Ann HUSGEN et al.

Patent Trials and Appeals Board

Aug 10, 2021

2021001975 (P.T.A.B. Aug. 10, 2021)

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.
12/119,990 05/13/2008 Ann HUSGEN Q228130 4082
23373 7590 08/10/2021
SUGHRUE MION, PLLC
2000 PENNSYLVANIA AVENUE, N.W.
SUITE 9000
WASHINGTON, DC 20006
EXAMINER
TURNER, FELICIA C
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
08/10/2021 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):
PPROCESSING@SUGHRUE.COM
USPTO@sughrue.com
sughrue@sughrue.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ANN HUSGEN, KEN BAUMAN, LACEY MCKLEM,
PETRI PAPINAHO, and BETH JONES

Appeal 2021-001975
Application 12/119,9901
Technology Center 1700
____________

Before KAREN M. HASTINGS, MICHAEL P. COLAIANNI, and
JENNIFER R. GUPTA, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 8–11, 13–22, 38, 40–42, 44, 46, 48–54,

1 This application was the subject of Appeal No. 2015-006567 in which the
Board affirmed the Examiner’s rejections.
2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Kerry Luxembourg S.A.R.L. Appeal
Br. 3.
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57–77, and 79–833. We have jurisdiction under 35 U.S.C. § 6(b). Oral
arguments were heard in this appeal on July 19, 2021.
We AFFIRM.

Appellant’s invention is directed to a process of preparing a curing
agent (Claim 8; Spec. ¶ 3).
Claim 84 is representative of the subject matter on appeal:
A process for preparing a curing agent comprising:
(i) selecting a plant material comprising at least about 50 ppm
nitrate, the selected plant material having an initial microbial
load,
(ii) reducing the microbial load of the selected plant material
relative to the initial microbial load,
(iii) contacting said plant material with an organism capable
of converting said nitrate to nitrite after the initial microbial
load is reduced,
(iv) allowing the organism to convert said nitrate to nitrite to
form a curing agent comprising a predetermined amount of
nitrite, the predetermined amount being at least 10 ppm nitrite,
and wherein the conversion occurs outside a meat curing
process, and
(v) inactivating the organism after the curing agent
comprises the predetermined amount of nitrite, wherein the
plaint material further comprises a member selected from the
group consisting of yeast extract, protein hydrolyzates, amino
acids, vitamins, minerals, carbohydrates, acids, bases, and
combinations thereof.

3 Appellant argues that claim 45 was not addressed by the Examiner in any
of the rejections (Reply Br. 4). However, claim 45 was cancelled by
Appellant in an amendment filed August 20, 2019.
4 We note that claim 8 is identical to claim 8 in the previous appeal (i.e.,
2015-006567) of this application, except for the addition of the wherein
clause at the end of the claim further reciting other components of the “plaint
material.”
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Appeal Br. 44 (Claims App.).

Appellant appeals the following rejections:
1. Claims 8–11, 13, 16–19, 21, 22, 40, 41, 42, 46, 48, 575, 58, 61,
62, 63, 64, 76, 79, 82, and 83 are rejected under 35 U.S.C. §
103(a) as unpatentable over Fast (EP 0805205 A1, published
Nov. 5, 1997) in view of Yamamoto (JP 2001-352935 A,
published Dec. 25, 2001), Notice of Reasons for Refusal (i.e.,
Kurihara, JP 48-082054 A, published 1973) cited in the Notice
of Reasons for Refusal (JP 48-082054 A, published Nov. 2,
1973), Walker (Naturally Occuring Nitrate/ Nitrite in Foods, 26
J. Sci. Food Agric. 1735–1742), and Meier (US 2001/0055640
A1, Dec. 27, 2001).
2. Claims 14, 15, and 48 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fast in view of Yamamoto, Notice of Reasons
for Refusal, Walker, Meier, and Hsu (US 4,490,396 issued Dec.
25, 1984).
3. Claims 20, 44, 59, 60, 67, and 68 are rejected under 35 U.S.C.
§ 103(a) as unpatentable over Fast in view of Yamamoto, Notice
of Reasons for Refusal, Walker, Meier, and Metz (US 5,981,260,
issued Nov. 9, 1999).
4. Claim 38 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Fast in view of Yamamoto, Notice of Reasons for Refusal,

