Givaudan SA

Patent Trials and Appeals Board

May 21, 2021

2021002633 (P.T.A.B. May. 21, 2021)

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.
16/305,992 11/30/2018 Karen VAN DAM GIV.P30697 1059
23575 7590 05/21/2021
CURATOLO SIDOTI CO., LPA
24500 CENTER RIDGE ROAD, SUITE 280
CLEVELAND, OH 44145
EXAMINER
GEORGE, PATRICIA ANN
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
05/21/2021 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):
docket@patentandtm.com
pair@patentandtm.com
sidoti@patentandtm.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KAREN VAN DAM, CHRISTIAN AULENBACHER,
STEPHAN HAIBER, and SUSANNA MAGDALENA VORSTER
Appeal 2021-002633
Application 16/305,992
Technology Center 1700
Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and
JENNIFER GUPTA, Administrative Patent Judges.
SMITH, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 3–7 and 9–15. (Final Act. 1.) We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 The term “Appellant” to refers to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies the real party in interest as Givaudan SA.
(Appeal Br. 4.)
Appeal 2021-002633
Application 16/305,992
2
CLAIMED SUBJECT MATTER
The claims are directed to a low sodium salt product for flavor
stabilization in cured meat products. (Spec 1.). Claim 1, reproduced below,
is illustrative of the claimed subject matter:
1. A low sodium salt product for curing meats comprising:
from 40 to 60% by weight of the salt product of sodium
chloride;
a sodium chloride replacing material selected from the
group consisting of potassium chloride, magnesium chloride,
calcium chloride, ammonium chloride, magnesium sulphate and
combinations thereof;
at least one flavorant;
at least one nitrite; and
a phosphate flavor stabilizing agent selected from alkali
metal phosphates or alkaline earth metal phosphates present in
an amount to inhibit the reaction of the at least one flavorant and
the at least one nitrite,
wherein the weight ratio of phosphate flavor stabilizing
agent to nitrite is from about 25:1 to about 35:1.
Appeal Br. 14 (Claims Appendix).
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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Allen US 2,173,992 Sept. 26, 1939
Underwood US 6,713,106 B1 Mar. 30, 2004
Arboix2 WO2012140293 Oct. 18, 2012
NCHFP Curing and Smoking Meats for Home
Food Preservation Literature Review
and Critical Preservation Points THE
NAT’L CENTER FOR HOME FOOD
PRESERVATION GUIDE LITERATURE
REVIEW SERIES: SMOKING AND
CURING
May 20, 2020
Allied Kemco Additive – Sodium Phosphate – 16oz.
Allied Kenco Sales
https://www.alliedkenco.com/additive-
sodiumphosphate-16oz.aspx
June 23, 2020
Matis The role and fate of added phosphates
in salted cod products 27-10 Skýrsla
Matís
July 2010

REJECTIONS
I. Claims 1, 3–7, 9, 10 and 12–15 are rejected under 35 U.S.C. § 103
as being unpatentable over Arboix in view of NCHFP and Underwood.
(Final Act. 4.)
II. Claim 11 is rejected under 35 U.S.C. § 103 as being unpatentable
over Arboix in view of NCHFP and Underwood further in view of Allen,
Allied Kemco, and Matis. (Final Act. 10.)

2 We, like Appellant, refer to the machine English language translation of
Arboix that was uploaded to the file wrapper on July 2, 2020. (Appeal Br.
8.)
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4
OPINION
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. See In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has
long been the Board’s practice to require an applicant to identify the alleged
error in the examiner’s rejections . . . ” citing Ex parte Frye, 94 USPQ2d
1072, 1075 (BPAI 2010) (precedential)).
Upon consideration of the evidence in this appeal record in light of the
respective positions advanced by the Examiner and Appellant, we determine
that Appellant has not identified reversible error in the Examiner’s
determination that the subject matter recited in claims 1, 3–7, 9–15 would
have been obvious to one of ordinary skill in the art within the meaning of
35 U.S.C. § 103. Accordingly, we sustain rejections I and II.
Appellant presented arguments addressing independent claims 1 and 9
together. Appellant does not present substantive arguments addressing
separately rejected claim 11. We select claim 1 as representative of the
rejected subject matter.
We have thoroughly reviewed each of Appellant’s arguments for
patentability. However, we are in complete agreement with the Examiner’s
reasoned analysis and application of the prior art, as well as the Examiner’s
cogent and thorough disposition of the arguments raised by Appellant.
Accordingly, we will adopt the Examiner’s reasoning as our own in
sustaining the rejections of record, and we add the following for emphasis
only.
The complete statement of the rejections on appeal appear in the Final
Office Action. (Final Act. 4–14).

