Ex Parte Savur et alDownload PDFPatent Trial and Appeal BoardDec 16, 201311385987 (P.T.A.B. Dec. 16, 2013) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SANJAY SAVUR, GERRIT LINDE, RODNEY A. JORDAN, LEE J. JONES, and LEIGH R. BARKER ____________ Appeal 2012-002392 Application 11/385,987 Technology Center 3700 ____________ Before GAY ANN SPAHN, NINA L. MEDLOCK, and GEORGE R. HOSKINS, Administrative Patent Judges. HOSKINS, Administrative Patent Judge. DECISION ON APPEAL Appeal 2012-002392 Application 11/385,987 2 STATEMENT OF THE CASE Sanjay Savur et al. (“Appellants”) appeal under 35 U.S.C. § 134 from the Examiner’s decision rejecting claims 173-198 under 35 U.S.C. § 103(a) as unpatentable over Huston (WO 91/15719 A1, pub. Oct. 17, 1991), Lovegrove (EP 0 136 042 A2, pub. Apr. 3, 1985), and Bedrosian (US 4,079,152, iss. Mar. 14, 1978).1 See App. Br. 4. We have jurisdiction over this appeal under 35 U.S.C. § 6(b). We REVERSE. CLAIMED SUBJECT MATTER Claim 173 (the sole independent claim on appeal) is representative of the subject matter on appeal: 173. Apparatus for adjusting an atmosphere within a chamber, the apparatus comprising: a sealing arrangement for substantially sealing the chamber atmosphere from ambient atmosphere; 1 In the Office Action mailed June 22, 2010, claims 173-198 were rejected under 35 U.S.C. § 103(a) as unpatentable over Huston, Lovegrove and either Bedrosian or Jensen (US 3,313,631, iss. Apr. 11, 1967). See Final Rej. 2. Appellants separately contested the rejection of the claims under the combination of Huston, Lovegrove, and Bedrosian (App. Br. 12-18) and the combination of Huston, Lovegrove, and Jensen (App. Br. 4-12). The Answer indicates “[e]very ground of rejection set forth in the Office action from which the appeal is taken . . . is being maintained by the examiner except for the grounds of rejection (if any) listed under the subheading ‘WITHDRAWN REJECTIONS.’” Ans. 4. We nevertheless find that a preponderance of the evidence supports that the Examiner withdrew the rejection based on Jensen, because the Examiner does not mention this rejection in the Answer, does not provide analysis to support this rejection, and does not include Jensen as a reference in the “Evidence Relied Upon” section. Appeal 2012-002392 Application 11/385,987 3 an inlet arranged to permit ambient atmosphere to enter the chamber; an outlet arranged to permit chamber atmosphere to exit the chamber; a controller having an oxygen concentration sensor and a control device that is responsive to the oxygen concentration sensor, the control device being arranged to cause the inlet to open to admit ambient atmosphere into the chamber following the oxygen concentration sensor detecting that an oxygen concentration in the chamber has fallen below a predetermined amount; and a carbon dioxide remover adapted to remove carbon dioxide from the chamber atmosphere at a predetermined rate so that, in use, a carbon dioxide concentration within the chamber atmosphere will not substantially exceed a predetermined amount when the chamber contains respiring produce, wherein the apparatus does not comprise a device that actively monitors and actively controls carbon dioxide levels within the chamber. See App. Br., Clms. App’x. ANALYSIS The Examiner’s rejection of claim 173 begins with the finding that Huston discloses each and every limitation of claim 173 except for a passive carbon dioxide control, and Appellants do not dispute that finding. See Ans. 5; App. Br. 5-6; Reply Br. 5-7. Indeed, the Examiner and Appellants agree Huston discloses an atmosphere adjustment apparatus having an active oxygen control and an active carbon dioxide control. See id. The Examiner’s rejection then proceeds to analyze Lovegrove, finding it “states clearly and positively that monitoring only of the oxygen level is critical because fruit and vegetables ‘can be ruined if there is not sufficient oxygen.’” Ans. 5 (citing Lovegrove, Abstr. and p. 2, l. 17 to p. 3, l. 9) (emphasis added). The Examiner similarly found Lovegrove discloses that Appeal 2012-002392 Application 11/385,987 4 while “there is a critical minimum amount of oxygen concentration necessary for increased shelf life, there is no minimum level of carbon dioxide.” Ans. 6 (emphasis added). Based on those findings, the Examiner concluded it would have been obvious to modify Huston to make the carbon dioxide control passive rather than active, “to absorb CO2 at a desired rate, allowing the concentration to approach 0%” and “to . . . eliminate carbon dioxide without monitoring to avoid the expense of active CO2 control means.” Ans. 6. We, however, agree with Appellants that the Examiner erred in finding Lovegrove discloses there is no