Ex Parte HASTINGS

Patent Trials and Appeals Board

Jun 7, 2019

15303462 - (D) (P.T.A.B. Jun. 7, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
15/303,462 10/11/2016
1009 7590 06/11/2019
KING & SCHICKLI, PLLC
800 CORPORATE DRIVE, SUITE 200
LEXINGTON, KY 40503
FIRST NAMED INVENTOR
Jeffrey John HASTINGS
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.
1223-073 6004
EXAMINER
AXTELL, ASHLEY
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
06/11/2019 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):
uspto@iplawl.net
laura@iplawl.net
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JEFFREY JOHN HASTINGS
Appeal2019-004016
Application 15/303,462 1
Technology Center 1700
Before ROMULO H. DELMENDO, BEYERL YA. FRANKLIN, and
BRIAND. RANGE, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
1 The subject application has been designated as "special" pursuant to a
granted petition to participate in the Patent Prosecution Highway Program
(Decision on Petition to Make Special Under 3 7 C.F .R. § 1.102( a) mailed
October 11, 2016).
Appeal2019-004016
Application 15/303,462
The Applicant2 ("Appellant") appeals under 35 U.S.C. § 134(a) from
the Primary Examiner's final decision to reject claims 28--43 3 and 54. 4 We
have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
I. BACKGROUND
The subject matter on appeal relates to a process for treating avocados
to minimize browning upon subsequent processing, handling, and storage
(Specification filed October 11, 2016 ("Spec."), ,r 7, 34--35). Representative
claim 28 is reproduced from the Claims Appendix to the Appeal Brief, as
follows:
28. A process for treating avocados to minimize browning
upon subsequent processing, handling, and storage, the method
comprising in the following sequential steps:
(a) separating the mesocarp from the pericarp and the
endocarp of the avocado;
(b) blanching said mesocarp with steam for a pre-
determined blanching time period at a blanching pressure that is
less than or equal to atmospheric pressure;
( c) cooling the blanched mesocarp and extracting residual
heat from the blanched mesocarp;
2 The Applicant is "Naturo All Natural Technologies Pty. Ltd." (Application
Data Sheet filed October 11, 2016, 5), which is also identified as the real
party in interest (Appeal Brief filed November 5, 2018 ("Appeal Br."), 2).
3 Both the Examiner and the Appellant list claim 44 as rejected and on
appeal (Non-Final Act. 1 (Office Action Summary); Appeal Br. 2). Claim
44, however, appears to have been withdrawn pursuant to a restriction
requirement (Office Action entered February 13, 2017, 2-5; Reply filed
April 13, 2017, 7).
4 Appeal Br. 5-11; Reply Brief filed April 26, 2019 ("Reply Br."), 1-7;
Non-Final Office Action entered May 1, 2018 ("Non-Final Act."), 4--22;
Examiner's Answer entered February 26, 2019 ("Ans."), 3-15.
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( d) freezing the cooled mesocarp to obtain at least partially
frozen mesocarp;
wherein upon thawing, the frozen mesocarp obtained from
step ( d) possesses substantially similar organoleptic properties as
freshly separated mesocarp in (a); and
wherein the mesocarp is positioned on a perforated
conveyor belt during the blanching step (b).
(Appeal Br. 12 (emphasis added).)
II. REJECTIONS ON APPEAL
Claims 28--43 and 54 stand rejected under AIA 35 U.S.C. § 103 as
follows:
A. Claims 28, 31-33, 5 36, 39--41, and43 as unpatentable over
Bower et al. 6 ("Bower"), Takahashi, 7 Birdseye, 8 Smith, 9 and
Food Industries Manual; 10
B. Claim 30 as unpatentable over Bower, Takahashi, Birdseye,
5 Claims 31-33 are not included in the statement of this rejection but are
mentioned in the discussion section of the rejection (Non-Final Act. 4, 8-
10).
6 J.P. Bower & M.T. Dennison, "A Process to Prevent Browning of Frozen
Avocado Halves and Chunks," 28 South African Avocado Growers'
Association Yearbook 40--41 (2005).
7 US 6,358,555 Bl, issued March 19, 2002.
8 US 2,474,649, issued June 28, 1949.
9 US 3,910,175, issued October 7, 1975.
1° Food Industries Manual 156-158 (M.D. Ranken & R.C. Kill eds.,
Springer Science & Business Media, LLC, 23rd ed., 2012), retrieved from
https://books.google.com/books?id=Ca_SBw AAQBAJ&dq=blanching+atm
ospheric+pressure+gentle&source=gbs_navlinks_s (partially illegible).
