General Mills, Inc.

Patent Trials and Appeals Board

Apr 19, 2021

2020003197 (P.T.A.B. Apr. 19, 2021)

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.
15/506,591 02/24/2017 David J. Domingues 7963US01 1397
106306 7590 04/19/2021
DIEDERIKS &WHITELAW, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
EXAMINER
TRAN, LIEN THUY
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
04/19/2021 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):
gmi.mail@dwpatentlaw.com
mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID J. DOMINGUES, CHRISTINE O’CONNOR,
and SUSAN DE WERFF

Appeal 2020-003197
Application 15/506,591
Technology Center 1700
Before BEVERLY A. FRANKLIN, JEFFREY R. SNAY and
SHELDON M. MCGEE, Administrative Patent Judges.

MCGEE, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant appeals from the
Examiner’s decision to reject claims 1–18.1 We have jurisdiction.
35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the real party in interest as General Mills
Inc. Appeal Br. 3.
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Application 15/506,591

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CLAIMED SUBJECT MATTER
The claims are directed to a packaged refrigerated gluten-free dough
composition.
Sole independent claim 1, reproduced below, is illustrative of the
claimed subject matter:
1. A packaged refrigerated gluten-free dough composition
comprising: at least one gluten-free flour source in an amount of
at least 35% by weight of the composition;
at least one starch source in an amount of at least 2% by
weight of the composition; and
at least one protein source in an amount of about 0.5% to
about 13% by weight of the composition, wherein the at least one
protein source includes at least 17 grams of glutamic acid per 100
grams of the protein source, and the at least one protein source
comprises sesame flour, sesame protein, almond protein or a
combination thereof;
at least one fat source in an amount from about 4% to about
10% by weight of the composition; and
water in an amount from about 25% to about 35% by
weight of the composition;
wherein the dough has an average storage modulus
ranging from about 45 kPa to about 60 kPa and an average loss
modulus ranging from about 10 kPa to about 20 kPa at about 40
degrees Fahrenheit after 24 hours of storage at about 40 degrees
Fahrenheit and wherein the composition is substantially free of
gluten protein.

Appeal Br. 11, Claims App.

