Ex Parte Haji Begli et alDownload PDFPatent Trials and Appeals BoardJun 20, 201913518173 - (D) (P.T.A.B. Jun. 20, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 13/518,173 06/21/2012 Alireza Haji Begli 27572 7590 06/24/2019 Harness Dickey (Troy) P.O. BOX 828 BLOOMFIELD HILLS, MI 48303 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 2693-000152/US/NP 6691 EXAMINER PRAKASH, SUBBALAKSHMI ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 06/24/2019 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): troymailroom@hdp.com sto-ptomail@hdp.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ALIREZA HAJI BEGLI, WALDEMAR TSCHILINGIRI, and SONJA WILLIUS Appeal2017-007690 Application 13/518,173 Technology Center 1700 Before JULIA HEANEY, MONTE T. SQUIRE, and JANEE. INGLESE, Administrative Patent Judges. HEANEY, Administrative Patent Judge. DECISION ON APPEAL 1 Appellants2 request review pursuant to 35 U.S.C. § 134(a) of the Examiner's Final Rejection of claims 29 and 33-64 of Application 13/518,173. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. 1 This Decision refers to the Specification dated June 21, 2012 ("Spec."), Final Rejection dated June 30, 2016 ("Final Act."), Appeal Brief dated Nov. 1, 2016 ("Appeal Br."), Examiner's Answer dated Mar. 1, 2017 ("Ans."), and Reply Brief dated Apr. 26, 2017 ("Reply Br."). 2 Appellants identify Sudzucker Aktiengesellschaft Mannheim/Ochsenfurt as the real party in interest. Appeal Br. 3. Appeal2017-007690 Application 13/518,173 BACKGROUND The subject matter on appeal relates to compositions and methods for curing food. Appeal Br. 5. Appellants describe that it is desirable to reduce residual nitrite content in cured food, while improving the intensity and stability of reddening of the cured food. Spec. 3-5. Claim 29 is illustrative of the subject matter on appeal and is reproduced below: 29. A composition for curing a food product, the composition compnsmg: 0.1 to 0.6% by weight of a nitrite curing salt component (NPS); and a sugar substance component, which is a sucrose isomer composition comprising at least 50% (w/w) of the sucrose isomers isomaltulose and trehalulose, wherein the composition generates a cured food with a lower residual nitrite content and improved reddening relative to a food product cured with only glucose as a sugar component. Appeal Br. 13, Claims App. (key disputed claim language italicized). THE REJECTIONS The Examiner maintains the following rejections on appeal: 1. Claims 29, 33-37, and 40-63 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over the combination of Hollenbeck3 and Kowalczyk. 4 Final Act. 2. 3 Hollenbeck et al., US 2,739,899, issued Mar. 27, 1956. 4 Kowalczyk et al., (W02009/149785 Al)-English Translation (US 2011/0097470 Al, published Apr. 28, 2011. 2 Appeal2017-007690 Application 13/518,173 2. Claims 38 and 39 are rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over the combination of Hollenbeck, Kowalczyk, and Nielsen. 5 Id. at 10. 3. Claim 64 is rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over the combination of Hollenbeck, Kowalczyk, and Nielsen. Id. at 12. DISCUSSION Rejection 1 The Examiner finds that Hollenbeck discloses a formulation for curing meat, comprising sugar, a nitrate salt, a nitrite salt, ascorbic acid, and salt. Final Act. 2 (citing Hollenbeck 3:52-61). The Examiner further finds that Hollenbeck discloses amounts of nitrite salt and sucrose that fall within the ranges recited in claim 29, and that it would have been obvious to a person of ordinary skill in the art to optimize the amounts of nitrite and a selected sucrose component by experimentation, to obtain a desired level of reddening. Id. at 2-3. The Examiner further finds that Hollenbeck teaches that compounds containing an enediol group, such as ascorbic acid and related compounds, reduce the amount of nitrate and/or nitrite used in the cure, accelerate the rate of curing, and reduce the absorption of curing solution in the meat to produce cured meat product with improved flavor characteristics. Id. at 3 (citing Hollenbeck 2:22-35, 2:10-29, 4:23-24). The Examiner acknowledges that Hollenbeck does not disclose the use of sucrose isomers isomaltulose and trehalulose in its food curing 5 Nielsen et al., US 2009/0214752 Al, published Aug. 27, 2009. 