Ex Parte 6315921 et al

Patent Trials and Appeals Board

Jun 30, 2014

90011596 - (D) (P.T.A.B. Jun. 30, 2014)

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.
90/011,596 03/24/2011 6315921 247097-716USPB 4091
56356 7590 06/30/2014
PACTIV CORPORATION
c/o NIXON PEABODY LLP
300 S. Riverside Plaza
16TH FLOOR
CHICAGO, IL 60606
EXAMINER
JASTRZAB, KRISANNE MARIE
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
06/30/2014 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
____________

PACTIV LLC
Patent Owner and Appellant

____________

Appeal 2014-003880
Reexamination Control 90/011,596
US 6,315,921 B1
Technology Center 3900
____________

Before LORA M. GREEN, RICHARD M. LEBOVITZ, and
JEFFREY B. ROBERTSON, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on an appeal by Patent Owner Pactiv LLC, from the
Patent Examiner’s rejections of claims 1-6 and 8-28 in this ex parte
reexamination proceeding. The Board’s jurisdiction for this appeal is under
35 U.S.C. §§ 6(b), 134(b), and 306. We affirm.

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I. STATEMENT OF CASE
This appeal involves US 6,315,921 (“the ʼ921 patent), which issued
November 13, 2001. The named inventors are Gary R. DelDuca, Alan E.
Deyo, Vinod K. Luthra, and Wen P. Wu. A Request for Ex Parte
Reexamination of the ʼ921 patent was submitted by a third-party requester
on March 24, 2011.
Claims 1-28 are pending. Claims 1-6 and 8-28 stand rejected by the
Examiner. Final Rej’n (dated November 19, 2012). Claims 1-12 are
original claims. Claims 11-25 were added during the reexamination.
The real party in interest in this ex parte reexamination proceeding is
the patent owner, Pactiv LLC. Appeal Br. 2 (dated May 14, 2013.) Patent
Owner states that it is involved in litigation involved in the ʼ 095 patent.
This litigation is against Multisorb Technologies, Inc. in Civil Action
No. 10-cv-07609 (Pactiv Corporation v. Multisorb Technologies, Inc.) in the
United States District Court, Northern District of Illinois in which
U.S. Patent Nos. 6,183,790; 5,698,250; 5,948,457; 5,811,142; 6,231,905;
6,315,921 and 6,395,195 have been asserted. Id. Reexaminations have been
instituted on all seven asserted patents. Id.
An oral hearing was held April 30, 2014. A transcript of the hearing
will be entered into the record in due course.
The technology in the ʼ921 patent involves packaging for meat. The
ʼ921 patent teaches that “[p]ackaging systems which provide extremely low
levels of oxygen are desirable because it is well known that the fresh quality
of meat can be preserved longer under anaerobic conditions than under
aerobic conditions.” Col. 1, ll. 41-47. The ʼ921 patent describes prior art
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systems in which the atmosphere is evacuated of oxygen and optionally
filled with gases other than oxygen to preserve the meat. Col. 1, l. 48 to
col. 2, l. 41. One problem in storing meat is that it oxidizes and turns an
undesirable brown color.
It is critically important to quickly remove the oxygen from
meat to prevent it from turning brown. Especially important in
preventing the irreversible change from red to brown is the rate
at which oxygen is scavenged. If oxygen is removed quickly,
the packaged meat turns a purple red color. This purple red
color quickly "blooms" to a bright red color upon removal of
the outer layer of packaging.
Col. 2, ll. 35-41.
The ʼ921 patent describes the invention as providing “an iron-based
oxygen scavenging packet which exhibits an increased rate of oxygen
absorption especially in the confines of a concomitant meat packaging
system.” Col. 2, l. 66 to col. 3, l. 2. The ʼ921 patent claims an oxygen
scavenging packet which comprises an iron based oxygen absorber and an
oxygen uptake accelerator. The “oxygen uptake accelerator accelerates the
rate of oxygen uptake of the iron-based absorber.” Col. 3, ll. 5-6. The
accelerator can be water, acids, and other electron acceptors. Col. 3, ll. 10-
12.
The concept of using an oxygen scavenger in packaging systems to
prevent the detrimental effect of oxygen exposure is acknowledged in the
patent not to be new. Col. 2, ll. 42-45. The ʼ095 patent writes in the
background section: “Several oxygen scavengers utilize the oxidation of
particulate iron as a method to absorb oxygen.” Col. 2, ll. 44-46. The
background also states that “[a] small amount of water is essential for this
reaction.” Col. 2, ll. 46-47. The claims are directed to an oxygen absorber
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comprising iron and a liquid oxygen uptake accelerator comprising water,
both which were acknowledged in the patent’s background section to be
known ways of reducing oxygen in meat packages.

Claims
Independent claims 1 and 8 are reproduced below. All of the claims
recite that the “the oxygen absorber is capable of reducing the oxygen
content of a predetermined volume.” That limitation is at issue in this
proceeding, and for convenience is referred to as the “capable of reducing
oxygen content” limitation.
1. An oxygen scavenging packet, comprising:
a. an oxygen permeable material formed into a closed packet
for holding and oxygen absorber;
b. an oxygen absorber comprising iron within the packet
of (a); and
c. a liquid oxygen uptake accelerator, said accelerator
comprising water, said accelerator present in an amount relative
to the amount of oxygen absorber, such that when the liquid
accelerator and oxygen absorber are brought into contact, the
oxygen absorber is capable of reducing the oxygen content of a
predetermined volume containing about 2 vol % oxygen to less
than 0.5 vol. % oxygen at a temperature of about 34° F. in no
more than 90 minutes after said accelator and oxygen absorber
are brought into contact.

8. A method of reducing the oxygen concentration in an
enclosed space comprising:
a. placing an oxygen scavenging packet within said
enclosed space, said oxygen scavenging packet comprising:
i. an oxygen permeable material formed into a
closed packet; and;
ii. an oxygen absorber within said closed packet,
said oxygen absorber comprising iron;
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b. introducing a liquid oxygen uptake accelerator
comprising water directly onto said oxygen absorber, wherein
said liquid oxygen uptake accelerator is introduced in an
amount relative to the amount of said oxygen absorber, such
that when the oxygen uptake accelerator and oxygen absorber
are brought into contact, the oxygen absorber is capable of
reducing the oxygen content of a predetermined volume
containg about 2 vol % oxygen to less than 0.5 vol % oxygen at
a temperature of about 34° F in no more than 90 minutes after
said oxygen uptake accelerator and oxygen absorber are
brought into contact.

Rejections
The claims stand rejected under 16 grounds of rejection, which are
listed in the Appeal Brief on pages 7-8. For convenience, we will refer to
the grounds of rejection discussed below by the numbering set forth in the
Appeal Brief.