minimum level of carbon dioxide to be desired, and monitoring only of the oxygen level is critical. See App. Br. 9 and 10; Reply Br. 9-10. The only specific citations to the Lovegrove disclosure provided by the Examiner are to the Abstract and to page 2, line 17 through page 3, line 9. See Ans. 5. The Lovegrove Abstract pertinently states “at least continual monitoring of at least the oxygen level of the atmosphere to which the comestible is subjected is carried out” and “[p]referably the carbon dioxide level is also monitored.” That disclosure merely indicates carbon dioxide level may be monitored, or may not be monitored. It does not support the Examiner’s finding, by a preponderance of the evidence, that in the event carbon dioxide is monitored, there is no minimum level of carbon dioxide to be desired so that the carbon dioxide level may approach 0%. Moreover, in the event carbon dioxide is not monitored, the controlled atmosphere will nonetheless have some carbon dioxide present due to respiration of the produce. See Lovegrove, Abstr. and p. 2, l. 17 to p. 3, l. 21. Appeal 2012-002392 Application 11/385,987 5 Lovegrove at page 2, line 17 to page 3, line 9 describes the TECTROL atmosphere adjustment system as having been known since about 1960. As described in Lovegrove, in the TECTROL2 system, “[t]he balance between oxygen and carbon dioxide which is critical to the well- being of fruit and/or vegetables is controlled rather arbitrarily” such that “[t]he carbon dioxide and oxygen control is not rigidly controlled to a pre- set level.” Id. Rather, in the TECTROL system as described in Lovegrove, the carbon dioxide level is controlled “by inserting into the container prior to its being sealed quantities of hydrated lime to absorb excessive amounts of carbon dioxide”, and the oxygen level is controlled with “a bleed hole in the container (normally in a flushing valve) . . . to prevent oxygen depletion as a result of the respiration of the product.” Id. As read by the Examiner, because there is nothing in the TECTROL system to prevent the hydrated lime from removing carbon dioxide, the TECTROL system will eventually lead to a nearly 0% carbon dioxide level. We, however, agree with Appellants that Lovegrove cannot be read in that manner, for at least two reasons. First, Lovegrove describes the TECTROL system as controlling “[t]he balance between oxygen and carbon dioxide which is critical to the well-being of fruit and/or vegetables” by “absorb[ing] excessive amounts of carbon dioxide.” Lovegrove, p. 2, l. 24 to p. 3, l. 4 (emphasis added). That description indicates the TECTROL system operated to remove excessive carbon dioxide, not nearly all carbon dioxide, so that at least some carbon dioxide remains to maintain the critical balance. 2 Trade name of Transfresh Corporation. Appeal 2012-002392 Application 11/385,987 6 Second, other evidence of record describes the TECTROL system as follows: The O2 level within the container is decreased and the CO2 level increased by flushing the container with a mix of nitrogen and CO2 after being loaded with cargo, if required by the commodity. The atmosphere is maintained passively via the product’s respiration and a (lime) scrubber. Decl. of Sanjay Savur, Ex. SS-2, Stewart Postharvest Review: Modified and controlled atmosphere reefer container transport technologies, at 3. According to that description, the TECTROL system first increases the carbon dioxide level in the controlled atmosphere, and then passively works to maintain that level of carbon dioxide. Therefore, the Examiner’s finding that Lovegrove discloses there is no minimum level of carbon dioxide to be desired, and monitoring only of the oxygen level is critical is not supported by a preponderance of the evidence. The Examiner cites Bedrosian merely for its disclosure of a passive carbon dioxide absorber, such as lime, which allows one to accommodate desired rates of absorption. See Ans. 6, 8, 9, and 10. Even if accurate, that finding does not cure the deficiencies of Lovegrove noted above with respect to providing a reason to change the Huston carbon dioxide control from active to passive. The finding that Lovegrove indicates there is no minimum level of carbon dioxide to be desired, and monitoring only of the oxygen level is critical, was an essential element of the Examiner’s ultimate conclusion of obviousness. See Ans. 6. Having determined that finding is in error, we do not sustain the Examiner’s rejection of claims 173-198 as unpatentable over Huston in view of Lovegrove and Bedrosian. Appeal 2012-002392 Application 11/385,987 7 DECISION We reverse the Examiner’s decision to reject claims 173-198. REVERSED llw Copy with citationCopy as parenthetical citation