Ex Parte Lonergan

Patent Trial and Appeal Board

Feb 28, 2017

12336778 (P.T.A.B. Feb. 28, 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.
V52.12-0001 2525
EXAMINER
MUKHOPADHYAY, BHASKAR
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
12/336,778 12/17/2008 Dennis Arthur Lonergan
27367 7590 02/28/2017
WESTMAN CHAMPLIN & KOEHLER, P.A.
SUITE 1400
900 SECOND AVENUE SOUTH
MINNEAPOLIS, MN 55402
02/28/2017 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DENNIS ARTHUR LONERGAN
Appeal 2015-007752
Application 12/336,778
Technology Center 1700
Before TERRY J. OWENS, AVELYN M. ROSS, and
JENNIFER R. GUPTA, Administrative Patent Judges.
OWENS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
The Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’
rejection of claims 8, 10-18 and 25. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellant claims a method for freezing vegetables. Claim 8 is
illustrative:
8. A method of freezing vegetables comprising:
depleting substantially all of the total oxygen in a
package containing unfrozen, unblanched and hydrated
vegetables wherein the total oxygen in the package comprises
headspace oxygen of the package, and internal oxygen of the
Appeal 2015-007752
Application 12/336,778
vegetables wherein the internal oxygen is depleted by
respiration of the vegetables;
allowing the vegetables to respire for a selected period of
time wherein the selected time period is at least 30 minutes
when depleting substantially all of the oxygen; and
freezing the vegetables in the package.
The References
Lewis (Lewis ’609) US 5,110,609 May 5, 1992
Lewis (Lewis’167) US 5,723,167 Mar. 3, 1998
J.N. Farber et al., Chapter IV - Microbial Safety of Controlled and Modified
Atmosphere Packaging of Fresh and Fresh-Cut Produce, 2 (Supp.)
Comprehensive Reviews in Food Science and Food Safety 142—60 (2003)
(hereinafter Farber).
The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 8,
10—16 and 25 over Farber in view of Lewis ’167 and claims 17 and 18 over
Farber in view of Lewis ’167 and Lewis ’609.
OPINION
We affirm the rejections.
The Appellant argues the claims in two groups: 1) claims 8, 10-16
and 25, and 2) claims 17 and 18 (Br. 9-19). We therefore limit our
discussion to one claim in each group, i.e., claims 8 and 17. Claims 10—16
and 25 stand or fall with claim 8, and claim 18 stands or falls with claim 17.
See 37 C.F.R. § 41.37(c)(l)(iv) (2012).
Claim 8
Farber discloses (p. 142):
Normally, the concentration of O2 in a pack is kept very
low (1 - 5%) to reduce the respiration rate of fruits and
vegetables (Lee and others 1995). Reducing the rate of
Appeal 2015-007752
Application 12/336,778
respiration by limiting O2 prolongs the shelf life of fruits and
vegetables by delaying the oxidative breakdown of the complex
substrates which make up the product. Also, O2 concentrations
below 8% reduce the production of ethylene, a key component
of the ripening and maturation process. However, at extremely
low O2 levels (that is, <1%), anaerobic respiration can occur,
resulting in tissue destruction and the production of substances
that contribute to off-flavors and off-odors (Lee and others
1995; Zagory 1995), as well as the potential for growth of
foodbome pathogens such as clostridium botulinum (Austin and
others 1998). Therefore, the recommended percentage of O2 in
a modified atmosphere for fruits and vegetables for both safety
and quality falls between 1 and 5% (Table IV-4).[1]
Lewis ’ 167 discloses “a process of preserving a vegetable product by
dehydrating the vegetable to a moisture content of about 15% to about
60% (w/w) to produce a product having a water activity of 0.90 or less,
compressing the dehydrated product to substantially remove all of the air
and reducing the temperature of the dehydrated compressed product to a
range ranging from about 8° C. to about—30° C” (col. 2,11. 3—10).
“[Pjreferably the dehydrated vegetables are packaged in a flexible container
and compressed by subjecting the vegetables to a vacuum so that most of the
air is removed from the package which is thereafter sealed” (col. 2,11. 14—
17). Most preferably “at least 95% of the air is removed” (col. 4,11. 40-41).
“The vegetables prior to dehydration may be peeled, cut, blanched or
otherwise prepared in accordance with any customary procedure” (col. 3,
11. 40-43).
1 Table IV-4 reports vegetable respiration rates used by the Appellant
(Spec. 5:24—27).
Appeal 2015-007752
Application 12/336,778
The Appellant asserts that Farber “teaches away from substantially
depleting the entrained oxygen” (Br. 10).
“‘[DJuring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.’” In re
Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re
Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)). The Appellant’s Specification
indicates that the claim limitation “depleting substantially all of the oxygen”
means that at least about 60 %, more preferably at least about 95 %, of the
oxygen is depleted (Spec. 7:24—28). Hence, that limitation encompasses
