STRYKER, Robert B. et al.

Patent Trials and Appeals Board

May 5, 2020

2019000603 (P.T.A.B. May. 5, 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.
14/590,501 01/06/2015 Robert B. STRYKER 193-P0001 1922
121347 7590 05/05/2020
Johnson Legal, PLLC
12545 White Drive
Fairfax, VA 22030
EXAMINER
THAKUR, VIREN A
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
05/05/2020 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):
docketing@lgjlegal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT B. STRYKER and EDWARD M. DIXON1
____________

Appeal 2019-000603
Application 14/590,501
Technology Center 1700
____________

Before MICHAEL P. COLAIANNI, CHRISTOPHER C. KENNEDY, and
MICHAEL G. MCMANUS, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1–3, 5, 7, 8, 10, 11, 13, 16–18, and 24–31. We
have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to methods for processing and
packaging shrimp to extend the shelf life of the shrimp. E.g., Spec. ¶ 1;

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Ocean
Technology, Inc. Appeal Br. 3.
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Claim 1. Claim 1 is reproduced below from page 33 (corrected claims
appendix) of the corrected portions of the Appeal Brief filed May 16, 2018:
1. A method of producing a pasteurized, shrimp food product
having an extended shelf life under refrigeration conditions,
said method comprising the steps:
pre-cooking uncooked shrimp at a first, selected, pre-cooking
temperature that is not higher than 190° F for a time sufficient
to coagulate proteins in the shellfish and reach an internal pre-
cooking temperature to obtain pre-cooked shrimp;
immediately and rapidly cooling the pre-cooked shrimp with a
cold brine containing 1.25–2 wt% salt to a temperature that is
about 40° F or less and that is sufficiently low to stop the
cooking process and produce cooled shrimp;
rinsing said cooled shrimp with a 1.25–2 wt% brine rinsing
solution to remove any coagulated proteins released during the
pre-cooking step;
packaging the cooled, rinsed shrimp in soft, semi-rigid, or rigid
containers that are conducive to rapid heat penetration and
suitable to withstand pasteurization temperatures;
when using rigid or semi-rigid containers, filling the containers
of cooled, rinsed, shrimp with a packing brine in an amount
sufficient to submerge the cooled, rinsed, shrimp completely;
seaming or sealing the containers of cooled, rinsed, shrimp;
pasteurizing the containers of cooled, rinsed, shrimp at a
pasteurizing temperature by heating the packaged shrimp to an
internal pasteurizing temperature that is not more than 190° F
and that is not higher than said internal pre-cooking
temperature to inhibit the release of protein from the packaged
shrimp, said pasteurizing step occurring for a time sufficient to
achieve control of nonproteolytic C. botulinum type B; and
immediately and rapidly cooling the pasteurized, packaged,
shrimp by immersing the pasteurized, packaged, shrimp
containers in a cold water bath to stop pasteurization and
produce a packaged, pasteurized, fresh, shrimp product that is
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stable for about 9–18 months when stored at refrigeration
conditions of 40° F or less.
REJECTIONS ON APPEAL2
The claims stand rejected as follows:
1. Claims 1, 16, and 24 under 35 U.S.C. § 112(b) for indefiniteness.
Final Act. 4.3
2. Claims 1, 3, 7, 8, 10, 11, and 24–28 under 35 U.S.C. § 103 as
unpatentable over “Falci [US 4,221,819, issued Sept. 9, 1980] in view of
Thomas [US 2006/0222747 A1, published Oct. 5, 2006], Walker [US
3,852,486, issued Dec. 3, 1974], Ablett [US 2011/0151071 A1, published
June 23, 2011] and Trelease [US 3,773,962, issued Nov. 20, 1973] and in
further view of McIntyre [US 4,971,821, issued Nov. 20, 1990], ‘FAO’ [of
record, available at
http://web.archive.org/web/20110309103911/http://www.fao.org/wairdocs/t
an/x5931e/x5931e01.htm (last accessed April 28, 2020)][,] ‘Food Pathogen
Control Data Summary,’ [of record, available at
http://web.archive.org/web/20111005055830/http://www.hi-
tm.com/RFA/food-path-summ.pdf (last accessed April 28, 2020)], Hartman

