Robert Den HoedDownload PDFPatent Trials and Appeals BoardDec 5, 201914803613 - (D) (P.T.A.B. Dec. 5, 2019) Copy Citation 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. 14/803,613 07/20/2015 Robert den Hoed P07620US1 5692 34082 7590 12/05/2019 ZARLEY LAW FIRM P.L.C. CAPITAL SQUARE 400 LOCUST, SUITE 200 DES MOINES, IA 50309-2350 EXAMINER MUKHOPADHYAY, BHASKAR ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 12/05/2019 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): crasmussen@zarleylaw.com emarty@zarleylaw.com kconrad@zarleylaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROBERT DEN HOED ____________ Appeal 2019-002554 Application 14/803,613 Technology Center 1700 ____________ Before CHRISTOPHER C. KENNEDY, JULIA HEANEY, and JEFFREY R. SNAY, Administrative Patent Judges. SNAY, Administrative Patent Judge. DECISION ON APPEAL1 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the Examiner’s decision to reject claims 1–4, 6–11, 13, 16, 17, 19, and 20. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Our decision refers to the Specification (“Spec.”) filed July 20, 2015, the Examiner’s Final Office Action (“Final Act.”) dated February 28, 2018, Appellant’s Appeal Brief (“App. Br.”) filed July 30, 2018, the Examiner’s Answer (“Ans.”) dated December 11, 2018, and Appellant’s Reply Brief (“Reply Br.”) filed February 11, 2019. 2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R. § 1.42(a). Appeal 2019-002554 Application 14/803,613 2 CLAIMED SUBJECT MATTER The invention relates to methods of processing seeds for nutritional enhancement. Spec. 1:9–11. Claim 1, reproduced below, is illustrative of the subject matter on appeal. 1. A method of processing seeds to nutritionally enhance food and its prebiotic and probiotic microflora, comprising the steps of: placing a plurality of seeds in a tank and sanitizing the seeds; washing and hydrating the seeds with water; allowing the seeds to germinate over a period of time; drying the seeds for at least twelve hours and the seeds are dried at a temperature between 180 and 350° F; cooling the seeds; and wherein the nutritional value of the seeds is maintained. App. Br. 6 (Claims Appendix). Independent claim 20 additionally recites that “prebiotic and probiotic microflora, live enzymes, and nutritional proteins are present in the processed seeds at an amount at least fifteen percent higher than ground raw seeds.” Each remaining claim on appeal depends from claim 1. REFERENCES The Examiner relies on the following references: Name Reference Date Fitzpatrick US 6,613,366 B1 Sept. 2, 2003 Samadpour US 2014/0237895 A1 Aug. 28, 2014 Martinell US 2005/0005321 A1 Jan. 6, 2005 Vinokur US 2010/0278992 A1 Nov. 4, 2010 White US 5,232,465 Aug. 3, 1993 Appeal 2019-002554 Application 14/803,613 3 REJECTIONS The Examiner maintains, and Appellant requests our review of, the following grounds of rejection:3 1. Claims 1–4, 7, 8, 13, 16, 17, 19, and 20 under 35 U.S.C. § 103(a) as unpatentable over Fitzpatrick in view of Samadpour (Ans. 4–10); 2. Claim 6 under 35 U.S.C. § 103(a) as unpatentable over Fitzpatrick in view of Samadpour and Martinell (id. at 10–11); 3. Claim 9 under 35 U.S.C. § 103(a) as unpatentable over Fitzpatrick in view of Samadpour and Vinokur (id. at 11–12); and 4. Claims 10 and 11 under 35 U.S.C. § 103(a) as unpatentable over Fitzpatrick in view of Samadpour and White (id. at 12–13). OPINION Rejection 1: obviousness over Fitzpatrick and Samadpour The Examiner rejects claims 1–4, 7, 8, 13, and 16–20 under 35 U.S.C. §103(a) as unpatentable over Fitzpatrick and Samadpour. Appellant presents arguments directed toward claims 1 and 20, and does not separately argue the remaining claims subject to this rejection. See App. Br. 2–4; Reply Br. 2–6. Accordingly, claims 2–4, 7, 8, 13, 16, 17, and 19 stand or fall with parent claim 1. We address claims 1 and 20 separately, below. Claim 1 Relevant to Appellant’s arguments on appeal, the Examiner finds that Fitzpatrick discloses a seed processing method that includes drying germinated seeds, but does not disclose drying at a temperature between 180 3 A rejection of claim 18 under 35 U.S.C. § 112 is rendered moot by Appellant’s cancelation of that claim. Ans. 13. Appeal 2019-002554 Application 14/803,613 4 and 350 oF for at least 12 hours. Final Act. 4, 6. The Examiner finds that Fitzpatrick discloses drying at 104 oF for 10 hours. Id. at 6. The Examiner also finds that Fitzpatrick teaches crisper product can be achieved by drying to a lower water activity. Id. at 6–7 (citing Fitzpatrick 86:58–62). In light of these teachings in Fitzpatrick, the Examiner finds that one of ordinary skill would have had a reason to increase and optimize the drying time and temperature in order to achieve