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THE REJECTION
The Examiner rejects claims 1–18 under 35 U.S.C. § 103 as
unpatentable over the combined disclosures of Zhang, Armstrong, and
Casey. Final Act. 2–4.
Specifically, the Examiner finds that Zhang discloses all the
limitations recited in claim 1 except for the requirement that the dough be
“refrigerated,” as well as details regarding the protein source and the average
storage modulus and average loss modulus of the dough. Id. at 2–3.
To address these differences between Zhang and claim 1, the
Examiner first turns to Armstrong, which the Examiner finds discloses that it
is known in the art that dough may be refrigerated. Id. at 3. The Examiner
then turns to Casey, which the Examiner finds discloses that vegetable
proteins such as sesame protein or almond protein can be incorporated into
gluten-free baked products. Id. The Examiner finds that the recited
glutamic acid concentration would be inherent in the sesame protein or
almond protein. Id. The Examiner also finds that the recited modulus
properties would be inherent. Id.
Based on these combined teachings, the Examiner determines that it
would have been obvious to refrigerate Zhang’s dough because doing so
would have been recognized by the skilled artisan as a well-known storage
alternative, and to use sesame or almond protein in Zhang’s gluten-free
dough composition as “an obvious matter of preference depending on the
taste and flavor desired” or the “nutritional profile provided by such
protein.” Id.
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OPINION
We review the appealed rejection for reversible error based on the
arguments and evidence presented by Appellant. 37 C.F.R.
§ 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (explaining that even if the Examiner had failed to make a prima
facie case, “it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”).
We address the claims separately to the extent they are so argued by
Appellant. 37 C.F.R. §41.37(c)(1)(iv).
Claim 1
Appellant argues the rejection of claims 1, 3–10, 12, and 16–18 as a
group. Appeal Br. 5–8. Consistent with our rule, we select claim 1 and base
our review of Appellant’s arguments on this claim. 37 C.F.R.
§ 41.37(c)(1)(iv). Claims 3–10, 12, and 16–18 stand or fall with claim 1.
Appellant first argues that the skilled artisan would not have modified
Zhang’s dough by refrigerating it––as opposed to freezing, par-baking, or
baking it. Appeal Br. 5–6. For support, Appellant argues that “[p]aragraph
35 [of Zhang] teaches that if the dough of Zhang is allowed to leaven,
inferior quality is produced,” and asserts that the skilled artisan would not
have refrigerated Zhang’s dough “in order to avoid leavening and therefore
inferior quality.” Id. at 6; see also Reply Br. 3 (asserting that the skilled
artisan would have expected refrigerated dough to leaven during storage and
produce an inferior quality product).
This argument is unpersuasive. The Zhang disclosure upon which
Appellant relies states that “if the dough was allowed to leaven during the
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sheeting/pressing and molding process, the frozen dough and the par-baked
product were of inferior quality.” Zhang ¶ 35 (emphasis added). It says
nothing regarding leavening during storage––refrigerated or otherwise. Id.
Here, we agree with the Examiner that “[A]ppellant’s argument that
refrigeration would lead to leavening and thus inferior quality” is
unsupported by evidence. Ans. 6. Therefore, even if the leavening process
continued to some degree during refrigeration as Appellant asserts,
Appellant has provided no evidence establishing that leavening during
storage would somehow result in an inferior quality product. “Attorney’s
argument in a brief cannot take the place of evidence.” In re Pearson, 494
F.2d 1399, 1405 (CCPA 1974).
Appellant also argues that the skilled artisan would not have been
motivated to modify Zhang’s composition with one of Casey’s specific
vegetable proteins, but rather would have added Casey’s entire dietary
supplement to Zhang’s dough composition. Appeal Br. 6–7. For support,
Appellant asserts that Zhang treats vegetable proteins as “additional protein
sources, not as the primary source.” Id. at 7.
This argument is unpersuasive. As correctly noted by the Examiner,
Zhang discloses possible proteins as dairy, vegetable, and/or egg which
“suggests the protein can be used as a combination or as a singular protein,”
while Casey evinces “that the claimed proteins are known and they are
known to be used in gluten-free products.” Ans. 7 (citing Zhang ¶ 29; and
Casey ¶¶ 23, 40) (emphasis added). The skilled artisan thus would have
known that one vegetable protein could be used in Zhang’s gluten-free
dough composition, and also would have known from Casey that sesame
protein or almond protein are possible vegetable proteins that may be used in
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a gluten-free bread product. Based on these teachings, the skilled artisan
would have been motivated to select one or more of the specific vegetable
proteins disclosed by Casey as suitable for a gluten-free bread product and
use such vegetable protein in Zhang’s gluten-free dough composition. KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007) (“The combination of
familiar elements according to known methods is likely to be obvious when
it does no more than yield predictable results.”).
Appellant also asserts that the Examiner failed to show the claimed
weight percentage of the protein if one “added Casey’s dietary supplement
to the dough product of Zhang.” Appeal Br. 7–8. This argument is
unpersuasive because it misunderstands the underlying rejection. The
Examiner did not propose adding the entirety of Casey’s dietary supplement
to Zhang’s dough composition; rather, the Examiner determined that it
would have been obvious “to use sesame protein or almond protein as
disclosed in Casey.” Final Act. 3 (emphasis added). The Examiner also
relied on Zhang for the claimed percentage of protein and found that the
amount of glutamic acid per 100 grams of the protein source would be
inherent. Id.; see also Ans. 8–9. This is entirely proper, and shifts the
burden to Appellant to come forth with evidence demonstrating that the
claimed feature is not inherent in the prior art.
Where . . . the claimed and prior art products are identical or
substantially identical . . . the PTO can require an applicant to
prove that the prior art products do not necessarily or inherently
possess the characteristics of his claimed product. Whether the
rejection is based on ‘inherency’ under 35 U.S.C. § 102, on
‘prima facie obviousness’ under 35 U.S.C. § 103, jointly or