2 The Appellant does not challenge the prior art status of any reference relied
on by the Examiner.
3 The Final Action includes additional rejections under both 35 U.S.C.
§ 112(a) and § 112(b). See Final Act. 3–4. Other than the § 112(b) rejection
discussed below, we understand all of the § 112 rejections to have been
overcome by amendments entered by the Examiner following the Final
Action. See, e.g., Amendments dated Feb. 22, 2018, and Apr. 5, 2018; see
also Advisory Actions dated Feb. 8, 2018; Mar. 9, 2018; Apr. 20, 2018.
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[US 5,188,854, issued Feb. 23, 1993] and Ledet [US 6,274,188 B1, issued
Aug. 14, 2001].” Final Act. 5.
3. Claims 2 and 26 under 35 U.S.C. § 103 as unpatentable over “the
combination as applied above to claims 1 and 25, and in further view of
Higuchi [US 2004/0191379 A1, published Sept. 30, 2004].” Final Act. 13.
4. Claim 5 under 35 U.S.C. § 103 as unpatentable over “the
combination as applied above to claim 1, and in further view of Higuchi,
‘Appendix A Guidance on Relative Humidity,’ [of record] and Williams [US
RE33,510, reissued Jan. 1, 1991].” Final Act. 13.
5. Claim 13 under 35 U.S.C. § 103 as unpatentable over “the
combination as applied above to claim 3, and in further view of Bynagte [US
3,705,040, issued Dec. 5, 1972].” Final Act. 15.
6. Claims 16–18 under 35 U.S.C. § 103 as unpatentable over “Falci in
view of Thomas, Ablett and Trelease and in further view of Walker,
McIntyre, ‘FAO,’ Hartman and Ledet.” Final Act. 15.
7. Claims 29–31 under 35 U.S.C. § 103 as unpatentable over “the
combination as applied to claims 1, 16, and 24, as applied above, which
relies on Falci as the primary reference, and in further view of McMindes
[US 2008/0254167 A1, published Oct. 16, 2008] or Price [“Compendium of
Fish and Fishery Product Processes, Hazards, and Controls,” of record].”
Final Act. 16.
ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner’s rejections.
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Accordingly, we affirm the rejections for reasons set forth below, in the
Final Action dated Sept. 22, 2017, and in the Examiner’s Answer.
Rejection 1
As noted above, see page 3 n.3, in the Final Action the Examiner
issued multiple rejections under 35 U.S.C. § 112,4 see Final Act. 2–4, most
of which appear to have been overcome by amendments entered by the
Examiner following the Final Action, see, e.g., Amendments dated Feb. 22,
2018, and Apr. 5, 2018; see also Advisory Actions dated Feb. 8, 2018;
Mar. 9, 2018; Apr. 20, 2018. One of the § 112(b) rejections was a rejection
of claims 1, 16, and 24 due to the term “internal pasteurizing temperature.”
Id. at 4. Specifically, the Examiner determined that “[t]he claims are not
clear as to what is meant by an ‘internal pasteurizing temperature.’ That is,
it is unclear if this is intended to refer to internal to the pasteurizing step or
an internal temperature of the shrimp when pasteurizing.” Id.
We do not discern where in the record the Appellant addressed the
§ 112(b) rejection based on the “internal pasteurizing temperature”
limitation described above. Nor does it appear that the Examiner has
withdrawn that rejection. In particular, we note that the Appellant’s remarks

