Ex Parte Liimatta

Patent Trial and Appeal Board

Apr 26, 2018

13795724 (P.T.A.B. Apr. 26, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/795,724 03/12/2013 Eric W. Liimatta
65895 7590 04/30/2018
ALBEMARLE CORPORATION
451 FLORIDA STREET
BATON ROUGE, LA 70801-1765
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.
SU-7273-B-US-l 5121
EXAMINER
ARNOLD, ERNST V
ART UNIT PAPER NUMBER
1613
NOTIFICATION DATE DELIVERY MODE
04/30/2018 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):
Albemarle.IPDocket@albemarle.com
docket-ip@mcglinchey.com
tina.matz@albemarle.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Exparte ERIC W. LIIMATTA1
Appeal2017-005031
Application 13/795, 724
Technology Center 1600
Before JEFFREY N. FREDMAN, TA WEN CHANG, and
DAVID COTTA, Administrative Patent Judges.
COTTA, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 relating to methods for
decreasing microbial contamination of a four-legged slaughter animal. Spec.
,r 10. The Examiner rejected the claims on appeal as obvious under 35
U.S.C. § 103(a).
We affirm.
1 Appellant identifies the real party in interest as Albemarle Corporation.
Appeal Br. 1.
Appeal2017-00503I
Application 13/795,724
STATEMENT OF THE CASE
Claims 1-13 are on appeal. Claim 1 is illustrative and reads as
follows:
1. A method of processing a four-legged slaughter animal
selected from cattle, swine, horses, sheep, bison, rabbit, camel,
kangaroo, alligator, crocodile, buffalo, goats, llamas, deer,
antelope, elk, squirrel, opossum, raccoon, and nutria for
consumption as meat and/or meat product(s), said method
compnsmg
contacting exterior surfaces of the live animal at least
once when the animal is en route to being slaughtered but
before it is killed by exsanguination, with a microbiocidal
solution, characterized in that said microbiocidal solution is
comprised of
a) water having a bromine residual derived from (i) at
least one bromine source selected from ( 1) bromine chloride,
(2) a mixture of bromine chloride and bromine, (3) a mixture of
bromine and chlorine, or ( 4) a mixture of bromine chloride,
bromine and chlorine, (ii) at least one alkali metal base, and/or
at least one alkaline earth metal base, and (iii) at least one
halogen stabilizer (I) which has one of formulas R-NH2, R-NH-
R1 R-S02-NH2 R-S02-NHR1 R-CO-NH2 N-CONH-R1 or R-
' ' ' ' ' CO-NH-COR1, where Risa hydroxyl group or an alkyl group
or an aromatic group and R1 is an alkyl group or an aromatic
group; or (II) an alkali metal salt of sulfamic acid;
b) water having a bromine residual derived from (i)
ammonium bromide, and/ or at least one alkali metal bromide,
and/or at least one alkaline earth metal bromide, and (ii) at least
one alkali metal hypohalite and/ or at least one alkaline earth
metal hypohalite; or
c) water having a bromine residual derived from a
mixture or combination of any one or more of a) and any one or
more of b ); the bromine residual in each of a), b ), and c) being
sufficient to provide microbiocidal activity.
Claims App'x Al.
The Examiner rejected claims 1-13 as unpatentable under
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Application 13/795,724
35 U.S.C. § I03(a) over the combination ofHowarth, 2 Mies, 3 Gil, 4
Schmidt, 5 Shim, 6 and Dorsa. 7
ANALYSIS
Appellant argues claims 1-13 together as a group. We designate
claim 1 as representative of the group.
The Examiner finds that Mies discloses "decontamination of live
cattle hides prior to slaughter using washes with antimicrobial agents
including 50 ppm chlorine." Final Act. 8 4. The Examiner finds that Mies
discloses the method of claim 1 except that it does not disclose the steps of
killing the 4-legged slaughter animal by exsanguination and using the
claimed microbiocidal solution. Id. at 10.
The Examiner finds that Howarth discloses microbiocidal solutions
comprising an alkali metal bromide ( sodium bromide), an alkali metal
hypohalite (sodium hypochlorite - i.e. bleach), and sulfamate for reducing
bacterial contamination on carcasses and parts of poultry for consumption as
meat products. Id. at 5---6.
2 Howarth, US Patent No. 6,908,636 B2, issued June 21, 2005 ("Howarth").
3 Mies et al., Decontamination of Cattle Hides Prior to Slaughter Using
Washes With and Without Antimicrobial Agents, 67(3) JOURNAL OF FOOD
PROTECTION 579-582 (2004) ("Mies").
4 Gil, THE MICROBIOLOGY OF MEAT AND POULTRY 118-57 (Andrew
Davies et al. eds. 1998) ("Gil").
5 Schmidt et al., US Patent No. 6,028,104, issued Feb. 22, 2000 ("Schmidt").
6 Shim et al., US Patent Publication No. 2002/0056689 Al, published May
16, 2002 ("Shim").