II. SNQ ISSUES
Patent Owner contends that 12 of the 16 rejections set forth by the
Examiner were not part of the original SNQs of patentability, and, therefore,
prohibited under Belkin Int'l Inc. v. Kappos, 696 F.3d 1379 (Fed. Cir. 2012).
Appeal Br. 10. According to Patent Owner, Belkin affirmed the Board’s
decision not to consider any references that the Director had decided did not
form a substantial new question (SNQ) of patentability. Id. Although
Belkin involved an inter partes reexamination, Patent Owner contends that it
is pertinent to this ex parte reexamination because the statues are
comparable. Id. at 9-10. Based on Belkin, Patent Owner contends that the
Board should not reach the rejections in this appeal because they involve
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references and combination of references that were not part of the original
SNQ of patentability. Id. at 10-11. Patent Owner argues “to the extent that
any amended, new or substituted claim overcomes the SNQ of patentability,
further rejection of those claims based on patentability exceeds the statutory
authority granted to the PTO under the reexamination statute.” Id. at 11.
Patent Owner contends the rejections under the initial SNQ were overcome,
and that the case should be remanded to the Examiner to allow the claims.
Id. at 13.
Belkin involved an inter partes reexamination proceeding and
therefore is not applicable to this ex parte reexamination. We decline to
extend a holding in a specific inter partes reexamination proceeding to an ex
parte reexamination proceeding, which was invoked under a different
statutory and regulatory regime. See 35 U.S.C. § 303 (2002) and 37 C.F.R.
§ 1.510 for Ex Parte Reexamination; 35 U.S.C. § 312 (2011) and 37 C.F.R.
§ 1.913 (2002) for Inter Partes Reexamination.
Nonetheless, an SNQ was not found in Belkin. The court explicitly
said:
Indeed, the PTO may make any new rejection, as long as that
rejection also meets the substantial new question of
patentability requirement. See 35 U.S.C. § 303(a) (“On his own
initiative, and any time, the Director may determine whether a
substantial new question of patentability is raised by patents
and publications discovered by him . . . .”). Thus, the scope of
reexamination may encompass those issues that raise a
substantial new question of patentability, whether proposed by
the requester or the Director, but, unless it is raised by the
Director on his own initiative, it only includes issues of
patentability raised in the request under § 311 that the Director
has determined raise such an issue.”
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Patent Owner also contends that the rejections based on Komatsu
1
and
Yoshikawa
2
are improper because they do not raise an SNQ. Appeal Br. 29
and 33. In the initial request for reexamination, Requester stated that
Komatsu and Yoshikawa were of record during prosecution of the
ʼ195 patent, but were not applied by the Examiner. Request 4 and 8.
Because the publications were already of record, Patent Owner contends
they are precluded from raising an SNQ of patentability.
“The existence of a substantial new question of patentability is not
precluded by the fact that a patent or printed publication was previously
cited by or to the Office or considered by the Office.” 35 U.S.C. § 303(a).
For example, it is proper to order a reexamination when “old art is being
presented/viewed in a new light, or in a different way, as compared with its
use in the earlier examination(s), in view of a material new argument or
interpretation presented in the request.” M.P.E.P. § 2642(II.A).
In this case, a declaration by George McKedy accompanied the
Request. Mr. McKedy is employed by Multisorb Technologies, Inc. and
carried out experiments based on Komatsu to show that the “capable of
reducing oxygen content” limitation in the claims was met by Komatsu.
Request 6. The declaration thus casts a new light on Komatsu.
Patent Owner contends that a declaration does not constitute prior art,
and therefore is not properly cited in an SNQ. However, the declaration is
not being cited as prior art, but rather to show a fact that existed on the filing
date of the ʼ921 patent, i.e., that Komatsu inherently meets the claimed

1
Komatsu et al., US 4,166.807 issued September 4, 1979.
2
Yoshikawa et al., US 4,127,503 issued November 28, 1978.
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“capable of reducing oxygen content” limitation. Yoshikawa describes
experiments which are similar to those in Komatsu (Komatsu, col. 1, ll. 63-
65) and thus the McKedy declarations casts a new light on it, as well.

III. KOMATSU
Claims 1, 2, 6, 8, 9, and 13-16 stand rejected under 35 U.S.C. § 102(b)
as anticipated by Komatsu as evidenced by the declaration by George
McKedy. Ground 1 (Appeal Br. 7).
Independent claim 1 is drawn to an oxygen scavenging packet
comprising: “a. an oxygen permeable material formed into a closed packet
for holding an oxygen absorber; b. an oxygen absorber comprising iron
within the packet of (a); and c. a liquid oxygen uptake accelerator, said
accelerator comprising water.” The claim is a product claim but recites that
the packet has the following capability: “when the liquid accelerator and
oxygen absorber are brought into contact, the oxygen absorber is capable of
reducing the oxygen content of a predetermined volume containing about
2 vol % oxygen to less than 0.5 vol % oxygen at a temperature of about
34° F. in no more than 90 minutes after said accelerator and oxygen absorber
are brought into contact.”
Independent claim 8 is drawn to a method of reducing the oxygen
concentration in an enclosed space utilizing an oxygen scavenging packet
with the same features of claim 1.
The Examiner contends that Komatsu anticipates claims 1 and 8, and
claims 2, 6, 9, 10, and 13-16 which depend from the independent claims.
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Final Rej’n 6-7. The following findings of fact from Komatsu are pertinent
to this determination.
Findings of Fact
K1. “In order to preserve foodstuffs, such as vegetables, fish,
shellfish, meats, processed foodstuffs, such as potato chips, cakes, peanuts,
etc., and so on, it is necessary to prevent the foodstuffs from getting moldy
and from putrefying.” Komatsu, col. 1, ll. 7-11.
K2. Oxygen is said to cause the putrefaction and change in foodstuff
quality. Komatsu at col. 1, ll. 21-25. The inventors describe their efforts to
find an oxygen absorbent that is usable for preventing putrefaction and
change in quality of food stuffs. Id. at col. 1, ll. 55-62.
K3. The inventors disclose they “found that an oxygen absorbent
comprising at least one metal halide and iron containing 0.05 to 5% by
weight of sulfur on the basis of the weight of iron does not involve such risk
from hydrogen evolution, but does have sufficient oxygen-absorbing
property.” Komatsu, col. 2, ll. 14-21.
K4. “It is critical that iron constituting the oxygen absorbent contain
0.05 to 5% by weight, preferably 0.1 to 1 % by weight of sulfur on the basis
of the weight of iron. A compound comprising a metal halide and iron
containing less than 0.05% by weight of sulfur does not have the effect of
suppressing evolution of hydrogen.” Komatsu, col. 2, ll. 29-34.
K5. “The oxygen-absorbing reaction by the oxygen absorbent of this
invention utilizes reactions for forming hydroxides of iron. Therefore, it is
essential that the oxygen absorbent contain water or a compound having
water of hydration, or the system in which the oxygen absorbent is used
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contain steam. When the oxygen absorbent contains water, the water may
be free water or water of hydration.” Komatsu, col. 3, ll. 26-33.
K6. Requester cited the examples in Table 6 of Komatsu for
describing water in an amount that meets the claim limitation of an uptake
accelerator “being present in said packet in an amount between about 0.2
and 1.4 mL per 2.5 grams of iron.”
Example 3 of Komatsu teaches in Run No. 1 described in
Table 6 a composition consisting of 2 grams of iron powder,
2 grams of NaCl and .4 grams (approximately .4 mL) of water
used to absorb oxygen. Runs No.2 and 3 of the same example
use the same ratio of water to iron (.4 mL of water to 2 grams
of iron) but vary the oxygen absorbing composition by adding
additional fillers. Thus, in all three of these examples, Komatsu
teaches a ratio of .5 mL of water per 2.5 grams of iron, which is
within the range of from .2 mL to 1.4 mL of water per
2.5 grams of iron, claimed in the ʼ195 patent.
Request for Rexamination 6.
K7. “A filler may be added to the oxygen absorbent in order to
increase the oxygen absorption rate and the amount of oxygen absorbed and
to make handling of the oxygen absorbent easy.” Komatsu at col, 3, ll. 60-
63. The fillers include active carbon, active clay, colloidal silica, silica
alumina gel, and anhydrous silica. Id. at col. 3, ll. 63 to col. 4, ll. 3.
K8. Example 1 tests the oxygen absorbing properties of a “variety of
oxygen absorbent” which “were prepared by mixing 1 gr of Fe powder
containing 0.2% of S and each of the metal halides shown in Table 1.”
Komatsu at col. 5, ll. 37-40.
K9. The iron is placed in a perforated polyethylene film-laminated
bag. Komatsu at col. 5, ll. 41-42.