Farber’s oxygen depletion from 21 % to 1—5 % of the atmosphere within the
package (pp. 142, 157).
The Appellant asserts that Farber “teaches that reducing the
concentration of oxygen and increasing carbon dioxide will significantly
increase the shelf life of fresh produce via a reduction in the rate of
respiration” (Br. 10). The Appellant relies upon a Declaration under
37 C.F.R. § 1.132 by Denis Arthur Lonergan wherein the declarant states
that “[i]t would be expected that respiration of the vegetables to reduce or
deplete internal oxygen would take extended period of time, far longer than
on the order of measurement of minutes” (1 5) and “would require a
significant amount of time exceeding the selected time in which the
vegetables were required to respire according to the examples enumerated in
the application” (| 6) (Br. 15—16).
The Appellant’s claim 8 is not limited to a respiration period lasting
minutes but, rather, encompasses any time period lasting 30 minutes or
longer. Lonergan’s reliance upon the respiration times in the examples
Appeal 2015-007752
Application 12/336,778
improperly imports a limitation into the claim. See In re Prater, 415 F.2d
1393, 1405 (CCPA 1969).
The Appellant asserts that “Lewis only teaches that produce can be
stable at freezer temperatures if a significant amount of the water in the
vegetables has been previously removed by dehydration’'’ (Br. 11).
When the Appellant reads claim 8 on the Specification, the Appellant
does not specifically point to written descriptive support for the “hydrated”
limitation added to claim 8 by amendment (filed Nov. 19, 2013). Thus, the
broadest reasonable interpretation of that term consistent with the
Specification includes any degree of hydration including Lewis’s preferred
moisture content of about 15 to about 60 wt% after dehydration (col. 4,11. 5—
8).
The Appellant asserts that “Lewis discloses preparing vegetables by
blanching in order to inactivate the oxidative enzymes. Thus, Lewis
inherently teaches one of ordinary skill in the art that the vegetables must be
otherwise prepared in order to be stable at freezer temperature” (Br. 11).
Lewis discloses that the vegetables may be blanched, not that they
must be blanched (col. 3,11. 40-43).
The Appellant asserts that the claimed method produces unexpected
results (Br. 13—16).
That argument is not well taken because the Appellant has not set
forth a side-by-side comparison of the claimed invention with the closest
prior art which is commensurate in scope with the claims and provided
evidence that the results would have been unexpected by one of ordinary
skill in the art. See In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed.
Cir. 1991); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re
Appeal 2015-007752
Application 12/336,778
Grasselli, 713 F.2d 731, 743 (Fed. Cir. 1983); In re Clemens, 622 F.2d
1029, 1035 (CCPA 1980); In re Freeman, 474 F.2d 1318, 1324 (CCPA
1973); In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).
Claim 17
Claim 17 depends from claim 8 and requires that “the depleting
further comprises addition of an oxygen scavenger enzyme.” The
Appellant’s disclosed oxygen scavenger enzymes include glucose oxidase
(Spec. 8:3-7).
Lewis ’609 uses a glucose-glucose oxidase system as an oxygen
absorber in a vegetable package wherein the atmosphere is to be maintained
substantially free of oxygen (col. 4,1. 65 — col. 5,1. 2).
The Appellant asserts that “[t]he vegetables of Farber would not
benefit from the addition of the oxygen scavenging enzyme as the purpose is
to prevent respiration” (Br. 17) and that one of ordinary skill in the art would
not have expected respiration in combination with an oxygen scavenging
enzyme to substantially deplete a vegetable package’s oxygen in at least
30 minutes (Br. 18—19).2
“A person of ordinary skill is also a person of ordinary creativity, not
an automaton.” KSRInt’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007). In
making an obviousness determination one “can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR, 550 U.S. at 418. One of ordinary skill in the art, through no
more than ordinary creativity, would have used Lewis ’609’s
glucose-glucose oxidase system in Farber’s vegetable package when needed
2 Like Lewis ’167 (col. 4,11. 35—41), the Appellant can use vacuum to
remove oxygen from the package (Spec. 3:25—27).
Appeal 2015-007752
Application 12/336,778
to maintain its atmosphere at the desired 1—5 % oxygen (pp. 142, 157). The
Appellant’s assertion regarding unexpected results is unconvincing for the
reason given with respect to claim 8.
Accordingly, we are not persuaded of reversible error in the
rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 8, 10-16 and 25 over
Farber in view of Lewis ’167 and claims 17 and 18 over Farber in view of
Lewis ’167 and Lewis ’609 are affirmed.
It is ordered that the Examiner’s decision 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