3 Appeal2017-007690 Application 13/518,173 composition. Id. at 3-4. The Examiner finds, however, that Kowalczyk teaches syrups containing isomaltulose, trehalulose, and trace amounts of other sugars, in a syrup used as an antioxidant in cured meat products. Id. at 4 (citing Kowalczyk ,i,i 18, 19, 21, 36). The Examiner further finds that Kowalczyk teaches its syrup has better reducing properties than glucose and provides antioxidative effect in food compositions without the disadvantages of known antioxidants such as ascorbic acid. Id. ( citing Kowalczyk ,i,i 4-7, 15). The Examiner determines it would have been obvious to a person of ordinary skill in the art to substitute Kowalczyk's syrup for the ascorbic acid in Hollenbeck's curing composition, in order to produce a cured food with a lower residual nitrite content, because the syrup in modified Hollenbeck would have better reducing properties than glucose. Id. Appellants argue that the rejection does not establish prima facie obviousness, because the Examiner has not shown that the modified composition of Hollenbeck will generate a cured food with a lower residual nitrite content. Appeal Br. 6-7; Reply Br. 2-3. Appellants assert neither Hollenbeck nor Kowalczyk teaches lower residual nitrite content, or that the quantity of nitrites used in the cure could be reduced, while still achieving a preservative antimicrobial effect. Id. Appellants assert that there is no evidence to support the Examiner's finding that a stronger reducing agent (i.e. Kowalczyk's syrup) would produce lower residual nitrite. Reply Br. 2. We agree with Appellants that on this record, the Examiner fails to provide the requisite factual basis for obviousness. See In re Warner, 379 F .2d 1011, 1016-17 ( CCP A 1967) ( the Examiner has the initial duty of supplying the requisite factual basis for obviousness and may not "resort to speculation, unfounded assumptions, or hindsight reconstruction to supply 4 Appeal2017-007690 Application 13/518,173 deficiencies in [the] factual basis."). The Examiner's finding that using a stronger reducing agent necessarily would yield less residual nitrite in Hollenbeck' s curing composition is speculative and also does not explain why a person of ordinary skill would have expected that lowering the amount of ascorbic acid in Hollenbeck' s composition would lead to a lower residual nitrite content in the cured food. Further, the Examiner has not explained why a person of ordinary skill in the art would have expected Kowalczyk's syrup to lead to improved reddening when substituted for ascorbic acid in Hollenbeck' s curing composition, particularly, in light of Hollenbeck's teaching that ascorbic acid reduces the amount of undesirable pigment in the cured food (Hollenbeck 3: 16-29), and Kowalczyk' s teaching that acidic conditions should be avoided (Kowalczyk ,i 4). Because the Examiner has not shown by a preponderance of the evidence that the proposed modification of Hollenbeck would generate a cured food product having a lower residual nitrite content and improved reddening, which is a limitation of all of the claims at issue in this rejection, we reverse the rejection. Rejections 2 & 3 The rejection of each of the claims in Rejections 2 and 3 is based on the combination of Hollenbeck and Kowalczyk in Rejection 1 discussed above. Further, the Examiner does not rely upon the additional references in these rejections for any disclosure that remedies the deficiency in Rejection 1. Accordingly, for the reasons discussed above, we also reverse Rejections 2 and 3. 5 Appeal2017-007690 Application 13/518,173 SUMMARY We reverse the rejection of claims 29 and 33-64 as unpatentable under 35 U.S.C. § 103(a). REVERSED 6 Copy with citationCopy as parenthetical citation