Fee, Lily Leung. et al.

Patent Trials and Appeals Board

Jan 8, 2020

14890745 - (D) (P.T.A.B. Jan. 8, 2020)

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.
14/890,745 11/12/2015 Lily Leung Fee 7829US02 6912
106306 7590 01/08/2020
DIEDERIKS &WHITELAW, PLC
13885 Hedgewood Dr., Suite 317
Woodbridge, VA 22193-7932
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
01/08/2020 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):
gmi.mail@dwpatentlaw.com
mail@dwpatentlaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte LILY LEUNG FEE, DONALD F. STEENSON, ROBERT
ERICKSON, MARK STUEBER, ANITA J. HALL, FRANK TIEGS,
STEVE HARRIS, and CRAIG BOLT
____________

Appeal 2019-003702
Application 14/890,745
Technology Center 1700
____________

Before JEFFREY B. ROBERTSON, JAMES C. HOUSEL, and JANE E.
INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 1 and 3–20.2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to the “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies General Mills, Inc. and Oregon Potato
Company as the real parties in interest. Appeal Brief filed December 31,
2018 (“Appeal Br.”) at 4.
2 Final Office Action entered July 16, 2018 (“Final Act.”) at 1.
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Application 14/890,745

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CLAIMED SUBJECT MATTER
Appellant claims a continuous method for producing vegetable
products having a retained firmness. Appeal Br. 4–5. Claim 1, the sole
pending independent claim, illustrates the subject matter on appeal, and is
reproduced below with contested subject matter italicized:
1. A continuous method for producing vegetable products
having a retained firmness, the method comprising the steps of:
a) providing a continuous vegetable product treatment
device comprising a vegetable product treatment chamber
having a vegetable product inlet, a vegetable product outlet, a
vegetable product transport mechanism in the vegetable product
treatment chamber for urging the vegetable product toward the
vegetable product outlet, and at least one liquid introduction
orifice for introducing a liquid in the vegetable product
treatment chamber;
b) introducing vegetable products into the vegetable
product treatment chamber via the vegetable product inlet;
c) introducing liquid into the vegetable product treatment
chamber via the vegetable product inlet and/or the liquid
introduction orifice;
d) urging the vegetable product toward the vegetable
product outlet by operation of the vegetable product transport
mechanism while contacting the vegetable product with
calcium and maintaining the temperature of the vegetable
product in the vegetable product treatment chamber
at a temperature of from about 125°F to about 160°, and the
liquid in the vegetable product treatment chamber at a pH of
from about 5 to about 7 throughout the continuous method by
addition of a base solution to the liquid, the vegetable product
being urged toward the vegetable product outlet at a rate so that
individual vegetable products reside in the vegetable product
treatment chamber for a time of from about 20 minutes to about
60 minutes;
e) removing the vegetable product from the vegetable
product treatment chamber via the vegetable product outlet to
provide heat treated vegetable products; and
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f) blanching the heat treated vegetable products in a
subsequent blanching step at a temperature ranging from about
190°F to 210°F for a time of from about two to about 10
minutes.

Appeal Br. 23 (Claims Appendix) (emphasis added).
REJECTION
The Examiner maintains the rejection of claims 1 and 3–20 under 35
U.S.C. § 103 as unpatentable over Bourne3 in view of Davidson4 and
Chukwu5 in the Examiner’s Answer entered March 7, 2019 (“Ans.”).6

FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions, we reverse the Examiner’s rejection of
claims 1 and 3–20 under 35 U.S.C. § 103 for reasons set forth in the Appeal
and Reply Briefs, and below.
Claim 1 requires the recited continuous method for producing
vegetable products having a retained firmness to comprise, in part,
introducing vegetable products into a vegetable product treatment chamber,
introducing liquid into the vegetable product treatment chamber, contacting
the vegetable products in the treatment chamber with calcium, and
maintaining the liquid in the vegetable product treatment chamber at a pH of

