Ex Parte Ledon et al

Patent Trial and Appeal Board

Mar 27, 2014

11910718 (P.T.A.B. Mar. 27, 2014)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE PATENT TRIAL AND APPEAL BOARD
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Ex parte HENRY J. LEDON and DOMINIQUE IBARRA
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Appeal 2012-011170
Application 11/910,718
Technology Center 1700
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Before JEFFREY T. SMITH, KAREN M. HASTINGS,
and DONNA M. PRAISS, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF CASE
Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision to reject claims 13, 15 through 18, 21, 23, and 24. We have
jurisdiction under 35 U.S.C. § 6(b).
The claims are directed to a method of manufacturing ripened cheese.
App. Br. 4. Claim 13 illustrates the subject matter on appeal and is
reproduced below:
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13. A method for manufacturing a ripened cheese having enhanced
organoleptic properties, comprising, during one of the steps of the
manufacturing method, inoculating a dairy mixture with one or more lactic
bacterial strains, and carrying out a step of ripening the manufactured
cheese, and wherein one or each of the following steps is carried out:
a) prior to the inoculating step, the dairy mixture is processed with
a processing gas comprising hydrogen so as to obtain a desired redox
potential (Eh) value for the dairy mixture which is less than an Eh value
obtained when the dairy mixture is in equilibrium with the air;
b) all or part of the ripening step is carried out under a reducing
ripening atmosphere comprising hydrogen.
The Examiner relied on the following references in rejecting the
appealed subject matter:
National Dairy Prod. GB 1,057,754 Feb. 8, 1967
Corporation (GB 754)
Cachon1 et al. WO 02/02748 A1 Jan. 10, 2002

Beresford, T. P., et al., Recent advances in cheese microbiology, 11 INT.
DAIRY J. 259-275 (2001).

Appellants, App. Br. 5, request review of the following rejection from
the Examiner’s final office action:
Claims 13, 15-18, 21 and 23-24 rejected under 35 U.S.C. 103(a) as
unpatentable over GB 754, Beresford, and Cachon.

1 The Examiner relies on a machine English translation of Cachon (WO
02/02748 A1) prepared via Google Translate. This translation was made of
record in the Office action entered January 18, 2011. We refer to this
translation in our discussion of Cachon.
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OPINION
The dispositive issue on appeal is: Did the Examiner err in
determining that the combined teachings of GB 754, Beresford, and Cachon
would have led one skilled in the art to a method of manufacturing ripened
cheese as required by the subject matter of independent claim 13?2
After review of the respective positions provided by Appellants and
the Examiner, we answer in the negative and AFFIRM for the reasons
presented by the Examiner and add the following. The Examiner found that
GB 754 teaches accelerated aging of cheese by lowering the redox potential
through reducing oxygen concentration, by vacuum, and substituting it with
nitrogen gas to inhibit spoilage molds. Ans. 8, GB 754 page 1, ll. 25-39;
page 3, ll. 60-65, 75-92. The Examiner found that GB 754 does not teach
use of a reducing gas or processing the dairy mixture with such gases prior
to inoculating step. Ans. 8. The Examiner found that Beresford discloses
that the bacteria which may develop on the surface of the cheese are
predominantly obligate aerobes (which require oxygen to grow). Ans. 8;
Beresford 261. The Examiner found that this suggests “the lower the redox
potential at the surface of the cheese, the lower the chance for growth of
spoilage and pathogenic organisms.” Ans. 8; Beresford 261. The Examiner
found that Cachon teaches of the effect of redox potential on the organisms
and discloses how the specific values of redox potential of the microbial
culture medium and that of the fermentation medium (i.e., cheese milk) can