5 Although claim 57 is not included in the statement of the rejection, the
Examiner addresses the subject matter of claim 57 in the body of the
rejection (Final Act. 3-4). The Examiner’s omission is harmless error.
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Walker, Meier, Metz and Rosypal (The Classification of
Micrococci and Staphylococci Based on their DNA Base
Composition and Adansonian Analysis, 44 J. Gen. Microbiol.
281–292 (1966)).

5. Claims 49 and 50 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fast in view of Yamamoto, Notice of Reasons
for Refusal, Walker, Meier, and Dong (US 5,980,890, issued
Nov. 9, 1999).
6. Claims 51–54 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fast in view of Yamamoto, Notice of Reasons
for Refusal, Walker, Meier, Metz, Rosypal and Gibson (GB
1353008, published May 15, 1974).
7. Claims 65 and 66 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fast in view of Yamamoto, Notice of Reasons
for Refusal, Walker, Meier, and Janda (US 5,731,018, issued
Mar. 24, 1998).
8. Claims 69 and 70 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fast in view of Yamamoto, Notice of Reasons
for Refusal, Walker, Meier, Metz, and Janda.
9. Claims 71–73 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fast in view of Yamamoto, Notice of Reasons
for Refusal, Walker, Meier, Metz, and Hsu.
10. Claims 74 and 75 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fast in view of Yamamoto, Notice of Reasons
for Refusal, Walker, Meier, Metz, and Janda.
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11. Claims 77 and 81 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Fast in view of Yamamoto, Notice of Reasons
for Refusal, Walker, Meier, and Stumpf (US 4,806,373, issued
Feb. 21, 1989).
12. Claim 80 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Fast in view of Yamamoto, Notice of Reasons for Refusal,
Walker, Meier, and Gehring (US 6,689,403 B1, Feb. 10, 2004).

Appellant’s arguments focus on the subject matter of claim 8 (Appeal Br.
15–40). Appellant additionally argues the subject matter of claims 61, 77,
79, 81, and 83 (Appeal Br. 40–42). Any claim not argued separately will
stand or fall with our analysis of the rejection of claim 8.

FINDINGS OF FACT & ANALYSIS
We review the appealed rejection for reversible error based on the
arguments and evidence presented by Appellant. 37 C.F.R.
§ 41.37(c)(1)(iv); Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (explaining that even if the Examiner had failed to make a prima
facie case, “it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”). We have fully
considered all the Declarations made of record in our assessment of the
rejections.

Claim 8
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The Examiner’s finding and conclusions regarding Fast, Yamamoto,
Notice of Reasons for Refusal, Walker, and Meier are located on pages 3 to
6 of the Examiner’s Answer6. The Examiner finds that Fast teaches
reducing nitrates in vegetables (Ans. 3). The Examiner finds Fast teaches
using S. Carnosus as a starter culture to reduce nitrate to nitrite (Ans. 3). The
Examiner finds Fast teaches using the nitrite produced for use in developing
the red color of cured meat (Ans. 3). The Examiner finds Fast teaches
washing and blanching carrots prior to inoculating the carrots with S.
Carnosus to reduce nitrates therein (Ans. 3). The Examiner determines it
would have been obvious to wash and treat the vegetable material in
preparing it for inoculation (Ans. 4). The Examiner finds Fast does not
explicitly disclose the plant material has an initial microbial load or reducing
the microbial load relative to the initial microbial load (Ans. 4). The
Examiner determines it would have been obvious that Fast’s washing and
blanching steps were conducted to remove undesirable components
including microorganisms from the vegetable material (Ans. 4). The
Examiner finds Fast does not teach the curing agent contains at least about
10 ppm nitrite, inactivating the organism after curing agent comprises a
predetermined amount of nitrite, and a yeast extract in the composition (Ans.
4).
The Examiner finds Yamamoto teaches modifying vegetable material
by first sterilizing to disinfect the vegetable material (Ans. 4). The
Examiner finds Yamamoto teaches fermenting the vegetable material after
inoculation with microorganism (Ans. 4). The Examiner finds Yamamoto