alternatively, the burden of proof is the same, and its fairness is
evidenced by the PTO’s inability to manufacture products or to
obtain and compare prior art products.
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In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (citations and footnote
omitted). Appellant has provided no such evidence on this appeal record.
In sum, Appellant has failed to identify reversible error in the
rejection of claim 1. We, therefore, sustain the rejection of this claim, along
with claims 3–10, 12, and 16–18 which are not argued separately.
Claim 2
Claim 2 depends from claim 1, and requires the protein source to
“consist essentially of” the same proteins recited in claim 1, rather than
“comprise[]” such proteins. Appeal Br. 11 (Claims App.).
Appellant argues that “[t]he Examiner does not appear to address this
claim wherein the protein source is limited to only these proteins.” Appeal
Br. 8; see also Reply Br. 4 (arguing that claim 2 is narrower than claim 1 in
that the protein source “consists essentially of” at least one member of the
claimed group of proteins).
We are not persuaded by this argument. The Examiner sufficiently
addresses this claim limitation. See Final Act. 3 (stating that “Zhang does
not disclose . . . the protein recited in claim 2” but relying on Casey for its
disclosure sesame and almond proteins); see also Ans. 9 (“[t]he claim is
addressed in the same way that claim 1 is addressed with regard to
substituting the protein disclosed in Zhang for other known protein as shown
in Casey”). The Examiner’s findings and determinations have established a
prima facie case of obviousness against claims 1 and 2 because the
Examiner suggested using Casey’s “sesame protein or almond protein” as
Zhang’s singular vegetable protein. Final Act. 3; Ans. 9. Appellant does not
explain, nor do we discern, how the Examiner’s proposed combination fails
to meet the claim. We, therefore, sustain the rejection of claim 2.
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Claim 11
Claim 11 depends ultimately from claim 1 and requires that “the at
least one oil is an extra virgin olive oil.” Appeal Br. 13 (Claims App.). The
Examiner finds that extra virgin olive oil is well known in the art and it
would have been obvious to use it as the vegetable oil as a matter of
preference. Final Act. 3–4.
Appellant argues that the Examiner failed to provide substantial
evidence supporting the rejection. Appeal Br. 8. In response, “[t]he
[E]xaminer takes [O]fficial [N]otice that extra virgin olive oil is well known
in the art and it would have been an obvious matter of preference to use it.”
Ans. 9. The Examiner also states that “Appellant did not challenge the
office notice.” Id.
Appellant contests the Examiner’s position set forth in the Answer.
Reply Br. 4–5. Specifically, Appellant asserts that, in the Appeal Brief, it
adequately contested the Examiner’s use of Official Notice, and that reliance
on Official Notice should be rare when an application is under final
rejection. Id.
The issue we must decide, then, is whether the Examiner’s reliance on
Official Notice that “extra virgin olive oil is well known” was proper.
Under the circumstances of this case, we determine that the Examiner’s
reliance on Official Notice was indeed proper and sustain the rejection.
We begin by pointing out that the Examiner first relied on Official
Notice to establish this fact––albeit without expressly identifying it as
“Official Notice”––on page 4 of the Non-Final Office Action dated February
21, 2019. By our count, Appellant had three opportunities to challenge the
Examiner’s Official Notice finding that extra virgin olive oil is well-known:
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1) in its April 23, 2019 Response to the Non-Final Office Action
dated February 21, 2019,
2) in its September 26, 2019 Response to the Final Office Action
dated July 5, 2019, and
3) in its Appeal Brief dated November 26, 2019.
Appellant did not avail itself of the first two opportunities. Rather,
Appellant first challenged this finding after filing its Notice of Appeal.
Appeal Br. 8. Thus, Appellant’s suggestion that the Examiner somehow
improperly relied on Official Notice in the Final Rejection (Reply Br. 5)
lacks merit because the Examiner was not yet aware this finding was going
to be challenged.
Which brings us to the specifics of Appellant’s challenge in the
Appeal Brief. “To adequately traverse . . . a finding [of Official Notice], an
applicant must specifically point out the supposed errors in the examiner’s
action, which would include stating why the noticed fact is not considered to
be common knowledge or well-known in the art.” MPEP § 2144.03C
(emphasis added). Appellant’s assertion does not meet this standard and,
therefore, does not “adequately traverse” the Examiner’s finding that extra
virgin olive oil is well-known. Final Act. 3–4. Here, Appellant merely
asserts that the Examiner “provides no substantial evidence to support the
rejection.” Appeal Br. 8. Such lack of an adequate traversal of this fact
obviates any need for the Examiner to come forth with documentary
evidence in support of this finding. See MPEP § 2144.03C (explaining “[i]f
applicant adequately traverses the examiner’s assertion of official notice,
the examiner must provide documentary evidence in the next Office Action
if the rejection is to be maintained.”); see also In re Chevenard, 139 F.2d
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711, 713 (“[I]n the absence of any demand by appellant for the examiner to
produce authority for his statement, we will not consider this contention.”).
The Examiner’s rejection of claim 11 is sustained.
Claim 13
Claim 13 depends ultimately from claim 1 and requires the leavening
agent to comprise an encapsulated soda that includes about 60% soda and
about 40% encapsulating hydrogenated vegetable oil coating. The Examiner
finds that while Zhang discloses the use of encapsulated leavening agents, it
does not disclose the claimed percentages. Final Act. 2–4. The Examiner
finds, however, that the claimed percentages would have been obvious to the
skilled artisan because the percentage of oil is a result-effective variable. Id.
at 4; see also Ans. 9 (“the amount [of fat] used in the coating is a result-
effective variable that depends on the degree of barrier property desired”
because “a thicker coating would require higher fat amount and provides a
higher degree of protection”).
Appellant asserts that the Examiner failed to provide evidence to
support the rejection, that Zhang fails to teach any specific amount of oil
coating, and that there is no disclosure in the combined teachings of the
references of the claimed ratio. Appeal Br. 9.2

