NISSIN FOODS HOLDINGS CO., LTD.

Patent Trials and Appeals Board

Feb 24, 2022

2021004199 (P.T.A.B. Feb. 24, 2022)

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. 15/512,394 03/17/2017 Sho KITANO 12844.0206USWO 9818 52835 7590 02/24/2022 HAMRE, SCHUMANN, MUELLER & LARSON, P.C. 45 South Seventh Street Suite 2700 Minneapolis, MN 55402-1683 EXAMINER LEBLANC, KATHERINE DEGUIRE ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 02/24/2022 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@hsml.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SHO KITANO, MAIKO TANAHASHI, ERIKO KANAI, HIDENOBU HAZAMA, and MITSURU TANAKA Appeal 2021-004199 Application 15/512,394 Technology Center 1700 Before TERRY J. OWENS, KAREN M. HASTINGS, and JEFFREY R. SNAY, Administrative Patent Judges. OWENS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), the Appellant1 appeals from the Examiner’s decision to reject claims 1, 3, 8, and 9. We have jurisdiction under 35 U.S.C. § 6(b). We REVERSE. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Nissin Foods Holdings Co., Ltd. (Appeal Br. 2). Appeal 2021-004199 Application 15/512,394 2 CLAIMED SUBJECT MATTER The claims are directed to instant fried noodles. Claims 1 and 3, reproduced below, are illustrative of the claimed subject matter: 1. Instant fried noodles having a porous structure, wherein the porous structure comprises a plurality of pores containing fat or oil, a number of the pores having a size in a range of 100 µm2 or larger present per unit area of 1 mm2 in a cross section of a noodle string of the instant fried noodles is in a range of 250 or less, a ratio of a total area of the pores having the size in the range of 100 µm2 or larger present in the cross section of the noodle string relative to an area of the cross section of the noodle string is in a range of 25 % or less, a ratio of an average area per the pore having the size in the range of 100 µm2 or larger present in the cross section of the noodle string of the instant fried noodles relative to the area of the cross section of the noodle string is in a range from 0.03 % to 0.14%, a content of the fat or oil in the noodle string is in a range of 15 % or less, and the noodle string is a fried string of a raw noodle string. 3. Instant fried noodles having a porous structure, wherein the porous structure comprises a plurality of pores containing fat or oil, and a number of the pores having a size in a range of 100 µm2 or larger present per unit area of 1 mm2 in a cross section of a noodle string of the instant fried noodles is in a range of 150 or less, a ratio of a total area of the pores having the size in the range of 100 µm2 or larger present in the cross section of the noodle string relative to an area of the cross section of the noodle string is in a range of 19 % or less, a content of the fat or oil in the noodle string is in a range of 13 % or less, and the noodle string is a fried string of a raw noodle string. Appeal 2021-004199 Application 15/512,394 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Kokeguchi US 4,243,689 Jan. 6, 1981 Greene US 6,042,866 Mar. 28, 2000 REJECTION Claims Rejected 35 U.S.C. § Reference(s)/Basis Reversed 1, 3, 8, 9 103 Greene, Kokeguchi 1, 3, 8, 9 OPINION We need address only the independent claims (1 and 3). Greene discloses: [I]nstant fried noodles are prepared by aggregating a plurality of strip pieces of noodle dough comprising gelatinized starch of a farinaceous base ingredient to form a cake mass of a plurality of noodle strips, subjecting the cake to a temperature and for a time sufficient to reduce the moisture content of the cake to obtain a partially-dried cake having a moisture content in a range of from about 10% up to less than 30% by weight, frying the partially-dried cake in a mass of an edible oil heated sufficiently to fry the cake noodles, and separating the fried cake from the frying oil mass, and preferably, then removing oil adhering to the surfaces of the fried cake. [(col. 1, l. 63 - col. 2, l. 7)] . . . [A] porous structure has been found to provide for oil penetration into the noodles of the cakes and to result in less apparent oil adhering to the noodle surfaces which, surprisingly, has been found to provide a more pleasing appearance, because oil on the noodle surfaces is less visually apparent. This, in turn, provides a more aesthetically appealing product to the