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Discussion
Komatsu describes a similar problem to the one described in the
ʼ921 patent of preserving the quality of food, including meats. K1-K2.
Oxygen is said by Komatsu to be the cause of the change in food quality
during storage. K2. The ʼ921 patent also identifies oxygen as the culprit in
meat spoilage. ʼ921 patent at col. 1, ll. 41-47. Komatsu and the ʼ921 patent
take the same approach to reduce the oxygen content in the package that
contains the food. Komatsu utilizes iron, characterizing it as an oxygen
absorbent. K3-K4. Claims 1 and 8 also use iron as an oxygen absorbent
(“oxygen absorber”). Komatsu states that water is essential to promote the
oxygen absorbing reaction, and uses it in its examples. K5-K6. Claims 1
and 8 require a liquid oxygen uptake accelerator comprising water.
Komatsu thus teaches both elements recited in independent claims 1 and 8
responsible for removing oxygen from the package environment in which
the food is stored.
Komatsu also describes the iron and water as being present in a
perforated polyethylene film-laminated bag (K9), meeting limitation a. of
claims 1 and 8 of “an oxygen permeable material formed into a closed
packet” and an oxygen absorber” in the packet. Thus, all three structural
limitations of claims 1 and 8 are described by Komatsu.
The claims also have a functional limitation that “when the liquid
accelerator and oxygen absorber are brought into contact, the oxygen
absorber is capable of reducing the oxygen content of a predetermined
volume containing about 2 vol % oxygen to less than 0.5 vol % oxygen at a
temperature of about 34° F. in no more than 90 minutes after said accelerator
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and oxygen absorber are brought into contact.” Komatsu does not expressly
describe that its oxygen absorbent system possesses this property. However,
Komatsu describes all three of the recited structural elements in claim 1 and
8. The ʼ921 patent does not describe any special way in which the reduction
of oxygen was achieved other than by varying the ratio of the liquid
accelerator (water) and oxygen absorbent (iron). ʼ921 patent at e.g., col. 7,
l. 5 to col. 8, l. 28; col. 11. The Requester provided evidence that the
amounts of liquid uptake accelerator and oxygen absorbent described in the
ʼ921 patent as providing the functional benefits fell with the range described
in Komatsu. Request 5. Patent Owner did not provide adequate evidence to
rebut this evidence. It was, therefore, reasonable for the Examiner to have
believed that the elements described in Komatsu, which are identical to
those which are claimed, also possess the claimed functional property. See
In re Best, 562 F.2d 1252, 1255 (CCPA 1977); In re Spada, 911 F.2d 705,
708 (Fed. Cir. 1990)
In reaching the anticipation determination, the Examiner relied on the
McKedy declaration. Final’n Rej. 6-7. Mr. McKedy testified in his
declaration that he “conducted an experiment in accordance with Example 3,
Run 2 of Komatsu, to determine the efficacy of that composition in a
refrigerated environment.” McKedy Decl. ¶ 7. Mr. McKedy stated that he
“duplicated the Example described by Komatsu as closely as possible, to
determine the results at refrigerated temperatures, and with an initial oxygen
content of approximately 2.0%.” Id. at ¶ 9. However, as pointed out by
Patent Owner, Mr. McKedy did not include sulfur in its example which is
said by Komatsu to be “critical” in its formulation. K3-K4. Mr. McKedy
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did not also use the same perforated polyethylene film-laminated bag
described in Komatsu. K9. Because of these differences and others
identified by Patent Owner between Komatsu’s example and what Mr.
McKedy did in his experiments (Appeal Br. 22-24), we give this declaration
little weight. Nonetheless, the results described in the declaration are
consistent with the Examiner’s determination that a composition having the
amounts of water and iron described in Komatsu would meet the functional
limitations of claims 1 and 8. Since it is unrebutted that iron and water are
present in the same amounts in both Komatsu and in the ʼ921 patent, it is
unnecessary to solely rely on the McKedy declaration to have established a
reasonable basis upon which to believe that Komatsu’s composition meets
the structural limitations of claims 1 and 8.
In an attempt to rebut this reasonable presumption, Patent Owner
argues that “Komatsu teaches in Example 3 that after 5 hours, the oxygen
concentration varies from 0.5 to 20.3% depending on the run.” Appeal Br.
28. The results of Example 3 are summarized in Table 6. Table 6 shows
that different formulations, which vary in the filler and water hydration
compound, achieved different reductions in the oxygen concentration
present in the container. The Examiner relied on Run 2 (Answer 10-12),
which achieved the greatest reduction in oxygen, not the other run numbers
listed in Table 6. Thus, the fact that there was variation in the different runs
does not contradict the results of Run 2.
Patent Owner did not provide sufficient evidence to rebut the
determination that Komatsu’s teaching of an oxygen absorber comprising
iron and a liquid oxygen uptake accelerator in the claimed amounts would
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satisfy the “capable of reducing oxygen content” limitation of claims 1
and 8.
With respect to claims 14 and 16 which require that the oxygen
scavenger packet is capable of reducing the levels of oxygen at a rate which
prevents metmyoglobin formation in raw meat, Requester provided
sufficient information that the amounts in Komatsu were the same as the
amounts disclosed in the ʼ921 patent as its invention. Supra at 12; Request
5. As these same amounts are specifically disclosed as the invention of the
ʼ921 patent, it is reasonable to believe that they would prevent
metmyoglobin formation, the purpose described in the ʼ921 patent for its
invention. Indeed, amounts outside this range were described as high risk
for metmyoglobin formation. ʼ921 patent at col. 7, ll. 35-40.
When the evidence is considered in its entirely, we conclude that a
preponderance of the evidence supports the determination that Komatsu
anticipates the subject matter of claims 1 and 8, and dependent claims 2, 6,
9, and 13-16 which were not argued separately.

IV. YOSHIKAWA
Claims 1, 6, 8, 10, and 13-16 are stand rejected under 35 U.S.C.
§ 102(b) as anticipated by Yoshikawa as evidenced by the McKedy
Declaration. Ground 2 (Appeal Br. 7). The following findings of fact are
pertinent to this determination:
Y1. “In order to preserve foodstuffs, such as vegetables, fish,
shellfish, meats, processed foodstuffs, such as potato chips, cakes, peanuts,
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etc., and so on, it is necessary to prevent the foodstuff's from getting moldy
and from putrefying.” Yoshikawa at col. 1, ll. 8-12.
Y2. “[I]t was found that an oxygen absorbent powder in which a
small amount of the metal halide is coated on the surface of metal powder
and which has a minor water content rapidly absorbs oxygen in a sealed
container, when it coexists with foodstuffs.” Yoshikawa at col. 2, ll. 15-19.
Y3. A group of metal powders are described in Yoshikawa.
Yoshikawa at col. 3, ll. 14-17. Iron is described as “preferred.” Id. at col. 3,
16-17. Iron is used in the oxygen absorbent powder in the examples. Id. at
cols. 5-12.
Y4. Yoshikawa describes “an oxygen absorbent comprising a metal
powder coated with a definite amount of a metal halide and having a minor
amount of water.” Yoshikawa at col. 1, ll. 5-7.
Y5. In Comparative Example 2 (at col. 6, ll. 31-33), Yoshikawa
describes mixing 0.2 ml water with 1 gram iron. Requester provided
evidence that these amounts fall “squarely” within the amounts disclosed in
the ʼ921 patent as performing the claimed “capable of reducing oxygen
content” limitation. Request for Reexamination 9-10.

Discussion
The Examiner found that “Yoshikawa ʼ503 teaches substantially the
same invention as that found in Komatsu (and is, in fact, referred to in
Komatsu) so the evidence provided by the McKedy declaration is pertinent
to Yoshikawa ʼ503 as well. Final Rej’n 8. Thus Yoshikawa ʼ503 inherently
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meets the functional limitations regarding absorbent capacity set forth in the
independents claim 1 and 8 of the ʼ921 patent.” Final Rej’n 8.
Patent Owner makes the same unavailing arguments as it did for the
Komatsu rejection, particularly pointing out alleged deficiencies in the
experiments performed by Mr. McKedy. Appeal Br. 31-33. However, as
indicated above, one of the examples of Yoshikawa discloses amounts of
iron and water which fall within amounts disclosed in the ʼ921 patent as
effective in carrying out the claimed “reducing oxygen content limitation
(Y5), giving the Examiner reasonable basis upon which to believe that the
“capable of reducing oxygen” limitation was met. Best, 562 F.2d at 1255;
Spada, 911 F.2d at 708.
Patent Owner contends that the amount of oxygen absorbed in the
example was poor. Appeal Br. 33. Mr. DelDuca testified:
Typically, the order of magnitude needed for absorption of
oxygen in connection with retail cuts of meats in in hundred(s)
of milliliters of oxygen. One skilled in the art would use not
such an oxygen absorbent of Yoshikawa '503 with retail cuts of
meat.
First DelDuca Decl. ¶ 26.
Independent claims 1 and 8 are not limited to use with retail meats.
That argument is therefore unpersuasive for those claims.
With respect to claims 14 and 16, which require that levels of oxygen
reduction are achieved in order to prevent metmyoglobin in raw meat, there
is sufficient information that the amounts in Yoshikawa were the same as the
amounts disclosed in the ʼ921 patent as its invention. Supra at 16; Y5. As
those same amounts are specifically disclosed as the invention of the ʼ921
patent, it is reasonable to believe that they would prevent metmyoglobin
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formation, the purpose described in the ʼ921 patent for its invention. Indeed,
amounts outside this range were described as high risk for metmyoglobin
formation. ʼ921 patent at col. 7, ll. 35-40
When the evidence it considered in its entirely, we conclude that a
preponderance of the evidence supports the determination that Yoshikawa
anticipates the subject matter of claims 1, 6, 8, 10, and 13-16.