7 Dorsa, New and Established Carcass Decontamination Procedures
Commonly Used in the Beef-Processing Industry, 60(9) JOURNAL OF FOOD
PROTECTION 1146-1151 ( 1997) ("Dorsa").
8 Office Action mailed May 9, 2016 ("Final Act.").
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Application 13/795,724
The Examiner finds that Gil discloses "guidelines for the processing
of cattle with critical control points and the obvious steps of
decontamination, bleeding, head and shank removal, skinning, washing,
bacterial rinse, final wash, etc .... " Id. at 8.
The Examiner finds that Shim teaches "stabilizers for halogen
antimicrobial compositions." Id. at 9.
The Examiner finds that Dorsa discloses that "the development and
validation of various decontamination procedures for red meat carcasses is
not a new research area and these procedures include carcass rinses with
antimicrobial compounds." Id. at 9.
Based on the combined teachings of Mies, Gill, Schmidt, Shim, and
Dorsa, the Examiner concluded: "It would have been obvious to one of
ordinary skill in the art at the time the claimed invention was made to
perform the method of Mies et al. in processing the ... four-legged slaughter
animals instantly claimed by killing by exsanguination, as suggested by Gil
and Dorsa." Id. at 12. The Examiner explained "[o ]ne of ordinary skill in
the art would have been motivated to do this because bleeding is a common
step to kill the slaughter animal as shown by Gil." Id.
The Examiner also concluded:
It would have been obvious to one of ordinary skill in the
art at the time the claimed invention was made to perform the
method of Mies et al. with water having bromine residual as
instantly claimed with NaOH and a halogen stabilizer of
sulfamate or sulfamic acid with a bromine residual of about 400
ppm or less, as suggested by Howarth and Shim et al., and
produce the instant invention.
One of ordinary skill in the art would have been
motivated to do this because Mies et al. note that while the
chlorine treatments had antimicrobial activity, they were
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Application 13/795,724
ineffective (page 581, conclusions) and since Howarth teaches
that bromine based microbiocides are more effective than
chlorine based microbicides against various bacteria and
biofilms ( column 4, lines 8-10) then the artisan would use the
bromine based microbiocides including bromine residual water
derived from " ... the microbiocides of (I) described above
when made from bromine chloride, bromine and chlorine, or
bromine, chlorine, and bromine chloride, and a sulfamate
source" of Howarth using sulfamate halogen stabilizers, or any
of the other art recognized stabilizers as taught by Shim et al.,
and NaOH with a bromine residual of about 400 ppm or less in
the method of Mies et al. with a reasonable expectation of
success. Mixing microbiocidal solutions of water having a
bromine residual content is an obvious variation as the artisan
would do so for at least the additive effect in combining
microbiocidal solutions to achieve the desired level of
microbiocidal activity. Especially when Howarth teaches:
"Typically the diluted solution will contain a microbiocidally-
effective amount of active halogen in the range of about 2 to
about 1000 ppm (wt/wt), preferably in the range of about 2 to
about 500 ppm (wt/wt), and more preferably in the range of
about 25 to about 250 ppm (wt/wt)," .... "a microbiocidally
effective amount of active bromine that does not significantly
or appreciably bleach the skin of the [carcass] or have a
significant or appreciable adverse effect upon the organoleptic
taste of cooked meat from the poultry such as the breast meat
and thigh meat.["]
Id. at 13-14.
We adopt the Examiner's findings of fact and reasoning regarding the
scope and content of the prior art (Ans. 2-8; Final Act. 3-18) and agree that
the claims are obvious over the cited art. We address Appellant's arguments
below.
Appellant argues that l\1ies, Schmidt and Dorsa teach away from
combination with Howaiih. App. Br. 5----8. Appellant points out that in
Mies' study of hide samples, '"acetic acid, lactic acid, and chlorine ... were
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Application 13/795,724
not effective" and ''chlorine solutions (the halogen biocides) were the worst
performing biocides." App. Br. 6. Similarly, Appellant points to Schmidt's
teachings regarding the ineffectiveness of mixtures ofNaOH and NaOCL in
treating hairv warts in cattle and contends that this "reinforces that chlorine ....., .,
biocides were ineffective on live cattle." Id. Appellant further cites Dorsa's
teaching that "the incorporation of chlorine into water washes has little or no
additional advantages over that seen with water-only washes" as supporting
that "even on beef carcasses, chlorine biocides were not effective." Id. at 6-
7. vVe are not persuaded.
A reference teaches away from a claimed invention if it "criticize[ s ],
discredit[ s ], or otherwise discourage[ s ]" modifying the reference to arrive at
the claimed invention. In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004).
