Laurence D. Bell

Patent Trials and Appeals Board

Nov 4, 2019

14374438 - (D) (P.T.A.B. Nov. 4, 2019)

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.
14/374,438 03/23/2015 Laurence D. Bell 7280-003PCUS 1090
22208 7590 11/04/2019
The Marbury Law Group, PLLC
11800 SUNRISE VALLEY DRIVE
15TH FLOOR
RESTON, VA 20191
EXAMINER
DICUS, TAMRA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
11/04/2019 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
following e-mail address(es):
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE PATENT TRIAL AND APPEAL BOARD

Ex parte LAURENCE D. BELL

Appeal 2019-002592
Application 14/374,438
Technology Center 1700

Before BEVERLY A. FRANKLIN, JEFFREY B. ROBERTSON, and
GEORGE C. BEST, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–3 and 9–28. Appeal Br. 5. We have
jurisdiction under 35 U.S.C. § 6(b).

1 This Decision includes citations to the following documents: Specification
filed July 24, 2014 (“Spec.”); Final Office Action mailed January 23, 2018
(“Final Act.”); Appeal Brief filed September 19, 2018 (“Appeal Br.”);
Examiner’s Answer mailed December 13, 2018 (“Ans.”); and Reply Brief
filed February 12, 2019 (“Reply Br.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as Global Fresh
Foods. Appeal Br. 2.
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We AFFIRM.
CLAIMED SUBJECT MATTER
Appellant states the invention relates to methods for stabilizing
oxygen-dependent and oxygen-labile pigments from being damaged by the
elevated levels carbon dioxide levels necessary to inhibit spoilage of fresh
muscle foods, preserving the freshness and preventing discoloration of
foodstuffs. Spec. ¶ 1. Claim 1, reproduced below, is illustrative of the
claimed subject matter (Appeal Br. 12 (Claims App.)):
1. A method to stabilize an oxygen-dependent or oxygen-labile
pigment from discoloration for a predictable period of time
in a sealed container, which method comprises
(1) reducing the oxygen concentration in an atmosphere
in the container with a nitrogen flush without introducing
exogenous carbon dioxide such that the oxygen will not
destabilize the oxygen-dependent or oxygen-labile pigment
when exogenous carbon dioxide is introduced into the container
in step (2), followed by
(2) introducing exogenous carbon dioxide into the
container to replace at least a portion of the atmosphere in the
container with the exogenous carbon dioxide while retaining or
further reducing the oxygen concentration in the atmosphere of
the container, wherein the atmosphere in the container
comprises at least 60 volume percent carbon dioxide after the
step of introducing exogenous carbon dioxide.
Claim 19 is also independent and recites a method to stabilize
myoglobin pigment of a foodstuff having similar steps as recited in claim 1.
Id. at 13.
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Woodruff et al.
hereinafter “Woodruff”
US 4,522,835 June 11, 1985
Koenck et al.
hereinafter “Koenck”
US 2004/0126466 A1 July 1, 2004
Bell et al.
hereinafter “Bell ’334”
US 2008/0003334 A1 January 3, 2008
Bell
hereinafter “Bell ’409”
US 2013/0189409 A1 July 25, 2013
REJECTION
The Examiner rejected claims 1–3 and 9–28 under 35 U.S.C. § 103(a)
as obvious over Bell ’334 as evidenced by Bell ’409, in view of Woodruff
and Koenck. Final Act. 2–9.
Appellant does not present separate arguments with respect to the
claims on appeal. See Appeal Br. 5–10. We select claim 1 as representative
for disposition of this appeal. 37 C.F.R. § 41.37(c)(1)(iv).
OPINION
The Examiner’s Rejection
The Examiner found Bell ’334 discloses a method to stabilize an
oxygen-dependent or oxygen-labile pigment in red meat and fish, where the
method includes introducing exogenous carbon dioxide into a container as
recited in step 2 of claim 1. Final Act. 2 (citing Bell ’334 ¶ 15). The
Examiner found Bell fails to disclose step 1 of claim 1, reducing the oxygen
concentration in the atmosphere of the container with a nitrogen flush
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without introducing exogenous carbon dioxide. Id. at 3–4. The Examiner
found Bell ’334 discloses oxygen removers that remove oxygen from the
environment within the container and maintain a reduced oxygen
environment, and further found Bell ’334 discloses nitrogen as an inert gas
to flush the tote packaging in order to create a reduced oxygen environment.
Id. at 4 (citing Bell ’334 ¶¶ 43, 61, 76); see also Bell ’334 ¶ 26. The
Examiner found Woodruff discloses reducing oxygen content of a container
with a nitrogen flush to limit the conversion of reduced myoglobin in meats
to carboxymyoglobin. Id. (citing Woodruff, col. 1, ll. 50–68, col. 2, ll. 1–10,
col. 3, ll. 50–68). The Examiner found Koenck discloses a first initial step
of reduction of oxygen without introducing exogenous carbon dioxide using
or flushing with nitrogen to reduce the oxygen. Id. at 4–5 (citing Koenck,
Abstract, ¶¶ 17, 44, 110, 112); Ans. 11 (citing Koenck ¶ 60). As a result, the
Examiner determined it would have been obvious to have modified Bell
’334 to start with a nitrogen flushing step for the reasons disclosed by
Koenck, which essentially amounts to the reduction of spoilage. Id. at 5–6.

