Ex parte LEWIS et al.

Board of Patent Appeals and Interferences

Dec 9, 1998

08022174 (B.P.A.I. Dec. 9, 1998)

Application for patent filed February 25, 1993.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 15
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte VICTOR M. LEWIS AND DAVID A. LEWIS
_____________
Appeal No. 95-2638
Application 08/022,1741
______________
ON BRIEF
_______________
Before WINTERS and WILLIAM F. SMITH, Administrative Patent
Judges, and McKELVEY, Senior Administrative Patent Judge.
WINTERS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal was taken from the examiner's decision
rejecting claims 1 through 9 and 14 through 17, which are all
of the claims remaining in the application.
Appeal No. 95-2638
Application 08/022,174
2
Claims 1 and 6, which are illustrative of the subject
matter on appeal, read as follows:
1. Quick cooking dehydrated vegetable pieces having
incorporated therein sodium chloride at a
concentration of at least 2% and an alkali metal
carboxylate at a concentration of 1 to 4%, said
concentrations being by weight of the quick cooking
dehydrated vegetable pieces.
6. A process of incorporating a mixture of sodium
chloride and an alkali metal carboxylate in quick
cooking dehydrated vegetable pieces at
concentrations of at least 2% sodium chloride and 1
to 4% alkali metal carboxylate by weight of the
vegetable pieces comprising partially dehydrating
the vegetable pieces to the extent wherein the
residual moisture content is between 10% and 45%,
adding to the partially dehydrated pieces a
predetermined quantity of a solution containing said
sodium chloride and alkali metal carboxylate at said
concentrations, the quantity of said solution being
such that it is totally absorbed by the vegetable
and thereafter dehydrating the vegetable pieces to a
predetermined moisture content.
The references relied on by the examiner are:
Bevan et al. (Bevan) 4,088,790 May 09, 1978
Lewis et al. (Lewis) 4,447,460 May 08, 1984
Lioutas 4,832,969 May 23, 1989
The appealed claims stand rejected as follows: (1) claims
1 through 5 under 35 USC § 102(b) as anticipated by Lioutas;
(2) claims 1 through 9 and 14 through 17 under 35 USC § 103 as
unpatentable over the combined disclosures of Lioutas, Lewis,
Appeal No. 95-2638
Application 08/022,174
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and Bevan.
On consideration of the record, including appellants'
brief (paper no. 13) and the examiner's answer (paper no. 14),
we reverse both prior art rejections.
35 USC § 102(b)
For a prior art reference to anticipate in terms of 35
USC § 102, every element of the claimed invention must be
identically shown in a single reference. In re Bond 910 F.2d
831, 832, 15 USPQ2d 1566, 1567 (Fed Cir. 1990). That is not
the case here.
Lioutas discloses dried green vegetables characterized by
superior color retention and a method for their preparation.
To achieve the dried green vegetables of Lioutas, the
vegetables are infused with about 10% to 60% by weight of
water activity controlling solutes and with about 50 to 200
ppm magnesium. The vegetables are also infused with an
alkaline buffer system, generally comprising about 0.1% to
3.0% of the infusion solution (Lioutas, column 9, lines 27
through 34). In Table 2, Lioutas sets forth a number of
Appeal No. 95-2638
Application 08/022,174
Sodium citrate is a species within the genus "alkali metal carboxylate"2
recited in the appealed claims.
4
preferred alkaline buffer systems including, inter alia,
citric acid/sodium citrate (col. 9, lines 15 through 25). 2
The examiner's position to the contrary, notwithstanding,
we find that Lioutas does not clearly and unequivocally
disclose dried green vegetables having incorporated therein
sodium citrate at a concentration of 1 to 4% by weight.
First, no reference is made to the percentage of sodium
citrate in dried green vegeta-bles anywhere in the Lioutas
patent. Second, Lioutas does not disclose a working example
or examples illustrating use of the citric acid/sodium citrate
buffer system. Third, in setting forth citric acid/sodium
citrate among a number of preferred alkaline buffer systems in
Table 2 (col. 9, lines 15 through 25), Lioutas does not
indicate the relative proportion of citric acid or sodium
citrate in the system. Considering the Lioutas patent in its
entirety, we find that Lioutas does not describe quick cooking
dehydrated vegetable pieces having incorporated therein sodium
citrate in the amounts recited in claims 1 though 5 on appeal.
Appeal No. 95-2638
Application 08/022,174
5
In the final rejection (paper no. 8), the examiner
postulates that (1) if the maximum amount of alkaline buffer
system (3.0%) is used; and (2) if the minimum amounts of all
remaining solutes are used; and (3) if the buffer system is
citric acid/sodium citrate, then inevitably the Lioutas
process will produce dried green vegetables having
incorporated therein sodium citrate in the amounts recited in
claims 1 through 5. See the examiner's calculations in paper
no. 8, pages 3 and 4. Appellants roundly criticize the basis
of those calculations in the appeal brief and, in the
examiner's answer, the examiner changes direction. Setting
forth new postulates and new calculations, the examiner again
concludes that the Lioutas process will produce dried green
vegetables having incorporated therein sodium citrate in the
claimed amounts (examiner's answer, pages 6 and 7). On
reflection, we believe that the examiner relies on too many
postulates, too many calculations, and too much speculation to
here support a rejection under 35 USC § 102. In our judgment,
Lioutas does not clearly and unequivocally describe the
Appeal No. 95-2638
Application 08/022,174
6
subject matter defined in claims 1 through 5 including quick
cooking dehydrated vegetable pieces having incorporated
therein alkali metal carboxylate at a concentration of 1 to 4%
by weight.
The examiner's rejection of claims 1 through 5 under 35
USC § 102(b) as anticipated by Lioutas is reversed.
35 USC § 103
We have carefully considered the examiner's rejection of
claims 1 through 9 and 14 through 17 under 35 USC § 103 as
unpatentable over the combined disclosures of Lioutas, Lewis,
and Bevan. We think it clear that neither Lewis nor Bevan
cure the deficiency of Lioutas which has been discussed above
in conjunction with the rejection under 35 USC § 102.
That is, even if Lioutas, Lewis, and Bevan were combined
in the manner proposed by the examiner, the combination would
not have led a person having ordinary skill in the art to the
claimed product or process of making that product where alkali
metal carboxylate is present at a concentration of 1 to 4
percent by weight. The proposed modification of Lioutas, per
Appeal No. 95-2638
Application 08/022,174
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the teachings of Lewis and Bevan, is insufficient to arrive at
the claimed subject matter. Accordingly, the rejection under
35 USC § 103 is also reversed.
Conclusion
In conclusion, for the reasons set forth in the body of
this opinion, we do not sustain the rejection of claims 1
through 5 under 35 USC § 102(b) as anticipated by Lioutas.
Nor do we
sustain the rejection of claims 1 through 9 and 14 through 17
under 35 USC § 103 as unpatentable over the combined
disclosures of Lioutas, Lewis, and Bevan.
The examiner's decision is reversed.
REVERSED
SHERMAN D. WINTERS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
WILLIAM F. SMITH ) APPEALS AND
Appeal No. 95-2638
Application 08/022,174
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Administrative Patent Judge ) INTERFERENCES
)
)
)
FRED E. McKELVEY )
Senior Administrative Patent Judge )
vsh
Appeal No. 95-2638
Application 08/022,174
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