4 Of those rejections, both a § 112(a) rejection and a § 112(b) rejection were
made on the basis of the word “fresh” in claims 1 and 24. See Final Act. 3
(§ 112(a)), 4 (§ 112(b)). In response to those rejections, the Appellant
deleted the word “fresh” from the preambles of claims 1 and 24. See
Amendments dated Feb. 22, 2018, at 2, 6. We observe, however, that the
word “fresh” also appears in the “immediately and rapidly cooling”
limitation. See claims 1 and 24. In the event of further examination of the
application on appeal, the Appellant and the Examiner may wish to consider
whether the word “fresh” in those limitations should also be deleted.
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in, e.g., the January 4, 2018 Response After Final Action, addressed a
different § 112(b) rejection based on a then-existing recitation of “heating at
the pasteurization temperature occurring for a time sufficient to achieve
FDA requirements,” but neither that response nor any other response (or
amendment) appears to address the distinct § 112(b) rejection based on the
“internal pasteurizing temperature” limitation described above. See
Response After Final Action dated Jan. 4, 2018, at 9–11; Final Act. 4 (listing
four distinct rejections based on § 112(b)). Nor does the Appellant
acknowledge, address, or otherwise assert error in that rejection in the
Appeal Brief. See generally Appeal Br. Accordingly, we summarily affirm
the § 112(b) rejection that appears to remain pending.
Rejections 2–7
The Appellant states that “all claims in this appeal will stand or fall
with claim 1, except for claim 7, which is separately argued.” Appeal Br. 5.
Accordingly, we address claims 1 and 7 below, and the remaining claims
subject to Rejections 2–7 will stand or fall with claim 1.
Claim 1. The Examiner’s rejection of claim 1 appears at pages 5–11
of the Final Action. The Examiner finds that Falci teaches pre-cooking
shrimp at a temperature of 185°F for a time sufficient to coagulate proteins
and obtain pre-cooked shrimp. Final Act. 5. The Examiner finds that Falci
further teaches “canning” cooked shrimp, and that “the technique of
‘canning’ is known to further seal the shrimp in a container and then
pasteurize.” Id. at 5–6.
The Examiner acknowledges that Falci does not disclose cooling the
pre-cooked shrimp in a brine between cooking and canning, but finds that
both Thomas and Walker teach that it is well known in the art to cool after
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cooking to “stop[] the cooking as well as [to] minimiz[e] contamination by
using a cold brine solution.” Id. The Examiner finds that Ablett similarly
teaches “that it has been conventional to cool shellfish after heating using a
chilled salt solution comprising 1–5% salt (i.e. NaCl) having a temperature
of 0–4°C (i.e. 32–39°F).” Id. at 6–7. The Examiner determines that it
would have been obvious to cool Falci’s pre-cooked shrimp using a brine in
view of Thomas, Walker, and Ablett “for the purpose of ensuring that the
shrimp stopped cooking after the cooking step.” Id. at 7.
As to the claimed step of “rinsing . . . to remove any coagulated
proteins,” the Examiner finds that cooling the shrimp in a brine solution
“would necessarily have also resulted in the removal of some coagulated
proteins.” Id.
As to the claimed “packaging,” “pasteurizing,” and post-
pasteurization “immediately and rapidly” cooling steps, the Examiner finds
that Walker teaches placing cooked, cooled shellfish into sealed bags,
pasteurizing, and then cooling to stop the pasteurization process. Id. at 8.
The Examiner finds that McIntyre “also teaches cooking shrimp in a brine,
rinsing to cool, packaging shrimp in a brine, sealing the containers,
pasteurizing and then cooling.” Id. The Examiner finds that FAO “teaches
that it has been conventional to add 2–3 percent salt (NaCl) to a can [of
shrimp], for flavoring, prior to sealing.” Id. at 8. The Examiner finds that,
in view of those disclosures and Falci’s disclosure of shrimp processing
techniques such as canning, “one having ordinary skill in the art would have
been motivated to package the shellfish into sealed containers and then
pasteurize and cool for the purpose of being able to further extend the shelf-
life of the shellfish.” Id. The Examiner also finds that McIntyre’s disclosure
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of using a brine to control shrimp texture would also have motivated a
person of ordinary skill in the art to include brine within the package. Id. at
8–9.
As to a pasteurization temperature “that is not higher than said
internal pre-cooking temperature,” as claimed, the Examiner finds that
shrimp cooked at 185°F for 3 minutes, as disclosed by Falci, would have had
an internal temperature of 180°F as evidenced by Ledet. Id. at 10. The
Examiner finds that Walker teaches pasteurization temperatures of 180–
210°F. Id. at 9. The Examiner finds that, in view of that overlapping range
as well as Walker’s disclosure concerning avoiding “over pasteurizing” by
controlling time and temperature of pasteurization, it would have been
obvious to choose a pasteurization temperature of 180°F. Id.
As to the length of pasteurization, i.e., “a time sufficient to achieve
control of nonproteolytic C. botulinum type B,” as claimed, the Examiner
relies on Walker’s disclosure of pasteurization temperatures that fall within
the scope of the claims as well as Walker’s disclosure concerning
“overpasteurization,” id. at 9–10, which states that pasteurization should be
“carried out at temperatures and for a time sufficient to kill pathogenic
bacteria,” Walker at 6:56–65. The Examiner also finds that the Food
Pathogen Control Data Summary “teaches that temperatures such as 180°F
can be used for periods of time such as 15 minutes for inactivating
nonproteolytic [s]trains of C.botulinum.” Final Act. 10. The Examiner
determines that it would have been obvious to “use known hold times for the
purpose of ensuring inactivation of botulinum strains” in order to “extend[]
shelf-life and prevent[] growth of microorganisms.” Id.
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Finally, with further regard to the post-pasteurization “immediately
and rapidly cooling” step, the Examiner finds that “Hartman teaches that it
has been conventional to immediately immerse a pasteurized product
containing fish into a chilled water bath and where rapid cooling is
advantageous for extending shelf life; and where the package is chilled to
less than 40°F.” Id. The Examiner determines that it would have been
obvious “to similarly rapidly cool in a water bath” the shrimp product of the
combined prior art “for this same purpose of rapidly lowering the
temperature of the fish for extending shelf-life.” Id.
In view of those findings, the Examiner concludes that the subject
matter of claim 1 would have been obvious to a person of ordinary skill in
