General Mills, Inc.

Patent Trials and Appeals Board

Mar 22, 2022

2021001546 (P.T.A.B. Mar. 22, 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. 15/683,218 08/22/2017 Thomas J. Arthur 7164US02 1690 106306 7590 03/22/2022 DIEDERIKS & WHITELAW, PLC 4196 Merchant Plaza, #815 Woodbridge, VA 22192 EXAMINER THAKUR, VIREN A ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 03/22/2022 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): 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 THOMAS J. ARTHUR, ANITA L. FISCHBACH, ANDREA STRANSKY, ROBERT A. ZOSS, and BRUCE D. LARSON ____________ Appeal 2021-001546 Application 15/683,218 Technology Center 1700 ____________ Before KAREN M. HASTINGS, JEFFREY B. ROBERTSON, and N. WHITNEY WILSON, Administrative Patent Judges. HASTINGS, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision to reject claims 1, 3, 4, 6, 7, 9, 10, 14, and 17. See Final Act. 1. We have jurisdiction over the appeal under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42 (2012). Appellant identifies General Mills, Inc. as the real party in interest (Appeal Br. 3). Appeal 2021-001546 Application 15/683,218 2 CLAIMED SUBJECT MATTER Claim 1 illustrates the subject matter on appeal (emphasis added to highlight key disputed limitations): 1. A packaged frozen precooked dough or batter-based food product comprising: (a) one or more frozen precooked dough or batter-based food products selected from the group consisting of pancakes, fruit filled Danish, scones, waffles, breadsticks, donuts, and cinnamon rolls; and (b) a heatable pouch comprising a heatable film with an outside surface, the heatable pouch encasing the one or more frozen precooked dough or batter-based food products in a cavity; wherein the heatable pouch includes 2 to about 20 vent holes in the heatable film that extend completely through the heatable film to the cavity such that an opening of each vent hole on the outside surface of the pouch is aligned with an opening of each vent hole entering the cavity, remain open to the cavity and provide a vent area ratio ranging from 0.00005 to 0.001 (vent area m2/ pouch area m2), wherein the packaged frozen precooked dough or batter-based food products and the pouch are configured to be heated in an conventional or convection oven to form heated dough or batter-based food products having a crust moisture content ranging from about 10% to about 45%. (Appeal Br. Claims App. 17). Appeal 2021-001546 Application 15/683,218 3 REFERENCES The Examiner relied upon the following prior art: Name Reference Date Matoba US 4,961,944 Oct. 9, 1990 Emanuelson US 5,277,925 Jan. 11, 1994 Moller US 6,187,396 B1 Feb. 13, 2001 Carpenter US 2005/0227101 A1 Oct. 13, 2005 Kubat US 2005/0281923 A1 Dec. 22, 2005 Yoffe US 2006/0222271 A1 Oct. 5, 2006 Waller US 2007/0098866 A1 May 3, 2007 Flaherty US 2009/0098257 A1 Apr. 16, 2009 Deighton EP 1 033 324 A1 Sept. 6, 2000 Rossin WO 2005/107478 A2 Nov. 17, 2005 Meltier2 DE 202006014003 U1 Nov. 16, 2006 Pizza Making Forum https ://www.pizzamaking.com/forum/index.php/topic,1486.msg 13527.html#msg13527 (June 13, 2005). REJECTIONS ON APPEAL Claims Rejected 35 U.S.C. § Reference(s)/Basis 1, 3, 4, 6, 7, 9, 10, 14, 17 103(a) Rossin, Moller, Deighton, Yoffe, Meltier, Matoba, Flaherty, Kubat, Waller, Pizza Making Forum 1, 3, 4, 6, 7, 9, 10, 14, 17 103(a) Carpenter, Kubat, Deighton, Yoffe, Meltier, Matoba, Flaherty, Moller, Emanuelson, Waller 2 This reference was misspelled as “Mettler” in the Examiner’s rejections and in the Appellant’s briefs. Appeal 2021-001546 Application 15/683,218 4 OPINION Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions as set forth in the Appeal Brief, we determine that Appellant has not identified reversible error in the Examiner’s rejection (see generally Ans.). In re Jung, 637 F.3d 1356, 1365- 66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of requiring Appellant(s) to identify the alleged error in the Examiner’s rejection). We sustain the rejection essentially for the reasons expressed by the Examiner in the Final Office Action and the Answer. We add the following primarily for emphasis. It has been established that “the [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972 F.2d 1260, 1264- 65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings thereof as well as the inferences one of ordinary skill in the art would have reasonably been expected to draw therefrom). Appellant’s main argument focuses on the assertion that the Examiner has not provided an adequate reason to combine every applied reference in each rejection (e.g., Appeal Br. 6) and that the Examiner has not shown why the claimed vent area is a result effective variable (Appeal Br. 8). Appellant further argues that Moller’s vented bag is not used during baking (Appeal Br. 6), there is no reason to use the vent area of Deighton in Rossin (Appeal Br. 7), Meltier’s bag is unsealed (id.), Matoba’s vents are only open during a microwave heating step (Appeal Br. 8), Flaherty’s vents may burst in a Appeal 2021-001546 Application 15/683,218 5 microwave (id.), and there is no reason to use teaching of the moisture of Waller in the food product of Rossin (Appeal Br. 9). Appellant presents similar arguments for the rejection based on Carpenter as the base reference (Appeal Br. 