SCELTA ESSENZA HOLDING B.V.

Patent Trials and Appeals Board

Aug 27, 2020

14068119 - (D) (P.T.A.B. Aug. 27, 2020)

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.
14/068,119 10/31/2013 Johannes Gerardus Maria KLERKEN 30183.0002.USP0 3480
32894 7590 08/27/2020
HOYNG ROKH MONEGIER LLP
Rembrandt Tower 30th Floor
Amstelplein 1
Amsterdam, 1096 HA
NETHERLANDS
EXAMINER
ZILBERING, ASSAF
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/27/2020 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):
amdocketing@hoyngrokh.com
david.owen@hoyngrokh.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOHANNES GERARDUS MARIA KLERKEN and
GERARD BARTELS
Appeal 2019-006374
Application 14/068,119
Technology Center 1700
Before JEFFREY T. SMITH, BEVERLY A. FRANKLIN, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL1
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1, 5–11, 13, and 21. Appeal Br. 2. We
have jurisdiction under 35 U.S.C. § 6(b).

1 This Decision includes citations to the following documents: Specification
filed October 31, 2013 (“Spec.”); Final Office Action mailed August 24,
2018 (“Final Act.”); Appeal Brief filed February 14, 2019 (“Appeal Br.”);
and Examiner’s Answer mailed May 31, 2019 (“Ans.”).
2 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a). Appellant identifies the real party in interest as SCELTA
ESSENZA HOLDING B.V. Appeal Br. 2.
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We affirm.
CLAIMED SUBJECT MATTER
Appellant states the invention relates to a method for preserving
Agaricus bisporus mushrooms. Spec. ¶ 2. Claim 1, reproduced below, is
illustrative of the claimed subject matter (Appeal Br., Claims Appendix 23):
1. A method for preserving Agaricus bisporus mushrooms the
method comprising the following consecutive steps:
a. inserting cleaned Agaricus bisporus mushrooms into a
plastic laminate bag wherein the laminate bag is
retortable and wherein each mushroom comprises a stem
and a cap, whereby forming an irregular shaped plastic
laminate bag;
b. subjecting the bag with the mushrooms to vacuum at a
pressure of about 100 mbar or less until there is no air
present around the mushrooms and air is removed from
the mushrooms;
c. sealing the bag while keeping the vacuum;
d. releasing the vacuum; and
wherein the bag with the mushrooms is subjected to a
sufficient temperature for a sufficient time to cause the
mushrooms to be sterilized,
wherein the mushrooms have lost less than 3 wt% before
inserted in the bag,
wherein the bag comprises stems and caps of the
Agaricus bisporus mushrooms.

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Keller US 3,136,468 June 9, 1964
Tessier “Rising Stars”
http://www.starchefs.com/chefs/rising_
stars/2009/napa_sonoma/recipe_mushroo
m_salad_philip_tessier.shtml
May 2009
AAPA Specification ¶ 5 October 31,
2013
Amazingfood “Sealing Your Food for Sous Vide”
www.amazingfoodmadeeasy.com
January 14,
2009
VacMaster www.madcowcutlery.com/store/pc/pdf
/VP210_Manual.pdf
April 18,
2010
Vivagourmet “Royal Trumpet/King Trumpet
Mushrooms”
http://www.vivagourmet.com/product/royal-
trumpets-king-trumpet-mushroom/
November
14, 2013
Marxfood “How Many Sprigs of an Herb are there in a
Pound?”
marxfood.com/herb-springs-in-a-pound/
August 2,
2011
Hannone “Weight Equivalents: Garlic”
https://hannone.com/Recipe/weig
htgarlic.html
November
15, 2016
Kitchensavvy “Cleaning Mushrooms”
http://www.kitchensavvy.com/journal
/2005/06/cleaning_mushro.html)
June 15, 2005
Alineaphile “Matsutake, Pine Nut, Mastic, Rosemary”
http://alineaphile.com/2008/11/matsutake-pi
ne-nut-mastic-rosemary/
November
21, 2008
REJECTIONS
1. The Examiner rejected claims 1, 5–11, 13, and 21 under 35 U.S.C.
§ 112(a) or 35 U.S.C. § 112, first paragraph, as failing to comply
with the written description requirement. Final Act. 2–3.
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2. The Examiner rejected claims 1, 7–10, 13, and 21 under 35 U.S.C.
§ 103(a) as unpatentable over Tessier in view of AAPA,
Amazingfood, VacMaster, and as evidenced by Vivagourmet,
Marxfood, and Hannone. Final Act. 4–9.
3. The Examiner rejected claim 5 under 35 U.S.C. § 103(a) as
unpatentable over Tessier, AAPA, Amazingfood, VacMaster, and
further in view of Kitchensavvy. Final Act. 9.
4. The Examiner rejected claim 6 under 35 U.S.C. § 103(a) as
unpatentable over Tessier, AAPA, Amazingfood, VacMaster, and
further in view of Alineaphile. Final Act. 9–10.
5. The Examiner rejected claim 11 under 35 U.S.C. § 103(a) as
unpatentable over Tessier, AAPA, Amazingfood, VacMaster, and
further in view of Keller. Final Act. 10–11.