the art. See Final Act. 5–11.
We turn now to the Appellant’s arguments. As an initial matter, we
observe that significant portions of the Appeal Brief are directed to
addressing each prior art reference individually and identifying differences
between each individual reference and the claimed subject matter. See, e.g.,
Appeal Br. 13–30. Those arguments directed to the references individually
are not persuasive of reversible error in the Examiner’s combination
rationale because “one cannot show non-obviousness by attacking references
individually where, as here, the rejections are based on combinations of
references.” See In re Keller, 642 F.2d 413, 426 (CCPA 1981). We address
the remainder of the Appellant’s arguments below.
1. The Appellant argues that, contrary to the Examiner’s findings,
Falci does not teach a process that includes both a pre-cooking step and a
canning or pasteurizing step. See, e.g., Appeal Br. 10–12, 16, 17.
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That argument is unpersuasive. Falci discloses a pre-cooking soak
treatment for seafood and that, after the soak treatment, the seafood may be
“cooked and frozen, to store and preserve it for later thawing, cooking and
consumption.” Falci at 3:19–30. Falci goes on to disclose that the soak
treatment is not limited to preceding a cooking and freezing step, but that it
“may also be useful as a treatment step included in other seafood processing
techniques, such as icing or canning or freeze-drying.” Id. Thus, Falci
teaches or suggests using known preservation techniques such as freezing
and canning with cooked seafood. See id.; see also KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007) (“[T]he [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.”); see also id. (“A person
of ordinary skill is also a person of ordinary creativity, not an automaton.”).
As noted above, the Examiner finds that “the technique of ‘canning’ is
known to further seal the shrimp in a container and then pasteurize.” Final
Act. 5–6. The Appellant asserts that “[c]anning is not the same as
pasteurizing,” Appeal Br. 7, but, even assuming that to be true, the Appellant
does not persuasively argue that canning does not result in pasteurization.
See In re Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s
argument in a brief cannot take the place of evidence.”).
Even if Falci’s canning process did not result in pasteurization, Falci
broadly discloses applying known food “processing” and preservation
techniques to cooked shrimp products. Falci at 3:19–30. Falci’s disclosure
that the shrimp is “cooked and frozen” suggests that the shrimp is cooked
before it is preserved (frozen). Id. Although Falci gives examples of
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“processing techniques” “such as icing or canning or freeze-drying,” the
record reflects that pasteurization of seafood was also a well known
processing and preservation technique. E.g., Walker at Abstract (“Process
of treating fresh, cooked shellfish meat by pasteurization after treatment with
aqueous solution of sodium chloride . . . .”); Thomas ¶ 5 (“The process as
disclosed treats the shellfish meat to produce a pasteurized product.”);
Hartman at Abstract. Through the use of only ordinary creativity, a person
of ordinary skill in the art would have been motivated to apply the known
“seafood processing technique,” Falci at 3:29, of pasteurization to preserve a
cooked shrimp product.
2. The Appellant argues that “Falci also fails to recognize any of the
problems faced by the inventor.” Appeal Br. 12. That argument is not
persuasive because “the motivation in the prior art to combine the references
does not have to be identical to that of the applicant to establish
obviousness.” In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996).
3. The Appellant argues that “Falci makes a frozen product,” and
thereby “teaches away from the claimed process for a refrigerated process.”
Appeal Br. 12. That argument is not persuasive because Falci discloses
frozen products as exemplary but expressly states that other “processing
techniques, such as icing or canning or freeze-drying” may also be used.
Falci at 3:19–30. As noted above, pasteurization was also a well known
food processing technique at the time of the invention.
4. The Appellant argues that, in Walker, “there is no teaching or
disclosure that the pasteurization temperature should be at any particular
temperature relative to the initial cooking step.” Appeal Br. 14. That
argument is not persuasive because, as set forth above, the Appellant does
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not persuasively dispute the Examiner’s finding that Falci’s process of
cooking for 3 minutes at 185°F yields an internal temperature of 180°F, or
that Walker discloses pasteurization temperatures suitable for shrimp of
“150° to 210° F, preferably about 180° to 210° F.” Walker at 4:39–42.
“[E]ven a slight overlap in range establishes a prima facie case of
obviousness.” See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
The fact that Walker also discloses pasteurization temperatures that, in
combination with Falci, might fall beyond the scope of the claims (181° to
210°F) does not negate Walker’s disclosure of pasteurization temperatures
that fall within the scope of the claims (i.e., “not higher than said internal
pre-cooking temperature,” such as 150° to 180°F). Cf. Merck & Co. v.
Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (“That the [prior art]
patent discloses a multitude of effective combinations does not render any
particular formulation less obvious.”).
5. The Appellant argues that “one-third of [Walker’s] samples grow
C. botulinum in the pasteurized, treated package,” and that Walker’s
“examples provide no optimism that the process would work on shellfish”
such as shrimp that allegedly “are harder to process than [Walker’s] crab
meat.” Appeal Br. 14–15. That argument is not persuasive. Walker is not
limited to crabmeat but more broadly discloses shellfish, including shrimp.
E.g., Walker at Abstract, 1:39, 8:65–66 (claim 10). Walker expressly
discloses pasteurization temperatures of 150° to 210°F. Id. at 4:41–42. As
noted above, the Examiner finds, and the Appellant does not persuasively
dispute, that the Food Pathogen Control Data Summary “teaches that
temperatures such as 180°F can be used for periods of time such as 15
minutes for inactivating nonproteolytic [s]trains of C.botulinum.” Final
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Act. 10. Those disclosures would have provided a person of ordinary skill a
reasonable expectation that the disclosed temperatures and durations would
be suitable, successful pasteurization temperatures and durations for shrimp.
Even if growth of C. botulinum in some of Walker’s samples may have cast
minor doubt on whether the proposed combination would be successful,