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Smith, Food Industries Manual, and Stradley et al. 11 ("What's
Cooking America");
C. Claims 34 and 35 as unpatentable over Bower, Takahashi,
Birdseye, Smith, Food Industries Manual, and Lewis et al. 12
("Lewis");
D. Claims 37, 38, and 42 as unpatentable over Bower, Takahashi,
Birdseye, Smith, Food Industries Manual, and Hirtensteiner; 13
E. Claim 29 as unpatentable over Bower, Takahashi, and
Hemmeter 14 and
'
F. Claim 54 as unpatentable over Bower, Takahashi, Hemmeter,
Smith, and Food Industries Manual.
(Ans. 3-15; Non-Final Act. 4--22.)
III. DISCUSSION
Rejection A. The Appellant does not argue any claim separately from
claim 28 within the meaning of 37 C.F.R. § 4I.37(c)(l)(iv) (Appeal Br. 5-
7). Therefore, we confine our discussion to claim 28, which we select as
representative pursuant to the rule. Claims 31-33, 36, 39--41, and 43 stand
or fall with claim 28.
The Examiner finds that Bower describes a method for treating
avocados to minimize browning including every limitation recited in claim
28 except for: (i) performing blanching using steam; (ii) the blanching
11 Stradley et al., What's Cooking America 355, ThreeForks Books (2d ed.,
1995).
12 US 2005/0263172 Al, published December 1, 2005.
13 US 3,361,578, issued January 2, 1968.
14 US 2,522,513, issued September 19, 1950.
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pressure; and (iii) positioning the avocados (i.e., the mesocarp thereof) on a
perforated conveyor (Non-Final Act. 4, 6, 7). With respect to the use of
steam, the Examiner finds that Takahashi teaches an advantage in terms of
overall productivity in using steam for blanching and concludes from this
finding that a person having ordinary skill in the art would have been
prompted to use steam in lieu of Bower's boiled water as a predictable
variation that would provide an improvement (id. at 4--5). In this regard, the
Examiner finds that Birdseye shows it was known in the art to blanch fruits
and vegetables with steam for a predetermined time at atmospheric pressure
and, therefore, such steam blanching would have been further obvious (id. at
6-7). Furthermore, the Examiner finds that the Food Industries Manual
teaches blanching a delicate food product with atmospheric steam using a
belt and tunnel system as a preferred technique because the product can be
handled more gently and leaching losses may be reduced (id. at 8). The
Examiner concludes that a person having ordinary skill in the art would have
implemented atmospheric steam blanching using a belt and tunnel system as
shown in the Food Industries Manual in order to handle the avocados more
gently with reduced leaching losses (id.). Additionally, the Examiner finds
that Smith teaches using a perforated conveyor for continuously blanching
vegetables with steam to retain an unusually high amount of flavor and
vitamins and discloses that it is useful in treating any product requiring
blanching as part of the processing (id. at 7). The Examiner concludes:
It would have been obvious to one of ordinary skill in the art to
modify the separated mesocarp of Bower in view of Takahashi
in view of Birdseye to be positioned on a perforated conveyor
belt during the blanching step as taught by Smith and
subsequently utilize the apparatus taught by Smith for the
blanching step in order to continuously process the avocados, and
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in order to effectively and uniformly heat the plant material so
that the blanching operation is effected in a short time ( col. 3,
lines 13-27), thereby increasing overall productivity, and in order
to retain a high amount of flavor and color and vitamin content
of the avocados and since Smith discloses that the apparatus is
useful in treating any products which require blanching as part
of processing.
(Id. at 7-8.)
The Appellant contends that Bower and Takahashi would not have
been combined because, although both are directed to treatment of avocados,
the processes described in these references are "substantially disparate in
nature" (Appeal Br. 5). Specifically, the Appellant argues that "Takahashi
describes the application of steam to avocado pieces possessing their outer
skin packed into a tank along with at least three different additives required
to improve flavour and prevent browning[,]" whereas "Bower describes a
bench scale experiment where the edible flesh is removed from the seed and
outer layer and dipped in boiling water ( e.g. abstract) without the use of
additives to improve flavor and to prevent browning" (id.). According to the
Appellant, "it would not be reasonable for a skilled person to simply
substitute the method of steam blanching into Bower with any reasonable
expectation of success ... as the disclosure of Bower provides that a
somewhat bland tasting product is formed" (id.). In the Appellant's view,
"there is hardly motivation to take the avocado preparation step of Bower
and combine it with the steam blanching step of Takahashi without the
presence of the three required additives to arrive at something resembling
the process of the present application without considerable hindsight" (id.).
Regarding Birdseye, the Appellant acknowledges that Birdseye's disclosure
may be applicable to some fruits but teaches away from steam blanching as
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highly objectionable and as unsuitable for sliced fruits (id. at 5-6).
Regarding Smith, the Appellant argues that Smith is directed primarily to
blanching of vegetables using a dry blanching process with an additional
steam injection step in which the blanching is substantially independent of
the amount of steam injected (id. at 6). The Appellant urges that the
Examiner's rejection fails to articulate any rational underpinning to support
a conclusion that a person having ordinary skill in the art would have
combined the references in the manner claimed (id. at 6-7).
