Ex Parte Radatti

Patent Trial and Appeal Board

Mar 26, 2015

10876907 (P.T.A.B. Mar. 26, 2015)

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.
10/876,907 06/25/2004 Peter V. Radatti E-2537 2995
7590 03/26/2015
John F.A. Earley III
86 The Commons at Valley Forge East
1288 Valley Forge Road
P.O. Box 750
Valley Forge, PA 19482-0750
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
03/26/2015 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PETER V. RADATTI
____________

Appeal 2013-005574
Application 10/876,907
Technology Center 1700
____________

Before CHARLES F. WARREN, BEVERLY A. FRANKLIN, and
ELIZABETH M. ROESEL, Administrative Patent Judges.

ROESEL, Administrative Patent Judge.

DECISION ON APPEAL

Appellant
1
appeals under 35 U.S.C. § 134(a) from the Decision of the
Primary Examiner finally rejecting claims 10–27 and 29–34. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.

STATEMENT OF THE CASE
The claimed subject matter relates to methods for treating or
sterilizing food and food preparation areas. App. Br. 42–43, 45 (claims 13,

1
According to the Appeal Brief, the Real Party in Interest is Cybersoft, Inc.,
App. Br. 1.
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14, 27); Spec. ¶ 1.
2
Claim 13 is representative of the subject matter on
appeal and is set forth below:
13. A method for treating food comprising: generating a
pathogen specific modulation frequency; modulating said
pathogen specific modulation frequency onto a carrier wave
resulting in an output signal; amplifying said output signal;
broadcasting said output signal, as a combination of one or
more of audio, radio and light waves, and so irradiating a food
to be sterilized.
App. Br. 42 (Claims Appendix).
The prior art relied upon by the Primary Examiner in rejecting the
claims on appeal is:
Hellund US 3,600,126 Aug. 17, 1971
Koch US 4,974,503 Dec. 4, 1990
Bare US 5,908,441 June 1, 1999
Ruan et al. US 6,562,386 B2 May 13, 2003

THE REJECTIONS
1. Claims 25, 26, and 30–31 are rejected under 35 U.S.C. § 112, first
paragraph, for failing to comply with the written description requirement.
Ans. 2–4.
2. Claims 23–24 and 31 are rejected under 35 U.S.C. § 112, second
paragraph, as indefinite. Ans. 4–5.
3. Claims 13–20, 23–27, and 29–32 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bare in view of Ruan. Ans. 5–7.

2
We refer to the paragraph numbering in the Pre-Grant Publication
(US 20050287254 A1, Dec. 29, 2005), which was published prior to any
amendments to the Specification or claims and the content of which is
understood to be the same as was originally filed on June 25, 2004.
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4. Claims 10–21, 23–27, and 29–34 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Bare in view of Hellund. Ans. 8–11.
5. Claims 21 and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Bare in view of Ruan and further in view of Koch. Ans.
11.
6. Claim 22 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Bare in view of Hellund and further in view of Koch. Ans. 12.

ANALYSIS
Written Description
The Examiner determines that the Specification, as originally filed,
lacks a written description for particular claim limitations, as follows: claim
25 (“food shape”), Ans. 2–3, 12–13; claim 26 (“at least one modulation
frequency is selected to correspond to . . . a frequency sufficient to penetrate
a food to a desired depth”), Ans. 3, 13–14; and claim 30 (“determining a
pathogen specific modulation frequency . . . consisting of one or more of
audio, radio, and light waves”), Ans. 3–4, 14.
3
Each of these claim
limitations was added subsequent to the filing date of the original application
and is not part of the originally-filed claims. See Spec. claims 1–28.
Appellant responds by identifying the portions of the Specification
Appellant contends support the claim limitations identified by the Examiner,
as follows: claim 25: reference to “cuts of meat” in paragraph 26; claim 30:
references to power level in paragraphs 21, 22, and 33; and claim 30:

3
Claim 31 depends on claim 30 and is rejected under 35 U.S.C. § 112, first
paragraph, on the same grounds as claim 30.
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discussion of controlled environment and determination of modulation
frequencies in paragraphs 15–17 and 28. App. Br. 17–24.
In rejecting claims for failure to comply with the written description
requirement of § 112, first paragraph, the Examiner bears the initial burden
of establishing that, prima facie, the disclosure in the Specification, claims,
and drawings as filed as a whole would not have reasonably conveyed to
those skilled in the art that Appellant was in possession of the subject matter
of the appealed claims, including all of the limitations thereof, at the time the
Application was filed. Ariad Pharm., Inc. v. Eli Lilly & Co., 598 F.3d 1336,
1351 (Fed. Cir. 2010) (en banc); In re Alton, 76 F.3d 1168, 1172, 1175–76
(Fed. Cir. 1996) (citing In re Wertheim, 541 F.2d 257, 262–64 (CCPA
1976)). The written description in the original disclosure as a whole does
not have to describe the invention later claimed in haec verba, but the
original disclosure “must . . . convey with reasonable clarity to those skilled
in the art that … [appellant] was in possession of the invention . . . now
claimed.” Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563–64 (Fed. Cir.
1991); Wertheim, 541 F.2d at 262 (“The function of the description
requirement is to ensure that the inventor had possession, as of the filing
date of the application relied on, of the specific subject matter later claimed
by him; how the specification accomplishes this is not material.”) (citations
omitted). In order to establish a prima facie case, the Examiner or the Board
need only establish that as a matter of fact, Appellant claims “embodiments
of the invention that are completely outside the scope of the specification.”
Alton, 76 F.3d at 1175–76; see also Wertheim, 541 F.2d at 263–64.
Compliance with § 112, first paragraph, written description requirement, is a
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question of fact and is determined on a case-by-case basis. Vas-Cath, 935
F.2d at 1562–63.
Regarding claim 25, on this record, we are persuaded that the
Examiner has established, prima facie, that the original Specification lacks
written description support for “food shape” being an attribute of a specific
food to which a pathogen specific modulation frequency is determined to be
appropriate. We agree with the Examiner that this aspect claim 25 is not
adequately supported by the Specification’s disclosure that “certain antenna
shapes and/or sizes may be more useful in radiating certain food stuffs, e.g.,
a certain shape may be easier to use with certain cuts of meat as opposed to
certain types of fruit,” Spec., ¶ 26, relied upon by Appellant, App. Br. 17–
20. The Examiner correctly notes that the phrase “food shape” does not
appear in the Specification. Ans. 13. We agree with the Examiner that the
phrase “cuts of meat” in Specification paragraph 26 does not show
possession of the subject matter of claim 25 with respect to “food shape.”
Ans. 13. The evidence relied upon by the Examiner and Appellant
describing various cuts of beef, pork, and lamb does not persuade us that the
phrase, “cuts of meat,” as used in Specification paragraph 26, would have
been understood as a reference to “food shape.” App. Br. (Exhibits B–D).
Furthermore, even if we accepted Appellant’s argument that “cuts of meat”
would have been understood as referring to differently shaped pieces of
meat, App. Br. 19, we agree with the Examiner that Specification paragraph
26 does not provide written description support for determining a
modulation frequency appropriate for “food shape.” Ans. 13. In fact,
determining a modulation frequency is not discussed in connection with
“cuts of meat.” Spec. ¶ 26.
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Regarding claim 26, on this record, we are persuaded that the
Examiner has established, prima facie, that the original Specification lacks
written description support for “at least one modulation frequency is selected
to correspond to . . . a frequency sufficient to penetrate a food to a desired
depth.” We agree with the Examiner that this aspect claim 26 is not
adequately supported by the Specification’s discussion of power level in
paragraphs 21, 22, and 33. According to the Specification, the power level
is selected to achieve a desired of depth of penetration, Spec. ¶ 33, but the
paragraphs identified by Appellant do not provide written description
support for selecting a modulation frequency to achieve a desired depth of
penetration. Although paragraphs 21 and 22 collectively teach that the
frequency of output waves changes according to various input parameters,
including “power level applied to various components,” this disclosure does
not provide written description support for selecting a modulation frequency
to achieve a desired depth of penetration, as in claim 26.
Regarding claims 30 and 31, on this record, we are not persuaded that
the Examiner has established that the original Specification lacks written
description support for “determining a pathogen specific modulation
frequency . . . consisting of one or more of audio, radio, and light waves.”
Appellant directs us to paragraph 28 of the Specification, which discloses:
Returning now to FIG. 1, the output wave of antenna 40
is shown irradiating food X. The output wave emitted by
antenna 40 is tuned according to a pathogen specific
modulation frequency. This pathogen specific frequency is
determined in the preferred embodiments by irradiating a
pathogen in a controlled environment and determining what
modulation frequencies may destroy or incapacitate the
pathogen.
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Spec. ¶ 28. As noted by the Examiner, paragraph 28 does not expressly
mention determining a modulation frequency “consisting of one or more of
audio, radio, and light waves.” Ans. 14. We agree with Appellant, however,
that the originally-filed Specification, claims, and drawings as a whole
would have reasonably conveyed to those skilled in the art that the pathogen
specific modulation frequency that is determined consists of one or more
audio, radio, and light waves. App. Br. 22–24. For example, originally-filed
claim 10 recites: “A method for sterilizing food comprising exposing said
food to nonthermal radiation which is further comprised of audio, radio and
light waves and wherein said nonthermal radiation is determined according
to a pathogen specific modulation frequency.” Furthermore, the description
of determining a pathogen specific modulation frequency refers to the output
of antenna 40 shown in Figure 1. Spec. ¶28. That description should be
read in the context of paragraph 20, which states that “[t]he output of
antenna 40 comprises a wave, which may be audio, radio, light and/or
waves.” Spec. ¶ 20. Based on these originally-filed disclosures, one of
ordinary skill in the art would have recognized that the modulation
frequency that is determined consists of one or more audio, radio, and light
waves.
Accordingly, on this record, we sustain the rejection of claims 25 and
26 for failing to comply with the written description requirement of § 112,
first paragraph, but we do not sustain the rejection of claims 30 and 31 on
that ground.
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Indefiniteness
The Examiner determines that claims 23, 24, and 31 are indefinite
because each of these claims recites a limitation that is broader in scope than
the corresponding limitation of the parent claim. Ans. 4–5, 14–15. More
specifically, the Examiner construes the phrase, “a pathogen specific
modulation frequency,” in each of claims 13, 29, and 30 as singular, i.e.,
requiring a single frequency. Id. Based upon this construction, the
Examiner concludes that the phrase, “a range of pathogen specific
modulation frequencies,” in claim 23, and the phrase, “modulation
frequencies,” in claim 31, are each broader in scope than the corresponding
limitation of the parent claim. Id.
4

“The legal standard for definiteness is whether a claim reasonably
apprises those of skill in the art of its scope.” In re Warmerdam, 33 F.3d
1354, 1361 (Fed. Cir. 1994). Claims are indefinite “only if it can be
concluded that one of ordinary skill in this art, having appellants’ disclosure
and claims before him, would not be possessed of a reasonable degree of
certainty as to the exact subject matter encompassed within the claims.”
In re Moore, 439 F.2d 1232, 1236 (CCPA 1971).
[W]hen reviewing a pending claim for indefiniteness[,] . . . if
[the] claim is amenable to two or more plausible claim
constructions, the USPTO is justified in requiring the applicant
to more precisely define the metes and bounds of the claimed
invention by holding the claim unpatentable under 35 U.S.C.
§112, second paragraph, as indefinite.
Ex Parte Miyazaki, 89 USPQ2d 1207, 1211 (BPAI 2008) (precedential).

4
Claim 24 depends on claim 23 and is rejected under 35 U.S.C. § 112,
second paragraph, on the same grounds as claim 23.
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Here, the Examiner’s determination of indefiniteness is based upon an
incorrect construction of the parent claims. Under a broadest reasonable
construction, the phrase, “a pathogen specific modulation frequency,” in
each of claims 13, 29, and 30, means one or more pathogen specific
modulation frequencies. See Baldwin Graphic Sys., Inc. v. Siebert, Inc., 512
F.3d 1338, 1342 (Fed. Cir. 2008) (“an indefinite article ‘a’ or ‘an’ in patent
parlance carries the meaning of ‘one or more’ in open-ended claims
containing the transitional phrase ‘comprising’”). Our construction is
consistent with the Specification, which teaches that the “modulation
frequency or frequencies[] may be any desired frequency, although generally
frequencies in the range of 2 kHz to 200 kHz are used,” and further that
“frequencies may vary in range up to ten percent and more about their
frequency setting.” Spec. ¶ 15. The Examiner directs us to Specification
paragraph 17, Ans. 14–15, but we do not read that paragraph as requiring
that “a pathogen specific modulation frequency” be construed as a single
frequency. Although paragraph 17 discloses examples of actual frequencies
for a carrier wave, there no requirement that a pathogen specific modulation
frequency be limited to a single frequency, such as 3.3 MHz or 4.6 MHz. Id.
¶ 17.
Based upon a correct claim construction of the parent claims, we
determine that the Examiner erred in concluding that claims 23 and 31 each
recite limitations that are broader in scope than the corresponding limitations
of the parent claims. More specifically, we determine that neither the
phrase, “a range of pathogen specific modulation frequencies,” in claim 23,
nor the phrase, “modulation frequencies,” in claim 31, is broader in scope
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than “a pathogen specific modulation frequency,” i.e., one or more pathogen
specific modulation frequencies, as recited in claims 13 and 30.
Based on the above analysis, the rejection of claims 23, 24, and 31 for
indefiniteness under § 112, second paragraph, is not sustained.
Obviousness
The Examiner finds that Bare teaches all aspects of Appellant’s claims
10–20, 23–27, and 29–34, except that Bare does not expressly teach
nonthermal sterilization of food, i.e., that the object being irradiated is food
and that the radiation is nonthermal. Ans. 5–6, 8–9 (citing Bare, various line
numbers in cols. 2–5 and 7–9). The Examiner finds that Ruan and Hellund
each teach nonthermal sterilization of food. Id. at 6–7, 9–10 (citing Ruan
3:17–18, 4:19–24, 4:37–41; Hellund 2:4–8, 3:1–10, 3:71–75, 5:25–30, 5:42–
50, 6:30–32). The Examiner concludes that one of ordinary skill in the art
would have been motivated to combine the teachings of Bare and Ruan, and
the teachings of Bare and Hellund, because each pair of references is
concerned with determining and applying pathogen specific frequencies to
eliminate pathogens, such as Salmonella and E. Coli., which are commonly
found in food. Id. at 7, 10 (citing Bare 2:41–43 & Table III; Ruan 4:19–24,
4:40–41, 9:5; Hellund 2:4–8). In addition, the Examiner concludes that, in
view of the combined teachings of each pair of references, it would have
been obvious to treat food or a food preparation area with radiation that is
nonthermal in order to destroy food pathogens, while preserving food quality
and other heat-sensitive attributes. Id. (citing Ruan 4:19–24, Hellund 2:4–8,
5:48–49). The Examiner further finds that the antenna array of dependent
claim 21 is taught by each of Hellund and Koch and the phased antenna
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array of dependent claim 22 is taught by Koch, and concludes that it would
have been obvious to use the phased antenna array of Koch in the method
taught by the combination of Bare and either Ruan or Hellund. Id. at 11–12.
Appellant challenges the Examiner’s conclusions of obviousness,
arguing that Bare does not relate to food treatment and that neither the
combination of Bare and Ruan, nor the combination of Bare and Hellund,
discloses or suggests the claimed invention. App. Br. 26–32, 34–36. Upon
consideration of the evidence presented in this Appeal and each of
Appellant’s contentions, we are not persuaded that Appellant identifies
reversible error, and we find that a preponderance of evidence supports the
Examiner’s conclusion that the subject matter of Appellant’s claims is
unpatentable over the applied prior art. We sustain the obvious rejections of
the appealed claims based on the Examiner’s findings of fact, conclusions of
law, and rebuttals to Appellant’s arguments, as expressed in the Answer.
We add the following for emphasis.
Appellant argues that Bare discloses a resonant frequency device for
application to living cells to destroy cell malignancies and break down
microorganisms with the application of heat and does not relate to food
treatment. App. Br. 26–28, 35. According to Appellant, Bare does not
disclose or suggest applying its treatment to food “since, the entire product
could be destroyed, just like the cell malignancies Bare attempts to attack.”
Id. at 27. In response, the Examiner reiterates that Bare teaches Appellant’s
claimed method of irradiating an item to be treated with a pathogen specific
frequency. Ans. 15. Although Bare does not expressly teach food
treatment, the Examiner contends that such an application is suggested by
Bare’s disclosure that the method can be used to destroy microorganisms,
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e.g., Salmonella Enteritidi and E. Coli, which cause “food poisoning.” Id.
citing Bare Table III.
We find that the Examiner’s conclusion is supported by the teachings
of Bare, including the portions of the reference cited by the Examiner.
Bare’s teaching that the disclosed irradiation method can be used to destroy
microorganisms that cause food poisoning, Bare 7:4–5, Table III, supports
the obviousness of using that method to sterilize food and food preparation
areas. In addition, we note that, although the disclosure is directed primarily
toward eradication of malignant cells, Bare acknowledges that it “also may
be employed for other beneficial purposes.” Bare 9:13–15. Accordingly,
the teachings of Bare support the Examiner’s conclusion that it would have
been obvious to apply Bare’s irradiation technique to a food product or food
preparation area. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 401 (2007)
(“[I]f a technique has been used to improve one device, and a person of
ordinary skill in the art would recognize that it would improve similar
devices in the same way, using the technique is obvious unless its actual
application is beyond his or her skill.”)
We find no support in Bare for Appellant’s contention that Bare’s
disclosure is limited to methods involving thermal treatment or the
application of heat. App. Br. 27, 31, 35. Appellant provides no citation to
Bare to support this contention. Bare teaches treating an item with the same
types of radiation as used in Appellant’s claimed method: a complex energy
wave comprising audio, radio, and light waves, and possibly also a plasma
wave. Compare Bare Abstract, 2:21–25, 8:63–93 with, e.g., App. Br. 41
(claims 10 and 11); Spec. ¶ 20. Like Appellant’s Specification, Spec. ¶¶ 2,
3, 11, Bare teaches that radiation of sufficient intensity to cause thermal
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heating should be avoided. Bare 1:40–65. As noted by the Examiner, Ans.
6–7, 9–10, the secondary references similarly teach that the application of
heat should be avoided when sterilizing food, in order to preserve food
quality. See, e.g., Ruan 1:15–21; Hellund 2:4–8. Accordingly, the
combined teachings of Bare and each of the secondary references supports
the Examiner’s conclusion that it would have been obvious to apply Bare’s
method to provide nonthermal sterilization of food.
Next, Appellant argues that the combination of Bare and each of the
secondary references (Ruan and Hellund) does not support obviousness of
the claimed subject matter. App. Br. 28–32, 35–36; Reply Br. 1–3.
According to Appellant, Ruan teaches sterilizing liquid food by introducing
a plasma gas into the liquid in a nonthermal plasma reactor, and Hellund
teaches placing the object to be sterilized between two electrodes in a
container in a gas atmosphere. App. Br. 28–32, 35–36; Reply Br. 1–3.
Appellant argues that the sterilization methods of Ruan and Hellund differ
from the claimed method, which includes broadcasting an output signal to
irradiate the food or food preparation area to be sterilized. App. Br. 28–32,
35–36.
We are not persuaded that Appellant’s arguments identify reversible
error in the Examiner’s analysis. The Examiner finds, and Appellant does
not dispute, that all aspects of Appellant’s claimed irradiation method are
taught by Bare, except that Bare lacks an express disclosure that the object
being irradiated is food and that the radiation is nonthermal. Ans. 6–7, 9.
Both of those ideas are suggested by Bare, as discussed above. Furthermore,
the Examiner finds, and Appellant does not contest, that Ruan and Hellund
each teach the nonthermal sterilization of food. Id. The fact that neither