obviousness does not require certainty of success; it requires only a
reasonable expectation of success. PAR Pharm., Inc. v. TWI Pharm., Inc.,
773 F.3d 1186, 1198 (Fed. Cir. 2014) (“The reasonable expectation of
success requirement for obviousness does not necessitate an absolute
certainty for success.”).
6. The Appellant argues that the Examiner’s reliance on Thomas as
teaching “a post-cook cooling step . . . is curious” because “Falci freezes the
shrimp after its treatment process . . . . Why would one in this art interject a
post-cook cooling step when the product is already on its way to the
freezer?” Appeal Br. 19. That argument is not persuasive because, as set
forth above, Falci is not limited to freezing after cooking.
7. The Appellant argues that “[t]here is no support in the cited art for
the examiner’s assertion in Final Action ¶31 that the alleged prior art
pasteurization temperatures would inherently avoid curd expression.”
Appeal Br. 25. That argument is not persuasive because the Appellant fails
to identify a claim limitation that specifically requires avoidance of curd
expression. Additionally, the Appellant fails to explain why the
temperatures of the prior art, which appear to be the same as preferred
temperatures identified by the Specification, would not avoid curd
expression. Compare Walker at 7:5 (pasteurization temperature of 190°F),
with Spec. ¶ 45 (pasteurization temperature of “between 185°F and 190°F”).
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The Specification indicates that curd expression is avoided by
“[m]aintaining the pasteurizing temperature at or below the pre-cooking
temperature.” Spec. ¶ 45. As discussed above, the Appellant has not
identified error in the Examiner’s determination that the prior art teaches or
suggests cooking and pasteurizing temperatures that fall within the scope of
that disclosure. See Ex parte Obiaya, 227 USPQ 58, 60 (BPAI 1985) (“The
fact that appellant has recognized another advantage which would flow
naturally from following the suggestion of the prior art cannot be the basis
for patentability when the differences would otherwise be obvious.”).
8. The Appellant argues that “the comparative sensory test rebuts
obviousness” because it shows that packaged shrimp products produced
according to the claimed invention are “superior in odor, texture, and flavor
relative to the types of prior art products cited by the Examiner.” Appeal
Br. 30–31.
That argument is not persuasive. The burden of showing that
unexpected results support a conclusion of nonobviousness rests with the
Appellant. In re Huang, 100 F.3d 135, 139 (Fed. Cir. 1996). “[W]hen
unexpected results are used as evidence of nonobviousness, the results must
be shown to be unexpected compared with the closest prior art.” In re
Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) (emphasis
added). “[I]t is not enough to show that results are obtained which differ
from those obtained in the prior art: that difference must be shown to be an
unexpected difference.” In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972)
(emphasis in original). “[A]ny superior property must be unexpected to be
considered as evidence of non-obviousness.” See Pfizer, Inc. v. Apotex, Inc.,
480 F.3d 1348, 1371 (Fed. Cir. 2007) (emphasis in original). “[I]t is well
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settled that unexpected results must be established by factual evidence.
‘Mere argument or conclusory statements in the specification does not
suffice.’” In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting In re
De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1994)). Additionally, the relied-
upon results must be commensurate in scope with the claims. In re
Peterson, 315 F.3d 1325, 1329–31 (Fed. Cir. 2003). “Establishing that one
(or a small number of) species gives unexpected results is inadequate proof,
for ‘it is the view of [the CCPA] that objective evidence of non-obviousness
must be commensurate in scope with the claims which the evidence is
offered to support.’” In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978)
(quoting In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)).
Even were we to accept the Appellant’s assertion that the claimed
process produces “superior” shrimp, the Appellant provides no persuasive
evidence or argument that “any superior property” was unexpected. See
Pfizer, 480 F.3d at 1371.
Additionally, although the Appellant’s analysis is not particularly
detailed, see Appeal Br. 31, it appears that the data used to support the
argument involved only a single example of a shrimp product that was
produced using a single pre-cooking temperature, a single cold brine
concentration, and a single pasteurization temperature. See, e.g., Rippen
Decl. dated Feb. 22, 2018, at 4 (Treatment “A”); Spec. 20–21 (Example).
The claims are broader than the single example for which data is provided,
and the Appellant fails to address whether that single example is
commensurate with the full scope of the claims. See Greenfield, 571 F.2d at
1189.
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On this record, we are not persuaded that the Appellant has adequately
shown that superior (or unexpected) results support a conclusion of
nonobviousness in this case.
* * *
In summary, we have carefully considered the Appellant’s arguments,
but we are not persuaded of reversible error in the Examiner’s rejection of
claim 1. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has
long been the Board’s practice to require an applicant to identify the alleged
error in the examiner’s rejections . . . .”).
Claim 7. Claim 7 depends from claim 1 and narrows the
concentration of the cold brine from “1.25–2 wt%” to “about 1.50 to
1.75 wt %.” The Examiner determines that the range of claim 7 would have
been prima facie obvious in view of Ablett’s disclosure of a cooling brine
having a salt concentration of 1–5 wt%, which overlaps the claimed range.
Final Act. 6, 11.
The Appellant argues that Walker prefers salt concentrations of 2.5–3
wt% for preservative purposes, and that “[t]here is no teaching or suggestion
that the salt concentration in claim 1 or the lower concentration in claim 7
should be used to any benefit in the Walker process.” Appeal Br. 18–19.
That argument is not persuasive because it focuses narrowly on
Walker. The Appellant does not dispute that Ablett teaches cooling brines in
similar seafood applications that have salt concentrations of 1–5 wt%.
Additionally, we note that Walker warns that too much salt “may give the
product an undesirable salty taste,” and that Walker repeatedly describes the
disclosed range of 2.5–3 wt% as “prefer[red]” rather than as required.
Walker at 3:26–36. A person of ordinary skill in the art would have
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Application 14/590,501