6 The Answer contains a copy of the rejections from the Final Office Action.
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teaches inactivating the microorganism after a desired level of fermentation
is achieved (Ans. 4).
The Examiner finds Notice of Reasons for Refusal discloses that JP
S48-082054 describes a plant material including radishes in which the
nitrate content of the plant is converted to nitrite with a nitrite content of at
least 100 ppm (Ans. 5). The Examiner finds Notice of Reasons for Refusal
discloses using the nitrite as an agent in meat processing (Ans. 5).
The Examiner finds Meier discloses a curing or marinating agent that
contains yeast extract (Ans. 5). Based upon these findings, the Examiner
concludes it would have been obvious to modify the method of Fast to
inactivate the microorganisms at the end of the desired fermentation process
such that the levels of nitrite are at least 100 ppm because Notice of Reasons
for Refusal teaches that is a suitable nitrite level for a vegetable material
used as a curing agent (Ans. 5). The Examiner finds Notice of Reasons for
Refusal teaches adding the nitrite acquired from reduction nitrate in plant
material to meat which would have rendered obvious the use of nitrite
acquired from plant material as a curing agent (Ans. 6). The Examiner finds
that Fast and Walker use similar vegetable plant materials such that it would
have been obvious that the nitrite produced in Fast would have been at least
in the range of at least 100 ppm since Walker discloses the vegetables have
similar starting nitrate levels (Ans. 6). The Examiner determines the use of
Meier’s yeast extract in Fast’s vegetable derived nitrite material would have
been obvious in order to provide flavor enhancing properties to the curing
agent (Ans. 6).
Appellant argues Fast’s goal is complete removal of nitrate and nitrite
from vegetables or water such that stopping the process to arrive a curing
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agent containing nitrite is based on impermissible hindsight (Appeal Br. 15).
Appellant contends that Fast is non-analogous art because it does not discuss
meat curing other than in the background of the invention and is not related
to Appellant’s field of endeavor: meat processing or curing agents (Appeal
Br. 15–16, 19). Appellant argues Fast seeks complete nitrate and nitrite
removal from the vegetables such that a person of ordinary skill in the art
would not look to Fast in forming a curing agent for meat as evidenced by
the declaration of Jennifer Klatt (i.e., Klatt Declaration) (Appeal Br. 19).
Appellant argues that Fast is not pertinent to Appellant’s identified problem
with natural meat curing processes such as inconsistently cured meat
products (Appeal Br. 17). Appellant argues the Klatt Declaration shows that
Appellant’s were the first to recognize the problem of inconsistently cured
meat using the in situ curing process caused by an unknown nitrite level in
the curing agent (i.e., in situ process is where the nitrite is formed during the
curing process) (Appeal Br. 21). Appellant argues Fast is silent regarding
problems with in situ meat curing such that a person of ordinary skill in the
art would not have considered Fast pertinent to the claimed subject matter
(Appeal Br. 22). Fast merely confirms the use of S. Carnosus in an in situ
process for meat curing (Appeal Br. 23). Appellant argues that Fast’s use of
genetically modified organisms are unsuitable for curing meats and thus,
Fast is not reasonably pertinent to Appellant’s problem (Appeal Br. 23).
The Federal Circuit has explained that
[r]eferences within the statutory terms of 35 U.S.C. § 102
qualify as prior art for an obviousness determination only when
analogous to the claimed invention. Two separate tests define
the scope of analogous prior art: (1) whether the art is from the
same field of endeavor, regardless of the problem addressed
and, (2) if the reference is not within the field of the inventor's
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endeavor, whether the reference still is reasonably pertinent to
the particular problem with which the inventor is involved.

In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004) (internal citation omitted).
The scope of analogous art is to be construed broadly. Wyers v. Master Lock
Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010) (“The Supreme Court’s decision
in KSR International Co. v. Teleflex, Inc. . . . directs us to construe the scope
of analogous art broadly”).
The Examiner does not address whether Fast is in Appellant’s field of
endeavor (Ans. 23). The Examiner finds, however, that Fast is reasonably
pertinent to Appellant’s problem because “Fast discloses the presence of
nitrates in vegetables and discloses using bacteria to convert nitrate to nitrite
in vegetables” (Ans. 23). The Examiner finds that Fast discloses using
nitrite produced from S. carnosus for curing meat (Ans. 23). In other words,
the Examiner finds that Fast recognizes and teaches using a microorganism
to make nitrite for use in curing meat, which is reasonably pertinent to
Appellant’s problem of developing a curing agent for meat. Fast teaches
that S. Carnosus is used as a starter culture in making desirable nitrite from
nitrate in meat processing (2:23–25). Appellant argues that their problem is
directed to unsatisfactory in situ meat curing caused by inconsistent nitrite
production in situ (Appeal Br. 21). According to Appellant’s Specification,
the problem addressed involves the variability in curing meats by the in situ
process where the solution involves separately forming a curing agent
containing a desired level of nitrite (Spec. ¶ 1). Stated differently,
Appellant’s claimed invention comprises forming a curing agent containing
a predetermined amount of nitrite that avoids inconsistencies in nitrite
amounts.
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Fast teaches that a microorganism (i.e., S. carnosus) is used to treat
vegetables so as to enhance the conversion of nitrate to nitrite or nitrous
oxide (Fast 12:45–47). Fast discloses that S. carnosus is important to meat
product manufacturing because it efficiently reduces nitrate to nitrite, which
is then available for the development of the typical red color in cured meats
and meat products (Fast 2:23–25). Fast uses “wild-type” S. carnosus which
is the non-genetically modified form of the organism (Fast 7:7–11). Fast
compares the nitrate to nitrite conversion using wild-type S. carnosus using
a 15 hour aerobic or anaerobic culture that is then centrifuged and the nitrite
concentration is determined (Fast 6:41–44). Fast’s Figure 4 shows that in
aerobic conditions, the wild-type S. carnosus yields a greater amount of
nitrite than when anaerobic conditions are used (Fast 11:39–59; 12:1–10).
We find that Fast’s disclosures would have suggested to a person of
ordinary skill in the art that nitrite production from nitrate-microorganism
interaction would have been enhanced by using aerobic conditions during
the processing of the wild-type S. carnosus. Fast further discloses that it was
known that S. carnosus is of great importance in meat product
manufacturing because it efficiently produced nitrite from nitrate (2:23–25).
In other words, Fast teaches a person in the meat curing art how to control
nitrite production by using S. carnosus to reduce nitrate to nitrite. The
example in Figure 4 shows that nitrite is produced in greater amounts from
the reduction of nitrate by S. carnosus wild-type in aerobic conditions (Fast
11:39–59; 12:1–10). In Fast’s experiment illustrated in Figure 4, the
nitrate/S.carnosus mixture was not applied to meat. Id. On the other hand,
the teachings of Fast are reasonably pertinent to a process of forming a
deactivated microorganism/nitrite curing agent for use in meat curing.
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We are not persuaded by Appellant’s arguments that Fast’s use of
genetically modified organisms would not have been suitable for use in meat
curing. As noted above, Fast teaches that wild-type S. carnosus forms nitrite
in a large amount when incubated in aerobic conditions (Fast 11:39–59;
12:1–10). We understand the wild-type S. carnosus to be the non-
genetically modified form of S. carnosus.
Appellant argues that there is no reason to modify Fast to produce a
nitrite curing agent because Fast seeks complete removal of nitrate and
nitrite from the vegetables or water (Appeal Br. 24). Appellant argues Fast
stops the reaction merely to sample the progress of the denitrification
process and the sample is discarded (Appeal Br. 25). Appellant argues the
Examiner has not identified any problem that would have motivated a person
of ordinary skill to modify Fast’s disclosure to produce a curing agent
(Appeal Br. 25). Appellant argues the claimed invention is based upon
recognition of problems with in situ meat curing which is not appreciated by
Fast (Appeal Br. 26). Appellant argues that Fast teaches away from
terminating the denitrification process before complete denitrification
(Appeal Br. 27). Appellant argues Fast makes clear that nitrite is
undesirable and is merely a part of the reaction sequence in the complete
removal process (Appeal Br. 28). Appellant argues that Fast’s complete
denitrification is not merely a preferred embodiment as found by the
Examiner and the Board in the previous decision (Appeal Br. 29). Appellant
argues the Board misunderstood Fast’s page 5, lines 38–41 disclosure as
teaching complete denitrification as a preferred embodiment (Appeal Br.
30). Appellant argues the Klatt Declaration at paragraph 50 explains that
Fast discloses two embodiments on page 5 where complete denitrification is
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achieved and different products result (i.e., N2O, N2 or ammonium) (Appeal
Br. 30).
Contrary to Appellant’s arguments, the rejection is based, inter alia,
on the combined teachings of Fast and Notice of Reasons for Refusal in
arriving at the claimed subject matter (Ans. 3–5). Fast may prefer reducing
the nitrate/nitrite to harmless byproducts, but Fast also discloses that nitrite
has a beneficial use in curing meat (Fast 2: 14–16; 23–25). Notice of
Reasons for Refusal cites Japanese Reference S48-82054A as teaching
converting nitrate in plants to nitrite wherein the nitrite is used as an agent
for processing meat in a concentration of at least 100 ppm (Notice of
Reasons for Refusal 2). Fast also teaches using nitrite formed from nitrate
reduction in meat curing (Fast 2:14–16, 23–25). In other words, the
combined teachings of Fast and Notice of Reasons for Refusal would have
suggested using nitrite formed by reducing nitrate in plant material to form a
curing agent having a nitrite content of at least 100 ppm.
Appellant argues Yamamoto is non-analogous art (Appeal Br. 31).
Appellant contends Yamamoto is concerned with the odor of plant material,
