Michael Harvey et al.

Patent Trials and Appeals Board

Dec 18, 2020

2020003358 (P.T.A.B. Dec. 18, 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.
13/199,029 08/16/2011 Michael S. Harvey 8568/19266 9152
109932 7590 12/18/2020
Weintraub Tobin Chediak Coleman Grodin
400 Capitol Mall, 11th Floor
Sacramento, CA 95814
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
12/18/2020 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):
amillemann@weintraub.com
nburton@weintraub.com
patents@weintraub.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MICHAEL S. HARVEY and JONATHAN N. HOWARTH
Appeal 2020-003358
Application 13/199,029
Technology Center 1700
Before N. WHITNEY, WILSON, BRIAN D. RANGE, and MERRELL C.
CASHION, JR., Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL

Appeal 2020-003358
Application 13/199,029

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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 19–21, 23–25, 29–37, 40–46, 49–53,
and 56–61. An oral hearing was held on December 10, 2020, and a copy of
the transcript will be made of record. We have jurisdiction under
35 U.S.C. § 6(b).
We REVERSE.

CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to treating poultry with
peracetic acid in order to increase the weight of the poultry. Spec. ¶ 4. The
Specification explains that use of peracetic acid (also known as peroxyacetic
acid and abbreviated by Appellant as “PAA”) to treat poultry is known. Id. ¶
7. Equilibrium solutions of PAA (i.e., solutions that do not have hazardous
and explosive properties) require low concentrations of PAA and thus
require larger storage areas and higher shipping and handling costs. Id. ¶¶ 8–
9. Making PAA on site, however, introduces a number of problems. Id. ¶¶
10–17. Thus, Appellant seeks a method to make non-equilibrium PAA on
site at point-of-use while addressing the problems of prior attempts to make
PAA on site. Id. ¶ 18.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Enviro
Tech Chemical Services, Inc. Appeal Br. 3.
2 In this Decision, we refer to the Final Office Action dated July 9, 2019
(“Final Act.”), the Appeal Brief filed October 21, 2019, (“Appeal Br.”), the
Examiner’s Answer dated February 6, 2020 (“Ans.”), and the Reply Brief
filed March 31, 2020 (“Reply Br.”).
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Application 13/199,029

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Claim 19 is illustrative of Appellant’s process:
19. A method of treating at least a portion of a poultry
carcass with peracetic acid, said method comprising the steps of:
providing, in a reservoir, a peracetic acid-containing water,
wherein the peracetic acid-containing water comprises water and an
antimicrobial amount of a solution of peracetic acid;
after the step of providing the peracetic acid-containing water,
determining the pH of the peracetic acid-containing water, and
altering the pH of the peracetic acid-containing water to a pH of about
7.6 to about 10 by adding an alkaline source;
after the step of determining the pH and altering the pH of the
peracetic acid-containing water, placing into the peracetic acid-
containing water at least a portion of a poultry carcass;
after the step of placing at least the portion of the poultry
carcass into the peracetic acid-containing water, determining the pH
of the peracetic acid-containing water in the reservoir with at least the
portion of the poultry carcass therein, and altering the pH of the
peracetic acid-containing water to a pH of about 7.6 to about 10 by
adding an alkaline source;
and
after the step of determining the pH and altering the pH of the
peracetic acid-containing water having at least the portion of the
poultry carcass therein, removing at least the portion of the poultry
carcass from the peracetic acid-containing water.

REJECTION AND REFERENCES
On appeal, the Examiner maintains the rejection of claims 19–21, 23–
25, 29–37, 40–46, 49–53, and 56–61 as obvious over Perkins, US 6,605,253
B1, Aug. 12, 2003, in view of Helena Bottemiller, Russia Agrees to Lift Ban
on U.S. Poultry Exports, Food Safety News, June 25, 2010,
www.foodsafetynews.com/2010/06/Russia-agrees-to-lift-ban-on-us-poultry-
imports (“Food Safety News”), and Schmidt, US 5,139,788, Aug. 18, 1992.
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OPINION
The Examiner has the initial burden of establishing a prima facie case
of obviousness under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability.”). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art or the inferences and creative
steps a person of ordinary skill in the art would have employed. KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007); In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988). To resolve the issues before us on appeal, we focus
on the Examiner’s findings and determinations that relate to the alleged error
Appellant identifies.
The Examiner finds that Perkins teaches effective control of pH as
part of the disinfection process for poultry processing. Id. at 3–4 (citing
Perkins). For example, the Examiner finds that Perkins teaches “automated
regulation of the pH of poultry processing water . . . so as to dramatically
improve the efficiency and effectiveness of antimicrobial or other
disinfection agents added.” Id. at 4 (quoting Perkins 2:45–59). The Examiner
also finds that Perkins teaches adjusting pH to levels between 5 and 8. Id. at
5 (citing Perkins 7:33–35). The Examiner finds that Food Safety News
teaches use of peroxyacetic acid as a substitute for chlorine (taught by
Perkins) as a disinfectant. Id. at 7. The Examiner also finds that Schmidt
teaches use of sodium hydroxide to increase the pH of compositions used to
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treat animal food carcasses and determines that it would have been obvious
to use sodium hydroxide in an antimicrobial composition as suggested by
Schmidt. Id. at 8 (citing Schmidt).
Appellant argues that “the combination of cited references does not
lead to appellants’ claimed method of adding an alkaline source to raise the
pH of a peracetic acid system to an alkaline pH.” Appeal Br. 22. We agree
that, for the reasons explained below, the Examiner has not adequately
established that a person of skill in art would have had reason to add an
alkaline source to a peracetic system in order to reach an alkaline pH.
The Examiner relies on Perkins for providing a rationale to adjust the
pH of a method for treating meat carcasses. Appeal Br. 3–6, 10–15. We
agree with the Examiner that Perkins includes some language that, taken in
isolation, broadly suggests advantages of controlling the pH of poultry
processing water. Perkins 2:45–59, 4:65–5. Perkins as a whole, however,
does not encourage a person of skill in the art to raise the pH of an otherwise
acidic system to make the system basic. Rather, Perkins primarily focuses on
chlorine based systems and teaches that lowering the pH of such systems is
important. See, e.g., Perkins 2:15–17 (“The increased pH level in the chill
system makes downstream chlorine disinfection less effective without
significant chemical additions.”), 5:62–18 (explaining that an “acidification
agent” is introduced to an otherwise basic calcium hypochlorite based
system).
Similarly, when Perkins teaches a pH of processing water at a pH of 5
to 8, it does so in the context of describing how “lower pH and higher
temperature” can result in “dramatic improvement in the effectiveness of
chlorine and chlorine derivatives.” Perkins 7:17–46. Perkins teaches that the
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greatest anti-microbial activity, in this context of hypochlorous acid, is
achieved as “pH levels continue to decline.” Id. at 7:38–46. Perkins teaches
that minimum pH is constrained, however, by “severely depressed pH” (i.e.,
a very acidic solution) resulting in “deleterious effects upon plant
equipment” and “hazard to equipment operators.” Id. Thus, Perkins teaches a
hypochlorite system that starts with a high pH and lowers its pH to increase
effectiveness.
The independent claims at issue here, in contrast, start with peracetic-
acid containing water that is naturally at an acidic pH (i.e., below a neutral
pH of 7.0) and add an alkaline source to raise pH to above at least 7.6 (i.e.,
to a basic pH). Appeal Br. 70–79 (Claims App.). Perkins does not suggest
raising the pH of an already acidic processing solution except, perhaps, to
protect plant equipment and worker safety. Perkins 7:38–46. But even if
protecting plant equipment and safety were a concern, the Examiner does
not persuasively explain why Perkins provides a reason to raise pH of a
peracetic system above a neutral level of 7.0.
The other two cited references do not further support the Examiner’s
position with respect to raising the pH of a peracetic acid system. Food
Safety News establishes that a person of skill in the art would have reason to
use a peracetic system rather than a chlorine-based system, but it does not
address pH. Appeal Br. 19. Schmidt, meanwhile, teaches that its
antimicrobial composition should be acidic with a pH of 4 or less. Appeal
Br. 19–20; Schmidt 3:48–52; see also Schmidt 3:38–42 (“reducing the
concentration of lactic acid may result in an increase in the pH of the
composition and accordingly raise the potential for decreased microbial
activity”).
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Appellant presents evidence that further supports that a person of skill
in the art would not have known to make a peracetic poultry processing
solution basic. Kurschner, et al., U.S. Patent No. 5,632,676 (May 27, 1997)
(“Kurschner”), for example, teaches treating poultry with peracetic acid at a
highly acidic pH to avoid organoleptic effects (e.g., bleaching). Appeal Br.
31–32 (citing Kurschner). Similarly, Bauermeister et al., Validating the
Efficacy of Peracetic Acid Mixture as an Antimicrobial in Poultry Chillers,
J. of Food Protection, 71:6, 1119–1122 (2008) (“Bauermeister”), shows that
peracetic acid has superior antimicrobial effects at a pH of 4.5 as compared
to chlorine at a pH of 6.1. Appeal Br. 32 (citing Bauermeister). Baumeister
attributes the effectiveness of the peracetic acid, in part, to the lower pH.
Bauermeister 1121 (“it is likely that the lower pH associated with the PAHP
[peracetic acid mixture] along with the oxidizing properties of the compound
contributed to the observed reductions in Salmonella”). The Examiner does
not persuasively respond to Appellant’s arguments regarding Kurschner or
Baumeister. See, e.g., Ans. 17 (merely stating that Kurschner is no longer
applied as a prior art reference); see also Reply Br. 13–16.
Consistent with Kurschner and Baumeister, Appellant also presents
testimony supporting that prior industry practice was use of peracetic acid at
an acidic pH. See Appeal Br. 41–53 (explaining declarants’ testimony); see
also Neptune Generics, LLC v. Eli Lilly & Co., 921 F.3d 1372, 1377-78
(Fed. Cir. 2019) (“our caselaw . . . recognizes a range of third-party opinion
that can constitute skepticism” that supports nonobviousness).
The Examiner’s treatment of dependent claims does not cure the error
we address above. We, thus, do not sustain the Examiner’s rejection.

Appeal 2020-003358
Application 13/199,029

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
19–21, 23–
25, 29–37,
40–46, 49–
53, 56–61
103 Perkins, Food Safety
News, Schmidt
19–21, 23–
25, 29–37,
40–46, 49–
53, 56–61

REVERSED