Ex Parte 7,037,543 et alDownload PDFPatent Trial and Appeal BoardJun 19, 201490011964 (P.T.A.B. Jun. 19, 2014) Copy Citation 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. 90/011,964 10/17/2011 7,037,543 KALSEC 46 US RX3 9433 25666 7590 06/19/2014 THE FIRM OF HUESCHEN AND SAGE SEVENTH FLOOR, KALAMAZOO BUILDING 107 WEST MICHIGAN AVENUE KALAMAZOO, MI 49007 EXAMINER JASTRZAB, KRISANNE MARIE ART UNIT PAPER NUMBER 3991 MAIL DATE DELIVERY MODE 06/19/2014 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 ____________ Ex Parte KALSEC, INCORPORATED Patent Owner and Appellant ____________ Appeal 2014-003681 Reexamination Control 90/011,964 US 7,037,543 Technology Center 3900 ____________ Before CHUNG K. PAK, RICHARD M. LEBOVITZ, and RAE LYNN P. GUEST, Administrative Patent Judges. LEBOVITZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal by Patent Owner Kalsec, Inc., from the Patent Examiner’s rejection of claims 1-3, 7-25, and 29-41 in this ex parte reexamination proceeding Reexamination Control 90/011,964 (“the 964 Reexamination”). The Board’s jurisdiction for this appeal is under 35 Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 2 U.S.C. §§ 6(b), 134(b), and 306. We affirm and enter a new ground of rejection. I. STATEMENT OF CASE This appeal involves US 7,037,543 (“the 543 patent”) which issued May 2, 2006. A Request for Ex Parte Reexamination of the patent was submitted by a third-party requester on October 17, 2011 (“the 964 Reexamination”). Claims 1-3, 7-25 and 29-41 are under reexamination; Claims 4-6 and 26-28 are not under reexamination. Appeal Br. 2. Claims 1-3, 7-25 and 29- 41 were rejected in the Office Action dated June 7, 2012 and in the Final Office Action (“Final Rej’n”) dated February 1, 2013. Patent Owner appeals the rejection of Claims 1-3, 7-25 and 29-41. The 543 patent has been the subject of two prior ex parte reexamination proceedings which resulted in Ex Parte Reexamination Certificate US 7,037,543 C1, issued January 18, 2011, and Ex Parte Reexamination Certificate US 7,037,543 C2, issued November 29, 2011. There were no claim amendments filed in the instant reexamination proceeding. The 543 patent teaches “[c]olor shelf life of red meat is important to consumer acceptance. Consumers judge the freshness of red meat by the presence of bright red oxymyoglobin pigment.” 543 patent, col. 1, ll. 28-30. “Oxymyoglobin in fresh red meat decreases with time during storage as it changes to the stable brown pigment, metmyoglobin.” Id. at col. 1, 30-32. The 543 patent is said to address “a need for a method of greatly extending the color life of modified atmosphere packaged fresh red meat, including Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 3 meat that has not been subjected to a chemical processing or pretreatment step, through the use of a natural treating agent.” Id. at col. 2, ll. 29-33. The technology in the 543 patent to address this need comprises contacting the meat with an extract of Labiatae plants. 543 patent at col. 1, ll. 11-15. Labiatae plants contain compounds that serve as antioxidants. Id. at col. 5, ll. 3-4. Examples of such plants include rosemary, sage, oregano, thyme, and mints. Id. at col. 5, ll. 11-13. Rosemary is preferred. Id. A. Claims There are four pending independent claims on appeal: claims 1, 24, 40, and 41. All the claims require an extract of Labiatae herb and a modified atmosphere comprising “high oxygen” levels. The extract is “present in an amount sufficient to extend the color life of said high oxygen modified atmosphere packaged fresh red meat.” Claims 1 and 41 are method claims; claims 24 and 41 are “package” product claims. Claims 1 and 24 are representative and reads as follows: 1. A method of improving the color life of fresh red meat packaged in an high oxygen modified atmosphere comprising contacting fresh red meat with an extract of a Labiatae herb prior to packaging the meat wherein the extract is free of some of the volatile oils and has high antioxidant activity and little antimicrobial activity in fresh red meat and treating the extract contacted fresh red meat to high oxygen modified atmosphere packaging, said extract being present in an amount sufficient to extend the color life of said high oxygen modified atmosphere packaged fresh red meat. 24. A high oxygen modified atmosphere package comprising fresh red meat product packaged in an atmosphere of greater Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 4 than about 40% oxygen and wherein said fresh red meat contains an extract of a Labiatae herb, wherein the extract is free of some of its volatile oils and has high antioxidant activity and little antimicrobial activity in fresh red meat and the extract is present in an amount sufficient to extend the color life of said high oxygen modified atmosphere packaged fresh red meat. B. Rejection Claims 1-3, 7-25, and 29-41 stand rejected under 35 U.S.C. § 103 as obvious in view of Down Thesis1 and Burke2 as “evidenced” by Kalsec3 and Frankel.4 Answer 2. II. BACKGROUND A. Prosecution which led to US 7,037,543 The 543 patent granted from U.S. Application 10/276,675 (“the 675 application”). The claims of the 675 application were originally rejected by the Patent Examiner as obvious over Ruzek5 in view of a number of publications, including the Down6 publications and Okayama.7 Ruzek was characterized by the Examiner as disclosing a “method of improving the color life of fresh meat by packaging the meat in an elevated oxygen 1 Amy Elizabeth Down Dissertation Thesis, “Comparison of Vitamin E and Natural Antioxidants on the Lean Color and Retail Caselife of Ground Beef”, 12/1999. 2 R.M. Burke, F.J. Monahan and M.N. O’Grady, “The colour-stabilizing effect of rosemary oleoresin and mixed tocopherols on fresh communicated beef product”, In Proceeding of the 27th annual Food Science and Technology Research Conference, University College, Cork, 1997 p.285. 3 Kalsec “Herbalox® Seasoning, Technical Data R-10”, June 1991. 4 Edwin N. Frankel, Shu-Wen Huang, Robert Aeschbach and Elizabeth Prior, “Antioxidant Activity of Rosemary Extract and its Constituents, Carnosic Acid, Carnosol and Rosmarinic Acid in Bulk Oil and Oil-in Water Emulsion”, J. Argric. Food Chem. 1996, v.44, pp. 131-135. Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 5 atmosphere and contacting the fresh red meat with a chemical or chemicals before packaging, which preserve the hemoglobin and myoglobin pigments in the meat. 675 application, Non-Final Rej’n 2 (June 3, 2004). Down was said by the Examiner to teach that “herbal extracts are natural antioxidants and even states that not only do they prevent the onset of lipid oxidation (which affects the red color) but they thus can prolong the shelf life and help maintain the red color of beef.” Id. at 3. In response to the rejection, Patent Owner argued that Down (pp. 13- 18) teaches that Duralox®, which contains rosemary extract, “has a positive effect on controlling lipid oxidation, but no effect on color stability.” 675 application, Response to Non-Final Rej’n 17 (December 6, 2004). Patent Owner stated that Duralox® “did not help preserve red meat color.” Id. With respect to the second Down publication (pp. 19-23), Patent Owner stated: “Rosemary treatment added only minimal improvement, measured in fractions of a day. In overall appearance, this amounted to 0.51 and 0.41 days. This study does not render obvious Applicants' finding of significant color life improvement in MAP packaging.” Id. at 18. 5 Ruzek,US 5,898,610, issued November 23, 1999. 6 A.E. Down, J.B. Morgan, K.E. Nanke and H.G. Dolezal, “Influence of Vitamine E, Duralox®, and Herbalox® on Lean Color and Retail Case-life of Ground Beef”, Animal Research Report, 1991, pp. 19-23. A.E. Down, J.B. Morgan, and H.G. Dolezal, “Comparison of Vitamin E, Natural Antioxidants and Antioxidant Combinations on the Lean Color and Retail Case-Life of Ground Beef Patties”, Animal Research Report, 1991, pp. 13- 18. 7 Takahide Okayama, “Effect of Modified Gas Atmoshere Packing Afterdip Treatment on Myoglobin and Lipid Oxidation of Beef Steaks”, Meat Science 19 (1987) pp. 179-185. Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 6 The Examiner subsequently allowed the claims, but did not provide a written statement of the reasons for allowance. B. Reexamination 90/010,117 The 543 patent was subject to Reexamination 90/010,117 (“the 117 Reexamination”). Among the rejections adopted by the Examiner were anticipation and obviousness rejections over Burke. Burke is also cited in the instant reexamination. Burke was characterized by the Examiner as follows: Burke discloses a study to investigate the effectiveness in stabilizing the color of beef batter such as minced beef (fresh red meat), stored in a high oxygen atmosphere of 80% O2 and 20% CO2, by contacting the meat with commercially available Rosemary oleoresin (an extract of a Labiatae herb) which contains rosmarinic acid (a natural antioxidant), and which is effective in maintaining the colour and stabilizes the beef against oxidation 117 Reexamination, Non-Final Rej’n 8. Patent Owner responded that Burke discloses a “beef batter,” which is not a fresh red meat product. 117 Reexamination, Response 19 (August 24, 2009). Patent Owner also challenged the Examiner’s determination that “a commercially available Rosemary oleoresin which contains rosmarinic acid” is “effective in maintaining colour . . .’” Id. at 21. Although Down was not cited in the rejections, Patent Owner stated that Down “demonstrate that oxidation is prevented when a Labiatae herb extract preparation is incorporated into a fresh red meat product. Down. et al., at Table 2, demonstrate that the Labiatae herb extract preparation which Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 7 is incorporated into fresh red meat has no effect on extending the color life of the fresh red meat product.” 117 Reexamination, Response 7. In confirming the patentability of the claims, the Examiner found that Burke teaches “it is other components in the beef product in addition to the rosemary extract [which] provide the . . . color stabilizing effect.” 117 Reexamination, Notice of Intent to Issue Ex Parte Reexamination Certificate 5 (October 29, 2010). The Examiner concluded: “Patent Owner has pointed to and provided numerous evidentiary prior art references that demonstrate that the use of antioxidants such as rosemary extract, in high oxygen packaged fresh red meat, while retarding lipid oxidation did not necessarily extend the color life of the fresh red meat (See Down and Okayama).” Id. at 3. C. Reexamination 90/011,616 The 543 patent was subject to a second reexamination 90/011,616 (“the 616 Reexamination”). The 616 Reexamination did not involve the publications cited in the present reexamination. See 616 Reexamination, Non-Final Rej’n (July 8, 2011). Although Down was not cited by the Examiner, Patent Owner reiterated that Down “does not extend the color life of the fresh red meat.” 616 Reexamination, Response 11 (September 1, 2011). The Examiner, in confirming the patentability of the claims, wrote: As previously established in the earlier concluded reexamination of the '543 patent (90/010,117), the known prior art methods of inhibiting fat oxidation of red meat in high O2 environment by incorporating labiate herb significantly outside the disclosed ranges in the '543 patent, would not necessarily provide the claimed characteristic of extending the color life of Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 8 the high oxygen modified packaged fresh meat. Further, as already established in the '117 reexamination proceeding, the prior art demonstrates that the common knowledge in the art at the time of the invention was that the addition of antioxidants would not further extend color life of packaged red meat in a high oxygen modified atmosphere. 616 Reexamination, Notice of Intent to Issue Ex Parte Reexamination Certificate 3 (October 8, 2011). III. CLAIM INTERPRETION Claim 1 is drawn to a method of “improving the color life of fresh red meat.” The method involves “contacting fresh red meat with an extract of a Labiatae herb.” The extract is recited in the claim to be “present in an amount sufficient to extend the color life of said high oxygen modified atmosphere packaged fresh red meat.” The Examiner interpreted the latter phrase to mean “that extension of the color life achieved by a treated package only one day beyond that of a control package would constitute extension (see column 14, lines 10-13) as well as retention in a treated package of the CIE Lab color value a* >67% beyond that of a control package (see column 11, lines 62-68).” 964 Reexamination, Final Rej’n 4 (February 1, 2013) (emphasis added). The Examiner clarified in the Answer, relying on the same disclosure in the 543 patent, that “the Specialist has interpreted the claim limitation of ‘sufficient to extend the color life’ as constituting an antioxidant treated meat package having an a* value of 17 or higher for one day longer than a control package.” 964 Reexamination, Answer 7. Specifically, the Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 9 Examiner cited the statement at column 11, lines 62-64, in the 543 patent that the “border between acceptable and unacceptable color is dependent upon the observer, but is around an a* value of 17.” 543 patent at col. 11, ll. 62-64. With respect the interpretation that an extension of one day is required by the claims, the Examiner relied on the following passage: “While the specification shows methods of extending the color shelf life by several days, an extension of only one day is commercially advantageous and may be achieved in art by regulating the dose.” 543 patent, col. 14, ll. 10-13. The Examiner improperly imported limitations from the specification into the claims by requiring the extension of color life to be a day or longer. During reexamination of an unexpired patent, claims are given their broadest reasonable interpretation in view of the patent specification. In re Morris, 127 F.3d 1048, 1055 (Fed. Cir. 1997); In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir. 2010); In re Abbott Diabetes Care Inc., 696 F.3d 1142 (Fed. Cir. 2012). While claims are construed in the light of the patent’s written description, this does not give license to import limitations from the specification into the claims when the claim language does not dictate it. The Examiner did not point to a definition or express statement in the patent specification that would require one of ordinary skill in the art to construe “the extract is present in an amount sufficient to extend the color life of said . . . packaged fresh red meat” to read on extensions of a day or more. It is true that the scope of the claim is reasonably interpreted to be limited to color life extensions of commercial value (see 543 patent, col. 9, Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 10 ll. 5-6; col. 11, ll. 65-67).8 While the specification indicates that an extension of “only one day is commercially advantageous,” it does not disavow extensions of less than a full day (i.e., a full 24 hours) as being of no commercial value. Texas Digital Sys., Inc. v. Telegenix, Inc., 308 F.3d 1193, 1204 (Fed. Cir. 2002) (“[T]he presumption [in favor of an ordinary and customary meaning] will be rebutted if the inventor has disavowed or disclaimed scope of coverage, by using words or expressions of manifest exclusion or restriction, representing a clear disavowal of claim scope.”). As stated by the Federal Circuit in Superguide Corp. v. DirecTV Enterprises, Inc., 358 F.3d 870, 875 (Fed. Cir. 2004), although “understanding the claim language may be aided by explanations contained in the written description, it is important not to import into a claim limitations that are not part of the claim. For example, a particular embodiment appearing in the written description may not be read into a claim when the claim language is broader than the embodiment.” In this case, we simply do not see a clear definition or exposition in the specification which would necessitate the narrow construction espoused by the Examiner. In sum, under the broadest reasonable interpretation, the amount of Labiatae extract present in the package is not limited to an amount that 8 In Leo Pharm. Prods., Ltd. v. Rea, 726 F.3d 1346 (Fed. Cir. 2013), “storage stable” was interpreted to “include a composition that maintains its stability during its shelf life for its intended use as an approved pharmaceutical product for sale and home use by ordinary customers” since that was the purpose disclosed in the patent for the composition. Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 11 would extend the color life of the fresh red meat by a day or more, but rather includes any color life extension of commercial value. IV. SNQ OF PATENTABILITY Patent Owner contends that there is no SNQ of Patentability because the newly cited Down Thesis is cumulative to the Down publications cited in the prosecution of the 675 application which led to the 543 patent. 964 Reexamination, Appeal Br. 13-22. We agree with Patent Owner that the disclosure of the Down Thesis overlaps with the disclosure in the Down publications, making the Thesis cumulative to the publications in certain aspects. 964 Reexamination, Appeal Br. 13-22. However, the Down Thesis contains Figures 3.6 and 4.6 which apparently do not appear in either of the Down publications and thus are not cumulative to the Down publications. 964 Reexamination, Answer 9-11. The material in Figures 3.6 and 4.6 is new and was not considered by the Examiner in the prosecution of the 675 application nor the two previous reexamination proceedings. Because these figures relate to the extension of color life by a Labiatae extract, they are pertinent to determining whether the claims are patentable. See M.P.E.P. ¶ 2242 (Ninth Edition, March 2014. Accordingly, the Examiner properly found a substantial new question of patentability to have been raised by the Down Thesis. In addition to this, because we have interpreted the claims more broadly than the Examiner, even if the Down thesis is considered to be cumulative to the already cited Down publications, the Down disclosure (Thesis and publications) is cast in a new light. (“For example, a substantial Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 12 new question of patentability may be based solely on old art where the 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. Such material new argument or interpretation may be based solely on claim scope of the patent being reexamined.” M.P.E.P. ¶ 2242, II.A.) The claim interpretation set forth here necessitates looking at the Down Thesis to determine whether it describes or suggests the limitations in the claim under the broader interpretation. The decision of the Examiner in determining that an SNQ of Patentability based on the Down Thesis exists is AFFIRMED. V. REJECTION OVER DOWN THESIS Claims 1-3, 7-25 and 29-41 stand rejected as obvious in view of the Down Thesis and Burke as evidenced by Kalsec and Frankel. The Examiner determined that the data in the Down Thesis “clearly indicated that the use of rosemary extract antioxidants in fresh ground beef products improve lean color and prolong retail case-life. See particularly pages 4, 6, 10, 13, 21-22, 26-27, 31-32 and 55.” 