Appeal 2021-002633
Application 16/305,992
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The Examiner finds Arboix teaches curing meat products utilizing a
composition that is used to totally or partially replace (50 wt% or less)
sodium chloride. (Final Act. 4–5; Arboix 2). The Examiner finds NCHFP
also teaches methods of curing meat including the use of dry salt. (Final Act.
5.) The Examiner finds Arboix discloses it is known that the reduction of
salt intake provides various health benefits. (Final Act. 5; Arboix 1). The
Examiner further finds Arboix teaches the composition can comprise
flavorants, nitrites and phosphate flavor stabilizing agents. (Final Act. 6.)
The Examiner determines that the teachings of Arboix and NCHFP would
have suggested to a person of ordinary skill in the art the formulation of low-
salt products for curing meats as required by the claimed invention. (Final
Act. 5–6.) The Examiner further determines due to the compositional
similarity of the flavorants, nitrites and phosphate components the resulting
compositions would have similar functions as the claimed invention. (Final
Act. 7.) The Examiner cited Underwood for establishing the obviousness of
utilizing phosphate in nitrites in ratios required by the claimed invention.
(Final Act. 7–8.)
Accordingly, based on the collective teachings of the applied prior art,
we are in agreement with the Examiner that it would have been obvious for
one of ordinary skill in the art to formulate compositions for partial
replacement of sodium chloride for the use of curing meat products.

Appellant argues the object of Arboix, as established by the
exemplified embodiments, is the total replacement of sodium chloride.
(Appeal Br. 8–9.) Appellant further argues:
Based on the above disclosure, it is clear that Arboix relates to
replacing sodium chloride with other chloride salts and other
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compounds such as encapsulated acids or acid precursors, lactate
compound, ascorbic acid, ascorbates, nitrites and nitrates in order to
address the purported flavor and aroma problems encountered with
reduced/low sodium chloride meat products. There is no disclosure or
suggestion in Arboix that would motivate one of ordinary skill in the
art to arrive at the claim 1 sodium chloride range of from 40 to 60%
by weight.
(Appeal Br. 11.)

Appellant’s arguments are not persuasive of reversible error. Arboix
throughout the disclosure indicates that the described compositions are
suitable for use as a partial replacement of sodium chloride for the use of
curing meat products. Arboix specifically states “[a] first objective of the
present invention is to provide a composition for the total or partial
replacement of sodium chloride in the manufacture of partially dehydrated
cured raw meat products.” (Arboix 2, underlining added.) Describing the
results obtained by the exemplified embodiments Arboix states: “although
reference has been made herein to examples of making partially dehydrated
cured raw meat products in the total absence of sodium chloride, similar
results could be obtained if the sodium chloride substitution were not total
but partial.” (Arboix 6, underlining added.)
We note that, for the first time on appeal, Appellant advanced
arguments concerning the Underwood reference on page 5 of the Reply
Brief that were not presented in the Brief. Appellant, however, has not
presented an explanation establishing a showing of good cause explaining
why these new arguments were not presented in the Appeal Brief. Under
regulations governing appeals to the Board, any new argument not timely
presented in the Appeal Brief will not be considered when filed in a Reply
Brief, absent a showing of good cause explaining why the argument could
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not have been presented in the Appeal Brief. See Ex parte Borden, 93
USPQ2d 1473, 1474–77 (BPAI 2010) (informative) (“the reply brief [is not]
an opportunity to make arguments that could have been made in the
principal brief on appeal to rebut the Examiner’s rejections, but were not.”).
Claims 3–5, 10, 13, and 15
The Examiner makes specific factual findings as to claims 3–5, 10,
13, and 15. (Final Act. 9–10.) Appellant does not direct us to any error in
those findings but rather summarily argues that the prior art does not
disclose or suggest the subject matter of claims 3–5, 10, 13, and 15. (Appeal
Br. 12–13.)
Appellant’s arguments are not persuasive of reversible error because
merely reciting the claim language, and asserting that the cited references,
alone or in combination, also fail to disclose or suggest such limitations is
not a persuasive argument. See In re Lovin, 652 F.3d 1349, 1357 (Fed. Cir.
2011) (“[W]e hold that the Board reasonably interpreted Rule 41.37 to
require more substantive arguments in an appeal brief than a mere recitation
of the claim elements and a naked assertion that the corresponding elements
were not found in the prior art.”).
Claim 11
Although additional references are applied in the rejection of claim 11, the
Appellant does not provide a substantive argument as to the separate patentability
of this claim but, rather, argues that the additional references do not remedy the
deficiency in the references applied to claim 9. (Appeal Br. 13.) Because we do not
find Appellant’s arguments persuasive as to independent claim 9, it follows that
these arguments are unpersuasive as to claim 11.

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CONCLUSION

The Examiner’s decision to reject claims 1, 3–7 and 9–15 is
AFFIRMED.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–7, 9,
10, 12–15
103 Arboix, NCHFP,
Underwood
1, 3–7, 9,
10, 12–15

11 103 Arboix, NCHFP,
Underwood,
Claim, Allen,
Allied, Kemco,
Matis
11
Overall
Outcome
1, 3–7, 9–15

RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED