Appeal No. 2004-2047
Application 09/817,419
claimed ranges. See generally, In re Baxter, 656 F.2d 679, 686-87, 210 USPQ 795, 802-03
(CCPA 1981) (“As long as one of the monomers in the reaction is propylene, any other monomer
may be present, because the term ‘comprises’ permits the inclusion of other steps, elements, or
materials.”).
According to appellants, the granular structure and birefringence of the “starch” are not
completely destroyed when the “component starch granule may be partially swollen but its
crystallinity not completely destroyed” (specification, e.g., page 9, lines 1-10), at which point the
“starch” is less than fully gelatinized (see brief, pages 3-4), the difference being that
birefringence is detectable at least to some extent. Thus, in other words, this limitation requires
that the process simply “does not . . . completely” gelatinize the “starch.”
In this respect, we interpret this limitation of appealed claim 1 to involve the “starch” of
the whole of the heat treated grain, and not the “starch” contained by a single grain berry per se.
Indeed, we find no disclosure in the written description in appellants’ application which
establishes that each grain berry of the heat treated grain has the same moisture content, is heat
treated to the same extent, and thus that the starch content of each grain is gelatinized to the
same extent. For example, it is apparent that the “starch” sample size used in the DSC
measurements to determine the delta H of the gelatinized, heat treated grain is not a single grain
berry (specification, page 14, ll. 6-17).
Therefore, processes encompassed by appealed claims 1 and 3 can fully gelatinize the
starch of almost all of the individual grain berries, such that the “starch” of the whole of the heat
treated grain exhibits granular structure and birefringence to some extent, however small.
The only requirement of appealed claim 22 is that the specified amylose containing grain
of specified moisture content must be processed within the stated temperature range so as to
increase total dietary fiber content of the heat treated grain by at least 10%. Thus, the grain can
be fully cooked or less than fully cooked in these claimed processes, as long as the total dietary
fiber content of the grain is increased by at least 10%.
Appealed claims 11 through 13 and 31 are drafted in product-by-process format to
encompass products characterized by the respective processes of appealed claims 1 and 22, and
in claims 12 and 13, the additional stated properties. See generally, In re Thorpe, 777 F.2d 695,
697, 227 USPQ 964, 966 (Fed. Cir. 1985).
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