a desired crispness within a desired period of time. Id. Appellant argues that no reference teaches the recited drying temperature and time and, therefore, the relied-upon prior art cannot render the claim obvious. App. Br. 2. Appellant further argues that, because the prior art does not teach the recited drying conditions, it does not support the Examiner’s reasoning that that the prior art product inherently would have maintained its nutritional value as claimed. Reply Br. 3. These arguments are not persuasive of reversible error. Appellant does not dispute the Examiner’s finding that Fitzpatrick teaches that drying may be adjusted to yield a desired water activity and, consequently, a desired crispiness. Nor does Appellant challenge the Examiner’s finding that drying time and temperature would have been recognized result- effective variables, the adjustment of which would have affected drying degree and time in a known manner. Appellant’s argument that Fitzpatrick does not specify a drying time and temperature within the recited ranges does not refute the Examiner’s determination that routine optimization of those parameters in Fitzpatrick would have been obvious for the purpose of achieving a desired water activity level within a desired period of time. Fitzpatrick exemplifies drying at 104 oF for 10 hours to achieve a Appeal 2019-002554 Application 14/803,613 5 water activity of about 0.9 (Fitzpatrick 108:53–55), and teaches that crisper product may be obtained by drying to a water activity less than 0.6 (id. 86:53–62). Appellant does not identify reversible error in the Examiner’s determination that one skilled in the art would have had reason to perform drying at increased time and temperature to achieve a desired lower level of water activity and, thereby, increased crispness of the product. For that reason, Appellant also does not persuade us of error in the Examiner’s determination that, because the prior art suggests the recited process steps, a product produced by that process would reasonably have been expected to meet the same maintenance of nutritional value. Appellant argues that the data provided in the tables at pages 6 and 7 of the Specification demonstrates an unexpectedly low degradation of nutrient loads in seeds processed by the claimed method. Appeal Br. 4. Particularly, Appellant contends that the tables appearing at pages 6 and 7 of the Specification show nutrient loads of seeds before and after processing by Appellant’s method. Id. However, as is stated in the Specification, the data presented at pages 6 and 7 correspond to nutrition loads of already processed seeds, before and after application of an unspecified heat treatment. Spec. 6 (“[S]prouted flax, barley, wheat, quinoa, and 9 grain produced using the disclosed method were tested and subsequently heat tested to determine nutrient degradation.”). The relied-upon data thus relates to nutrient degradation attributable to an unspecified heat test performed on previously processed seeds. That data does not support Appellant’s assertion of unexpected results attributable to the seed processing method itself. The Examiner’s rejection of claim 1 is sustained. Appeal 2019-002554 Application 14/803,613 6 Claim 20 Appellant argues that claim 20 additionally requires that the amount of prebiotic and probiotic microflora, live enzymes, and nutritional proteins in the processed seeds is at least fifteen percent higher than ground raw seeds. Appeal Br. 3. The Examiner finds that the recited property would reasonably have been expected to result in the prior art because the prior art suggests essentially the same process as that described in Appellant’s Specification. Final Act. 8. Appellant’s argument merely pointing to the property recited in claim 20 neither addresses nor identifies reversible error in the Examiner’s obviousness rationale. The Examiner’s rejection of claim 20 also is sustained. Rejections II–IV: claims 6 and 9–11 Appellant does not separately argue any of Rejections II–IV as applied to claims 6 and 9–11. Accordingly, each of these rejections is sustained for the reasons given in the Final Office Action, the Examiner’s Answer, and above. CONCLUSION The Examiner’s decision rejecting claims 1–4, 6–11, 13, 16, 17, 19, and 20 is affirmed. Appeal 2019-002554 Application 14/803,613 7 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 7, 8, 13, 16, 17, 19, 20 103(a) Fitzpatrick, Samadpur 1–4, 7, 8, 13, 16, 17, 19, 20 6 103(a) Fitzpatrick, Samadpur, Martinell 6 9 103(a) Fitzpatrick, Samadpur, Vinokur 9 10, 11 103(a) Fitzpatrick, Samadpur, White 10, 11 Overall Outcome 1–4, 6–11, 13, 16, 17, 19, 20 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED Copy with citationCopy as parenthetical citation