not meat curing (Appeal Br. 31). Appellant argues Yamamoto is not
concerned with problems with in situ meat curing or nitrite production and
so is not reasonably pertinent to Appellant’s problem (Appeal Br. 31–32).
In this case, the Examiner finds Yamamoto, Fast, and the present
invention each applies bacteria to plant material to effect fermentation of the
plant material with the only difference being the bacteria used and the
desired feature achieved (Ans. 27). The Examiner finds Yamamoto is
relevant for its teaching of inactivating a microorganism during fermentation
when a desired feature is achieved (Ans. 27). We agree. Yamamoto is
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reasonably pertinent to Appellant’s problem. Appellant contends that
inconsistent curing in in situ meat curing is the problem addressed by the
invention (Appeal Br. 31–32). However, the claimed invention includes
contacting plant material with an organism and allowing the organism to
convert nitrate to nitrite (claim 8). In other words, the process requires a
reaction of an organism with the plant material and controlling that reaction
to yield a desired outcome. We agree that Yamamoto’s disclosure is
pertinent to controlling (i.e., stopping and starting) the reaction of an
organism and plant material to achieve a desired end. The scope of
analogous art is to be construed broadly. Wyers, 616 F.3d at 1238.
Moreover, Appellant argues the field of endeavor is meat processing
(Appeal Br. 31). However, claim 8 is not directed to meat processing.
Rather, claim 8 recites a process for producing a curing agent. The only
recitation of meat curing process is in the context of where the conversion of
nitrate to nitrite by the organism occurs (“wherein the conversion occurs
outside a meat curing process.”) (claim 8). We do not find the field of
endeavor for claim 8 to be so limited to only meat processing. Rather, a
broader understanding of the field of endeavor of claim 8 includes reactions
of plant material with an organism to reduce a compound (nitrate) to a
desired compound (nitrite). Yamamoto appears to be in the field of endeavor
of the subject matter of claim 8.
Appellant argues Yamamoto’s teaching to deodorize vegetable
material is incompatible with Fast that seeks complete removal of nitrate and
nitrite from plant material (Appeal Br. 32). Appellant argues Yamamoto
desires to rid a plant material of odor and is not concerned with converting a
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specific amount of one compound to a specific amount of another compound
(Appeal Br. 32).
The Examiner finds that Yamamoto discloses inactivating an
organism once a desired odor is achieved (Ans. 4). This teaching is
applicable to Fast where the reaction is stopped by vortexing (Fast 6:57–58).
Although Appellant argues that Fast stops the reaction for sampling, Fast
nonetheless teaches the ability to control the reaction and stop when desired
(Appeal Br. 35). The Klatt Declaration states that vortexing in Fast does not
inactivate the microorganism (Appeal Br. 35). Appellant argues that
inactivating is not the same as stopping the reaction (Appeal Br. 35).
Paragraph 18 of the Specification contradicts Appellant’s argument that
centrifugation in Fast does not inactivate the organism. The Specification
discloses that centrifuging alone is sufficient to inactivate the organism
(¶ 18). Appellant does not explain why Fast’s centrifuging would not
inactivate the microorganism too in the sample.
Appellant’s argument seems to be that Fast’s sample in the test tube is
inactivated to measure the degree of denitrificiation in the batch sample
(Appeal Br. 35). Fast discloses that taking samples from a larger batch and
vortexing the mixture to stop the nitrate reduction (6:50–58). Fast
nonetheless shows that vortexing may be used to stop the reaction of the
organism and the plant material. Fast’s teaching coupled with Yamamoto’s
teaching to inactivate an organism would have suggested vortexing to stop a
reaction may be applied to a batch of the material if so desired. Notice of
Reasons for Refusal would have suggested that stopping the reaction with
the plant material to achieve a desired nitrite level in a curing agent (Notice
of Reasons for Refusal 2).
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Appellant argues that none of the applied prior art teaches forming a
curing agent with a predetermined level of nitrite (Appeal Br. 17).
Appellant contends Fast does not teach a particular level of nitrite, much less
a predetermined amount of at least 100 ppm nitrite (Appeal Br. 38).
Appellant argues that Notice of Reasons for Refusal as evidenced by the
declaration of Dr. Beth Jones (Jones Declaration #2) and the Klatt
Declaration is unpredictable in its ability to produce nitrite from nitrate thus
it would not be able to produce a predetermined amount (Appeal Br. 39).
Appellant argues that the Notice of Reasons for Refusal relies on unknown
levels of nitrate reducing bacteria contained within plant material and cannot
provide a predetermined amount of nitrite (Appeal Br. 39).
Appellant’s arguments are unpersuasive because they attack the
references individually instead of addressing the combined teachings of the
prior art. In this case, the Examiner finds Fast teaches using S. Carnosus
bacteria to reduce nitrate to nitrite in plant material via a fermentation
reaction (Ans. 3). The Examiner relies on Yamamoto to teach stopping a
fermentation reaction once a particular attribute is achieved (Ans. 4-5).
Yamamoto teaches fermentation is stopped once a desired odor is achieved
for the vegetable material (Ans. 5). Notice of Reasons for Refusal teaches
that plant material may be fermented to produce nitrite containing material
in amounts of at least 100 ppm (Notice of Reasons for Refusal 2). Notice of
Reasons for Refusal teaches that the nitrite material is used for processing
meat (Notice of Reasons for Refusal 2). The Examiner finds Meier teaches
the use of yeast extract in a meat processing composition (Ans. 5). The
combined teachings of Fast, Yamamoto, Notice of Reasons for Refusal, and
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Meier would have suggested a process for forming a curing agent having a
nitrite concentration of at least 100 ppm.
Appellant’s argument that Notice of Reason for Refusal’s endogenous
process would not have been capable of producing a curing agent with a
predetermined amount of nitrite fails to appreciate that the Examiner relies
on Fast as modified by Yamamoto for the process to produce the curing
agent with a predetermined amount of nitrite (Ans. 5). The Examiner relies
on Notice of Reasons for Refusal for its teaching as to suitable nitrite levels
for curing agents (Ans. 5). We are unpersuaded by Appellant’s arguments.