V. SAKAI AND GB ‘853
Claim 1, 2, 5, 6, 8, 9, 12-22 and 24 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Sakai
3
and GB ’853.
4
Ground 3 (Appeal Br. 7).
Sakai describes utilizing a “deoxidizer” to reduce the oxygen
concentration in a container for preserving meat. Sakai at p. 1, ll. 15-20.
The Examiner found that Sakai teaches “a method of preserving raw meat by
sealing the meat in a gas impermeable container with an oxygen scavenger
capable of reducing the oxygen concentration within the container to 5% or
less within 24 hours and preferably to 0.1 % or less in 12 hours. Final
Rej’n 4. (“The present invention requires as its element to reduce oxygen
concentration in the container to 5 % or less within a specified interval of
time, i.e., within 24 hours, preferably to 0.1 % or less within 12 hours, after
closely-sealing the meat together with the deoxidizers.” Sakai at p. 4, ll. 6-
9.) Iron is described by Sakai as preferred deoxidizer. Final Rej’n 9 (“Out
of [the deoxidizers], one containing iron powder and electrolyte, e.g., iron
powder and metal halide is preferable from the point of view of its ability.”
Sakai at p. 3, ll. 15-17.) Sakai further teaches:

3
Sakai, JP 58-158129 issued Sept. 20, 1983.
4
GB 1 566 853 issued Set. 23, 1997.
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18
According to the present invention, meat is closely-sealed
together with deoxidizers, and it is, therefore, possible to make
the meat have a freshly reddish tinge caused by oxymyoglobin
quickly as soon as the packaging container is opened.
Sakai at p. 2, ll. 5-8.
In sum, Sakai describes a deoxidizer comprising iron to preserve
meat, meeting the claimed limitation of “an oxygen absorber comprising
iron.”
Sakai does not describe a “liquid oxygen uptake accelerator” as
recited in the claims. For this element, the Examiner cited GB ’853. The
Examiner found that GB ’853 describes “a configuration for enhancing the
activity of an oxygen absorber to optimize the production of an oxygen-free
atmosphere necessary for oxygen sensitive materials, such as anaerobic
bacteria cultures. The activity of the oxygen absorber is enhanced by
contact with a reaction mediator and activator.” Final Rej’n 10. GB ’853
discloses:
Thus, according to the present invention, there is provided an
oxygen-absorbing agent, comprising an adsorption agent, metal
powder or turnings and an activator.
GB ’853 at p. 1, l. 44-47.
Examples of metal powders or turnings which can be used
include those of heavy metals, such as iron, manganese, cobalt,
nickel and the like, iron powder being preferred.
GB ’853 at p. 1, ll. 69-73.
Examples of activators which can be used include organic
acids, such as citric acid, tartaric acid, dilute acetic acid and the
like, dilute mineral acids, such as hydrochloric acid and
sulphuric acid . . .”
GB ’853 at p. 1, ll. 74-78.
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For the production of an oxygen-poor or oxygen-free
atmosphere, . . . the dry mixture according to the present
invention is brought into contact with a reaction mediator . . .
which, in turn, simultaneously act as activator and reaction
mediator. The preferred reaction mediator is water.
GB ’853 at p. 2, ll. 18-30.
Thus, GB ’853 describes the claim oxygen absorbent comprising iron
(the “oxygen-absorbing agent” at p. 1, ll. 44-77 and 69-73) and liquid
oxygen accelerator (the “activator” or “reaction mediator” at p. 1, ll. 74-78
and p. 2, ll. 18-30).
The Examiner concluded that it would have been obvious to one of
ordinary skill in the art “to utilize a mediator/activator as taught in GB ’853
with the oxygen scavenger of Sakai because, as disclosed by GB ’853, it
would provide enhanced absorption of oxygen thereby preventing the
onslaught of oxidative deterioration of the meat.” Final Rej’n 10. With
regard to the “capable of reducing oxygen content” limitation, the Examiner
found that Sakai “teaches reduction of the oxygen concentration within the
container to 5% or less within 24 hours and preferably to 0.1 % or less in
12 hours and GB ’853 clearly teaches optimizing the activity of this same
oxygen scavenger,” and thus optimization would have provided the claimed
activity levels. Id. at 10-11.
Patent Owner contends that Sakai’s results using a deoxidizer were
“undesirable” and did not reduce the metmyoglobin quickly enough. Appeal
Br. 35-36. Patent Owner also contends that Sakai’s results describing the
activity of its deoxidizer in producing a red meat color is not credible. Id. at
37.
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We have considered this argument and do not find it persuasive. The
Examiner relied upon GB ’853 for its teaching of an oxygen absorber
comprising iron and a liquid oxygen uptake accelerator. The credibility of
Sakai’s results in preventing meat from turning brown does not undermine
the rejection, because GB ’853 teaches the same oxygen scavenging system
that is claimed and its efficacy in removing oxygen from a closed vessel in
minutes (GB ’853 at p. 2, ll. 54-56), providing a clear reason to have used it
in Sakai’s meat packaging system, even if Sakai’s own system was not
efficacious in removing oxygen.
Patent Owner contends that GB ’853 is concerned with culturing
anaerobic bacteria and has nothing to do with preserving meat as claimed.
Appeal Br. 38-39. Patent Owner argues that GB ’853 is directed to
promoting bacterial growth while Sakai wants to prevent bacterial growth.
Id.
As argued by Patent Owner, GB ’853’s focus is on culturing
anaerobic bacteria in oxygen-poor and oxygen-free environments. GB ’853
at p. 1, ll. 12-17. Yet, it does have broader disclosure, identifying the culture
of anaerobic bacteria as an example: “For the production of an oxygen-poor
or oxygen-free atmosphere, such as is necessary, for example, for culturing
anaerobic bacteria.” GB ’853 at p. 2, ll. 18-21.
Nonetheless, even if GB ’853 is in a different field of endeavor as the
claimed invention, this does not undermine the rejection. When prior art is
not in the same endeavor as the claimed invention, it is still analogous prior
art if it is “reasonably pertinent to the particular problem with which the
inventor is involved.” In re Bigio, 381 F.3d 1320, 1325 (Fed. Cir. 2004).
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“A reference is reasonably pertinent if, even though it may be in a different
field from that of the inventor’s endeavor, it is one which, because of the
matter with which it deals, logically would have commended itself to an
inventor's attention in considering his problem.” In re Clay, 966 F.2d at
659, 660 (Fed. Cir. 1992).
In this case, with clear statements about the advantages of a scavenger
and activator for production of oxygen depleted atmospheres, one of skill in
the art would not have read GB ’853 so restrictively as to be limited to
bacteria culture, but would have recognized its utility for other applications
in which oxygen depletion was desired. Thus, we are not persuaded that one