Appellant has not identified, and we do not find, any teaching in Mies,
Dorsa, or Schmidt, that criticizes, discredits, or otherwise discourages the
use of Howarth's microbiocidal solutions, which the Examiner found to
comprise an alkali metal bromide ( sodium bromide), an alkali metal
hypohalite (sodium hypochlorite - i.e. bleach), and sulfamate. Nor does
Appellant provide persuasive evidence that the alleged ineffectiveness of
chlorine-based microbiocides would have discouraged a skilled artisan from
using Howarth's bromine-based microbiocides. See, Johnston v. IVAC
Corp., 885 F.2d 1574, 1581 (Fed. Cir. 1989) ("Attorneys' argument is no
substitute for evidence."); In re Pearson, 494 F.2d 1399, 1405 (CCPA
1974). Moreover, Howarth expressly teaches, "bromine-based
microbiocides are more effective than chlorine-based microbiocides against
various bacteria and biofilms." Howarth col. 4, 11. 8-10. We agree with the
Examiner that this teaching would have provided motivation to use
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Howarth's bromine-based microbiocides in place of the chlorine
microbiocides that Appellant contends were ineffective. Final Act. 13-14.
Appellant argues that Shim teaches away from the claimed method
because the biocides it discloses are for use "in inanimate aqueous systems"
and because Shim "does not mention, and is not concerned with, the
treatment of animals, .... much less on live animals." App. Br. 8. We are
not persuaded because Appellant has not identified, and we do not find, any
teaching in Shim that criticizes, discredits, or otherwise discourages any
aspect of the claimed method. Moreover, the Examiner relied upon Mies,
not Shim, for application of a microbiocide to live animals en route to
slaughter. Ans. 4; Final Act. 4--5. One cannot show nonobviousness by
attacking references individually when the rejection is based on a
combination of references. In re Keller, 642 F.2d 413,426 (CCPA 1981).
Appellant argues that "the substrate to which a biocide is applied can
influence the biocide's effectiveness" and thus "biocides that are effective
on poultry carcasses are not necessarily effective on live four-legged
animals." App. Br. 9-10. As support, Appellant creates a table presenting
compiling the results of tests conducted in I\1ies and Howarth on the
antimicrobial effect of different concentrations of bleach and aqueous
chlorine on poultry, cattle hide, and live cattle. Id. \Ve are not persuaded.
As the Examiner points out, Howarth and J\1ies used different
microorganisms to test the antimicrobial effect of aqueous chlorine and
bleach. Final Act. 17. The tests in :rv!ies reported the "mean log reductions
for varying levels of antimicrobial spray wash treatments on hide samples
inoculated with 6.0 log CPU/ml rifampicin-resistant Salmonella
Typhimurium." Mies 5 81. The test in Howarth report the mean bacterial
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Application 13/795,724
reduction for carcasses that had been "immersed in a warm bath containing
104 E coli per mL of liquid" and then immersed in a "1.5 hour chill tank
immersion in water containing different microbiocidal compositions."
Howarth col. 15, 1. 40 - col. 16, 1. 67 and Tables 5 and 9. Accordingly, we
agree with the Examiner that the test results cited by the Appellant is "not a
proper side-by-side comparison and consequently is not probative of non-
obviousness." Final Act. 17.
Appellant argues that the potential for microbiocidal solutions to
adversely affect live slaughter animals would have discouraged their use in
the manner claimed. App. Br. 11-12. According to the Appellant, Mies
"noted that the higher concentrations needed for microbiocidal effectiveness
are likely to present problems of animal welfare (abstract), specifically stress
to animals, or irritation to the eyes and nose." Id. at 11. Appellant thus
contends that "one of skill in the art would expect other halogen biocides to
be ineffective at concentrations that do not raise concerns about animal
welfare." App. Br. 11. Appellant also argues that Mies "discourage[s] the
direction in which the invention goes (to the use of oxidizing halogen
biocides), and ... Mies leads in a direction (to ethanol) divergent from
Appellant's path (bromine biocides)." Id. We are not persuaded.
As explained by the Examiner, Mies discloses that higher
concentrations of organic acids and ethanol may cause stress or irritation to
live cattle-not that halogen biocides cause stress. Ans. 5; Mies 582
( disclosing that "higher concentrations of organic acids or ethanol to live
cattle might cause stress to the animals or irritation to the eyes and nose,
resulting in animal welfare concerns" but failing to mention any animal
welfare concerns with respect to chlorine). Moreover, as discussed above,
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Howarth teaches that bromine-based microbiocides are more effective than
chlorine based microbiocides, which the Examiner found to suggest that
"less bromine based microbiocide would be required to achieve the same
level of microbe reduction as the chlorine based microbiocide." Ans. 6.
Appellant has not presented persuasive evidence that the use of chlorine
biocides, much less the bromine-based biocides disclosed in Howarth,
present sufficient animal welfare concerns to discourage their use as
microbiocides.
Accordingly, we affirm the Examiner's rejection of claim 1. Because
they were not argued separately, we also affirm the Examiner's rejection of
claims 2-13 .
SUMMARY
For these reasons and those set forth in the Examiner's Answer and
Final Office Action, we affirm rejection of claims 1-13 as obvious over the
combination of Howarth, Mies, Schmidt, Shim, Gil, and Dorsa.
No time period for taking any subsequent action in connection with
this appeal maybe extended under 37 C.F.R. § 1.136(a) (1).
AFFIRMED
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