Ex Parte Cirigliano et al

Board of Patent Appeals and Interferences

Sep 1, 2010

10744747 (B.P.A.I. Sep. 1, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
_________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte MICHAEL CHARLES CIRIGLIANO
and DOMENIC CARAVETTA
__________

Appeal 2009-006750
Application 10/744,747
Technology Center 1700
___________

Before ADRIENE LEPIANE HANLON, TERRY J. OWENS, and
MARK NAGUMO, Administrative Patent Judges.

HANLON, Administrative Patent Judge.

DECISION ON APPEAL1

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
Appeal 2009-006750
Application 10/744,747

2
A. STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from an Examiner’s decision
finally rejecting claims 1, 5, 8, 9, 12, and 13, all of the pending claims. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
The subject matter on appeal is directed to a microbiologically stable
food composition and a method for making a microbiologically stable food
composition. Claims 1 and 13, reproduced below, are illustrative.
1. A food composition comprising:
a) about 0.25 to about 4.5% by weight humectant;
b) sodium chloride and a stabilizing salt; wherein said
salts are present at a weight percent of at least about 0.5% but
not to exceed 5.5% by weight percent of said composition; and
c) water;
d) a solid component having been pretreated in a
marinating solution comprising humectant, acidulant, chelating
agent, antioxidant, preservative or a mixture thereof;
wherein said food composition comprises less than about
0.30% by weight preservative;
wherein said food composition has a pH of about 2.75 to
about 5.75;
wherein the food composition is an emulsion;
wherein the food composition is not thermally processed;
and
wherein the food composition has an Aw of from about
0.94 to less than about 0.97 and is microbiologically stable.

13. The food composition according to claim 1 wherein the
Aw is about 0.94.

App. Br., Claims Appendix (emphasis added).2

2 Appeal Brief dated July 22, 2008.
Appeal 2009-006750
Application 10/744,747

3
The only Examiner’s rejection before us on appeal is the rejection of
claims 1, 5, 8, 9, 12, and 13 under 35 U.S.C. § 103(a) as unpatentable over
the combination of Bhatia (WO 95/04468, published February 16, 1995) and
Adrianson (US 5,670,197, issued September 23, 1997).3
B. ISSUE
The Appellants recognize that Bhatia discloses a food composition
comprising up to 1% sodium chloride and 2-10% glycerol humectant. App.
Br. 9. However, the Appellants contend that the food composition disclosed
in Bhatia does not include:
(1) sodium chloride in combination with a stabilizing salt;
(2) a solid component pretreated in a marinating solution; and
(3) a water activity (Aw) of “about 0.94 to less than about 0.97” as
recited in claim 1 and “about 0.94” as recited in claim 13. App. Br. 9.
The Examiner concludes, and the Appellants do not dispute, that it
would have been obvious to one of ordinary skill in the art to combine a
stabilizing salt (i.e., sodium lactate) with the sodium chloride of Bhatia in an
amount as recited in claim 1 in view of the teachings of Adrianson. Ans. 7,
9; App. Br. 9. However, the Appellants contend that the combined teachings
of Bhatia and Adrianson still fail as to the marinated solid component and
the claimed water activity. App. Br. 10.
Based on the foregoing, the following issues are before us on appeal:
(1) Did the Examiner reversibly err in concluding that it would
have been obvious to one of ordinary skill in the art to increase the water

3 In the Examiner’s Answer dated September 29, 2008 (“Ans.”), at 4, the
Examiner withdrew the rejection of claims 1, 5, 8, 9, and 13 under 35 U.S.C.
§ 112, first paragraph.
Appeal 2009-006750
Application 10/744,747

4
activity of the food composition of Bhatia to a level as recited in claims 1
and 13 in view of the teachings of Adrianson?
(2) Did the Examiner reversibly err in concluding that is would
have been obvious to one of ordinary skill in the art to use a marinated solid
component, as recited in claim 1, in the food composition of Bhatia?
C. FINDINGS OF FACT
1. Appellants’ Specification
The Appellants define “microbiologically stable” as “no outgrowth of
pathogens like Salmonella typhimurium, and/or spoilage organisms like
psychrophilic bacteria, lactobacilli, yeast and/or mold, for at least about
thirty days at ambient temperature or at an extended shelf life chilled
temperature (i.e., 4-7ºC), or both.” Spec. 3:11-14.
The Appellants define “water activity (Aw)” as “the ratio of the water
vapor pressure in any kind of food system to the water vapor pressure of
pure water. Spec. 3:15-17; see also Bhatia 7:4-10.
2. Bhatia
Bhatia discloses that yeast and mold may grow in dairy products due
to the typically high water activity therein (i.e., Aw = 0.91 and above).
Bhatia 5:19-21.
Bhatia lowers the water activity of the disclosed dairy products to less
than about 0.91 using a freezing point depressant. Bhatia 4:18-21.
Bhatia discloses that a water activity below 0.91 prevents most kinds
of bacteria from growing in the diary product. Bhatia 7:18-21.
3. Adrianson
Adrianson discloses that cheese spreads are not heat processed due to
problems such as separation and loss of textural and flavor attributes. Thus,
Appeal 2009-006750
Application 10/744,747

5
prior to the invention disclosed in Adrianson, it was necessary to use low
moisture contents (i.e., about 52% or less) along with a number of
preservatives to preserve the cheese products. Adrianson 1:15-23.
Adrianson discloses that there is a need for a preservation system that
enables the use of higher pH values and/or higher moistures in cheese
spreads. Adrianson 1:27-29.
Adrianson discloses a method for preserving high-moisture, high-pH,
shelf-stable cheese spreads that includes the step of adding a particular
preservation system to the cheese formulation. The preservation system
contains sodium chloride, a phosphate salt, sodium citrate, and sodium
lactate in sufficient amounts to prevent the growth of Clostridium botulinum.
Adrianson 4:18-29.
According to Adrianson, the preservation method enables the use of
higher pH values and/or higher moistures than currently available in
commercial products. Adrianson 1:7-13.
D. ANALYSIS
As for the first issue on appeal, the Appellants argue that Bhatia
teaches away from a water activity as claimed. In particular, relying on page
7, lines 18-20 of Bhatia, the Appellants argue that Bhatia “provide[s] no
guidance or predictability to one skilled in the art as to how to make a
microbiologically stable food product at Aw of greater than 0.90.” App. Br.
10-11.
We recognize that Bhatia is concerned with keeping the water activity
below 0.91 to prevent most kinds of bacteria from growing in the diary
product. Bhatia 7:18-21. However, Adrianson teaches that cheese products
having a higher moisture level may be preserved against botulin-producing
Appeal 2009-006750
Application 10/744,747

6
bacteria by the addition of a stabilizing salt as recited in claim 1.4 Adrianson
4:18-29. Although Adrianson does not expressly disclose the water activity
of these cheese products, the Examiner found that the higher moisture
products enabled by the stabilizing salt of Adrianson would necessarily have
a water activity as recited in claims 1 and 13.5 Ans. 7-8, 11. The Appellants
do not direct us to any evidence to the contrary. See In re Best, 562 F.2d
1252, 1255 (CCPA 1977) (where the claimed and prior art products are
identical or substantially identical, the PTO can require an applicant to prove
that the prior art products do not necessarily or inherently possess the
characteristics of the claimed product).
Instead, the Appellants argue that Adrianson does not use a humectant
as claimed and does not incorporate a marinated solid ingredient. App. Br.
11.
This argument fails to consider the prior art as a whole. See In re
Keller, 642 F.2d 413, 425 (CCPA 1981) (test for obviousness is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art). To the extent that the cheese product disclosed in
Adrianson does not contain a humectant or a marinated solid ingredient as
claimed, the Appellants do not explain why the absence of these ingredients
would have discouraged one of ordinary skill in the art from adding the
disclosed stabilizing salt to the cheese product of Bhatia.

4 As discussed above, there is no dispute that it would have been obvious to
one of ordinary skill in the art to add a stabilizing salt to the cheese product
of Bhatia in view of the teachings in Adrianson.
5 The Examiner erroneously interprets the water activity disclosed in Bhatia,
i.e., “less than about 0.91,” to encompass a water activity of “about 0.94” as
recited in claims 1 and 13. Ans. 7; Br. 9. The Examiner’s error is harmless
in view of this alternative theory of unpatentability.
Appeal 2009-006750
Application 10/744,747

7
Turning to the second issue on appeal, there is no dispute that
“marinating solids is generally known in the art.” App. Br. 10. Nonetheless,
the Appellants contend that “incorporation of the marinated solid component
in the composition of the present invention provides an additional
microbiological challenge.” App. Br. 10.
The Appellants’ contention is not supported by evidence in the record.
In particular, the Appellants do not discuss the “microbiological challenge”
in any detail or direct us to any evidence demonstrating that the challenge of
incorporating a marinated solid component in the cheese product of Bhatia
would have been outside the skill of the ordinary artisan. See Rohm and
Haas Co. v. Brotech Corp., 127 F.3d 1089, 1092 (Fed. Cir. 1997) (nothing
in the rules or in jurisprudence requires the fact finder to credit unsupported
or conclusory assertions). Therefore, the Appellants’ argument is not
persuasive of reversible error.
Finally, the Appellants argue that “the Office Action statement that
‘about 4.5% humectant’ encompasses ‘about 10% humectant’” is
unsupported. App. Br. 13.
The Appellants do not identify the page or date of the Office Action
where this statement appears. Suffice it to say that the Examiner concluded
that the amount of humectant recited in claim 1 (i.e., “about 0.25 to about
4.5% by weight”) would have been prima facie obvious over the teachings
of the applied prior art. See Final Office Action dated March 6, 2008, at 4.
On appeal, the Appellants do not challenge the Examiner’s position.
Instead, referring to Example 4 in the Specification, the Appellants
argue that the amount of humectant has a “significant effect” on the water
activity. App. Br. 13. However, the Appellants do not direct us to any
Appeal 2009-006750
Application 10/744,747

8
evidence demonstrating that the “effect” reported in Example 4 would have
been unexpected to one of ordinary skill in the art. See In re De Blauwe,
736 F.2d 699, 705 (Fed. Cir. 1984) (“unexpected results must be established
by factual evidence[; m]ere argument or conclusory statements in the
specification does not suffice”); In re Freeman, 474 F.2d 1318, 1324 (CCPA
1973) (in order for a showing of “unexpected results” to be probative
evidence of non-obviousness, the Appellant must establish (1) that there
actually is a difference between the results obtained through the claimed
invention and those of the prior art; and (2) that the difference actually
obtained would not have been expected by one skilled in the art at the time
of invention). Therefore, the results reported in Example 4 do not
demonstrate reversible error.
For the reasons set forth above and in the Examiner’s Answer dated
September 29, 2008, the § 103(a) rejection will be affirmed.
E. DECISION
The decision of the Examiner 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
tc
UNILEVER PATENT GROUP
800 SYLVAN AVENUE
AG West S. Wing
ENGLEWOOD CLIFFS, NJ 07632-3100