of ordinary skill in the art would not have found GB ’853 pertinent because
its main application was for bacteria. See Appeal Br. 38-40. None of these
specific teachings about culturing bacteria detract from the more general
disclosure that a scavenger and activator can be used effectively to reduce
oxygen to achieve an oxygen-poor or oxygen-free atmosphere. In addition,
there is no persuasive evidence that the GB ’853 system would not work in
the meat package of Sakai.
Patent Owner argues that the conditions in GB ’853 are different from
Sakai, e.g., GB ’853 utilizes an anaerobic vessel while Sakai involves a meat
packaging system comprising polystyrene trays exposed to air. Appeal Br.
39. Furthermore, Patent Owner contends that GB ’853 differs “substantially
in the amount of time to get to a desirable oxygen level.” Id. “For example,
the time for reducing the oxygen level to a desirable level in the present
invention is measured in at least an hour or hours. . . . Example 1 of GB
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’853, on the other hand, discloses that a ‘practically oxygen-free atmosphere
is produced in the anaerobic vessel’ after only ‘a few minutes.’” Id. at 40.
It is not evident how the alleged differences in conditions used in
GB ’853 as compared to meat storage would dissuade the skilled worker
from applying GB ’853 to Sakai. Patent Owner did not provide evidence
that GB ’853 system is inoperative or inefficient in removing oxygen from a
closed vessel. Example 1 of GB ’853 teaches that iron and citric acid (a
liquid oxygen uptake accelerator) “[a]fter only a few minutes,” produces “a
practically oxygen-free atmosphere.” GB ’853 at p. 2, ll. 41-56. Therefore,
it would have been reasonably expected that its combination of iron and an
activator would deplete oxygen from a vessel, including the meat packaging
container of Sakai.
With respect to difference in the time needed to remove oxygen from
the packaging atmosphere, GB ’853 teaches minutes and Sakai - using iron
alone – teaches “preferably to 0.1 % or less in 12 hours.” GB ’853 at p. 2, ll.
41-46; Sakai at p. 4, ll. 6-9. This evidence shows that using iron as an
oxygen scavenger is effective in reducing oxygen to a range of different
desired levels, giving the Examiner reasonable basis to find that the
specifically claimed “capable of reducing oxygen content” limitation could
be achieved. Consistently, GB ’853 contemplates varying the ratio of the
iron and activator to achieve desired content of oxygen. GB ’853 at p. 2,
ll. 10-17.
Patent Owner provides a list of reasons as to why GB ’853 would not
have drawn the notice of one of ordinary skill in the art for use in Sakai.
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Appeal Br. 43. Specifically, Mr. DelDuca testified in paragraph 19 of his
first declaration:
(1) there is no rate data disclosed in GB '853; (2) there is no
volume of the anaerobic vessel disclosed in GB '853; (3) there
is no disclosure of the amount of oxygen present in the
anaerobic vessel when the oxygen-absorbing agent is added in
GB '853; and (4) there is no comparative data disclosed in GB
'853. In fact, it is unclear how anyone skilled in the art could
find motivation with GB '853 as suggested by the Examiner
when such relevant data is missing from the reference.
This argument is not persuasive. As discussed above, GB ’853
teaches that iron and activator deplete oxygen from a vessel in minutes.
Mr. DelDuca did not indicate how this clear statement of efficacy would
have turned the skilled worker away from using such a system in any
environment in which oxygen removal was desired.
Patent Owner also argues that GB ’853 teaches that the agents in
specific ratios are “critical to its ability to achieve its functionality.” Appeal
Br. 44. However, Patent Owner did not explain how such “criticality”
militates against using such amounts, or even different amounts, in Sakai’s
meat packaging system for their known and expected function in depleting
oxygen from an enclosed environment.
Patent Owner again reiterates the arguments about the problem of
obtaining bloom. Appeal Br. 44-45. Sakai expressly identifies the problem
of meat turning brown and the desire to make meat retain a reddish tinge
without browning. Sakai at p. 1, l. 30 to p. 2 13. Patent Owner did not
discover the problem. Sakai identifies oxygen as the cause of meat turning
brown. Id. Sakai utilizes a deoxidizer, such as iron, to deplete oxygen in the
same way as does Patent Owner. Id. at p. 3. ll. 4-17. GB ’853 describes an
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even more efficient system. Patent Owner has adopted a known way of
depleting oxygen -- the combination of iron and an activator disclosed in GB
‘853 -- applied it to a meat packaging system, and obtained the expected
result of retaining the desirable reddish tinge.
Patent Owner contends that the “use of a liquid oxygen uptake
accelerator to speed the process is not suggested by GB ’853, which
specifically cites its precise ratio of materials as critical to its functionality,
not the fact that it is activated.” Appeal Br. 40. This argument is not
persuasive. GB ’853 discloses:
For the production of an oxygen-poor or oxygen-free
atmosphere, such as is necessary, for example, for culturing
anaerobic bacteria, the dry mixture according to the present
invention is brought into contact with a reaction mediator. The
reaction mediator can be a solvent, for example water or
ethylene glycol or a liquid acid, . . . which, in turn,
simultaneously act as activator and reaction mediator. The
preferred reaction mediator is water.
GB ’853 at p. 2, ll. 18-30.
As soon as the reaction mediator comes into contact with the
oxygen-absorbing agent, the moist mixture begins to absorb the
oxygen comparatively quickly, with the simultaneous evolution
of carbon dioxide when sodium carbonate is present.
GB ’853 at p. 2, ll. 31-36.
It is evident from reading this disclosure that contact of the reaction
mediator (such as water), with the oxygen-absorbing agent (iron), speeds up
the absorption of oxygen by the oxygen-absorbing agent because oxygen
absorption is said to be “comparatively quick[ ]” after contact with the
mediator. Nonetheless, even were this not understood from reading
GB ’ 853, one of ordinary skill in the art would have still had reason to use
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the combination of oxygen-absorbing agent and reaction mediator for their
known and expected benefit in removing oxygen. While, GB ’853 did not
suggest the speed of the process to produce meat bloom as argued by Patent
Owner, GB ’853 clearly teaches that the activator speeds oxygen evacuation
– the same problem addressed by Sakai.
In sum, we find that a preponderance of the evidence supports the
Examiner’s determination that independent claims 1, 8, 17, 20, and 24, and
dependent claims 2, 5, 6, 9, 12-16, 18, 19, 21, and 22 are prima facie
obvious in view of Sakai and GB ’853.

