Ex Parte Clarke

Patent Trial and Appeal Board

Oct 25, 2018

14480625 (P.T.A.B. Oct. 25, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO.
14/480,625
93049 7590
Axiom Global Inc.
84 Terrace Rd
FILING DATE
09/08/2014
10/29/2018
Walnut Creek, CA 94597
FIRST NAMED INVENTOR
Raymond Clarke
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
13282-5 2849
EXAMINER
SMITH, PRESTON
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
10/29/2018 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):
jmcdonald@mcdonaldj.com
jmcdonald@axiomlaw.net
thprichardson @comcast.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RAYMOND CLARKE
Appeal2018-000213
Application 14/480,625
Technology Center 1700
Before CATHERINE Q. TIMM, DONNA M. PRAISS, and
JANEE. INGLESE, Administrative Patent Judges.
TIMM, Administrative Patent Judge.
DECISION ON APPEAL 1
1 In explaining our Decision, we cite to the Specification of September 8,
2014, as amended on July 10, 2015 (Spec.), Final Office Action of
December 10, 2015 (Final), Appeal Brief of July 11, 2016 (Appeal Br.),
Examiner's Answer of July 27, 2017 (Ans.), and Reply Brief of September
27, 2017 (Reply Br.).
Appeal2018-000213
Application 14/480,625
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner's decision to reject claims 1-8, 10-16, and 18-21. We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM-IN-PART.
The claims are directed to a sealed container (see, e.g., claim 1 ), a
method of ripening fruits in a sealed container (see, e.g., claim 12), and a
method of storing and/or ripening a respiring biological material in a sealed
package (see, e.g., claim 16). Claim 1 illustrates the sealed container:
1. A sealed container which comprises
(a) at least 4 kg of a respiring biological material, and
(b) a packaging atmosphere around the respiring
biological material, and
( c) an atmosphere control member which
(i) provides a pathway for oxygen, carbon dioxide and
ethylene to enter or leave the packaging
atmosphere,
(ii) consists of a membrane which comprises a
microporous film and a polymeric coating on the
microporous film, and
(iii) has an OTR of at least 50,000 ml/I 00 inch2
.atm.24hrs;
the sealed container having (i) an oxygen permeability at
13 °C per kilogram of the respiring biological material in the
container ( 0 P 13 /kg) of at least 7 00, and (ii) an ethylene
2 According to the Application Data Sheet, Appellant is the applicant, Apio,
Inc. Application Data Sheet of Sept. 8, 2014. The Appeal Brief lists Landec
Corporation as the real party in interest. Appeal Br. 1.
2
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Application 14/480,625
permeability at 13 °C per kilogram of the respiring biological
material in the container (EtPI3/kg) which is at least 2 times the
OPI3/kg, and
the respiring biological material being a fruit selected
from the group consisting of apples, apricots, avocados,
blackberries, blueberries, cherimoyas, dates, figs, mangos,
melons, peaches, papayas, pears, pineapples, peppers,
persimmons, plums, cherries, grapes, lemons, oranges,
tomatoes, raspberries, strawberries, nectarines, kiwis and
tomatoes.
Appeal Br. 23 ( claims appendix).
The Examiner maintains, and Appellant appeals, the following
rejections made under 35 U.S.C. § I03(a):
A. The rejection of claims 1--4, 6, and 8 as obvious over
De Moor3 in view of Schreiber, 4 Curtis, 5 and Nakata; 6
B. The rejection of claims 5, 10-12, and 14 as obvious over
De Moor, Schreiber, Curtis, Herdeman, 7 Nakata, and Sisler; 8
C. The rejection of claim 7 as obvious over De Moor,
Schreiber, Curtis, Nakata, and Sisler;
D. The rejection of claim 13 as obvious over De Moor,
Schreiber, Curtis, Herdeman, Nakata, and Sisler;
3 De Moor, US 6,013,293, issued Jan. 11, 2000. The Examiner refers to this
patent as Moor.
4 Schreiber, US 5,332,088, issued July 26, 1994.
5 Curtis, US 6,085,930, issued July 11, 2000.
6 Nakata et al., US 6,348,271 Bl, issued Feb. 19, 2002.
7 Herdeman, US 5,460,841, issued Oct. 24, 1995.
8 Sisler et al., US 5,518,988, issued May 21, 1996.
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Application 14/480,625
E. The rejection of claim 15 as obvious over De Moor,
Schreiber, Curtis, Herdeman, Nakata, Reilly,9 and Sisler;
and
F. The rejection of claims 16 and 18-21 as obvious over
De Moor, Schreiber, Curtis, Herdeman, Nakata, Sisler, and
Orman. 10
OPINION
Appellant begins by arguing claims 1-8, 10-15, and 21 as a group and
then presents further arguments for each rejection with selected claims
argued separately. Appeal Br. 9-22. We address each of the issues arising
as follows.
Re} ections A-E
Turning first to Appellant's argument directed to the grouping of
claims 1-8, 10-15, and 21, we will treat claims 1-8 and 10-15, which are
the subject of Rejections A-E listed above, together, but treat claim 21
separately in our discussion of Rejection F.
Each of the rejected claims 1-8 and 10-15 requires the use of an
atmosphere control member that "consists of a membrane which comprises a
microporous film and a polymeric coating on the microporous film" ( claims
1 and 12 (emphasis added)). The Examiner finds De Moor teaches the
required atmosphere control member (gas permeable membrane) having a
microporous film and a polymeric coating on the microporous film. See,
e.g., Final 3.
9 Reilly et al., US 2,226,480, issued Dec. 24, 1940.
10 Orman et al., US 4,990,351, issued Feb. 5, 1991.
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Application 14/480,625
Appellant contends that the Examiner erred in failing to give effect to
the "consisting of' language in the claims. Appeal Br. 9-10. According to
Appellant, De Moor requires an apertured cover member and, thus,
De Moor's atmosphere control member does not "consist of' the recited
membrane. Id.
Appellant has not identified a reversible error in the Examiner's
finding that De Moor teaches an atmosphere control member of the structure
required by claims 1-8 and 10-15. Although De Moor teaches a structure
that De Moor calls a cover member, the cover member can be an integral
part of the barrier sections surrounding the control member as illustrated in
Figures 1 and 2. De Moor col. 5, 11. 27-34; Figs. 1-2. As shown in Figure
2, in this embodiment, there are two structures: (1) The barrier section 11
containing the apertured cover member 122 and (2) the gas permeable
membrane 121. For instance, the barrier section containing the apertured
cover member may be a bag with apertures and the atmosphere control
member may be a gas permeable membrane covering the aperture. De Moor
col. 4, 11. 60-64. This structure is no different than what Appellant describes
in the Specification as his invention, i.e., a gas permeable membrane control
member secured over one or more holes in a bag. Spec. ,r 87. Any
difference resides merely in the language De Moor uses to describe the
structure rather than in the structure itself.
Appellant has not identified a reversible error in Rejections A-E
based on the Examiner's finding that De Moor teaches an atmosphere
control member having the "consisting of' structure required by claims 1-8
and 10-15.
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Appeal2018-000213
Application 14/480,625
Rejection A
Turning to the rejection of claims 1--4, 6, and 8 as obvious over
De Moor in view of Schreiber, Curtis, and Nakata, we note that Appellant
confines the arguments to claims 1 and 2. Appeal Br. 11. Claims 3, 4, 6,
and 8 stand or fall with claim 1.
Claim 1
For the rejection of claim 1, the issue is: Has Appellant identified a
reversible error in the Examiner's finding of suggestions within the prior art
and ordinary skill of the artisan for selecting a coated membrane with the
oxygen and ethylene permeability recited in claim 1 for use as the coated
membrane of De Moor and including at least 4 kg of respiring material in De
Moor's container? Compare Final 3--4, and Ans. 8-10, with Appeal Br. 11-
16, and Reply Br. 1-3.
Appellant has not identified such an error.
De Moor, Curtis, and Nakata are all concerned with packaging that
will inhibit the spoilage of respiring fruits and vegetables during transport
and storage. De Moor col. 1, 11. 6-7; Curtis col. 3, 11. 7-11; Nakata col. 1,
11. 4--9. All teach using gas permeable membranes to control the
concentrations of various gases within the package. De Moor col. 5, 11. 1-
15; Curtis col. 5, 11. 23-55; Nakata col. 2, 11. 6-19.
