Ex Parte Bell

Patent Trial and Appeal Board

Jul 20, 2017

13601881 (P.T.A.B. Jul. 20, 2017)

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.
13/601,881 08/31/2012 Laurence D. Bell 7280-004 8666
22208 7590 07/24/2017
The Marbury Law Group, PLLC
11800 SUNRISE VALLEY DRIVE
15TH FLOOR
RESTON, VA 20191
EXAMINER
WILLIAMS, LELA
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
07/24/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ptonotices @marburylaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LAURENCE D. BELL
Appeal 2016-004326
Application 13/601,881
Technology Center 1700
Before BRADLEY R. GARRIS, MONTE T. SQUIRE, and
JENNIFER R. GUPTA, Administrative Patent Judges.
GUPTA, Administrative Patent Judge.
DECISION ON APPEAL1
Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision finally rejecting claim 2. We have jurisdiction under 35 U.S.C.
§ 6(b).
We AFFIRM.
1 In this decision, we refer to the Specification filed August 31, 2012
(“Spec.”), Final Office Action mailed November 6, 2014 (“Final Act.”), the
Appeal Brief filed August 7, 2015 (“Appeal Br.”), the Examiner’s Answer
mailed January 12, 2016 (“Ans.”), and the Reply Brief filed March 14, 2016
(“Reply Br.”).
2 Appellant identifies the real party in interest as Global Fresh Foods, Inc.
Appeal Br. 2.
Appeal 2016-004326
Application 13/601,881
The subject matter on appeal relates to a method of inhibiting
discoloration of red meat. Claim 2, the sole claim on appeal, is reproduced
below from the Listing of Claims of the Appeal Brief.
2. A method to inhibit discoloration of red meat, which method
comprises
(a) replacing at least a portion of the atmosphere in a
sealed container comprising red meat with a nitrogen flush so as
to reduce the oxygen concentration to no more than about 5% to
obtain an inert gas atmosphere, and incubating the red meat in
the inert gas atmosphere for a period sufficient to deoxygenate
the red meat wherein the nitrogen flush contains no more than
about 5% v/v carbon dioxide,
(b) replacing at least a portion of the gas in the atmosphere
of the container provided for above with exogenous carbon
dioxide; and
(c) optionally transferring the red meat into a package
having a carbon dioxide atmosphere and limited gas
permeability.
Appeal Br. 12.
DISCUSSION
The Examiner maintains the rejection of claim 2 under 35 U.S.C.
§ 103(a) as unpatentable over McFarlane et al. (US 2005/0003059 Al,
published January 6, 2005) (“McFarlane”). Final Act. 2—3; Ans. 2.
The Examiner finds that McFarlane generally discloses a method for
inhibiting discoloration of red meat that includes all the elements of claim 2.
Final Act. 2—3 (citing McFarlane Tflf 6—7, 12—15, 18, 27, 31). The Examiner
acknowledges that McFarlane’s method does not expressly teach or disclose
first replacing at least a portion of the atmosphere of a sealed container
comprising red meat with nitrogen and then replacing at least a portion of
the gas in the atmosphere of the container with exogenous carbon dioxide.
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Appeal 2016-004326
Application 13/601,881
Final Act. 2. The Examiner finds, however, that McFarlane teaches flushing
a container that contains red meat with “oxygen, carbon monoxide, nitrogen,
and carbon dioxide, either individually or in any combination or blend
thereof,” (McFarlane 131) and concludes that it would have been obvious
and within the skill of one of ordinary in the art to first flush the container
with nitrogen, containing no carbon dioxide, and subsequently flush the
container with carbon dioxide, thereby arriving at the claimed invention. Id.
at 3.
Appellant argues that there is no teaching, suggestion or guidance in
McFarlane to select the exact right first gas from the disclosed group of
gases, the exact right second gas from the disclosed group of gases and
perform the two flushing steps in the correct order, absent hindsight. Appeal
Br. 7.
Appellant’s argument is not persuasive of reversible error in the
Examiner’s rejection of claim 2. Although a reference “discloses a
multitude of effective combinations does not render any particular
formulation less obvious.” Merck & Co., Inc. v. Biocraft Labs., 874 F.2d
804, 807 (Fed. Cir. 1989) (citing In re Corkill, 771 F.2d 1496, 1500 (Fed.
Cir. 1985) (obviousness rejection of claims affirmed in light of prior art
teaching that “hydrated zeolites with work” in detergent formulations, even
though “the inventors selected the zeolites of the claims from among
‘thousands’ of compounds”)). Thus, contrary to Appellant’s contention, it
would have been obvious and within the skill of one of ordinary skill in the
art to select nitrogen and carbon dioxide from the disclosed group of gases in
McFarlane, and flush the container containing red meat in the order recited
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Appeal 2016-004326
Application 13/601,881
in the method of claim 2 by first flushing the container with nitrogen and
then flushing the container with carbon dioxide.
Appellant submits that the example presented in the Specification
shows the criticality of the claimed first nitrogen flush and second carbon
dioxide flush. Appeal Br. 9; Spec. H 106—108.
We have considered Appellant’s evidence in their Specification, but
do not find it persuasive. Claim 2 is directed to a method to inhibit
discoloration of red meat, which is defined in Appellant’s Specification as
including beef, pork, lamb, dark-colored chicken, fish such as tuna, tilapia,
and other sea foods (Spec. 123). The sole example in Appellant’s
Specification uses fish (tilapia), and Appellant’s do not direct us to any
evidence in the record that the results provided for tilapia would extend the
entire range of claimed meat. Accordingly, Appellant’s evidence is not
commensurate in scope with claim 2.
Additionally, as the Examiner points out, in the sole comparative
example in Appellant’s Specification, a container containing tilapia is
flushed with carbon dioxide, held in the container for 11 to 12 hours, and
then flushed again with carbon dioxide. Ans. 4. McFarlane, however,
teaches flushing a container containing a meat product with oxygen, carbon
monoxide, nitrogen, and carbon dioxide, either individually or in
combination (McFarlane 131), and teaches “the meat product will be held
within the environment of the first flush of gas or gases after the chamber
pressure has reached its predetermined pressure for no more than ten
minutes, preferably no more than one minute, and most preferably, no more
than thirty seconds” {id. at 118). Thus, Appellant’s evidence does not
provide a comparison with the closest prior art.
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Appeal 2016-004326
Application 13/601,881
In sum, for the reasons stated in the Final Office Action, the
Examiner’s Answer, and above, a preponderance of the evidence, taking into
account Appellant’s evidence of unexpected results, favors the Examiner’s
conclusion of obviousness as to claim 2. Accordingly, we sustain the
rejection of claim 2 under pre-AIA 35 U.S.C. § 103(a) as unpatentable over
McFarlane.
DECISION
For the above reasons, the Examiner’s rejection of claim 2 is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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