OPINION
Rejection 1
The Examiner’s Rejection
In rejecting claim 1, the Examiner found there is no support in the
original application for the phrase “whereby forming an irregular shaped
plastic laminate bag.” Final Act. 3. As a result, the Examiner found this
limitation to be new matter. Id. In the Answer, the Examiner further
explained that because there is a difference between Figure 1 of the claimed
priority application NL2006738 and Figure 1 of the US application and the
limitation is not disclosed in the written description, the limitation is
considered new matter. Ans. 16–17.
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Appellant’s Contentions
Appellant argues Figures 1C, 1D, and 1E of the Specification depict
an irregular shaped plastic laminate bag, which provides support for the
claim limitation. Appeal Br. 22.

Issue
The dispositive issue with respect to this rejection is:
Did the Examiner err in finding the phrase “whereby forming an
irregular shaped plastic laminate bag” as recited in claim 1 lacks written
description support in the Specification?

Discussion
We are not persuaded by Appellant’s arguments. Claim 1 recites
inserting cleaned Agaricus bisporus mushrooms into a plastic laminate bag
“whereby forming an irregular shaped plastic laminated bag.” Although the
Specification describes plastic laminate bags (Spec. ¶¶ 37–43), the
Specification does not describe situations where inserting Agaricus bisporus
mushrooms changes the shape of the bag. In addition, Figures 1C, 1D, and
1E, relied on by Appellant for support already depicts the presence of the
mushrooms in the bags, and is therefore insufficient to provide written
description support for the limitation recited in claim 1.
Accordingly, we affirm the Examiner’s rejection of claim 1, as well as
the dependent claims, which are rejected as a result of their dependency
from claim 1. See Final Act. 3.

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Rejection 2
Appellant does not present separate arguments with respect to the
claims subject to this rejection. See Appeal Br. 6–22. We select claim 1 as
representative for disposition of this appeal, with the patentability of the
other claims standing or falling with claim 1. 37 C.F.R. § 41.37(c)(1)(iv).

The Examiner’s Rejection
In rejecting claim 1 as obvious over Tessier, AAPA, Amazingfood,
and VacMaster, the Examiner found Tessier discloses cooking whole
trumpet mushrooms sous vide by sealing the mushrooms in a bag and
cooking them at 212 °F for 30 minutes. Final Act. 4. The Examiner found
Tessier fails to disclose Agaricus bisporus mushrooms, but determined that
it would have been obvious to have modified Tessier to have prepared
Agaricus bisporus mushrooms, particularly in view of the AAPA’s
disclosure that Agaricus bisporus mushrooms are the most commonly used
mushroom in a number of countries for human consumption. Id. at 4–5.
The Examiner found that the cooking conditions in Tessier meet the
sterilization recited in claim 1. Id. at 7. The Examiner found Tessier does
not disclose a laminate bag as recited in claim 1, but found that
Amazingfood discloses laminate bags for use with chambered vacuum food
sealers that are conventionally used in sous vide cooking. Id. at 5. As a
result, the Examiner determined it would have been obvious to have used
laminate bags for mushroom sous vide cooking as disclosed in Tessier. Id.
In addition, the Examiner found that because the Specification defines
“retortable” as the ability to withstand sterilizing conditions, and the sous
vide cooking method meets the sterilization conditions, the boilable laminate
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bags conventionally used in sous vide cooking meet the claimed “retortable”
limitation. Ans. 14.

Appellant’s contentions
Appellant argues the Examiner has not properly construed the
teachings of Tessier, Amazingfood, and VacMaster, because none of the
cited references relates to a method of preserving mushrooms. Appeal Br.
6–10, 19–21. Appellant contends Tessier does not disclose a method of
preserving mushrooms as recited in claim 1, but rather discloses a method of
sous vide cooking, which is commonly known not to cause sterilization of
mushrooms. Id. at 7, 15. In particular, Appellant contends the Examiner has
not provided sufficient evidence that the conditions disclosed in Tessier
would necessarily sterilize the mushrooms. Id. at 16–18. Appellant argues
the Examiner has simply assumed the VacMaster bags are “retortable” as
recited in claim 1. Id. at 12–14, 18–19.