2 We do not consider Appellant’s untimely argument in the Reply Brief that
there is no recognition in the combination of references that the amount of
oil coating is a result-effective variable. Reply Br. 5. The Examiner’s
finding that the amount of oil or fat is result-effective appears in the Final
Office Action. Final Act. 4. Appellant has not shown good cause why this
argument could not have been raised in the principal brief. 37 C.F.R.
§ 41.41(b)(2).
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These assertions fail to reveal reversible error in the rejection. The
Examiner acknowledges that Zhang does not disclose the claimed oil
percentage (Final Act. 3), but then relies on the doctrine of routine
optimization––not the disclosure of any other reference––to establish that
the claimed ratio would have been obvious (id. at 4). Merely asserting what
the Examiner already acknowledges in the rejection does not identify error.
The rejection of claim 13 is sustained.
Claims 14 and 15
Claim 14 depends ultimately from claim 1 and requires that the
leavening agent is an acid present in an amount sufficient to neutralize the
added soda. Appeal Br. 13 (Claims App.). Appellant argues the rejection of
claims 14 and 15 as a group. Appeal Br. 9. We select claim 14 as
representative. 37 C.F.R. § 41.37(c)(1)(iv).
The Examiner finds that Zhang does not expressly disclose the
limitation recited in claim 14, but finds that chemical leavening of dough is
well known and, as such, the skilled artisan would have found it readily
obvious to use an amount of leavening acid that neutralizes the leavening
base. Final Act. 3–4.
Appellant contends that although “Zhang teaches using soda and acid,
[] there is simply no teaching to have them neutralize each other.” Appeal
Br. 9. We are not persuaded by this argument because it does not squarely
address the rejection as set forth by the Examiner. Final Act. 3–4. Again,
the Examiner acknowledges that Zhang does not contain an express teaching
of using an amount of acid sufficient to neutralize the added soda, but then
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asserts that neutralizing a base with an acid in chemical leavening is well
known. Id. Appellant does not contest this assertion in a timely manner.3
We, therefore, sustain the rejection of claims 14 and 15.
CONCLUSION
The Examiner’s rejection is affirmed.
DECISION SUMMARY

Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis  Affirmed Reversed
1–18 103 Zhang, Armstrong,
Casey
1–18

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED

3 Appellant asserts the Examiner improperly relied on Official Notice to
establish that chemical leavening reactions are well-known. Reply Br. 6.
This challenge is not timely under our rule, so it is deemed waived. 37
C.F.R. § 41.41(b)(2). Indeed, Appellant acknowledges that the Examiner
takes Official Notice of this fact in the Final Office Action (Reply Br. 6),
and no good cause demonstrating why this argument could not have been
raised in the Appeal Brief has been shown.