964 Reexamination, Non-Final Rej’n 6 (June 7, 2012). In making this finding, the Examiner relied on Figures 3.6 and 4.6 of the Down Thesis as “clear evidence of extension of color life of the antioxidant treated red meat more than one day beyond the control group which neither of the Down literature references provide and which properly provides the new, non-cumulative technical teaching missing from previous Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 13 examinations of the claims.” 964 Reexamination, Answer 6 (emphasis added). The claims do not require that the extract extend the color life of the red meat by one full day (i.e. 24 hours). As discussed above, this was based on an unreasonably narrow interpretation of the claims. Thus, even if the cited figures show less than a full day of extending the color life of the stored meat, the Down Thesis still meets the claim limitation as properly interpreted. Patent Owner argues Figures 3.6 and 4.6 of the Down Thesis showed less than a one full day extension of color life. 964 Reexamination, Appeal Br. 38-39. However, such argument fails to distinguish over the claims under their broadest reasonable interpretation. As this was the only argument raised by Patent Owner, we AFFIRM the rejection of claims 1, 24, 40, and 41, and dependent claims 2, 3, 7-23, 25, and 29-39 which were not separately argued. 37 C.F.R. 41.67(c)(1)(iii). Since the rationale differs from the Examiner’s, it is designated as a NEW GROUND OF REJECTION. VI. FIGURES 3.6 AND 4.6 Patent Owner argues that Figures 3.6 and 4.6 of the Down Thesis show an extension of red meat color life of less than a day. The Examiner disagrees. 964 Reexamination, Answer 6. We have reviewed this evidence and find that Patent Owner’s position that the extension of red meat color life of less than a day (i.e., a full 24 hours) is supported by a preponderance of the evidence. Our reasoning is as follows. App Reex Paten spec horiz meas Thes Herb and c anim eal 2014-0 amination t 7,037,54 Figure 3 ific feature ontal line Figure 3 ured by th is 20-21. alox® (HE itric acid. als whose 03681 Control 9 3 .6 of the D s, we hav s and boxe .6 shows t e Minolta Duralox® RB) is a n Downs T diet was s 0/011,964 own Thes e annotated s in the tre he effect o colorimet (DURA) i atural anti hesis 23. upplemen 14 is is repro it with ve atment tab f different er, an obje s a rosema oxidant pr The “Vitam ted with V duced belo rtical line le. treatment ctive test o ry based n oduct con in E” gro itamin E. w. To poi s in graph s on meat f color. D atural anti sisting of r up repres Id. at 18-1 nt out and color as own oxidant; osemary ents 9, 23, and Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 15 26. The “Duralox” and “Herbalox” groups are those in which these natural antioxidants were added to meat harvested from non-vitamin E supplemented animals. Id. at 26. As shown in the table labeled “Treatment,” the Control went from an acceptable color at day 1 (17.42) to an unacceptable color at day 2 (15.85) (underline and box were not present in the original figure). The treated Vitamin E, Duralox, and Herbalox meat (values above heavy line), in contrast, were still acceptable at day 2, and therefore lasted apparently a day longer. Patent Owner, however, argues that “Figure 3.6 which shows that the untreated control sample reaches an a* value of 17 at 1.25 days of display, whereas the Duralox and Herbalox treated fresh red meat samples exhibit an a* value of 17 already by day 2.” 964 Reexamination, Appeal Br. 24. This is illustrated in the graph reproduced above, where a vertical line (not present in original figure) is extended downward from the a* value of 17 of Duralox and Herbalox (substantially overlapping circle and diamond symbols) – showing that an a* value of 17 is reached at “2 days.” The a* value of 17 for the control (square symbol) is reached at “1.25 days.” Thus, Patent Owner argues that the improvement is less than a day (i.e., a full 24- hours) and does not meet the claimed requirement of an extension of a day or more. Id. Patent Owner concludes that “the Examiner’s own interpretation is not met by the data of Figure 3.6 of the Down Thesis.” Id. The Examiner states that Patent Owner “is basing this assertion on following the line drawn between the tested data points on the graph in Fig. 3.6, however, the actual measured data points are at day 1 and at day 2 as Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 16 documented in the chart in the figure.” 