Ex Parte Haji Begli et al

Patent Trials and Appeals Board

Jun 20, 2019

13518173 - (D) (P.T.A.B. Jun. 20, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/518,173 06/21/2012 Alireza Haji Begli
27572 7590 06/24/2019
Harness Dickey (Troy)
P.O. BOX 828
BLOOMFIELD HILLS, MI 48303
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.
2693-000152/US/NP 6691
EXAMINER
PRAKASH, SUBBALAKSHMI
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
06/24/2019 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
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALIREZA HAJI BEGLI, WALDEMAR TSCHILINGIRI,
and SONJA WILLIUS
Appeal2017-007690
Application 13/518,173
Technology Center 1700
Before JULIA HEANEY, MONTE T. SQUIRE, and JANEE. INGLESE,
Administrative Patent Judges.
HEANEY, Administrative Patent Judge.
DECISION ON APPEAL 1
Appellants2 request review pursuant to 35 U.S.C. § 134(a) of the
Examiner's Final Rejection of claims 29 and 33-64 of Application
13/518,173. We have jurisdiction under 35 U.S.C. § 6(b). We reverse.
1 This Decision refers to the Specification dated June 21, 2012 ("Spec."),
Final Rejection dated June 30, 2016 ("Final Act."), Appeal Brief dated
Nov. 1, 2016 ("Appeal Br."), Examiner's Answer dated Mar. 1, 2017
("Ans."), and Reply Brief dated Apr. 26, 2017 ("Reply Br.").
2 Appellants identify Sudzucker Aktiengesellschaft Mannheim/Ochsenfurt as
the real party in interest. Appeal Br. 3.
Appeal2017-007690
Application 13/518,173
BACKGROUND
The subject matter on appeal relates to compositions and methods for
curing food. Appeal Br. 5. Appellants describe that it is desirable to reduce
residual nitrite content in cured food, while improving the intensity and
stability of reddening of the cured food. Spec. 3-5.
Claim 29 is illustrative of the subject matter on appeal and is
reproduced below:
29. A composition for curing a food product, the composition
compnsmg:
0.1 to 0.6% by weight of a nitrite curing salt component
(NPS); and
a sugar substance component, which is a sucrose isomer
composition comprising at least 50% (w/w) of the sucrose
isomers isomaltulose and trehalulose,
wherein the composition generates a cured food with a
lower residual nitrite content and improved reddening relative
to a food product cured with only glucose as a sugar
component.
Appeal Br. 13, Claims App. (key disputed claim language italicized).
THE REJECTIONS
The Examiner maintains the following rejections on appeal:
1. Claims 29, 33-37, and 40-63 are rejected under pre-AIA 35
U.S.C. § 103(a) as unpatentable over the combination of
Hollenbeck3 and Kowalczyk. 4 Final Act. 2.
3 Hollenbeck et al., US 2,739,899, issued Mar. 27, 1956.
4 Kowalczyk et al., (W02009/149785 Al)-English Translation (US
2011/0097470 Al, published Apr. 28, 2011.
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Application 13/518,173
2. Claims 38 and 39 are rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Hollenbeck, Kowalczyk, and
Nielsen. 5 Id. at 10.
3. Claim 64 is rejected under pre-AIA 35 U.S.C. § 103(a) as
unpatentable over the combination of Hollenbeck, Kowalczyk, and
Nielsen. Id. at 12.
DISCUSSION
Rejection 1
The Examiner finds that Hollenbeck discloses a formulation for
curing meat, comprising sugar, a nitrate salt, a nitrite salt, ascorbic acid, and
salt. Final Act. 2 (citing Hollenbeck 3:52-61). The Examiner further finds
that Hollenbeck discloses amounts of nitrite salt and sucrose that fall within
the ranges recited in claim 29, and that it would have been obvious to a
person of ordinary skill in the art to optimize the amounts of nitrite and a
selected sucrose component by experimentation, to obtain a desired level of
reddening. Id. at 2-3. The Examiner further finds that Hollenbeck teaches
that compounds containing an enediol group, such as ascorbic acid and
related compounds, reduce the amount of nitrate and/or nitrite used in the
cure, accelerate the rate of curing, and reduce the absorption of curing
solution in the meat to produce cured meat product with improved flavor
characteristics. Id. at 3 (citing Hollenbeck 2:22-35, 2:10-29, 4:23-24).