Issue
Did Appellant sufficiently establish that the Examiner reversibly erred
in determining the method for preserving Agaricus bisporus mushrooms
recited in claim 1 would have been obvious over the prior art of record?

Discussion
We are not persuaded by Appellant’s arguments. In particular, we are
not persuaded by Appellant’s argument that the Examiner has not provided
sufficient evidence that Tessier’s method would result in sterilization of the
mushrooms. As discussed above, the Examiner pointed expressly to the
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disclosure in Tessier that mushrooms are sealed in a vacuum bag and heated
at 212 °F (100 °C) for 30 minutes. Tessier 1–2. As the Examiner explained,
the conditions in Tessier lie inside the temperature and time ranges for
sterilization disclosed in the Specification. Ans. 14, citing Spec. ¶ 52 (“For
sterilization, it is preferred to apply a temperature between 100 and 150 °C,
preferably between 120 and 140 °C, for about 30 to 5 min.”).
Appellant contends that the conditions disclosed in Tessier correspond
to pasteurization conditions, which are not the same as sterilization
conditions and that the Specification discloses overlapping conditions
between sterilization and pasteurization only to accommodate sterilization
procedures including one or more steps where the first step is performed at
lower temperature. Appeal Br. 17–18. We are not persuaded by this
argument because the Specification does not describe particular conditions
that would indicate 100 °C would fall into some lower temperature range
that is insufficient to achieve sterilization. Indeed, the two step process
described in the Specification highlighted by Appellant expressly discloses a
first temperature (80 °C) that lies outside the temperature range of 100 to
150 °C disclosed as sterilization temperatures. Id. at 17; Spec. ¶ 52.
As to Appellant’s argument that the Examiner does not sufficiently
address the claimed “retortable” laminate bag (Appeal Br. 18–19), we are
not persuaded by this argument. As the Examiner explained in the Answer,
the VacMaster laminate bags are sealed and may be boiled, in other words,
may be subject to temperatures such as 100 °C, as in the sous vide cooking
method disclosed in Tessier, which are sterilization conditions as discussed
above according to the Specification. Ans. 14, citing VacMaster 2–4. We
agree with the Examiner that the Specification only defines “retortable” as
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being “ab[le] to withstand sterilizing conditions.” Id.; Spec. ¶ 43. To the
extent Appellant argues the presence of special adhesives between plastic
layers of a retortable laminate bag (Appeal Br. 19), we observe that the
Specification states only that such laminates “generally” have special
adhesives (Spec. ¶ 43), and as such, the disclosure in the Specification is
insufficient to distinguish the VacMaster laminate bags.
Thus, we are not persuaded by Appellant’s arguments that the
Examiner has failed to properly construe the teachings of Tessier,
Amazingfood, and VacMaster, rather, the preponderance of the evidence of
record supports the Examiner’s position that the method recited in claim 1
would have been obvious over the prior art of record.3
Accordingly, we affirm the Examiner’s rejection of claim 1, and
claims 7–10, 13, and 21 dependent therefrom.

Rejections 3–5
For claims 5, 6, and 11, the claims subject to Rejections 3–5,
Appellant does not present separate argument regarding these claims.
Accordingly, we affirm Rejections 3–5 for similar reasons discussed above
for Rejection 2.

3 Appellant has cited a number of additional pieces of evidence in the
Appeal Brief not previously of record. See Appeal Br. 9 (n.3), 11 (n.4), 12
(nn.5, 6), 15–16 (nn.8, 9), 17 (n.10). Such new evidence is not proper in an
Appeal Brief. 37 C.F.R. § 41.37(c)(2). Accordingly, Appellant’s new
evidence has not been considered in deciding this appeal.
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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 5–11, 13,
21
112 Written
Description
1, 5–11, 13,
21

1, 7–10, 13,
21
103(a) Tessier, AAPA,
Amazingfood,
VacMaster,
Vivagourmet,
Marxfood,
Hannone
1, 7–10, 13,
21

5 103(a) Tessier, AAPA,
Amazingfood,
VacMaster,
Vivagourmet,
Marxfood,
Hannone,
Kitchensavvy
5
6 103(a) Tessier, AAPA,
Amazingfood,
VacMaster,
Vivagourmet,
Marxfood,
Hannone,
Alineaphile
6
11 103(a) Tessier, AAPA,
Amazingfood,
VacMaster,
Vivagourmet,
Marxfood,
Hannone, Keller
11
Overall
Outcome
1, 5–11, 13,
21

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

AFFIRMED