964 Reexamination, Answer 12. The Examiner’s statement is correct, but the Examiner did not provide a reason for rejecting the extrapolation data in Figure 3.6, which is relied upon by the Patent Owner, to determine the actual time when the acceptable a* value of 17 was crossed. Indeed, it is reasonable to determine from Down’s extrapolated curve the actual time when an a* value of 17 was reached. Down’s extrapolation is consistent with the statement in the Down Thesis that Duralox® and Herbalox® extended the lean color acceptability, as determined by a subjective color measurement, by less than one day (i.e., a full 24 hours). Down Thesis 30. These were the same subjective a* values color differentiations described in the thesis abstract of Chapter III on page 23 and in the Down publication on page 19. Finally, the Examiner did not point to evidence in the Down Thesis that the author recognized that the Minolta a* values shown in Figure 3.6 demonstrated color extension by a day. The treatment data of Figure 4.6 of the Down Thesis is reproduced below. App Reex Paten Figu The The anim valu the c havin the s a* va 26. the c conc to ex Reex not s eal 2014-0 amination t 7,037,54 re 4.6 show Duralox® a Examiner als fed a d e of 18.24 ombinatio g Vitamin Patent O ample trea lues of th That is, the ontrol. Fo rete teachi tend the c amination We agre upport the 03681 Control 9 3 s the obje nd Vitam found that iet supple one day b n package E alone) wner cont ted with D e untreated Duralox® r this reas ng that La olor life of , Reply Br e with Pat Examiner 0/011,964 ctive Min in E group the combi mented wi eyond the had consi .” 964 Ree ends that “ uralox (L control s alone doe on, Patent biatae herb fresh red . 11. ent Owner ’s finding 17 olta a* val s were exp nation (“C th Vitamin control pa stently hig xaminatio Figure 4.6 abiatae her ample.” 9 s not show Owner arg extracts meat over that Figur that there ues for va lained abo ombo”) o E) and D ckage drop her a* val n, Answer shows th b extract) 64 Reexam an exten ues “Figu would not a control e 4.6 of th would hav rious treat ve. f Vitamin uralox® “h ping belo ues that th 9. at the a* v alone trac ination, A sion of col re 4.6 pro have been package.” e Down T e been a r ments. E (i.e., eld an a* w 17 (and e package alues of k with the ppeal Br. or beyond vides expected 964 hesis does easonable Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 18 expectation that a Labiatae herb extract is “sufficient to extend the color life of said high oxygen modified atmosphere packaged fresh red meat,” as required by claim 1. First, as pointed out by Patent Owner, the experiments described in Figure 4.6 were not performed in a high oxygen atmosphere as required by the claims. Second, of the two experiments in which Duralox® was used to prolong the color of red meat, one condition (Duralox® alone) did not extend the meat color, while the other did (Vitamin E and Duralox®). For example, the Control and Duralox® were less than the acceptable a* value of 17 at day 1. Vitamin E and the Combo, however, still had an a* value of 17 or above at day 1. In other words, whether Duralox® is sufficient to extend the color life of red meat is unpredictable since in one treatment group it did not work. It is also not clear from the data whether the color extension observed in the combination is due to the Vitamin E, which alone extended the acceptable color, or the interaction of Vitamin E with Duralox®. NEW GROUND OF REJECTION This decision contains a new ground of rejection pursuant to 37 C.F.R. § 41.50(b). This section provides that “[a] new ground of rejection… shall not be considered final for judicial review.” Section 41.50(b) also provides that Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 19 (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the proceeding will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same record. . . . 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 Appeal 2014-003681 Reexamination Control 90/011,964 Patent 7,037,543 20 PATENT OWNER: THE FIRM OF HUESCHEN AND SAGE Seventh Floor, Kalamazoo Building 107 West Michigan Avenue Kalamazoo, MI 49007 THIRD PARTY REQUESTER: VEDDER PRICE P.C. 1633 Broadway 47th Floor New York, NY 10019 Copy with citationCopy as parenthetical citation