VI. SAKAI AND HAMON
Claim 1, 2, 4, 6, 8-10, and 13-23 stand rejected under 35 U.S.C.
§ 103(a) as obvious over Sakai and Hamon.
5
Ground 5 (Appeal Br. 7).
Sakai is cited by the Examiner for the same reasons as described in
the rejection over Sakai and GB ’853. As mentioned, Sakai does not
describe a liquid oxygen uptake accelerator as recited in the claims.
However, Hamon describes both an oxygen absorbent and a liquid oxygen
uptake accelerator to deplete a food packaging system of oxygen. Final
Rej’n 12. The Examiner found it would have been obvious to one ordinary
skill to have utilized the activators and containment system of Hamon with
Sakai’s oxygen scavenger “because it would provide enhanced absorption of
oxygen thereby preventing the onslaught of oxidative deterioration of the
meat.” Id. at 13.
The following disclosure from Hamon is pertinent to the rejection:

5
Hamon, et al., EP 0468880 published January 29, 1992.
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H1. Hamon identifies a general problem for food products sensitive
to oxygen:
Many products will degrade in contact with oxygen in the air
and must be kept free of oxygen. In particular, food products
are often packaged under vacuum or under an inert atmosphere,
because the presence of oxygen [causes them] physical and
chemical damage and biological.
Hamon at p. 1, ll. 4-6.
H2. Hamon give specific examples of very sensitive products:
When one is for very sensitive products to oxygen, especially
fats or wet products such as mayonnaise, fruit, power solutions,
or even glue, this type of absorber is inadequate. Indeed,
sensitive products in the development of microorganisms must
quickly be in a low-oxygen atmosphere. Absorbers must have a
rate of absorption oxygen higher, and in this case a too long
residence time in the air can affect their subsequent absorption
and thus this the system reliability.
Hamon at p. 1, ll. 39-44.
H3. Haman states that the “present invention relates to a packaging
system for absorbing oxygen and/or [ ] carbon dioxide, allowing storage and
use in optimal conditions.” Hamon at p. 1, ll. 1-3.
H4. Hamon describes a composition for absorbing oxygen that
comprises four elements: iron powder, “a support material, water retaining,
[such] as silica gel,” an electrolyte (NaCl), and activated carbon. Hamon at
p. 1, ll. 22-25.
H5. The support material “needs to retain water.” Hamon at p. 2, l.
48. In addition to silica gel, Hamon discloses the support can be expanded
clay and kaolinite annealed. Id. at ll. 46-48.
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H6. Hamon describes placing the elements in a bag permeable to
oxygen. Hamon at p. 1, l. 28.
H7. The iron is maintained in a dry atmosphere until use, when
“hydration of the support [comprising iron] are obtained by introducing
electrolyte in the form of a brine at 17%.” Hamon at p. 2, ll. 51-52.
H8. Hamon describes an example in which a system comprising
2.2 grams of iron powder [oxygen absorber] in one compartment and 0.8 ml
brine [oxygen uptake accelerator] in a second compartment is used. Hamon
at p. 3. These values are equivalent to 0.8 ml brine/2.2 gram or 0.9 ml
water/2.5 gram iron, which falls within the amount of “a ratio of between
0.2 ml and 0.8 ml of oxygen uptake accelerator to about 2.5 grams of iron”
disclosed in the ’921 patent as effective for oxygen depletion. ’921 at col. 3,
ll. 5-10; Answer 23-24.
Discussion
Patent Owner makes the same unavailing arguments for Sakai as it did
for the rejection over Sakai and GB ‘853. Appeal Br. 51-52.
Patent Owner contends that Hamon does address the deficiencies in
Sakai. Appeal Br. 52.
Patent Owner contends that Hamon does not describe a liquid oxygen
uptake accelerator. Patent Owner argues that water is retained by the
support material described in Hamon. Appeal Br. 53. Specifically, Patent
Owner contends: “Because Hamon's absorber has very little free water, it
does not function like the presently claimed liquid oxygen uptake accelerator
(water) in the independent claims.” To support this position, Patent Owner
relied upon declarations by Gary R. DelDuca, a co-inventor of the ’921
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patent. Mr. DelDuca is Technical Manager and/or Technical Sales Manager
for the Patent Owner in the area of modified atmosphere packaging (MAP)
for meats. First DelDuca Decl. ¶ 2. His responsibilities have included
designing, developing, and implementing such modified atmosphere
packaging for meat and processes using the same. Id.
Mr. DelDuca testified that, when the water is retained in the support
material, “its consistency is like toothpaste. First DelDuca Decl ¶ 43.
Mr. DelDuca testified that the claimed accelerator – water – “accelerates the
rate of oxygen uptake of the oxygen absorber.” Id. Mr. DelDuca concludes
that there “would be no expectation to one skilled in the art that the Hamon
absorber with very little free water would work or function like the claimed
liquid oxygen uptake accelerator of the independent claims.” Id.
This argument is not persuasive. It is true that Hamon describes its
support material as “need[ing] to retain water.” H5. However, one of the
support materials described in Hamon is silica (H4), which is also used by
the ’921 patent. ’921 patent at col. 3 at ll. 59-62; col. 8 at ll. 17-21. As the
materials are the same in both the ’921 patent and Hamon, the Examiner had
reasonable basis to believe that they would be expected to function the same.
Best, 562 F.2d at 1255. Mr. DelDuca did not sufficiently address the
identity of support materials in his declaration. Thus, even if the materials
were employed for different purposes, this does not alter the fact that the
materials are the same and thus would be reasonably expected to behave in
the same way. Answer 23-25.
Furthermore, silica is characterized in the ’921 patent as follows: “a
water attracting agent such as silica gel can be used to attract water and at
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times to supply water in the packet initially.” ’921 patent at col. 2, ll. 46-49.
Thus, even though silica attracts water, the evidence of record supports the
Examiner’s position that water associated with silica gel can serve as an
oxygen uptake accelerator. Mr. DelDuca did not address this fact. Mr.
DelDuca also did not provide an adequate factual basis for concluding that
the water in the support material as described by Hamon would not be
capable of serving as an oxygen uptake accelerator.

“capable of reducing oxygen content” limitation
Patent Owner also argues “there would be no expectation of success
to one skilled in the art using Hamon's oxygen scavenger in the applications
of retail cuts of raw meat disclosed with the claimed oxygen absorber of the
present application.” Appeal Br. 54. Claims 1, 2, 4, 6, 8-10, and 13,
however, do not require the oxygen absorber to perform in an environment
with retail meat.
With respect to the “capable of reducing oxygen content” limitation,
which is said prevent the formation of metmyoglobin in meat, Hamon
describes iron and water (saline) in the same amounts disclosed in the ’921
patent said to be effective for this purpose (Answer 23-24; H8), giving the
Examiner reasonable basis to believe that they would possess the recited
properties, e.g., “capable of reducing the oxygen content of a predetermined
volume containing about 2 vol % oxygen to less than 0.5 vol % oxygen at a
temperature of about 34° F. in no more than 90 minutes after said oxygen
uptake accelerator and oxygen absorber are brought into contact.”
Paragraph 44 of Mr. DelDuca’s first declaration describes problems with
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achieving bloom but does not provide an adequate factual basis for the
contention that iron and water in the same amounts as disclosed in the ’921
patent would not achieve this result.
Patent Owner argues that the combination of Sakai and Hamon is
improper.
Sakai is directed to preserving meat and identifies meat such as
"chicken, pork, beef, etc." and fish such as "tuna, bonito, etc."
Page 3 of Sakai; DelDuca First Decl. 36. Hamon, on the other
hand, specifically identifies the following products to be used
with its packaging system: dried fish, pastries, mayonnaise,
fruit, power solutions and glue. Id. None of these products has
anything to do with Sakai. Id.
Appeal Br. 54.
This argument is not persuasive. Hamon generally teaches that food
products are sensitive to oxygen, and makes specific mention of certain food
products, including “fats.” H1-H2. Even if meat is not specifically
mentioned, there is no indication that it is excluded from Hamon. Rather,
Hamon’s teachings are said to be generally applicable to foods which are
sensitive to oxygen. H1-H3. Sakai specifically teaches that red meat is
sensitive to oxygen and that depleting oxygen from the environment in
which the meat is stored preserves the meat’s red color. Sakai at p. 1, l. 30
to p. 2, l. 30. Consequently, one of ordinary skill in the art would have
found Hamon’s solution pertinent to Sakai.
In sum, we find that a preponderance of the evidence supports the
Examiner’s determination that 1, 2, 4, 6, 8-10, and 13-23 are prima facie
obvious in view of Sakai and Hamon.

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VII. CLAIM 17
Independent claim 17 is directed to a meat packaging system.
Claim 17 recites, inter alia, "a retail raw cut of raw meat" and "an oxygen
scavenging packet including an oxygen permeable material formed into a
closed packet for holding an oxygen absorber, said oxygen absorber
comprising iron within said closed packet, and a liquid oxygen uptake
accelerator, said liquid oxygen uptake accelerator comprising water.” The
claim also recites the “reducing oxygen content” limitation.
The claim stands rejected as set forth in Grounds 3, 5, 9, and 12.
Patent Owner argues that the claims are nonobvious for the same reasons
also addressed in these rejections. Appeal Br. 55.
With respect to the requirement of “retail cut of raw meat,” Patent
Owner contends “Hamon and GB '853 does not disclose, teach or suggest
the use of a retail cut of raw meat.” Appeal Br. 55. However, the rejections
involving these references also cite Sakai, which does disclose raw meat.
Thus, this argument is unpersuasive.
In sum, a preponderance of the evidence supports the Examiner’s
determination that claim 17 is prima facie obvious in view of Sakai and
GB ’853 (Ground 3), Sakai and Hamon (Ground 5), Komatsu in view of the
McKedy declaration (Ground 9), and Yoshikawa in view of the McKedy
declaration.
VIII. GROUNDS 13 AND 14
Claims 25-28 stand rejected under 35 U.S.C. § 103(a) as obvious in
view of Weinke, Sakai, and GB ‘253. Ground 13.
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Claims 25-28 stand rejected under 35 U.S.C. § 103(a) as obvious in
view of Sakai, Hamon, and Weinke. Ground 14.
Independent claim 25 is directed to modified atmosphere package
comprising “a retail cut of raw meat,” an oxygen absorber, and a liquid
oxygen uptake accelerator. Independent claim 27 is drawn to method of
manufacturing a modified atmosphere package with substantially the same
features as claim 25.
Sakai has also been discussed. GB ’853 is cited as discussed above for
their teaching of an oxygen absorbent and liquid oxygen uptake accelerator.
Weinke is cited by the Examiner for its teaching of “a package for
containing raw meats under anaerobic conditions during storage to prevent
oxidative deterioration of the meat prior to display for consumer purchase.”
Answer 18; see Answer 19.
The Examiner determined it would have been obvious to one of
ordinary skill in the art “to include an oxygen scavenger as taught in Sakai
between the inner and outer containers of Weinke with the enhanced
utilization of the activation means taught in GB ’853 because it would
enhance the protection provided by the inert gas flushing of Weinke by
absorbing any residual oxygen present with the enhanced action of the
scavenger preventing the onslaught of oxidative deterioration of the meat.”
Answer 18-19.
Patent Owner argues that Weinke only uses oxygen evacuation
techniques. Appeal Br. 57. Citing to paragraph 21 of second declaration of
Mr. DelDuca, Patent Owner argues that “the modified atmosphere packaging
system of Weinke is undesirable with pigment-sensitive cuts of raw meat,
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especially those that are wrapped in plastic trays such as foam trays.” Id.
Mr. DelDuca simply makes this conclusory statement without explaining the
reason for the undesirability. Consequently, we give it little weight in view
of the logical reason provided by the Examiner to include an oxygen
absorber and uptake accelerator in Weinke’s meat packaging system.
In sum, we find that a preponderance of the evidence supports the
Examiner’s determination that 25-28 are prima facie obvious in view of
Weinke, Sakai, and GB ’253; and Sakai, Hamon, and Weinke.

IX. GROUNDS 15 AND 16
Claims 20-23 and 25-28 stand rejected under 35 U.S.C. § 103(a) as
obvious in view of Weinke, Komatsu, and the McKedy Declaration.
Ground 15 (Appeal Br. 8).
Claims 20-23 and 25-28 stand rejected under 35 U.S.C. § 103(a) as
obvious in view of Weinke, Yoshikawa, and the McKedy Declaration.
Ground 16 (Appeal Br. 8).
Weinke, Komatsu, and Yoshikawa have already been discussed. The
Examiner determined that it would have been obvious to one of ordinary
skill in the art to have included the oxygen absorbent and accelerator of
Komatsu and Yoshikawa in Weinke’s packaging system to enhance oxygen
removal and prevent the deterioration of the meat. Answer 19-20. Patent
Owner makes the same unpersuasive arguments already made. We thus
conclude a preponderance of the evidence supports the Examiner’s
determination that claims 20-23 and 25-28 are prima facie obvious.

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X. OBJECTIVE EVIDENCE OF NONOBVIOUSNESS
Factual considerations that underlie the obviousness inquiry include
the scope and content of the prior art, the differences between the prior art
and the claimed invention, the level of ordinary skill in the art, and any
relevant secondary considerations. Graham v. John Deere Co., 383 U.S. 1,
17-18 (1966). Relevant secondary considerations include commercial
success, long-felt but unsolved needs, failure of others, and unexpected
results. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007); In re Soni,
54 F.3d 746 (Fed. Cir. 1995). Secondary considerations are “not just a
cumulative or confirmatory part of the obviousness calculus but constitute
independent evidence of nonobviousness . . . [and] enable[] the court to avert
the trap of hindsight.” Leo Pharm. Prods., Ltd. v. Rea, 726 F.3d 1346, 1358
(Fed. Cir. 2013) (internal quotation marks and citations omitted). “This
objective evidence must be ‘considered as part of all the evidence, not just
when the decisionmaker remains in doubt after reviewing the art.’”
Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc.,
699 F.3d 1340, 1349 (Fed. Cir. 2012) (internal citations omitted).

A. LONG FELT NEED
Patent Owner contends that the problem of obtaining consistent
blooming with retail cuts of pigment-sensitive raw meats has been present
for many years. Appeal Br. 45-47.
About 25 years after the issuance of Weinke and numerous
years after the issuance/publication of Yoshikawa ʼ503,
Komatsu and Sakai, the Applicants filed an application in 1996,
which the present invention claims benefit to, that discloses
oxygen scavenging packet and packages, systems and methods
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that use the oxygen scavenging packet to assist in obtaining
consistent blooming with retail cuts of pigment-sensitive raw
meats, while extending the shelf life of these retail cuts of raw
meat.”
Appeal Br. 46.
Yoshikawa and Komatsu each disclose “meats” as a food product that
experience mold and putrefaction during storage. Y1 and K1. Iron and
water, the same components in independent claims 1, 8, 17, 20, 25, and 27
are described by Yoshikawa and Komatsu to facilitate the preservation
process by removing oxygen from the environment in which the food
products are stored. Y2, Y5, K5, and K6. Patent Owner’s arguments appear
to be premised on the position that Yoshikawa, Komatsu, and Sakai, would
not produce consistent blooming of raw meat. However, as discussed above,
consistent bloom would have been reasonably expected to have been
achieved because the same ratio of iron and water recited in the claims are
described by Yoshikawa and Komatsu. Based on the evidence in the ʼ095
patent, the skilled worker would have understood that these values are
responsible for the “capable of reducing oxygen content” limitation and the
consistent blooming which is said to be achieved.
The ʼ921 patent also discusses other prior art methods that allow meat
to bloom. ʼ921 patent at col. 2, ll. 1-9. In view of this disclosure and the
evidence discussed above, it cannot be concluded that the inventors solved a
long felt need to achieve consistent blooming of meat.

B. COPYING
Patent Owner contends “[t]here is at least one company (Multisorb
Technologies, Inc.) that is making, using, selling and offering for sale
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products that use the systems, products and/or methods described in the
present invention. See Exhibit 3.” Appeal Br. 47. Patent Owner states that
it “believes that Multisorb Technologies, Inc. has copied its inventive
concepts and Multisorb Technologies, Inc. has not received permission to
use the inventive concepts of the present invention.” Id.
Patent Owner has not provided sufficient evidence to establish
copying. Exhibit 3 is a complaint by Patent Owner against Multisorb
Technologies. The complaint alleges infringement by Multisorb of the
ʼ921 patent (Exhibit 3), but does not state that Multisorb copied Patent
Owner’s technology in the ʼ921 patent.
Patent Owner contends that the complaint is sufficient to establish
copying since the evidence of such would not be accessible to them except
through discovery and the complaint, itself, is sufficient because of Rule 11
obligations. Appeal Br. 48. However, Patent Owner has not pointed to a
statement in the complint alleging that Multisorb had copied the products
claim in the ʼ921 patent. Contrary to Patent Owner’s contention, the Federal
Circuit has required evidence of copying:
Not every competing product that arguably falls within
the scope of a patent is evidence of copying. Otherwise every
infringement suit would automatically confirm the
nonobviousness of the patent. Rather, copying requires the
replication of a specific product. This may be demonstrated
either through internal documents, see Akamai Techs., Inc. v.
Cable & Wireless Internet Servs., Inc., 344 F.3d 1186, 1196-97
(Fed. Cir. 2003); direct evidence such as disassembling a
patented prototype, photographing its features, and using the
photograph as a blueprint to build a virtually identical replica,
see Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d
1272, 1285 (Fed. Cir. 2000); or access to, and substantial
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similarity to, the patented product (as opposed to the patent),
Cable Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1027
(Fed. Cir. 1985), overruled on other grounds by, Midwest
Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1359
(Fed. Cir. 1999) (en banc)
Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1325
(Fed. Cir. 2004).
Thus, we are not persuaded by Patent Owner’s mere allegation that
the claimed packaging system was copied.