We do not find the Appellant's arguments sufficient to identify any
reversible error in the Examiner's rejection. In re Jung, 637 F.3d 1356,
1365 (Fed. Cir. 2011).
Bower describes a process for preventing browning of frozen, peeled
avocado halves and chunks including, inter alia, inactivating the browning
enzyme (polyphenol oxidase) by dipping the peeled fruit into boiling water
for a sufficient time and then rapidly cooling and freezing the fruit (Bower
40-41 ). Although Bower teaches the use of boiling water, it states that
"[t]he browning enzyme ... can be inactivated by a number of techniques"
and that "[a] heated water bath method was found to be most satisfactory"
(id. at 40, right column). Therefore, a person having ordinary skill in the art
would have understood that the enzyme could be inactivated by techniques
other than dipping in boiling water.
Takahashi teaches a process for producing frozen avocados, which
will not easily disintegrate or discolor on or after thawing or defrosting
(Takahashi, Abstract). Takahashi teaches that the selected avocados are not
completely matured to offset the tendency of the produced frozen avocado
pieces to disintegrate upon thawing (id., col. 3, 11. 30-32). In what is
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described as a "second aspect," Takahashi teaches a dehydration process
performed by "applying steam to the avocado pieces rather than boiled
water" for about 4 minutes and then freezing the avocado pieces (id., Fig. 3
and col. 3, 11. 39-50; col. 5, 1. 38---col. 6, 1. 9). According to Takahashi,
treatment with steam improves overall productivity such that a large amount
of avocado pieces can be processed at the same time, thereby increasing
dehydration efficiency in a shorter period of time relative to the boiling
process shown in Figure 1 in which the avocados are blanched in boiling
water and boiled (id., col. 5, 11. 41--46; col. 6, 11. 5-9).
Birdseye teaches that it was well-known to dehydrate vegetables and
some fruits by blanching them in either hot water or steam to inactivate their
enzymes at atmospheric or greater pressures, although commercial methods
involving such techniques are "highly objectionable because they subject the
product to the leaching action of hot water" and "considerable amounts of
steam are condensed onto the relatively cool surfaces of the product units
during the blanching process" (Birdseye, col. 1, 1. I-col. 3, 1. 18).
Furthermore, according to Birdseye, certain "[ s ]liced ripe fruits, for either
freezing or dehydrating, become mushy on the surface if blanched in either
hot water or steam" (id., col. 3, 11. 41--43).
Given these disclosures, we agree with the Examiner's conclusion
(Ans. 6) that a person having ordinary skill in the art would have
implemented Takahashi' s steam blanching technique in Bower with a
reasonable expectation of producing peeled avocados that will not
disintegrate or discolor in an efficient manner in shorter period of time. Cf
KSR Int'! Co. v. Teleflex Inc., 550 U.S. 398,417 (2007) ("[I]f a technique
has been used to improve one device, and a person of ordinary skill in the art
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would recognize that it would improve similar devices in the same way,
using the technique is obvious unless its actual application is beyond his or
her skill.").
Although Takahashi teaches applying steam to cut avocados with their
skins intact, this teaching does not negate Takahashi's combination with
Bower because Takahashi's reason for leaving the skins intact is for easier
removal of the skin subsequent to heating and cooling (id., col. 3, 11. 61---62).
When the avocados are already peeled as in Bower, Takahashi's reason for
leaving the skin intact is not pertinent. "The test for obviousness is not
whether the features of a secondary reference may be bodily incorporated
into the structure of the primary reference" but, "[r]ather, the test is what the
combined teachings of the references would have suggested to those of
ordinary skill in the art." In re Keller, 642 F.2d 413,425 (CCPA 1981).
The Appellant seems to believe that Takahashi's additives (Takahashi,
col. 6, 11. 32--46 (claim 1)) are excluded from claim 28 (Appeal Br. 5). The
Appellant, however, does not direct us to any language in claim 28 that
excludes such additives.
As for Birdseye, a prior art reference's discovery of an improved
technique relative to a commercially-used technique, which was already in
the public domain, does not necessarily mean that that the previously-used
technique becomes unusable. Indeed, as we recounted above, two later
references-Bower and Takahashi-allay Birdseye's concerns. In re
Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994) ("A known or obvious
composition does not become patentable simply because it has been
described as somewhat inferior to some other product for the same use.").
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The Appellant argues that Bower relates to a bench-scale experiment
that provided "a somewhat bland tasting product" (Appeal Br. 5 (citing
Bower 41, left col., 11. 4--5)). But the Appellant fails to cite the next
sentence (Bower 41, left col., 11. 5-7) ("However, it is believed that in
commercial operations this problem can be eliminated by adjusting the time
in the water bath.") (emphasis added).
