Ex Parte BellDownload PDFPatent Trial and Appeal BoardJul 20, 201713601881 (P.T.A.B. Jul. 20, 2017) Copy Citation 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. 13/601,881 08/31/2012 Laurence D. Bell 7280-004 8666 22208 7590 07/24/2017 The Marbury Law Group, PLLC 11800 SUNRISE VALLEY DRIVE 15TH FLOOR RESTON, VA 20191 EXAMINER WILLIAMS, LELA ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 07/24/2017 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): ptonotices @marburylaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte LAURENCE D. BELL Appeal 2016-004326 Application 13/601,881 Technology Center 1700 Before BRADLEY R. GARRIS, MONTE T. SQUIRE, and JENNIFER R. GUPTA, Administrative Patent Judges. GUPTA, Administrative Patent Judge. DECISION ON APPEAL1 Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s decision finally rejecting claim 2. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 In this decision, we refer to the Specification filed August 31, 2012 (“Spec.”), Final Office Action mailed November 6, 2014 (“Final Act.”), the Appeal Brief filed August 7, 2015 (“Appeal Br.”), the Examiner’s Answer mailed January 12, 2016 (“Ans.”), and the Reply Brief filed March 14, 2016 (“Reply Br.”). 2 Appellant identifies the real party in interest as Global Fresh Foods, Inc. Appeal Br. 2. Appeal 2016-004326 Application 13/601,881 The subject matter on appeal relates to a method of inhibiting discoloration of red meat. Claim 2, the sole claim on appeal, is reproduced below from the Listing of Claims of the Appeal Brief. 2. A method to inhibit discoloration of red meat, which method comprises (a) replacing at least a portion of the atmosphere in a sealed container comprising red meat with a nitrogen flush so as to reduce the oxygen concentration to no more than about 5% to obtain an inert gas atmosphere, and incubating the red meat in the inert gas atmosphere for a period sufficient to deoxygenate the red meat wherein the nitrogen flush contains no more than about 5% v/v carbon dioxide, (b) replacing at least a portion of the gas in the atmosphere of the container provided for above with exogenous carbon dioxide; and (c) optionally transferring the red meat into a package having a carbon dioxide atmosphere and limited gas permeability. Appeal Br. 12. DISCUSSION The Examiner maintains the rejection of claim 2 under 35 U.S.C. § 103(a) as unpatentable over McFarlane et al. (US 2005/0003059 Al, published January 6, 2005) (“McFarlane”). Final Act. 2—3; Ans. 2. The Examiner finds that McFarlane generally discloses a method for inhibiting discoloration of red meat that includes all the elements of claim 2. Final Act. 2—3 (citing McFarlane Tflf 6—7, 12—15, 18, 27, 31). The Examiner acknowledges that McFarlane’s method does not expressly teach or disclose first replacing at least a portion of the atmosphere of a sealed container comprising red meat with nitrogen and then replacing at least a portion of the gas in the atmosphere of the container with exogenous carbon dioxide. 2 Appeal 2016-004326 Application 13/601,881 Final Act. 2. The Examiner finds, however, that McFarlane teaches flushing a container that contains red meat with “oxygen, carbon monoxide, nitrogen, and carbon dioxide, either individually or in any combination or blend thereof,” (McFarlane 131) and concludes that it would have been obvious and within the skill of one of ordinary in the art to first flush the container with nitrogen, containing no carbon dioxide, and subsequently flush the container with carbon dioxide, thereby arriving at the claimed invention. Id. at 3. Appellant argues that there is no teaching, suggestion or guidance in McFarlane to select the exact right first gas from the disclosed group of gases, the exact right second gas from the disclosed group of gases and perform the two flushing steps in the correct order, absent hindsight. Appeal Br. 7. Appellant’s argument is not persuasive of reversible error in the Examiner’s rejection of claim 2. Although a reference “discloses a multitude of effective combinations does not render any particular formulation less obvious.” Merck & Co., Inc. v. Biocraft Labs., 874 F.2d 804, 807 (Fed. Cir. 1989) (citing In re Corkill, 771 F.2d 1496, 1500 (Fed. Cir. 1985) (obviousness rejection of claims affirmed in light of prior art teaching that “hydrated zeolites with work” in detergent formulations, even though “the inventors selected the zeolites of the claims from among ‘thousands’ of compounds”)). Thus, contrary to Appellant’s contention, it would have been obvious and within the skill of one of ordinary skill in the art to select nitrogen and carbon dioxide from the disclosed group of gases in McFarlane, and flush the container containing red meat in the order recited 3 Appeal 2016-004326 Application 13/601,881 in the method of claim 2 by first flushing the container with nitrogen and then flushing the container with carbon dioxide. Appellant submits that the example presented in the Specification shows the criticality of the claimed first nitrogen flush and second carbon dioxide flush. Appeal Br. 9; Spec. H 106—108. We have considered Appellant’s evidence in their Specification, but do not find it persuasive. Claim 2 is directed to a method to inhibit discoloration of red meat, which is defined in Appellant’s Specification as including beef, pork, lamb, dark-colored chicken, fish such as tuna, tilapia, and other sea foods (Spec. 123). The sole example in Appellant’s Specification uses fish (tilapia), and Appellant’s do not direct us to any evidence in the record that the results provided for tilapia would extend the entire range of claimed meat. Accordingly, Appellant’s evidence is not commensurate in scope with claim 2. Additionally, as the Examiner points out, in the sole comparative example in Appellant’s Specification, a container containing tilapia is flushed with carbon dioxide, held in the container for 11 to 12 hours, and then flushed again with carbon dioxide. Ans. 4. McFarlane, however, teaches flushing a container containing a meat product with oxygen, carbon monoxide, nitrogen, and carbon dioxide, either individually or in combination (McFarlane 131), and teaches “the meat product will be held within the environment of the first flush of gas or gases after the chamber pressure has reached its predetermined pressure for no more than ten minutes, preferably no more than one minute, and most preferably, no more than thirty seconds” {id. at 118). Thus, Appellant’s evidence does not provide a comparison with the closest prior art. 4 Appeal 2016-004326 Application 13/601,881 In sum, for the reasons stated in the Final Office Action, the Examiner’s Answer, and above, a preponderance of the evidence, taking into account Appellant’s evidence of unexpected results, favors the Examiner’s conclusion of obviousness as to claim 2. Accordingly, we sustain the rejection of claim 2 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over McFarlane. DECISION For the above reasons, the Examiner’s rejection of claim 2 is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). AFFIRMED 5 Copy with citationCopy as parenthetical citation