Claims 61, 77, 79, and 81
Appellant argues that these claims recite a downstream processing
step for preparing a curing agent (Appeal Br. 41). Appellant argues there
would have been no reason to modify Fast’s complete denitrification process
to include a downstream processing step for the toxic nitrite intermediate
(Appeal Br. 41). Appellant contends the Examiner engaged in
impermissible hindsight (Appeal Br. 41).
We have addressed similar arguments above in this decision regarding
Appellant’s contention that Fast’s disclosure is limited to complete removal
of nitrate and nitrite from its material. We adhere to our aforementioned
reasoning. We add that the Examiner has not engaged in impermissible
hindsight but rather the rejection is based upon the teachings of the
references.
Moreover, with regard to claims 61, 77, 79, and 81, the Examiner
finds that Yamamoto teaches drying the treated vegetable material after
terminating the fermentation, Stumpf teaches concentrating the curing agent
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(juice in Stumpf’s invention) to provide more flavor to the curing agent, and
Notice of Reasons for Refusal teaches curing agents containing at least
100 ppm nitrite (Ans. 8, 9, 20–21). The Examiner provides specific findings
and determinations with regard to these claims that are not disputed
specifically by Appellant (Ans. 8, 9, 20–21; Appeal Br. 41–42). With regard
to claims 77 and 81, Appellant argues that Stumpf teaches to concentrate
juice not a curing agent (Appeal Br. 40–41).
The Examiner finds that the juice in Stumpf is the curing agent (Ans.
29). The Examiner finds that Stumpf’s concentration of the juice before
curing the meat would have rendered obvious concentrating the curing agent
of Fast as modified by Yamamoto, Notice of Reasons for Refusal, Walker,
and Meier (Ans. 29–30). We agree in that Stumpf teaches using
concentrated juice as a curing agent (col. 2, ll. 50–68). Appellant has not
established reversible error in the Examiner’s rejection.