The Examiner acknowledges that Hollenbeck does not disclose the
use of sucrose isomers isomaltulose and trehalulose in its food curing
5 Nielsen et al., US 2009/0214752 Al, published Aug. 27, 2009.
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Application 13/518,173
composition. Id. at 3-4. The Examiner finds, however, that Kowalczyk
teaches syrups containing isomaltulose, trehalulose, and trace amounts of
other sugars, in a syrup used as an antioxidant in cured meat products. Id. at
4 (citing Kowalczyk ,i,i 18, 19, 21, 36). The Examiner further finds that
Kowalczyk teaches its syrup has better reducing properties than glucose and
provides antioxidative effect in food compositions without the disadvantages
of known antioxidants such as ascorbic acid. Id. ( citing Kowalczyk ,i,i 4-7,
15). The Examiner determines it would have been obvious to a person of
ordinary skill in the art to substitute Kowalczyk's syrup for the ascorbic acid
in Hollenbeck's curing composition, in order to produce a cured food with a
lower residual nitrite content, because the syrup in modified Hollenbeck
would have better reducing properties than glucose. Id.
Appellants argue that the rejection does not establish prima facie
obviousness, because the Examiner has not shown that the modified
composition of Hollenbeck will generate a cured food with a lower residual
nitrite content. Appeal Br. 6-7; Reply Br. 2-3. Appellants assert neither
Hollenbeck nor Kowalczyk teaches lower residual nitrite content, or that the
quantity of nitrites used in the cure could be reduced, while still achieving a
preservative antimicrobial effect. Id. Appellants assert that there is no
evidence to support the Examiner's finding that a stronger reducing agent
(i.e. Kowalczyk's syrup) would produce lower residual nitrite. Reply Br. 2.
We agree with Appellants that on this record, the Examiner fails to
provide the requisite factual basis for obviousness. See In re Warner, 379
F .2d 1011, 1016-17 ( CCP A 1967) ( the Examiner has the initial duty of
supplying the requisite factual basis for obviousness and may not "resort to
speculation, unfounded assumptions, or hindsight reconstruction to supply
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Application 13/518,173
deficiencies in [the] factual basis."). The Examiner's finding that using a
stronger reducing agent necessarily would yield less residual nitrite in
Hollenbeck' s curing composition is speculative and also does not explain
why a person of ordinary skill would have expected that lowering the
amount of ascorbic acid in Hollenbeck' s composition would lead to a lower
residual nitrite content in the cured food. Further, the Examiner has not
explained why a person of ordinary skill in the art would have expected
Kowalczyk's syrup to lead to improved reddening when substituted for
ascorbic acid in Hollenbeck' s curing composition, particularly, in light of
Hollenbeck's teaching that ascorbic acid reduces the amount of undesirable
pigment in the cured food (Hollenbeck 3: 16-29), and Kowalczyk' s teaching
that acidic conditions should be avoided (Kowalczyk ,i 4). Because the
Examiner has not shown by a preponderance of the evidence that the
proposed modification of Hollenbeck would generate a cured food product
having a lower residual nitrite content and improved reddening, which is a
limitation of all of the claims at issue in this rejection, we reverse the
rejection.
Rejections 2 & 3
The rejection of each of the claims in Rejections 2 and 3 is based on
the combination of Hollenbeck and Kowalczyk in Rejection 1 discussed
above. Further, the Examiner does not rely upon the additional references in
these rejections for any disclosure that remedies the deficiency in Rejection
1. Accordingly, for the reasons discussed above, we also reverse Rejections
2 and 3.
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SUMMARY
We reverse the rejection of claims 29 and 33-64 as unpatentable
under 35 U.S.C. § 103(a).
REVERSED
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