Royal duyvis Wiener B.V.

Patent Trials and Appeals Board

Aug 25, 2021

2020005736 (P.T.A.B. Aug. 25, 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.
14/491,099 09/19/2014 Joost Jan De Koomen R179.12-0001 1010
27367 7590 08/25/2021
WESTMAN CHAMPLIN & KOEHLER, P.A.
121 South Eighth Street
Suite 1100
Minneapolis, MN 55402
EXAMINER
COX, STEPHANIE A
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
08/25/2021 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):
docketing@wck.com
tsorbel@wck.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JOOST JAN DE KOOMEN
Appeal 2020-005736
Application 14/491,099
Technology Center 1700
Before TERRY J. OWENS, JOHN A. EVANS, and BRIAN D. RANGE,
Administrative Patent Judges.
RANGE, 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 1–17, 21, 23, and 24. We have
jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Royal Duyvis Wiener, B.V. Appeal
Br. 3.
Appeal 2020-005736
Application 14/491,099

2
CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to “a method of surface
pasteurizing low-moisture particulate foods such as nuts, seeds, grains, and
spices, wherein the foods are pre-heated, pasteurized or sterilized in a gas,
optionally dried, and cooled.” Spec. 1:18–25. Claim 1 is illustrative, and we
reproduce it below while adding emphasis to a recitation key to this appeal:
1. A method of surface pasteurizing or sterilizing low-moisture
particulate foods, comprising:
pre-heating the foods from a lower temperature to a
pasteurization temperature over time with a gas comprising
water vapor and one or more further gasses;
pasteurizing or sterilizing the foods with the gas at the
pasteurization temperature,
and wherein, during the pasteurizing or sterilizing, the
foods are at the pasteurization temperature which is
higher than the condensation temperature of the water
vapor in the gas wherein a relative humidity of the gas
is changed as the temperature of the food is raised;
and
cooling the foods.
Appeal Br. 18 (Claims App.) (emphasis added).
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Name Reference Date
Alness et al. (“Alness”) US 6,350,409 B1 Feb. 26, 2002

2 In this Decision, we refer to the Final Office Action dated April, 2, 2019
(“Final Act.”), the Appeal Brief filed December 2, 2019 (“Appeal Br.”), the
Examiner’s Answer dated June 18, 2020 (“Ans.”), and the Reply Brief filed
August 4, 2020 (“Reply Br.”).
Appeal 2020-005736
Application 14/491,099

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Fuchs, Drying—The Effect of Temperature on Relative Humidity,
Cleaning Technologies Group, May 2, 2013,
techblog.ctgclean.com/2013/05/drying-the-effect-of-temperature-on-
relative-humidity (retrieved Sept. 16, 2018) (“Fuchs”).
Fundamentals of Water Activity, Aqua Lab by Decagon (2012)
(“Decagon”).

REJECTIONS
The Examiner maintains the following rejections on appeal:
A. Claims 1–11, 14–17, and 23 under 35 U.S.C. § 103 as obvious over
Alness in view of Fuchs. Ans. 3.
B. Claims 12, 13, 21, and 24 under 35 U.S.C. § 103 as obvious over
Alness in view of Fuchs as evidenced by Decagon. Id. at 7.

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 error Appellant identifies.
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Because we decide this appeal based on a recitation recited, in substance, by
each of independent claims 1 and 21, we focus our analysis on claim 1. This
analysis is equally applicable to each of the independent claims and,
therefore, all of the dependent claims as well.
The Examiner finds that Alness discloses pre-heating food products
(seeds), pasteurizing the food with heated moister air, and cooling the food
product. Ans. 3–4 (citing Alness). The Examiner finds that Alness teaches
that its pasteurization is done so that “no evaporation from the surface of the
seeds occurs.” Id. The Examiner finds that “Alness does not specifically
disclose that the relative humidity of the gas is changed as the temperature of
the food is raised.” Id. The Examiner finds, however, that Fuchs teaches that
as temperature of air is increased, it can absorb more liquid and relative
humidity is thus decreased. Id. at 4 (citing Fuchs). The Examiner determines
that because Alness is directed to preventing evaporation of the seed, it
would have been obvious to adjust relative humidity of the air as the
temperature changed in order to prevent evaporation. Id.
Appellant argues that the references do not teach or suggest raising
relative humidity of heating gas as the temperature of the food is raised.
Appeal Br. 12. The argument persuades us of Examiner error.
We begin our analysis with claim construction. Claims 1 and 21 both
recite methods “wherein a relative humidity of the gas is changed as the
temperature of the food is raised.” Appeal Br. 18 (Claims App.). The
Specification provides an example where, during heating, relative humidity
is gradually increased from 5% to 70%. Spec. 8:16–20. Given this context,
we interpret the claims’ reference to “relative humidity of the gas is
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Application 14/491,099

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changed” as requiring a meaningful change in relative humidity rather than
insignificant change that will occur during any process.
As the Examiner acknowledges, Alness does not itself suggest
meaningfully raising relative humidity as food temperature is raised. Ans. 4.
Alness instead suggests introducing hot air having “[a] suitable moisture
content” dependent on the kind of seed being sterilized. Appeal Br. 4:3–5.
Alness further emphasizes heating its seeds quickly by explaining its
“heating phase where the seeds, by supply of hot air, are heated to a
predetermined treatment temperature, the heating phase being as short as
possible and being performed so that the moisture content of the seeds will
not be changed.” Alness 3:52–56; see also Ans. 13 (“Alness relies on the
speed of the process, and does not include adjusting the process conditions
as a function of food temperature, to obtain disinfected seeds that will
germinate.”). The process of claim 1, in contrast, requires changing the
relative humidity as the food is heated.
The difference between Alness’s fast process and Appellant’s process
stems in part from the difference in their purposes. Alness is interested in
disinfecting seeds from pathogens, fungi, and bacteria. Alness Abstract.
Alness wants to ensure that germination is not decreased. Id. at 2:59–61.
Appellant’s Specification, in contrast, seeks to sterilize low moisture foods.
Spec. 2:3–10. Appellant is concerned with, for example, damaging the
brown skins of almonds if treatment occurs in a humid atmosphere. Id. at
2:3–10. While we agree with the Examiner that some seeds may also be
edible (Ans. 4), these different purposes lead to Alness wanting to quickly
disinfect (so that germination is not disrupted while keeping the seed’s
moisture constant) and leads to Appellant using a slower process that
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Application 14/491,099

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requires adjustment of humidity while food heats (to maintain desirable food
qualities).
Fuchs does not adequately bridge the gap between Alness and claim 1
or 21. Fuchs merely teaches that, “[a]s the temperature of air is increased, it
can absorb more liquid and, therefore, the relative humidity is decreased.”
Fuchs 2. This unremarkable relationship between temperature and relative
humidity does not suggest modifying Alness’s process. Rather, because
Alness teaches that it keeps the seeds’ moisture through the high speed of its
process (Alness 3:52–52), we do not agree that a person of skill in the art
would have observed a need to adjust relative humidity during Alness’s
quick heating in order to accomplish Alness’s goals.
The Examiner’s treatment of dependent claims does not cure the error
above. We, thus, do not sustain the Examiner’s rejections.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–11, 14–
17, 23
103 Alness, Fuchs 1–11, 14–
17, 23
12, 13, 21,
24
103 Alness, Fuchs,
Decagon
12, 13, 21,
24
Overall
Outcome
1–17, 21,
23, 24

REVERSED