to eliminate common ingredients from the Gluten Intolerance Group recipe. Ans. 9-10. 6 Appellant also argues that the Gluten Intolerance Group recipe involves excessive hydration time and vigorous mixing that would destroy the colloid gel structure called for in claim 1. Br. 5-7. These arguments are unpersuasive. The Gluten Intolerance Group recipe discloses hydrating for "at least 30 minutes" (Gluten Intolerance Group 1) which plainly overlaps 5 Appellant merely states, "[s]ee references," in Appendix 1 and 2, without explaining how the noted references pertain to the Gluten Intolerance Group recipe. For example, Appendix 1 includes information regarding modified starches and Appendix 2 includes information regarding rice bran protein concentrates, neither of which appears to be mentioned in the Gluten Intolerance Group recipe. 6 No Reply Brief has been received. 4 Appeal 2017-011684 Application 13/097,247 the range of "between 30 minutes and 3 hours" recited in claim 1. With regard to mixing, the Gluten Intolerance Group recipe instructs the reader to "combine and mix [ wet and dry ingredients] vigorously for 1-2 minutes." Gluten Intolerance Group 1. Appellant's argument that a hydrated chia seed gel would exhibit a loss of gel structure when processed in a mechanical blender for an unspecified length of time (Br. 6) is insufficient to demonstrate that the hand mixing taught by Gluten Intolerance Group would have resulted in a loss of gel structure. For the foregoing reasons, we are not persuaded of reversible error in the Examiner's rejection of claims 1, 11, 12, and 19. Rejection I is sustained. Rejection II With regard to Rejection II, Appellant argues that Pietrzkowski relates to freeze-drying chia seeds rather than hydration. Br. 7-8. This argument is not persuasive. The Examiner relies on Pietrzkowski for its teaching that chia seeds contain photosensitive components. Final Act. 4. See Pietrzkowski ,r 29 ("Preferably, these steps are done in dark or under reduced light conditions to prevent decomposition of photosensitive components in the seeds."). In light of that teaching, the Examiner finds that one of ordinary skill would have had a reason to perform the hydration taught in Gluten Intolerance Group "in low light environment, to conserve the functional properties of hydrated chia seeds." Id. Appellant's argument fails to address the combined teachings of the references and, therefore, fails to identify error in the Examiner's articulated rationale. Accordingly, Rejection II also is sustained. 5 Appeal 2017-011684 Application 13/097,247 DECISION The Examiner's decision rejecting claims 1, 4, 11, 12, and 19 is affirmed. 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 6 Copy with citationCopy as parenthetical citation