Appellant’s Contentions
Appellant argues Koenck teaches away from the claimed process
because Koenck discloses disadvantages associated with a low oxygen
modified atmosphere packaging (MAP) process, and the second step of
claim 1 is a low oxygen MAP step. Appeal Br. 7–8. Appellant argues also
the second step of claim 19 excludes the high oxygen atmosphere of
Koenck. Id.
Appellant argues there is no reason to combine Bell ’334 and Koenck
because Bell discloses low oxygen content process in which the foodstuff is
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Application 14/374,438

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not exposed to a high oxygen content atmosphere, and Koenck teaches a
nitrogen flush followed by a high content MAP, such that even if combined,
the combination would suggest to perform the nitrogen flush of Koenck
followed by the high oxygen content MAP as taught by Koenck. Id. at 8–9.

Issue
The dispositive issue is:
Has Appellant identified reversible error in the Examiner’s
determination that applying a nitrogen flush to reduce oxygen concentration
in the atmosphere of a container prior to introducing exogenous carbon
dioxide as recited in claim 1 would have been obvious over Bell ’334 as
evidenced by Bell ’409, in view of Woodruff and Koenck?

Discussion
We are not persuaded by Appellant’s argument that Koenck teaches
away from a low oxygen MAP process. As the Examiner points out,
Koenck discloses both high MAP and low MAP processes. Ans. 10 (citing
Koenck ¶ 90). Indeed, Koenck discloses both low oxygen MAP and high
oxygen MAP “have been shown to deliver the familiar red color consumers
prefer in fresh meat products.” Koenck ¶ 117. Koenck discloses both
processes are “in common use today.” Id. ¶ 129. Although, as Appellant
argues, Koenck discloses disadvantages associated with the low oxygen
MAP process, and that the high oxygen MAP process “is preferred” (id.
¶¶ 135, 136, 139), Koenck discloses irradiation processes in conjunction
with low MAP processes as having the benefit of excluding oxygen from the
interior of the package, which prevents the development of off-odors and
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off-tastes in meat (id. ¶ 138). Thus, although the high oxygen MAP process
may be preferred according to Koenck, we do not agree with Appellant that
such amounts to a teaching away from low MAP processes, as Koenck
contemplates such methods as well. Obviousness does not require that the
combination produce the most desirable result. See In re Fulton, 391 F.3d
1195, 1200 (Fed. Cir. 2004) (“[T]he question is whether there is something
in the prior art as a whole to suggest the desirability, and thus the
obviousness, of making the combination,” not whether there is something in
the prior art as a whole to suggest that the combination is the most desirable
combination available.); Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804,
807 (Fed. Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750 (CCPA
1976)) (“[I]n a section 103 inquiry, ‛the fact that a specific [embodiment] is
taught to be preferred is not controlling, since all disclosures of the prior art,
including unpreferred embodiments, must be considered.’”).
In this regard, we are unpersuaded by Appellant’s argument that there
is no reason to combine Bell ’334 and Koenck because Bell ’334 discloses a
low oxygen content process and Koenck discloses a nitrogen flush followed
by a high oxygen content MAP. Appeal Br. 8–9. As discussed above,
Koenck discloses low MAP processes as well as high MAP processes.
Thus, we do not subscribe to Appellant’s view that the only combination
suggested by Bell ’334 and Koenck would be to perform a nitrogen flush
followed by a high oxygen content MAP. Rather, one of ordinary skill in
the art in considering both references as a whole would have applied the
nitrogen flush step in conjunction with a second low oxygen content step,
because, as discussed above, Koenck discloses low MAP processes as well
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as high MAP processes and does not teach away from such a combination as
argued by Appellant. Id.
CONCLUSION
The Examiner’s rejection of claims 1–3 and 9–28 under 35 U.S.C.
§ 103(a) is affirmed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–3, 9–28 103 Bell ’334, Bell ’409,
Woodruff, Koenck
1–3, 9–28

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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED