Ex Parte Lingham et al

Patent Trial and Appeal Board

Aug 22, 2016

12398609 (P.T.A.B. Aug. 22, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/398,609 0310512009
29673 7590 08/24/2016
STEVENS & SHOWALTER LLP
7019 CORPORATE WAY
DAYTON, OH 45459-4238
FIRST NAMED INVENTOR
Rodney Lingham
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
GRI 040 IA 1413
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/24/2016 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):
PTO@sspatlaw.com
ssllp@speakeasy.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RODNEY LINGHAM and ROBERT GREIG
Appeal2015-002668
Application 12/398,609
Technology Center 1700
Before CHUNG K. PAK, PETER F. KRATZ, and BRIAND. RANGE,
Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision rejecting claims 2-5, 8, 9, 11-22, 24--29, 31, 32, 34--39, 42--47, and
49. We have jurisdiction. 35 U.S.C. § 6(b).
We AFFIRM.
1 According to the Appellants, the real party in interest is Nature Wrap Pty
Ltd. Appeal Br. 3.
Appeal2015-002668
Application 12/398,609
STATEMENT OF THE CASE
Appellants describe the present invention as relating to a process of
treating edible plant structures with a solution in order to extend the shelf
life of the plant structure. Spec. 1: 13-22. Claim 45, reproduced below with
emphases added to highlight certain disputed claim recitations, is the only
independent claim on appeal and is illustrative of the claimed subject matter:
45. A process for treating an uncooked edible plant structure
having an exposed surface to form a treated plant structure
having an extended shelf life when the treated plant structure is
stored in a sealed container under vacuum, the process
compnsmg:
contacting the exposed surface of the edible plant structure
with an aqueous treatment solution having a pH of less than
about 3.5 for a period of up to 15 minutes;
locating the edible plant structure in a container having an
atmosphere;
modifying the atmosphere within the container to form
an oxygen-reduced atmosphere \~1hich is substantially free of
oxygen;
evacuating the container having the modified
atmosphere to form a partial vacuum within the container of
from about -0.8bar to about -0.99 bar to force impregnate the
exposed surface of the plant structure with the treatment solution;
sealing the container to maintain contact between the
exposed surface of the plant structure and the treatment solution
under the partial vacuum within the container; and
cooling the container having the treated exposed edible
plant structure to a temperature of less than about 15 °C;
wherein the treatment solution includes at least one
antioxidant compound, at least one mineral salt, and at least
one organic acid with the proviso that the at least one organic
acid includes more than 1°/o by weight of citric acid and the at
least one mineral salt includes at least sodium acid
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Application 12/398,609
pyrophosphate in an amount from about 0.1 % to 5% by weight
based on the total weight of the treatment solution to maintain
the organoleptic properties of the treated exposed edible plant
structure when in the sealed container.
Appeal Br.2 28 (Claims Appendix, emphases added).
REFERENCES
The Examiner relied upon the prior art below in rejecting the claims
on appeal:
Parks us 2,667,421 Jan.26, 1954
F ehmerling us 3,843,810 Oct. 22, 1974
Warren us 4,988,522 Jan.29, 1991
Street us 5,447,734 Sep. 5, 1995
Powrie et al. us 5,922,382 July 13, 1999
(hereinafter "Powrie")
Chen et al. us 5,939, 117 Aug. 17, 1999
(hereinafter "Chen")
Twinam us 5,945, 146 Aug.31, 1999
Spencer us 6, 113,962 Sep. 5,2000
Putter US 6,268,001 B 1 July 31, 2001
Mer~op-fomo et ~1 TTS 6.~?1.?7~ Rl Feh lR. ?001 - . ~-- - - o------- - - ---· -- ~,---,-·- -- --~- -~,-~~-
(hereinafter "Mercogliano")
Christianson et al. US 2002/0064585 Al May 30, 2002
(hereinafter "Christianson")
Hirschey et al. US 2004/0018283 Al Jan.29,2004
(hereinafter "Hirschey")
Mcfarlane et al. US 2005/0003059 Al Jan. 6,2005
(hereinafter "McFarlane")
Lingham et al. US 2005/0226973 Al Oct. 13, 2005
(hereinafter "Lingham '973")
Bonningue EP164285 Dec. 11, 1985
Lidden WO 94/12041 June 9, 1994
2 In this decision, we refer to the Final Office Action mailed March 10, 2014
("Final Act."), the Appeal Brief filed August 6, 2014 ("Appeal Br."), the
Examiner's Answer mailed October 31, 2014 ("Ans."), and the Reply Brief
filed December 29, 2014 ("Reply Br.").
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Application 12/398,609
Aaron L. Brody & Kenneth S. March, The Encyclopedia of Packaging
Technology ( 1997) (hereinafter "Brody")
M. W. Hoover et al., Factors Influencing Impregnation of Apple Slices and
Development of a Continuous Process, Journal of Food Science 698 (1975)
(hereinafter "Hoover")
Thomas T. Langdon, Preventing of Browning in Fresh Prepared Potatoes
Without the Use of Sulfiting Agents, Food Technology 64---67 (May 1997)
(hereinafter "Langdon")
G. M. Sapers, Application of Browning Inhibitors to Cut Apple and Potato
by Vacuum and Pressure Infiltration 55 J. Food Science 1049 (1990)
(hereinafter "Sapers")
James P. Yanta and Cindy Tong, Commercial Postharvest Handling of
Potatoes (Solanum tuberosum), FS-06239, Regents of the University of
Minnesota (1993) (hereinafter "Y anta")
REJECTIONS
The Examiner has withdrawn rejections under 35 U.S.C. § 112. Ans.
2-3. The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 2, 8, 11-18, 20-22, 24--29, 34, 37, 39, 42--46,
and 49 under 35 U.S.C. § 103 as unpatentable over Langdon in view of
Warren, Lidden, Hoover, Putter, Parks, Bonningue, and either Fehmerling or
Sapers and in further view of any of Spencer, Street, Mercogliano, or
McFarlane as evidenced by Brody. Final Act. 5---6. 3
Rejection 2. Claims 3-5 under 35 U.S.C. § 103 as unpatentable over
the combination applied to claim 45, above which relies on Langdon as the
primary reference, and in further in view of applicants' admission of the
prior art and as further evidenced by Chen. Id. at 17.
3 Claims 40 and 48 are cancelled. Amendment filed June 5, 2014 (p. 7);
Appeal Br. 5; see also Appeal Br. 27-28 (Claims Appendix).
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Application 12/398,609
Rejection 3. Claim 8 under 35 U.S.C. § 103 as unpatentable over the
combination applied to claim 45, above which relies on Langdon as the
primary reference, and further in view of either Twinam or Christenson. Id.
at 19.
Rejection 4. Claim 9 under 35 U.S.C. § 103 as unpatentable over the
combination applied to claim 45, above which relies on Langdon as the
primary reference, and in further view of Keuthe '284 or Hirschey '2834 and
either Twinam or Christenson. Id. at 20.
Rejection 5. Claims 19 and 38 under 35 U.S.C. § 103 as unpatentable
over the combination applied to claim 18, above which relies on Langdon as
the primary reference, and in further view of Powrie. Id. at 21.
Rejection 6. Claims 31 and 32 under 35 U.S.C. § 103 as unpatentable
over the combination applied to claim 45, above which relies on Langdon as
the primary reference, and in further view of Twinam. Id.
Rejection 7. Claim 32 under 35 U.S.C. § 103 as unpatentable over the
combination applied to claim 45, above which relies on Langdon as the
primary reference, in further view of Y anta and Twinam.
Rejection 8. Claim 34 under 35 U.S.C. § 103 as unpatentable over the
combination applied to claim 45, above which relies on Langdon as the
primary reference, in further view of Y anta or Twinam. Id. at 23. Id at 22.
Rejection 9. Claims 35, 36, and 47 under 35 U.S.C. § 103 as
unpatentable over the combination applied to claim 45, above which relies
on Langdon as the primary reference, and in further view of Powrie. Id. at
24.
4 The Final Action references "Keuthe (US 20040018283)" but the first
listed inventor on US 2004/0018283 Al is Hirschey.
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Application 12/398,609
Rejection 10. Claims 2-5, 8, 9, 11-22, 24--29, 31, 32, 34--39, 42--47,
and 49 under 35 U.S.C. § 103 as unpatentable over Lingham and in further
view of any of Spencer, Street, Mercogliano, or McFarlane as evidenced by
Brody. Id. at 26.
Rejection 11. Claim 34 under 35 U.S.C. § 103 as unpatentable over
the combination applied to claim 45, above which relies on Lingham as the
primary reference, and in further view of Yanta or Twinam. Id. at 30.
ANALYSIS
After having considered the evidence presented in this Appeal and
each of Appellants' contentions, we are not persuaded that Appellants
identify reversible error, and we affirm the Examiner's§ 103 rejections.
Rejection 1. The Examiner rejects claims 2, 8, 11-18, 20-22, 24--29,
34, 37, 39, 24--46, and 49 as obvious over Langdon as a primary reference
combined with a variety of secondary references. Final Act. 5---6.
Appellants do not separately argue claims 2, 8, 11-18, 20-22, 24--29, 34, 37,
39, 24--44, 46, or 49. We therefore limit our discussion to independent claim
45. Claims 2, 8, 11-18, 20-22, 24--29, 34, 37, 39, 24--44, 46, or 49 stand or
fall with that claim. 37 C.F.R. § 41.37(c)(l)(iv) (2013).
Appellants argue that the cited prior art does not disclose the process
of claim 45 including first providing a modified atmosphere within a
container and then evacuating the modified atmosphere. Appeal Br. 9. We
begin with claim construction. Appellants argue that "modifying the
atmosphere"/"modified atmosphere" as recited in claim 45 is explicitly
defined by the Specification at page 9, lines 1-7. Appeal Br. 10-11. We
agree with Appellants that, in view of the Specification, claim 42 requires
first modifying the atmosphere by providing a gas or mixture of gases which
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Application 12/398,609
does not include oxygen and then evacuating the container having the
modified atmosphere.
Despite agreeing with Appellants' claim construction, we nonetheless
agree with the Examiner's conclusion that the recitations of claim 45 would
have been obvious in view of the cited art. Langdon teaches treating
potatoes with ascorbic acid and putting them in a bag under partial vacuum
in order to increase shelf life and prevent browning. Final Act. 6; Langdon
64---65. Langdon teaches that "elimination of oxygen from the cut surface of
vegetables greatly retards the browning reaction .... " Langdon 64.
The Examiner combines the teachings of Langdon with Spencer,
Mercogliano, and McFarlane. Spencer, Mercogliano, and McFarlane all
teach application of a modified atmosphere prior to evacuating the modified
atmosphere. Ans. 4---6; Spencer 6:31--41; Mcfarlane i-f 16; Mercogliano
2: 19-39. Although these three references primarily focus on meat
preservation, the references also suggest that a person of skill interested in
food preservation would consider known techniques for both meat and plant
references. Ans. 4---6, 13; Spencer 1 :28-2:40 (citing related references that
address preservation of, for example, "agricultural products," "fruit or
vegetables," and "fresh fruit pieces"); Mercogliano 1:25-39 (citing related
reference regarding "process for treating meat, fruits and vegetables");
Mcfarlane Title ("Packaging of Foodstuffs"), i-f 2 ("The present invention
relates generally to the packaging of foodstuffs, for example, beef .... ").
The relevance of the technique of Spencer, Mercogliano, and
Mcfarlane to fruits and vegetables is further reinforced by the teachings of
Putter. Putter teaches preservation of food products including bread
products with raisins, currants, or fruits. Ans. 6; Putter Title, 2:22-27.
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Application 12/398,609
Much like Spencer, Mercogliano, and McFarlane, Putter teaches
preservation by introducing a modified atmosphere of carbon dioxide and
then packing at a lower pressure. Putter 2:36-44.
The cited art provides a rational and scientific underpinning that
would have encouraged a person of skill to apply the technique of Spencer,
Mercogliano, Mcfarlane, and Putter to vegetables or other plants. Langdon
teaches that oxygen causes browning. Ans. 3; Langdon 64. Brody teaches
that a complete vacuum is never possible in the context of vacuum
packaging foods for preservation. Ans. 6-7; Brody 651. In view of these
teachings, we agree with the Examiner that a person of skill would
recognized the advantage of further excluding the presence of oxygen by
providing a modified atmosphere and then using a vacuum. Ans. 7. Street
further supports this determination by teaching that preserving potatoes in
carbon dioxide inhibits microbiological growth. Ans. 7; Street 4:48-54.
Mercogliano further supports this determination by explaining the benefits
of entraining non-oxygen gas within the food product. Ans. 17;
Mercogliano 2:60-3 :6. A person of skill would thus recognize that the
techniques of Spencer, Mercogliano, Mcfarlane, and Putter could improve
vegetable preservation in the same way the techniques improve preservation
of the food in those references. Cf KSR Intern. Co. v. Teleflex Inc., 550
U.S. 398, 417 (2007). Accordingly, we agree with the Examiner's
conclusion that it would have been obvious to modify the atmosphere of
Langdon prior to forming a partial vacuum. Ans. 17-18.
Appellants also argue that the combined references do not teach the
treatment solution recited in claim 45. Appeal Br. 16. In particular,
Appellants argue that Warren, Lidden, and Langdon do not teach claim 45 's
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recited "sodium acid pyrophosphate in an amount from about 0.1 % to 5% by
weight" and "more than 1 % by weight of citric acid." Appeal Br. 16-18.