Claim 83
Claim 83 depends from claim 8 and recites “a step of selecting an
amount of nitrite in the curing agent as the predetermined amount of nitrite
prior to the step of contacting the plant material with the organism.”
Appellant relies on arguments made regarding claim 8 (Appeal Br.
42). We find those arguments unpersuasive for the reasons discussed earlier
in this Decision. The combined teachings of Fast, Yamamoto, Notice of
Reasons for Refusal, Walker, and Meier would have suggested selecting a
predetermined nitrite concentration for the curing agent before adding the
organism to the plant material as discussed above in the context of claim 8.
Notice of Reasons for Refusal teaches that meat processing agents have a
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nitrite concentration of at least 100 ppm, which would have been a goal to
aim for in the curing agent.
CONCLUSION
On this record, we affirm the Examiner’s § 103 rejections of record.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
8–11, 13, 16–
19, 21, 22,
40, 41, 42,
46, 48, 57,
58, 61–64,
76, 79, 82, 83
103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier
8–11, 13, 16–19,
21, 22, 40, 41, 42,
46, 48, 57, 58, 61-
64, 76, 79, 82, 83

14, 15, 48 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Hsu
14, 15, 48
20, 44, 59,
60, 67, 68
103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Metz
20, 44, 59, 60, 67,
68

38 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Rosypal,
Metz
38
49, 50 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Dong
49, 50
51–54 103(a) Fast, Yamamoto,
Notice of Reasons
51–54
Appeal 2021-001975
Application 12/119,990

19
Claim(s)
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
for Refusal, Walker,
Meier, Gibson
65, 66 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Janda
65, 66
69, 70 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Metz, Janda
69, 70
71–73 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Hsu
71–73
74, 75 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Janda
74, 75
77, 81 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Stumpf
77, 81

80 103(a) Fast, Yamamoto,
Notice of Reasons
for Refusal, Walker,
Meier, Gehring
80
Overall
Outcome
8–11, 13–22, 38,
40–42, 44, 46, 48–
54, 57–77, 79–83

Appeal 2021-001975
Application 12/119,990

20
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)(1)(iv). See 37
C.F.R. § 41.50(f).

AFFIRMED