17
understood that the salt concentration of the cooling brine is a variable that
affects both preservative ability and product flavor. See id. Although
Walker teaches concentrations of “preferably” 2.5–3 wt%, Ablett teaches a
broader suitable range of 1–5 wt%. It would have been within the ordinary
level of skill in the art to select a desirable salt concentration, including a
concentration that falls within the scope of claim 7, in order to balance
preservative ability and salt flavor. Cf. Winner Int’l Royalty Corp. v. Wang,
202 F.3d 1340, 1349 n.8 (Fed. Cir. 2000) (“[T]he benefits, both lost and
gained, should be weighed against one another.”); In re Aller, 220 F.2d 454,
456 (CCPA 1955) (“Normally, it is to be expected that a change in
temperature, or in concentration, or in both, would be an unpatentable
modification.”); In re Applied Materials, Inc., 692 F.3d 1289, 1297 (Fed.
Cir. 2012) (“Discovery of an optimum value of a result effective variable . . .
is ordinarily within the skill of the art.”).
The Examiner’s proposed combination appears to be the use of salt
concentrations known to be suitable in similar applications (i.e., Ablett) in
the process of Falci as modified by the combined prior art. Cf. KSR, 550
U.S. at 416–21 (“The combination of familiar elements according to known
methods is likely to be obvious when it does no more than yield predictable
results.”). On this record, we are not persuaded of reversible error in the
Examiner’s rejection. See Peterson, 315 F.3d at 1329 (“[E]ven a slight
overlap in range establishes a prima facie case of obviousness.”); see also
Jung, 637 F.3d at 1365.
Appeal 2019-000603
Application 14/590,501