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Ruan nor Hellund teach broadcasting an output signal does not matter
because that aspect of Appellant’s claimed method is undisputedly taught by
Bare. See In re Young, 927 F.2d 588, 591 (Fed. Cir. 1991) (“The test for
obviousness is what the combined teachings of the references would have
suggested to those of ordinary skill in the art.”); In re Merck & Co., Inc., 800
F.2d 1091, 1097 (Fed. Cir. 1986) (“Non-obviousness cannot be established
by attacking references individually where the rejection is based upon the
teachings of a combination of references.”).
Appellant’s arguments do not reveal error in the Examiner’s
conclusion that, in view of the teachings of Ruan and Hellund to sterilize
food using a nonthermal treatment in order to preserve food quality, it would
have been obvious to apply Bare’s irradiation method to sterilize food using
nonthermal radiation. Ans. 7, 10. As noted by the Examiner, all three
references teach methods for destroying microorganisms, such as Salmonella
and E. Coli, that are commonly found in food. Id.; Bare 2:41–43, 7:4–5,
Table III; Ruan 4:19–24, 9:36–38, 9:61–64; Hellund 1:12–23, 2:17–20,
5:42–49. Furthermore, all three references teach the importance of avoiding
radiation of sufficient intensity to cause thermal heating. Bare 1:40–65;
Ruan 1:15–21; Hellund 2:4–8. Accordingly, the teachings of the secondary
references, Ruan and Hellund, are sufficient to bridge any gap between
Bare’s disclosure and Appellant’s claimed subject matter, and the
Examiner’s findings regarding all three references are sufficient to support
the conclusion of obviousness.
Appellant’s arguments do not identify reversible error with respect to
any of the appealed claims. Appellant’s arguments are fully addressed by
the Examiner’s findings and conclusions and the above discussion added for
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emphasis. Even if not expressly addressed by the above discussion, each of
Appellant’s arguments has been considered and is not persuasive of
reversible error in the Examiner’s findings or conclusions.
The Appeal Brief presents no argument sufficient to require us to
consider separate patentability of any of the appealed claims. 37 C.F.R. §
41.37(c)(iv) (“A statement which merely points out what a claim recites will
not be considered an argument for separate patentability of the claim.”); see
also, e.g., In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir. 2011) (“a mere
recitation of the claim elements and a naked assertion that the corresponding
elements were not found in the prior art” is not a substantive argument that
requires claims be separately addressed); In re Baxter Travenol Labs., 952
F.2d 388, 391 (Fed. Cir. 1991) (“It is not the function of this court to
examine the claims in greater detail than argued by an appellant, looking for
nonobvious distinctions over the prior art.”).
With respect to the rejection of claims 13–20, 23–27, and 29–32 over
Bare and Ruan, the Appeal Brief focuses on independent claims 13 and 14
and presents no separate argument regarding any of dependent claims 15–17,
19, 20, or 23–26. See App. Br. 32. Regarding claims 18, 27, and 29–32, the
Appeal Brief merely paraphrases the limitations and asserts they are not
disclosed by the cited references. App. Br. 32–34. Regarding claims 33 and
34, the Appeal Brief argues that they are patentable over Bare and Ruan,
even though they are rejected over Bare and Hellund, which is not
specifically addressed by Appellant. Compare App. Br. 34 with Ans. 7–11.
With respect to the rejection of claims 10–21, 23–27, and 29–34 over
Bare and Hellund, the Appeal Brief presents no separate argument regarding
any of claims 10, 13–21, 23–27, or 29–34. See App. Br. 38. Regarding
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claims 11 and 12, Appellant argues that the claimed method is different from
Hellund or the cited references generally, App. Br. 36–37, but does not
address the Examiner’s findings that Bare teaches the limitations of these
claims, Ans. 8, 20.
With respect to the rejection of claims 21 and 22 over Bare, Ruan, and
Koch, the Appeal Brief argues that Koch’s disclosure relates to heat
treatment of food, App. Br. 38–39, but does not address the Examiner’s
findings that Koch teaches the additional limitations of claims 21 and 22,
Ans. 11, 21.
The Appeal Brief presents no separate argument addressing the
rejection of claim 22 over Bare, Hellund, and Koch.
We are therefore not persuaded of reversible error in the Examiner’s
obviousness rejections of the appealed claims.

CONCLUSION OF LAW AND DECISION
In view of the foregoing, we affirm the Examiner’s decision rejecting
claims 25 and 26 under 35 U.S.C. § 112, first paragraph, affirm the
Examiner’s decision rejecting claims 10–27 and 29–34 under 35 U.S.C.
§ 103(a), reverse the Examiner’s decision rejecting claims 30 and 31 under
35 U.S.C. § 112, first paragraph, and reverse the Examiner’s decision
rejecting claims 23–24 and 31 under 35 U.S.C. § 112, second paragraph.
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-IN-PART

kmm