2 We limit our initial discussion to independent claim 13. Appellants have
presented separate arguments only for dependent claims 23 and 24. App. Br.
10. Thus, we will address these claims separately. Dependent claims 15-18
and 21 stand or fall with independent claim 13.
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be monitored and controlled, for a specific group of microorganisms, using a
gas or gases including a reducing gas such as hydrogen. Ans. 8; Cachon 1-5.
The Examiner found that it would have been obvious to one of ordinary skill
in the art to modify the teachings of GB 754 by using a gas or mixture of
gases comprising hydrogen to decrease the oxidation reduction potential of
the interior of cheese to decrease the oxidation reduction potential of the
atmosphere inside the container in which the cheese is stored for aging in
view of the teachings Beresford and Cachon. Ans. 8-9.
Appellants argue that the Examiner’s finding that the GB 754 teaches
aging cheese under reduced oxidation-reduction potential (Eh) is
unsupported because GB 754 does not recognize the significance of
lowering redox potential but rather recognizes the significance of lowering
oxygen levels with displacement by an inert gas. Ans. 6-7.
We are unpersuaded by this argument. The Examiner determined that
GB 754 teaches aging cheese under a reduced oxidation-reduction potential
because GB 754 discloses the use of inert gas (nitrogen) to displace air in the
cheese making process to prevent the formation of mold and other
undesirable oxidized constituents resulting from the presence of gases such
as oxygen. Ans. 5-6; GB 754 page 3, ll. 60-81. Appellants’ Specification
discloses the use of a suitable reducing gas, including nitrogen, to obtain a
desired redox potential Eh value. Spec. 5. Thus, the Examiner has
presented a reasonable technical explanation of why one skilled in the art
would have understood that GB 754 would obtain a desired redox potential
(Eh) value for the dairy mixture.
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Appellants argue that Beresford does not disclose that different types
of microorganisms may be grown in cheese if the redox potential is
modified. App. Br. 7. To the contrary, Beresford expressly discloses the
redox potential of cheese is one of the major factors in determining the types
of microorganisms which will grow in cheese. Beresford 261.
Consequently, a person of ordinary skill in the art would have recognized
that changes in the environment based on the redox potential would have
controlled the growth of specific types of microorganisms.
Appellants argue that Cachon “does not disclose bubbling of gas in
the inoculums before introduction into the fermentation medium.” App. Br.
9. Appellants contend that, at most, Cachon discloses “an unproven
technique with respect to lactic bacteria cultures with no apparent advantage
that would be found meaningful by one of ordinary skill in the art of
cheesemaking [sic].” App. Br. 9.
Appellants’ argument is not persuasive for the reasons presented by
the Examiner. Ans. 13-14. As noted by the Examiner, Cachon discloses
bubbling (sparging) a fermentation medium with a reducing gas before and
after inoculation. Ans. 14; Cachon 9. Appellants have not adequately
explained why this disclosure by Cachon would not have led one skilled in
the art to perform the cheese making process of GB 754 including bubbling
the reducing gas through the medium to reduce the redox potential of the
medium.
With respect to claim 23, Appellants argue that GB 754 does not
disclose a two-step ripening process under two different atmospheres. Reply
Br. 5. However, as pointed out by the Examiner (Ans. 15), GB 754
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discloses displacement of the air as optional and, if displaced, to use
nitrogen to displace it. GB 754 page 3, ll. 65-86. GB 754 further discloses
first evacuating the air using vacuum and then flooding the chamber with
nitrogen. Id. at ll. 95-108. We find this disclosure suggestive of a two-step
ripening process under different atmospheres.
Regarding claim 24, Appellants argue that GB 754 does not teach
maintaining the cheese under a controlled atmosphere before its use. Reply
Br. 5.
This argument is unavailing because Appellants have not adequately
explained why it was beyond the level of ordinary skill to determine the
appropriate controlled environment for later use of a product. We agree with
the Examiner that it is well within the skill of the artisan to maintain a
product in a controlled environment for later use. Ans. 15.
Accordingly, we affirm the Examiner’s rejection of claims 13, 15-18,
21, and 23-24 under 35 U.S.C. § 103(a) as unpatentable over GB 754,
Beresford, and Cachon for the reasons presented by the Examiner and given
above.

ORDER
The Examiner’s prior art rejection of claims 13, 15-18, 21, 23, and 24
under 35 U.S.C. § 103(a) is affirmed.

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Application 11/910,718

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TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1).

AFFIRMED

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