The Examiner, however, correctly finds that Warren teaches sodium acid
pyrophosphate (SAPP) present at up to 40% in a dry composition and that
the dry composition, when used in a solution, is present at up to about 5%
(although higher amounts of the dry composition may also be employed in
the solution). Final Act. 11; Warren 4: 1-25. Thus, the Examiner correctly
finds that Warren's solution results in, for example, 2% SAPP (i.e., 40%
multiplied by 5% ). Final Act. 11. This is within claim 45 's recited range.
Warren also teaches citric acid in a concentration of 8-20% of the dry
composition which, again, is present at up to about 5% of the solution (or
higher). Final Act. 12; Warren 4: 1-25. Thus, Warren teaches about 1 % of
citric acid (20% multiplied by 5%) or more if, as Warren teaches is viable,
the percent of dry composition in the solution is higher. Final Act. 12.
Warren also teaches, at claim 10, use of "about 1 %"citric acid. Ans. 20;
Warren 8:39--41. An amount of "about 1 %"teaches use of more than 1 %
ascorbic acid. Warren's overlapping ranges of SAPP and ascorbic acid is
sufficient to establish a prima facie case of obviousness. See, e.g., In re
Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ("[a] primafacie case of
obviousness typically exists when the ranges of a claimed composition
overlap the ranges disclosed in the prior art"); In re Geisler, 116 F.3d 1465,
1469 (Fed. Cir. 1997) (acknowledging that a claimed invention was
rendered prima facie obvious by a prior art reference whose disclosed range
(50-100 Angstroms) overlapped the claimed range (100-600 Angstroms)).
The Examiner's obviousness conclusion is further reinforced by, for
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example, Lidden teaching use of more than 1 % of citric acid (i.e., 0.1 % to
3%) for potato preservation. Final Act. 21; Lidden 6:6-7.
In reply, Appellants argue that there is no basis in the prior art for
combining a gas treatment process with a solution treatment process. Reply
Br. 11. Langdon, however, employs both a vacuum and citric acid treatment
solution. Final Act. 6; Langdon 64---66. Warren teaches that its solution
provides cut plant parts with "extraordinarily long storage ability." Warren
3:29-35. Thus, a person of skill would have been inclined to use Warren's
solution in the process of Langdon and/or in the process of Langdon as
modified by the other cited references because doing so would be a
predictable use of a prior art element according to its established function.
KSR Intern., 550 U.S. at 417.
For the reasons above and for the reasons explained by the Examiner
in the Final Action and Answer, we sustain the Examiner's rejection of
claims 2, 8, 11-18, 20-22, 24--29, 34, 37, 39, 24--46, and 49.
Rejections 2-9. For rejections 2-9, the Examiner relies upon the
same combination applied to claim 45 with Langdon as the primary
reference along with additional references. Appellants raise no separate
arguments regarding these rejections. We therefore sustain the Examiner's
rejection of claims 3-5 under rejection 2, claim 8 under rejection 3, claim 9
under rejection 4, claims 19 and 38 under rejection 5, claims 31 and 32
under rejection 6, claim 32 also under rejection 7, claim 34 under rejection
8, and claims 35, 36, and 47 under rejection 9.
Rejection 10. The Examiner rejects claims 2-5, 8, 9, 11-22, 24--29,
31, 32, 34--39, 42--47, and 49 as obvious over Lingham '973 in further view
of any of Spencer, Street, Mercogliano, or McFarlane as evidenced by
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Brody. Final Act. at 26. The present application is a continuation-in-part of
the application resulting in the Lingham '973 publication. Appellants raise
substantially the same arguments regarding adding a modified atmosphere
prior to vacuumizing that we address above. Appeal Br. 18-22.
Lingham, much like Langdon, teaches use of a solution along with a
vacuum. Final Act. 26. The Examiner again applies references
demonstrating the value of modifying the atmosphere and then evacuating
the container. Id. at 26-27; Ans. 23. We sustain this rejection for the
reasons explained above and for the reasons stated by the Examiner in the
Final Action and Answer.
Rejection 11. The Examiner also rejects claim 34 as obvious over the
references applied to claim 45 relying on Lingham '973 as the primary
reference in further view of Yanta or Twinam. Final Act. 30. Appellants
raise no separate arguments regarding this rejection, and we therefore sustain
the rejection.
DECISION
For the above reasons, we affirm the Examiner's rejection of claims
2-5, 8, 9, 11-22, 24--29, 31, 32, 34--39, 42--47, and 49.
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
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