3 US 5,607,712, issued March 4, 1997.
4 US 3,722,401, issued March 27, 1973.
5 US 2008/0069923 A1, published March 20, 2008.
6 The Examiner withdrew the rejection of claims 8–10 under 35 U.S.C. §
112(a), and rejection of claims 8–10 under 35 U.S.C. § 112(b), in the
Answer. Ans. 7.
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from about 5 to about 7 throughout the continuous method by addition of a
base solution to the liquid.
The Examiner finds that Bourne discloses a continuous method for
improving the firmness of vegetables that comprises contacting vegetables in
a treatment chamber with calcium acetate at a concentration that “provides a
final product pH of 5.2.” Final Act. 4 (citing Bourne col. 4, ll. 63–68); Ans.
8 (citing Bourne col. 11, ll. 22–23). The Examiner finds that “Bourne [thus]
teaches the addition of a pH modifying component, calcium salt.” Ans. 8.
The Examiner finds that Bourne, however, does not disclose maintaining
liquid in the treatment chamber at a pH of from about 5 to about 7
throughout the continuous method by addition of a base solution to the
liquid. Final Act. 5–6.
The Examiner finds that Chukwu discloses treating vegetables with a
pH-modifying component to achieve and maintain a pH within the range of
2 to 7, which the Examiner finds encompasses the acidic pH taught by
Bourne. Final Act. 6 (citing Chukwu ¶¶ 36–38); Ans. 8–9. The Examiner
finds that Chukwu discloses that the pH-modifying component can include a
calcium salt such as calcium acetate, the same calcium salt disclosed in
Bourne, and the Examiner finds that Chukwu teaches “the addition of a base
for its art recognized purpose of providing a particular pH range, importantly
a same acidic pH range . . . [as] taught by Bourne.” Ans. 8–9. (citing
Chukwu ¶ 38 and Bourne col. 5, l. 10). The Examiner concludes that “given
the same desired pH modifying to achieve a same pH range” it would have
been obvious to one of ordinary skill in the art before the effective filing
date of the present application to treat vegetables in Bourne’s method with
additional pH modifying components as taught by Chukwu, such as a base
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solution, “to maintain a pH in the range of 5–7 as taught by Chukwu.” Final
Act. 6; Ans. 9.
On the record before us, however, the Examiner does not provide a
persuasive, reasoned explanation supported by objective evidence for why
one of ordinary skill in the art would have modified Bourne’s method in the
manner proposed, for reasons expressed by Appellant (Appeal Br. 13–17;
Reply Br. 2–4) and discussed below.
Bourne discloses a “two-step blanch” process for increasing the
firmness of canned vegetables that are frozen before canning, which
involves a first “lower temperature” blanch followed by a “higher
temperature” blanch. Bourne col. 2, ll. 14–32. Bourne discloses that the
firmness of the vegetables can be further improved by contacting the
vegetables with an acid to reduce the pH of the vegetable tissue to a pH
below about 4.5, such as a pH of about 4.2, preferably by including an acid
in the blanch water used in the second blanching step. Bourne col. 2, ll. 51–
55; col. 4, ll. 49–54; col. 11, ll. 19–28. Bourne discloses that the firmness of
the vegetables can also be further improved by contacting the vegetables
with a calcium salt, preferably by including a calcium salt in the blanch
water used in the first and/or second blanching steps. Bourne col. 2, ll. 57–
61; col. 4, l. 63–col. 5, l. 1; col. 11, ll. 19–28. Bourne discloses that the
firmness of the vegetables can be maximized by contacting the vegetables
with both an acid and a calcium salt, preferably by including an acid in the
blanch water used in the second blanching step, and by including a calcium
salt in the blanch water used in the first and/or second blanching steps.
Bourne col. 2, l. 63–col. 4, l. 3; col. 5, ll. 12–23; col. 11, ll. 19–33.
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Chukwu discloses applying an activated aqueous enzyme composition
to raw whole vegetables to enzymatically tenderize, hydrolyze, and/or
degrade the vegetables. Chukwu ¶¶ 12, 13. Chukwu discloses that the pH
of the aqueous enzyme composition is preferably about 2.0 to about 7.0, and
Chukwu indicates that the aqueous enzyme composition may include one or
more pH-modifying components “effective to modify the pH of an aqueous
composition and activate the enzyme component of the bioactive
composition.” Chukwu ¶¶ 35–37. Chukwu discloses that the “pH-
modifying component generally includes an acidulant, a basic agent, a
buffering agent, a salt, or any combinations thereof.” ¶ 37. Chukwu
discloses that “[b]asic compounds like sodium hydroxide or the like may
also be included as part of the pH-modifying component,” and
“[c]ombinations of weak organic acids and their corresponding salts are used
to form the pH-modifying component when the goal is to provide a pH
buffered system that stays within a particular range.” Chukwu ¶¶ 37, 38.
Thus, Chukwu discloses adding a pH-modifying component, which
may include a basic compound, to an aqueous enzyme composition that
degrades whole vegetables, to modify the pH of the aqueous composition in
order to activate enzymes in the composition. Bourne, in contrast, discloses
adding an acid to water used to blanch vegetables, to lower the pH of the
vegetables in order to improve the firmness of the vegetables when they are
subsequently frozen and then canned. The methods disclosed in Chukwu
and Bourne, therefore, have contrasting purposes. Specifically, Chukwu’s
method involves enzymatically degrading whole vegetables, which, as
Appellant points out (Appeal Br. 15), one of ordinary skill in the art would
have understood would make the vegetable tissue less firm, while Bourne’s
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method increases the firmness of vegetable tissue. Chukwu’s method also
uses a pH-modifying component to adjust the pH of an aqueous enzyme
composition, while Bourne’s method uses acid to lower the pH of vegetable
tissue. And Chukwu adjusts the pH of the enzyme composition to activate
enzymes in the composition, while Bourne lowers the pH of vegetable tissue
to improve vegetable firmness.
In view of these numerous differences between Chukwu and Bourne’s
methods, the Examiner does not articulate reasoning having rational
underpinning that explains why one of one of ordinary skill in the art would
have modified Bourne’s method in the manner proposed. As Appellant
argues (Appeal Br. 15–16), the Examiner does not persuasively explain why
Chukwu’s disclosure of using a pH-modifying component to adjust the pH
of an aqueous enzyme composition that degrades vegetables would have led
one of ordinary skill in the art to modify Bourn’s method of treating
vegetables with an acid to increase their firmness, by further treating the
vegetables in Bourne’s method with “a base solution” in order “to maintain a
pH in the range of 5–7 as taught by Chukwu.” In particular, Chukwu
explicitly discloses using a combination of a weak organic acid and its
corresponding salt to form a pH-modifying component when the goal is to
provide a pH buffered system that stays within a particular range, rather than
forming a pH-modifying component with only a basic compound or
solution, and Bourne discloses that lowering the pH of vegetable tissue to a
pH of below about 4.5, rather than a pH of 5–7, improves the firmness of the
vegetable tissue.
Because the Examiner does not rely on Davidson for any disclosure
that cures the deficiencies in the Examiner’s reliance on Bourne and
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Chukwu discussed above (Final Act. 5), we do not sustain the Examiner’s
rejection of claims 1 and 3–20 under 35 U.S.C. § 103.

CONCLUSION

Claims

35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–20 103 Bourne,
Davidson,
Chukwu
1, 3–20

REVERSED