The prior art indicates that it was known that respiring fruits and
vegetables not only consume oxygen and produce carbon dioxide, they also
give off water vapor and, at least occasionally, ethylene. De Moor col. 1, 11.
9-16; Curtis col. 1, 11. 45-54; Nakata col. 1, 11. 32-37. According to Nakata,
ethylene gas generated by fresh produce causes them to respire. Nakata col.
1, 11. 32-37.
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Application 14/480,625
As we stated above, De Moor teaches a bag with apertures and gas-
permeab le membranes secured over the apertures. De Moor col. 5, 11. 27-
34; Figs. 1-2. The container may also be made from two preformed,
relatively rigid, polymeric members that have been heat-sealed together and
contain apertures with the gas permeable membrane secured over the
apertures. De Moor col. 4, 11. 60-67.
De Moor controls the concentration of oxygen and carbon dioxide in
the package atmosphere using the combination of the apertures and the
membrane. De Moor col. 2, 11. 45-56. The membrane is a microporous
polymeric film and polymeric coating with an oxygen permeability (OTR),
at all temperatures between 20° and 25° C., of at least 775,000
ml/m2•atm•24 hr (50,000 cc/I 00 inch2•atm•24 hr), preferably at least
1,550,000 ml/m2•atm•24 hr (100,000 cc/100 in2•atm•24 hr). De Moor col. 6,
11. 5-27. Thus, De Moor discloses an OTR in the range of the claim.
Although De Moor does not disclose an oxygen permeability at 13 °C
per kilogram of the respiring biological material or the ethylene permeability
at 13°C per kilogram of the respiring biological material in the container
(EtP13/kg), as found by the Examiner, Curtis and Nakata provide evidence
that ethylene permeability as well as oxygen permeability were known
result-effective variables that those of ordinary skill in the art would have
optimized. Final 4. When optimizing, the ordinary artisan would have
optimized the permeability in the membrane in the context of its use with the
apertures of De Moor. That Nakata discloses some membranes that do not
have the oxygen permeability required by claim 1 does not overcome the
fact that the prior art as a whole supports a determination that optimizing the
permeability of the membrane for use over the apertures of De Moor's
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Application 14/480,625
container would have led the ordinary artisan to permeability values with the
ranges of the claim. Appellant does not provide convincing evidence to the
contrary or rely on any evidence of unexpected results.
As to the weight of the respiring biological material included in the
containers, De Moor speaks of containers of conventional size, De Moor
col. 2, 11. 20-27, and Schreiber discloses a shipping container packed with
40 lbs. ( 18 kg) of bananas, Schreiber abstract. Thus, the prior art suggests
sizing De Moor's container in the sizes conventionally used to ship respiring
fruits and vegetables such as bananas, i.e., in containers that can hold 18 kg
of the fruits and vegetables.
Appellant's arguments concentrate on what each of the references do
not teach, but in so doing the arguments overlook what the references teach
as a whole was known in the prior art and what was suggested to the
ordinary artisan. Thus, Appellant's arguments are not persuasive. A
preponderance of the evidence supports the Examiner's conclusion of
obviousness.
Claim 2
Claim 2 further limits the oxygen and ethylene permeability values,
but, again, a preponderance of the evidence supports the Examiner's
determination that the values of the claims would have been arrived at
through routine experimentation. Appellant provides no evidence of
unexpected results.
Rejection B
To reject claims 5, 10-12, and 14, the Examiner adds Herdeman and
Sisler. Final 4--5. Appellant argues for the separate patentability of claims
10, 11, and 12.
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Application 14/480,625
Claim 12
We begin with claim 12, which is an independent claim. Claim 12 is
directed to a method of ripening fruits by placing the sealed container in an
atmosphere containing ethylene.
The Examiner applies Herdeman as evidence that it was known in the
art to rapidly ripen fruits, such as bananas, to produce a desired ripeness for
delivery within a range of timing schedules using ethylene in a ripening
room. Final 5.
Appellant contends that the Examiner's rejection is based on improper
hindsight reasoning. Appeal Br. 17-18. According to Appellant,
Herdeman' s fruits and vegetables are not in a sealed container when exposed
to ethylene and, thus, there is no suggestion to treat fruits and vegetables in a
sealed container with ethylene. Id. Appellant does not cite to any particular
portion of Herdeman to support a finding that Herdeman does not suggest
placing the fruits and vegetables in sealed containers. Id.
Appellant has not identified a reversible error in the Examiner's
finding of a reason to place the sealed containers of De Moor in an
atmosphere containing ethylene to ripen the fruit within the containers.
Herdeman discloses ripening perishable products, such as bananas,
while the fruit is in containers, e.g., "product-filled boxes 17." Herdeman
col. 4, 11. 27-33. The fruit is loaded into the boxes upon harvesting and
loaded into a combination shipping and ripening container as soon as
possible after harvest. Herdeman col. 6, 11. 10-29. After loading and
stabilizing the temperature so the product is cooled, a controlled low oxygen
atmosphere may be provided to suppress ripening and then ethylene added to
initiate ripening. Herdeman col. 7, 11. 13-33. Once ripening has been
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Application 14/480,625
uniformly commenced, it is preferred that the ethylene gas concentration be
displaced with a low oxygen inert atmosphere to minimize further ripening
during shipping. Id. If the delivery date changes, one can raise or lower the
temperature and oxygen level as necessary to speed or slow ripening as
desired. Herdeman col. 7, 1. 51-col. 8, 1. 5.
Although Herdeman does not specify the structure of the boxes in
which the fruit is stored, a preponderance of the evidence indicates that
using sealed containers having gas permeable membranes was known in the
art to store fruit and vegetables after picking. This is clear from the
teachings of both De Moor and Herdeman, which provide evidence of the
conventional methods used in picking, storing, shipping, and ripening of
respiring fruit. The fruit is often picked when green, cooled, and packaged
in sealed polymeric containers. De Moor col. 1, 1. 60-col. 2, 1. 2; Herdeman
col. 1, 11. 18-52. It was known to use membranes that control the
atmosphere within the container such that it delays ripening. De Moor col.
2, 11. 1-19; Herdeman col. 2, 11. 2-13. And after initial shipping, it was
known to ripen the fruit in ripening rooms to complete the ripening process
prior to final shipment to the retail market. Herdeman col. 1, 11. 37--42. The
fact that Herdeman does not specifically disclose that the boxes 17 include
gas permeable membranes does not negate the suggestion within the prior art
as a whole for using such containers.
Appellant has not identified a reversible error in the Examiner's
rejection of claim 12.
Claim 10
Appellant's argument against the rejection of claim 10 parallels the
argument against the rejection of claim 12: That Herdeman's perishable
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Application 14/480,625
product is not in a sealed container when they are exposed to ethylene.
Appeal Br. 19. For the reasons we state above, this argument does not
identify a reversible error in the Examiner's rejection, which relies on
De Moor as teaching a sealed container.
Claim 11
Claim 11 requires the packaging atmosphere of the sealed container of
claim 1 to contain exogenous ethylene, i.e., ethylene that is "not derived
from the fruits which are being ripened." Spec. ,r 13.
Appellant contends "[n]one of the references used in the first rejection
(DeMoor, Schreiber, Curtis and Nakata) has any disclosure about a
packaging atmosphere that contains exogenous ethylene." Appeal Br. 19.
This argument does not take into account the suggestions within the prior art
as a whole and the skill of the ordinary artisan.
As found by the Examiner, Herdeman teaches using exogenous
ethylene when ripening and De Moor teaches the basic container structure of
Appellant's claim. Ans. 10. Curtis and Nakata suggest using a gas
permeable membrane that permits ethylene to permeate. Curtis col. 4,
11. 45---60; Nakata col. 2, 11. 6-19. Although Curtis and Nakata disclose using
the membrane to allow ethylene to escape the container, this is because
Curtis and Nakata are concerned with delaying ripening during storage.
Herdeman makes clear that adding ethylene will result in ripening.
Herdeman col. 2, 11. 13-17.
The prior art provides evidence that those of ordinary skill in the art
understood that a film that is permeable to ethylene not only allows ethylene
to escape, it allows ethylene to enter when the concentration of ethylene is
higher in the atmosphere outside the container than in the container. See,
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Application 14/480,625
e.g., De Moor col. 1, 11. 9-24 ( discussing the correlation of oxygen and
carbon dioxide concentration within the package with the concentration of
the gases outside the package); Curtis col. 2, 11. 4--21 (stating that "the rate at
which a specific gas permeates through a membrane is proportional to the
difference between the concentrations of that specific gas on both sides of
the permeable membrane"). The prior art as a whole provides a
preponderance of evidence supporting obviousness.
Appellant has not identified a reversible error in the Examiner's
rejection of claim 11.
Rejections C-E
To reject claim 7, the Examiner relies on De Moor, Schreiber, Curtis,
Nakata, and Sisler. Final 5---6. To reject claim 13, the Examiner relies on
De Moor, Schreiber, Curtis, Herdeman, Nakata, and Sisler. Final 6. To
reject claim 15, the Examiner relies on De Moor, Schreiber, Curtis,
Herdeman, Nakata, Reilly, and Sisler. Final 6-7.
Appellant does not argue the separate patentability of claims 7, 13,
and 15. Appeal Br. 19-20. Thus, Appellant has not identified a reversible
error in the Examiner's rejection of these claims.
Rejection F
Turning to the rejection of claims 16 and 18-21 as obvious over
De Moor, Schreiber, Curtis, Herdeman, Nakata, Sisler, and Orman,
Appellant focuses on the rejection of claim 16 and argues for the separate
patentability of claim 21. Because we do not sustain the rejection of
independent claim 16, we need only address the rejection of claim 16.
Claim 16 is directed to a method of storing and/ or ripening a respiring
biological material. Step (A) of the method requires providing a sealed
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Application 14/480,625
package containing a sealed container and, within the sealed container, at
least 4 kg of a respiring biological material surrounded by a packaging
atmosphere. Appeal Br. 26 ( claims appendix). The sealed container
includes a pathway for oxygen and carbon dioxide to enter and leave the
packaging atmosphere. Id.
Claim 16 includes two steps of exposing the exterior of the
atmosphere control member to atmospheres. Claim 16, steps (B) (first
atmosphere) and (C) (second atmosphere). Id. The first and second
atmospheres contain oxygen. For instance, the first atmosphere can have a
lower oxygen content that retards ripening while the second atmosphere can
have more oxygen and, optionally, ethylene to speed ripening. Spec. ,r,r 25-
26.
Claim 16 requires the first and second atmosphere to differ from one
another by at least 1 % in their content of at least one gas that will pass
through the atmosphere control member. This "at least one gas" is an
insecticide, a fungicide, or a mold-inhibiting compound. Claim 16.
The Examiner relies on a finding that Orman teaches that it was
known to protect fruits with fungicides. Final 7. The problem is that Orman
fails to provide a suggestion for adding a fungicidal gas that will pass
through an atmosphere control member as Orman teaches drenching fruit
with a falling liquid fungicide. Orman col. 2, 11. 52-54. We agree with
Appellant that the Examiner has failed to provide evidence supporting a
reason to add a gaseous fungicide to the exterior atmospheres of claim 16.
Appellant has identified a reversible error in the Examiner's rejection
of claims 16 and 18-21.
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Application 14/480,625
In summary:
1--4, 6, 8 § 103(a)
5, 10-12, § 103(a)
14
7 § 103(a)
13 § 103(a)
15 § 103(a)
16, 18-21 § 103(a)
Summa
CONCLUSION
De Moor, 1--4,6,8
Schreiber,
Curtis, Nakata
De Moor, 5, 10-12, 14
Schreiber,
Curtis, Nakata,
Herdeman, Sisler
De Moor, 7
Schreiber,
Curtis, Nakata,
Sisler
De Moor, 13
Schreiber,
Curtis, Nakata,
Herdeman, Sisler
De Moor, 15
Schreiber,
Curtis, Nakata,
Herdeman,
Sisler, Reill
De Moor,
Schreiber,
Curtis, Nakata,
Herdeman,
Sisler, Orman
1-8, 10-15
DECISION
The Examiner's decision is affirmed-in-part.
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16, 18-21
16, 18-21
Appeal2018-000213
Application 14/480,625
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.I36(a)(l).
AFFIRMED-IN-PART
15