consumer not only because it has a better appearance, but also because it produces a less “greasy” character and feel to the touch, and because it operates to inhibit Appeal 2021-004199 Application 15/512,394 4 oil accumulating on package surfaces. So, too, surprisingly, although the noodle strips are more porous, they do not operate to increase quantities of oil taken up during frying. [(col. 4, ll. 6-17)] Kokeguchi makes non-fried, oil-free, instant-cooking dry noodles having a fine porous texture by rolling or extruding grain flour to form a noodle material web, steaming, preliminarily drying, and cutting the web into individual noodles, and drying the noodles (Abstract; col. 2, l. 63 - col. 3, l. 11; col. 7, ll. 52-53). Kokeguchi states (col. 5, ll. 25-32): [T]he rolled web has a porous texture having finer pores in a greater number as compared with the pressure-extruded web, and that accordingly the product dry noodles made of said rolled web are more quickly rendered to edible boiled or cooked state when immersed in hot water and give better sense, feel and taste when eaten as compared with those product dry noodles made from the pressure-extruded web. The Examiner finds (Final 4): Though Kokeguchi is silent on the exact pore size, the teachings of Kokeguchi would motivate one of ordinary skill in the art to minimize the pore size, thus reasonably achieving a pore size such that the number of pores having a size in a range or 100 µm2 or larger present per unit area of 1 mm2 in a cross section of a noodle string of the instant fried noodles is in a range of 150 or less, a ratio of the total area of the pores having a size in the range of 100µm^2 or larger present in the cross section of the noodle string relative to an area of the cross section of the noodle string is in a range of 19% or less, and wherein a ratio of an average area per pore having the size in the range of 100 µm2 or larger present in the cross section of the noodle string of the instant fried noodles relative to the area of the cross section of the noodle string is in a range of 0.03 to 0.14%. Appeal 2021-004199 Application 15/512,394 5 The Examiner does not establish that Kokeguchi would have led one of ordinary skill in the art to those particular pore size requirements. The Examiner’s finding, therefore, appears to be based on impermissible hindsight in view of the Appellant’s disclosure. See In re Warner, 379 F.2d 1011, 1017 (CCPA 1967) (“The Patent Office has the initial duty of supplying the factual basis for its rejection. It may not . . . resort to speculation, unfounded assumptions or hindsight reconstruction to supply deficiencies in its factual basis.”). The Examiner finds that “Kokeguchi teaches that the finer noodle size is achieved through rolling, the same method that is used in the instant specification. Therefore, it is obvious that Greene could achieve the claimed pore size via a rolling method as taught in Kokeguchi” (Ans. 10-11), and “one of ordinary skill in the art at the time the invention was made would have optimized, by routine experimentation, the size of the pores in Greene to achieve instant noodles are more quickly rendered to edible boiled or cooked state” (Ans. 8-9). The Examiner does not establish that Kokeguchi or pore size optimization in Greene would have led one of ordinary skill in the art to the Appellant’s recited pore size requirements. The Examiner finds: “[T]he pore size as explained in the instant specification is responsible for the low oil content of less than 15% (see instant specification paragraph 21). However, Greene achieves this same low oil content of 12% in example 2. Therefore, the pore size is not a critical feature since it does not produce unexpected results, i.e. a low oil content of 15% or less” (Ans. 8). Appeal 2021-004199 Application 15/512,394 6 The Examiner does not establish that Greene’s 12% oil content requires or would have suggested, to one of ordinary skill in the art, the Appellant’s recited pore size requirements. CONCLUSION The Examiner has not set forth a factual basis that is sufficient to support a conclusion of obviousness of the Appellant’s claimed invention. See Warner, 379 F.2d at 1017 (“A rejection based on section 103 clearly must rest on a factual basis”). The rejections, therefore, are reversed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 8, 9 103 Greene, Kokeguchi 1, 3, 8, 9 REVERSED