Regarding the Appellant's argument that Smith is directed primarily
to dry blanching of vegetables with an additional steam injection step
(Appeal Br. 6), Smith teaches using a conveyor system for "any products
which require blanching as a part of processing" (Smith, col. 4, 11. 10-16).
The Appellant does not provide any reason why Smith's conveyor system
could not be used in steam blanching for avocados.
For these reasons and those given by the Examiner, we uphold the
Examiner's rejection as maintained against claim 28.
Rejection B. Claim 30, which depends from claim 28, recites:
"wherein the blanching time period is less than a cooking time period
required to cook the mesocarp" (Appeal Br. 12).
The Examiner relies on What's Cooking America to establish that the
blanching suggested by the other prior art references would necessarily be
performed for a time less than a time required to cook the blanching (Non-
Final Act. 12). The Appellant argues that "the Examiner fails to provide any
reason based on a rational underpinning for combining the What's Cooking
America reference with the remaining combination of references" (Appeal
Br. 8).
The Appellant misunderstands the Examiner's reason for relying on
What's Cooking America. The Examiner is not relying on What's Cooking
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America as a reference that teaches a limitation missing in the other
references. Rather, What's Cooking America is cited to show a state of
fact-i.e., blanching does not fully cook, and therefore, blanching time
would necessarily be less than full cooking time (What's Cooking America
355 (definition of "Blanch")). Cf In re Baxter Travenol Labs., 952 F.2d
388, 390 (Fed. Cir. 1991) (establishing that extrinsic evidence may be used
to explain the meaning of another reference).
Accordingly, we sustain Rejection B.
Rejection C. The Appellant does not argue Rejection C separately
(Appeal Br. 5-11). Therefore, claims 34 and 35, which are subject to this
rejection, fall with claim 28.
Rejection D. Claims 37, 38, and 42 are subject to this rejection (Non-
Final Act. 14), but the Appellant addresses only claims 38 and 42 (Appeal
Br. 9-10).
Claim 38 recites "varying an operating speed (CF) of the freezing
conveyor belt driven by the freezing conveyor drive for controlling a rate of
passing the blanched mesocarp into the freezing chamber" (id. at 13). The
Appellant argues that although Hirtensteiner contemplates operating a
conveyor belt at a controlled speed, it does not teach a variable speed as
required by claim 38 (Appeal Br. 9).
We do not find the Appellant's argument persuasive. Hirtensteiner
teaches operating the conveyor "at a controlled rate governed by the
ultimately desired temperature to which the produce is to be frozen
throughout" (Hirtensteiner, col. 4, 11. 45-53). A person having ordinary skill
in the art would have understood from this disclosure that the conveyor
operating speed would need to be adjusted as may be necessary during the
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operation to maintain the desired temperature. In this regard, Hirtensteiner
uses the term "controllable" in the context of "variable operating speeds" for
fans 52 (id., col. 4, 11. 4--19).
Regarding claim 42, which recites "wherein the freezing step ( d) is
carried out for a freezing time period in the range of 2-6 minutes" (Appeal
Br. 14 ), the Appellant argues that Hirtensteiner teaches away from the
claimed invention because it discloses sectioning the avocados into halves
before treating them (id. at 9). As the Examiner explains, "Hirtensteiner
teaches a process and apparatus for rapidly freezing avocados for
commercial distribution one of ordinary skill in the art would have been
motivated to look to and consider the teachings of Hirtensteiner in
commercializing the method of Bower" (Ans. 13). As we recounted above,
Bower demonstrates that peeled avocados can be treated in a manner similar
to that recited in claim 42. Again, the Appellant argues the references
individually when the rejection is based on the collective teachings of the
prior art references. Keller, 642 F.2d at 425.
Rejection E. The Appellant argues against this rejection on the basis
the same arguments offered against the combination of Bower and
Takahashi, adding further that Hemmeter is directed to blanching of resilient
vegetables (Appeal Br. 10). As we discussed above, the Appellant's
arguments against the combination of Bower and Takahashi are
unpersuasive for the reasons given above. As for Hemmeter, we agree with
the Examiner's analysis (Ans. 14--15; Non-Final Act. 19-20). The fact that
Hemmeter is directed to blanching vegetables does not negate its
combination with the other references because Hemmeter addresses a similar
problem. The Appellant does not offer any technical reason why
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Hemmeter' s arrangement cannot be implemented in the treatment of fruits
such as avocados.
Rejection F. The Appellant does not offer any argument against this
rejection (Appeal Br. 5-11). Therefore, claim 54 falls for the same reason as
claim 29, which claim 54 depends upon.
IV. SUMMARY
Rejections A through Fare sustained. Therefore, the Examiner's
decision to reject claims 28--43 and 54 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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