Ex Parte Triantafyllou Oste et al

Patent Trial and Appeal Board

Nov 26, 2012

10416231 (P.T.A.B. Nov. 26, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/416,231 10/08/2003 Angeliki Triantafyllou Oste C2432.0050 2034
32172 7590 11/26/2012
DICKSTEIN SHAPIRO LLP
1633 Broadway
NEW YORK, NY 10019
EXAMINER
BEKKER, KELLY JO
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
11/26/2012 PAPER
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.
PTOL-90A (Rev. 04/07)
1
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL
AND APPEAL BOARD
____________

Ex parte ANGELIKI TRIANTAFYLLOU OSTE,
CARINA ANDERSSON, RICKARD OSTE, SOFIA EHLDE
____________

Appeal 2011-002901
Application 10/416,231
Technology Center 1700
____________

Before TERRY J. OWENS, BEVERLY A. FRANKLIN, and
MICHAEL P. COLAIANNI, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING

This is in response to a Request, filed October 31, 2012, for rehearing
of our Decision, dated August 31, 2012.
Appellants argue that the Decision’s analysis of the Oste Declaration
evidence (i.e., Exhibit B of the principal Brief) that uses a 67°C
pasteurization temperature ignores the fact that the Examiner finds that
Oetker’s starch components inherently have a gelatinization temperature
greater than 75°C (Request 2-3). Appellants argue that the Decision’s
Appeal 2011-002901
Application 10/416,231

2
analysis of the Oste Declaration evidence takes a different approach than the
Examiner advanced in the rejection and thus changes the basis of the
rejection without affording Appellants an opportunity to respond (Request
3).
While Appellants are correct that the Examiner finds that the starch
components inherently have a gelatinization temperature greater than 75°C
(Ans. 5), we understand that this particular finding is modified by an
additional finding that Oetker teaches particular starches that are also
disclosed by Appellants such that the gelatinization of the commonly taught
starches must have the gelatinization temperature recited in the claim (Id. at
5, 16-17). In other words, the Examiner provides additional findings that
particular commonly disclosed starches (i.e., rice flour, modified wheat flour
and modified potato starch) would possess gelatinization temperatures
within the range recited in Appellants’ claims. The Examiner, in our view,
does not find that every starch component taught by Oetker has a
gelatinization temperature greater than 75°C as argued by Appellants.
Our understanding is further supported by the Examiner’s response to
Appellants’ evidence submitted with the Oste Declaration on pages 12-13 of
the Answer. While Appellants focus on the Examiner’s response that the
lumpy mixture shown in Exhibit B may be considered pourable because
some of the mixture is shown falling out of the container (Request 2), the
Examiner makes additional findings that are not addressed by Appellants.
Specifically, the Examiner finds that one of ordinary skill would have
understood from Oetker’s teachings to produce “liquid dough” that if using a
67°C pasteurization temperature produced a solid product, then a lower
pasteurization temperature would have been selected in order to produce a
Appeal 2011-002901
Application 10/416,231

3
liquid product (Ans. 12-13). Stated differently, the Examiner finds that one
of ordinary skill in the art based on Oetker’s teachings to form liquid dough
and to pasteurize below the gelatinization temperature of the particular
starch used in the composition would have known to use a lower
pasteurization temperature to avoid gelatinizing the particular starch and
thus avoid forming a solid product.
Our analysis of the Oste Declaration is not new to the proceedings,
but is rather aligned with the Examiner’s alternative findings regarding the
evidence. Appellants had the opportunity to address these findings of the
Examiner but did not.
For the above reasons, we adhere to our decision. Appellants request
for rehearing is granted to the extent that we have considered the arguments,
but the request is denied to the extent that the decision will not be modified.
No time for taking any action connected with this appeal may
be extended under 37 C.F.R. § 1.136(a)(1)(iv).

DENIED

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