11-14). Appellant also objects to the Examiner’s rejection of dependent claim 9 in each rejection, which recites that the heatable pouch and dough “are configured to be” heated for a time and temperature to form a food product with a specified crust moisture content (claim 9; e.g., Appeal Br. 10-11, 15-16). These arguments are reiterated in the Reply Brief. Appellant’s arguments are not persuasive of reversible error as they fail to consider the breadth of the claim language, the applied prior art as a whole, and the inferences that one of ordinary skill would have made, as aptly explained by the Examiner (Ans. 3-17). We note that “[t]he test for obviousness is not whether the features of a secondary reference may be bodily incorporated into the structure of the primary reference . . . . Rather, the test is what the combined teachings of [those] references would have suggested to those of ordinary skill in the art.” In re Keller, 642 F.2d 413, 425 (CCPA 1981). See also In re Nievelt, 482 F.2d 965, 968 (CCPA 1973) (“Combining the teachings of references does not involve an ability to combine their specific structures.”). Contrary to Appellant’s argument, one of ordinary skill in the art would have readily appreciated from the applied prior art as a whole that vent area ratio is a result effective variable for releasing steam/moisture from the food pouch during the heating/cooking process, regardless of whether the heating is via convection, conventional, or microwave heating. In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed. Cir. 2012) (“A recognition in the prior art that a property is affected by the variable is Appeal 2021-001546 Application 15/683,218 6 sufficient to find the variable result-effective.”). It is well settled that it would have been obvious for an artisan with ordinary skill to develop workable or even optimum ranges for result-effective parameters. In re Boesch, 617 F.2d 272, 276 (CCPA 1980); Cf. In re Woodruff, 919 F.2d 1575, 1577-78 (Fed. Cir. 1990) (where the difference between the claimed invention and the prior art is some range, the applicant must show that the particular range is critical, generally by showing that the claimed range achieves unexpected results relative to the prior art range). Appellant has not sufficiently explained why one of ordinary skill in the art would not have been capable, using no more than ordinary creativity, of modifying Rossin’s dough based food products in a vented pouch to contain the recited food products and to have its vent area ratio fall within the claimed range for its heatable vented pouch (or modifying Carpenter’s permeable food pouch package) for the reasons explained by the Examiner (generally Final Act.; Ans.). Furthermore, Appellant has not relied upon any criticality for the claimed range and thus has not satisfied their burden of showing that the claimed ratio range is critical. Indeed, Appellant’s Specification description that “increasing the vent area allows more moisture to escape” would have been expected (Spec. ¶ 26). Ball Aerosol & Specialty Container, Inc. v. Limited Brands, Inc., 555 F.3d 984, 993 (Fed. Cir. 2009) (Under the flexible inquiry set forth by the Supreme Court, the PTO must take account of the “inferences and creative steps,” or even routine steps, that an ordinary artisan would employ). With respect to dependent claim 9, Appellant has likewise not met their burden that the vented pouch of Rossin optimized to have a vent area Appeal 2021-001546 Application 15/683,218 7 falling with the claimed range would not have been capable of being heated to the claimed temperature range for the recited time period to result in a crust moisture content between 10% to about 40% as recited in dependent claim 9 (Ans. 14 (as Examiner points out, Rossin teaches its vented heatable food pouch is useful from -40°C up to 250°C for at least 40 minutes at 250°C)). It is well established that when there is a reason to conclude that the structure of the prior art is capable of performing the claimed function (that is, to form a food product having a crust moisture as recited in claim 9), the burden shifts to the applicant to show that the claimed function patentably distinguishes the claimed structure from the prior art structure. See, e.g., In re Schreiber, 128 F.3d 1473, 1478 (Fed. Cir. 1997). Any additional arguments made by the Appellant, but not explicitly discussed in this decision, have been fully addressed by the Examiner and are unpersuasive of reversible error for the reasons explained in the Final Office Action and/or the Answer. Appellant does not present any additional arguments for any of the dependent claims. Accordingly, we sustain the Examiner’s rejections on appeal. DECISION SUMMARY In summary: Appeal 2021-001546 Application 15/683,218 8 Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3, 4, 6, 7, 9, 10, 14, 17 103(a) Rossin, Moller, Deighton, Yoffe, Meltier, Matoba, Flaherty, Kubat, Waller, Pizza Making Forum 1, 3, 4, 6, 7, 9, 10, 14, 17 1, 3, 4, 6, 7, 9, 10, 14, 17 103(a) Carpenter, Kubat, Deighton, Yoffe, Meltier, Matoba, Flaherty, Moller, Emanuelson, Waller 1, 3, 4, 6, 7, 9, 10, 14, 17 Overall Outcome 1, 3, 4, 6, 7, 9, 10, 14, 17 TIME PERIOD FOR RESPONSE 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) (2013). AFFIRMED