C. UNEXPECTED RESULTS
Patent Owner provides evidence of testing performed using
Multiform’s MRM 100 scavenger packet that was activated using an
oxygen scavenger accelerator. Appeal Br. 49-50. According to
Patent Owner, the experiment showed that “Multiform’s MRM 100
scavenger packet with the claimed oxygen uptake accelerator
produced a desirable result in that the retail cut of raw meat did not
turn to an unacceptable brown color (metmyoglobin).” Id. at 49. On
the hand, Patent Owner contends that results with the same packet, but
without accelerator, were unacceptable.
Multiform's MRM 100 scavenger packet (without being
activated with the claimed liquid oxygen uptake accelerator)
took “approximately 30 hours for the percent oxygen to be
reduced to approximately 0.5% (5,000 PPM) and more than
40 hours for the percent oxygen to be reduced to near 0.0%
oxygen.” See also, col. 6, lines 10-37; FIG. 5 of U.S. Patent
No. 5,928,560. This process using Multiform's MRM 100
scavenger packet without being activated with the claimed
liquid oxygen uptake accelerator failed because the retail cut of
raw meat turned an unacceptable brown color (metmyoglobin).
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First DelDuca Decl. ¶ 37.
According to Mr. DelDuca:
This was a surprising and unexpected result since those skilled
in the art believed that oxygen scavengers could not be used
with retail cuts of raw meat because the activation times were
too slow to prevent the raw meat from turning metmyoglobin.
First DelDuca Decl. ¶ 36.
Mr. DelDuca’s testimony is not persuasive.
6

First, it is taught in the prior art that the activity of oxygen absorbent
is enhanced by the addition of a liquid oxygen uptake accelerator.
Specifically, Komatsu teaches “it is essential that the oxygen absorbent
contain water or a compound having water of hydration, or the system in
which the oxygen absorbent is used contain steam.” K5. Komatsu also
teaches it “was found that the mixture of a metal powder, a metal halide and
water has rapid oxidizing rate, U.S. Ser. No. 816,134 filed on July 15, 1977
now U.S. Pat. No. 4,127,503 [Yoshikawa].” Komatsu, col. 1, ll. 63-65.
Hamon also teaches the addition of water to iron, the oxygen absorbent. H7
and H8. Accordingly, the observation that water enhanced the activity of
iron would not have been unexpected because that result is described in the
prior art.
The second questions is whether it would have been reasonably
expected that the enhanced activity of the oxygen absorbent would
“produced a desirable result in that the retail cut of raw meat did not tum to
an unacceptable brown color (metmyoglobin).” First DelDuca Decl. ¶ 37.

6
We note that Mr. DelDuca did not identify the disclosure in US 5,928,560
where the conditions shown in Figure 5 were tested on meat.

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Sakai was relied upon by the Examiner for its teaching of method for
preserving meat using deoxidizers, making it “possible to make the meat
have a freshly reddish tinge caused by oxymyoglobin quickly as soon as the
packaging container is opened.” Sakai, p. 2, ll. 5-8. Based on this
disclosure, there was a reasonable expectation that an oxygen scavenger
could, under storage conditions, preserve the meat’s red color when opened.
Patent Owner takes the position that Saki is not reliable because
“Sakai did not disclose any examples that bloomed a ‘fresh’ red color.”
Appeal Br. 46. To support this position, Patent Owner provided declarations
by Mr. DelDuca and Melvin C. Hunt, Ph.D. Dr. Hunt has a Ph.D. in Food
Science, and testified that he has “performed numerous research projects in
Meat Science and Muscle Biology including major emphasis on pigment
chemistry, meat color, meat packaging, and factors effecting microbial
soundness.” Hunt Decl. ¶¶ 1 & 2. Both declarants worked in the field of the
claimed invention and thus possess the requisite knowledge expected of one
of ordinary skill in the art. Consequently, we conclude that the declarants
are qualified to testify as to the matters in their declarations.
Dr. Hunt testified in his written declaration that the data in Table 1 of
Sakai does not support the Examiner’s conclusion that Sakai’s deoxidizer
was successful at recovering the meat’s red color (“bloom”) when opened.
Hunt Dec. ¶ 11. Dr. Hunt identified discussed data in Sakai’s Table 1, such
as the metamyoglobin levels, which he argues are inconsistent with Sakai’s
statements that the meat color recovered its color when a deoxidizer was
used, but remained brownish when a deoxidizer was not used. Id. at 11-13.
Based on these alleged inconsistencies and lack of correlations, Dr. Hunt
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concluded that “the results of Table 1 and descriptions of the same in Sakai
are not credible.” Id. at 14.
We shall consider the credibility of Sakai’s teachings if Dr. Hunt’s
statements about the inconsistencies in Sakai are given full weight. For
example, Dr. Hunt identified an alleged lack of correlation between the
amount of metmyoglobin and color of the meat. Hunt Decl. ¶ 13. The
question is whether such inconsistencies, when assumed to be true,
undermine Sakai’s teaching that deoxidizers would be useful to preserve
meat in Weinke’s package.
To begin, we cannot ignore the fact, that despite Dr. Hunt’s doubt
about Sakai’s data in Table 1 (V.1.B.i.-iv), Sakai still made strong
statements about the benefit of a deoxidizer in promoting a red color upon
opening the package:
According to the present invention, meat is closely-sealed
together with deoxidizers, and it is, therefore, possible to make
the meat have a freshly reddish tinge caused by oxymyoglobin
quickly as soon as the packaging container is opened.
Page 2, lines 5-9.
The inventors of the present invention and others had conducted
the study on a method for closely-sealing meat together with
deoxidizers to prevent the meat from discoloration. As a result,
it was discovered that the reduction of oxygen concentration in
the [sealed] container to a specific value within a specific
interval of time [after sealing] made it possible to recreate the
red color of meat as a fresh one after opening the container.
Page 2, lines 23-29.
The deoxidizer used in the present invention is required to be
sufficient to reduce oxygen concentration in the sealed
container to 5 % or less within 24 hours after closely-sealing
the meat. A too-slow-acting deoxidizer is not preferable.
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Page 3, lines 4-7.
Patent Owner did not establish that the statements reproduced above
about the efficacy of a deoxidizer were all made in view of the results shown
in Table 1. Even if the results in Table 1 are not credible, it has not been
shown by Patent Owner that Sakai’s statements were completely based on
those results, and that a lack of correlation or inconsistencies in Table 1
would offset Sakai’s statements that a red meat color would be recreated.
Furthermore, Sakai describes of a list of deoxidizers (at p. 2, ll. 9-17).
Example 1 uses only one deoxidizer, “S-100 (product name of a deoxidizer
available from Mitsubishi Gasukagaku).” Sakai at p. 5, l. 13-15. Dr. Hunt’s
criticism of Sakai’s experiments does not undermine Sakai’s statements
since such experiments were performed with only one example of
deoxidizer, S-100, whose compostion does not appear to been identified by
Dr. Hunt.
We acknowledge that the declarants identified specific apparent
discrepancies in the data collected from the actual experiments performed by
Sakai, but despite the data, Sakai still concluded that the meat stored with a
deoxidizer recovered its red color.
In sum, the evidence provided by Paetnt Owner does not establish by
preponderance of evidence that the observed bloom would have been
unexpected by one of ordinary skill in the art.

D. COMMERCIAL SUCCESS
Patent Owner contends that Pactiv's ActiveTech® meat packages,
systems and processes of the same have been commercially successful.
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Appeal Br. 50. Patent Owner states: “Specifically, the biggest protein
processors in the U.S. in partnership with the biggest retailers have relied on
Pactiv's ActiveTech® meat packages, systems and processes of the same.”
Id.
In order to overcome a finding of obviousness by demonstrating
commercial success, “[a] nexus between commercial success and the
claimed features is required.” Brown & Williamson Tobacco Corp. v. Philip
Morris Inc., 229 F.3d 1120, 1130 (Fed. Cir. 2000). In this case, Patent
Owner has not provided evidence of a nexus between the claimed invention
and Pactiv's ActiveTech® meat packages. Mr. DelDuca stated that the
patent claims covered the commercial products, but did not provide
sufficient evidence of such nor that the reason for the success was due to a
feature recited in the claim, rather than unclaimed feature or marketing or
business strategies. DelDuca Decl. ¶ 39. In addition to this, Patent Owner
has not provided market data, sales figures, or any other information upon
which it could be determined that the packages were commercial successful.
See Tec Air, Inc. v. Denso Mfg. Mich., Inc., 192 F.3d 1353, 1361 (Fed. Cir.
1999); In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996); see also Answer 22.

SUMMARY
After considering the totality of the evidence before us, we conclude
that the claimed subject matter of claims 1-6 and 8-28 would have been
obvious to one of ordinary skill in the art based on the prior art cited by the
Examiner for the reasons discussed above.

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TIME PERIOD FOR RESPONSE
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f).

AFFIRMED

ak

PATENT OWNER:

PACTIV CORPORATION
C/O NIXON PEABODY LLP
300 S. Riverside Plaza, 16
th
Floor
Chicago, IL 60606

THIRD PARTY REQUESTER:

Michael J. Didas
HARTER SECREST & EMERY LLP
1600 Bausch & Lomb Place
Rochester, NY 14604-2711