18
CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 16, 24 112(b) Indefiniteness 1, 16, 24
1, 3, 7, 8,
10, 11,
24–28
103
Falci, Thomas, Walker,
Ablett, Trelease, McIntyre,
FAO, Food Pathogen Control
Data Summary, Hartman,
Ledet
1, 3, 7, 8,
10, 11,
24–28

2, 26 103
Falci, Thomas, Walker,
Ablett, Trelease, McIntyre,
FAO, Food Pathogen Control
Data Summary, Hartman,
Ledet, Higuchi
2, 26
5 103
Falci, Thomas, Walker,
Ablett, Trelease, McIntyre,
FAO, Food Pathogen Control
Data Summary, Hartman,
Ledet, Higuchi, Appendix A
Guidance on Relative
Humidity, Williams
5
13 103
Falci, Thomas, Walker,
Ablett, Trelease, McIntyre,
FAO, Food Pathogen Control
Data Summary, Hartman,
Ledet, Bynagte
13
16–18 103
Falci, Thomas, Ablett,
Trelease, Walker, McIntyre,
FAO, Hartman, Ledet
16–18
29–31 103
Falci, Thomas, Walker,
Ablett, Trelease, McIntyre,
FAO, Food Pathogen Control
Data Summary, Hartman,
Ledet, McMindes, Price
29–31
Overall
Outcome
1–3, 5, 7,
8, 10, 11,
13, 16–

Appeal 2019-000603
Application 14/590,501

19
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
18, 24–
31
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