Tobias Richter

Patent Trials and Appeals Board

Oct 7, 2019

14278695 - (D) (P.T.A.B. Oct. 7, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/278,695
22045 7590
Brooks Kushman
1000 Town Center
22nd Floor
Southfield, MI 48075
05/15/2014
10/25/2019
FIRST NAMED INVENTOR
Tobias Richter
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
MULT0156PUSA1 7040
EXAMINER
BECKER, DREW E
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
10/25/2019 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@brookskushman.com
kdilucia@brookskushman.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TOBIAS RICHTER
Appeal2018-003383
Application 14/278,695
Technology Center 1700
Before JEFFREY T. SMITH, LINDA M. GAUDETTE, and
MONTE T. SQUIRE, Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL 1
The Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner's
decision finally rejecting claims 23--41. 3 A hearing was held on September
24, 2019.
1 This Decision includes citations to the following documents: Specification
filed May 15, 2014 ("Spec."); Final Office Action dated December 13, 2016
("Final"); Appeal Brief filed July 10, 2017 ("Appeal Br."); Examiner's
Answer dated December 8, 2017 ("Ans."); and Reply Brief filed February 8,
2018 ("Reply Br.").
2 We use the word "Appellant" to refer to the "Applicant" as defined in
37 C.F.R. § l.42(a). The Appellant and real party in interest is Multivac
Sepp Haggenmueller SE & Co. KG. Application Data Sheet filed April 26,
2016; Appeal Br. 1.
3 We have jurisdiction under 35 U.S.C. § 6(b).
Appeal2018-003383
Application 14/278,695
We REVERSE.
CLAIMED SUBJECT MATTER
The claims are directed to a method for the high-pressure treatment of
packaged food products. Spec. 1: 13-14. Claim 23, reproduced below, is
illustrative of the claimed subject matter:
23. A method for processing a food product, comprising:
loading the food product into a packaging,
replacing air inside the packaging with a protective gas or
a protective gas-mixture,
subsequent to replacing air inside the packaging by a
protective gas or a protective gas mixture:
gas-tight closing the packaging to form a packaged
food product,
loading the packaged food product into a high-
pressure chamber, subjecting the packaged food product
in the high-pressure chamber to a high-pressure
treatment, during which a high-pressure medium acts
upon the packaged food product, and
decreasing the pressure within the high-pressure
chamber in a first phase and in a second phase, wherein a
mean pressure decrease rate in the first phase is higher
than in the second phase.
Appeal Br., Claims Appendix 1.
REFERENCES
The Examiner relies on the following references as evidence of
unpatentability:
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Appeal2018-003383
Application 14/278,695
Carter
Sato
Yuan
Meyer
Ting
Bergman
us 5,288,462
us 6,136,609
US 2003/0170356 Al
US 2003/0228239 Al
US 2006/0272709 Al
US 2007 /0144587 Al
REJECTIONS
Feb.22, 1994
Oct. 24, 2000
Sept. 11, 2003
Dec. 11, 2003
Dec. 7, 2006
June 28, 2007
1. Claims 23, 25-27, 30, 31, 36, and 41 are rejected under
35 U.S.C. § I03(a) as unpatentable over Yuan in view of Carter.
2. Claims 28, 29, and 37--40 are rejected under 35 U.S.C. § I03(a)
as unpatentable over Yuan in view of Carter and Meyer.
3. Claims 24 and 32 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Yuan in view of Carter and Ting.
4. Claim 33 is rejected under 35 U.S.C. § I03(a) as unpatentable
over Yuan in view of Carter, Ting, and Sato.
5. Claims 34 and 35 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Yuan in view of Carter, Ting, and Bergman.
OPINION
The Examiner relied on the combined teachings of Yuan and Carter in
rejecting claims 23--41. See generally Final 2-7.
Yuan discloses "[a] method of processing a substance, such as a food
item, utilizing high pressure processing [(HPP)]" Yuan, at [57]. Yuan's
method includes steps of inserting food items within a pouch container,
flushing a process gas mixture into the container, sealing the container (id.
,r 25), placing the sealed container in a pressurization chamber, and applying
pressure to a transmitting fluid in the chamber that, in tum, applies pressure
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Appeal2018-003383
Application 14/278,695
externally to the container (id. ,r 27). Yuan discloses that "[e]xemplary
pressures suitable for achieving a selected biocidal efficacy and desirable
sensory qualities for food items processed utilizing HPP treatment are in the
range of about 50 megaPascals (MPa) to about 10,000 MPa." Id. ,r 22.
Carter discloses a method of pressure sterilization comprising
"subjecting devices or materials to high pressure and rapid decompression."
Carter 1: 5-9. Carter discloses that the method is "of special utility in the
sterilization of medical and dental tools, although not limited to such uses."
Id. at 2: 17-19. Carter describes placing "loose dental tools or tools contained
or sealed in bags or packages" in a first chamber (13), sealing the first
chamber, and delivering fluid, e.g., water, at a pressure of 60 Kpsi to the first
chamber. Id. at 5: 13-22. When a critical buckling load threshold is
reached-55---60 Kpsi (id. at 7:5-7}-a column (82) in a second chamber
(62) buckles, allowing the fluid to pass out of the first chamber into a bore
( 68), thereby substantially instantaneously reducing the pressure in the first
chamber, e.g., pressure in the first chamber "can be reduced from 55 Kpsi to
approximately 10 Kpsi in from one to ten milliseconds." Id. at 7:62-8:6.
Fluid flows from the bore into the second chamber until the pressure in the
first chamber becomes less than the restoring threshold for the column. Id. at
8:7-16. When the restoring threshold for the column is reached by the
pressure of the fluid in the second chamber, the column snaps back into a
straight alignment, thereby closing the passage for fluid flow between the
first and second chambers. Id. at 8: 16-19. Carter discloses that "the pressure
build-up and the decompression may be performed over several cycles." Id.
at 8:33-34.
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Appeal2018-003383
Application 14/278,695
Each of independent claims 23, 3 7, and 41 recites a step of decreasing
the pressure in the high-pressure chamber in two phases, wherein the mean
pressure decrease rate in the first phase is higher than the mean pressure
decrease rate in the second phase. See Appeal Br., Claims Appendix 1, 3.
The inventors are said to have discovered that by decreasing pressure in the
claimed manner, the adverse effects that occur to the product or packaging in
the prior art fast pressure reduction methods can be avoided. Spec. 4:25-30.
The Examiner found Yuan discloses a method for processing food
products that includes conducting an HPP treatment in the range of about
50-10,000 MP a, followed by a rapid depressurization step, but fails to teach
explicitly a multi-phase depressurization process as claimed. Final 2-3
( citing Yuan ,r,r 21, 22). The Examiner found that Carter discloses a method
for sterilizing objects in a chamber using a high pressure medium such as
water at 60,000 psi. Id. at 3 (citing Carter 5: 13-16). The Examiner found
that Carter discloses a two-stage depressurization process comprising
decreasing the pressure in a first stage from 60,000 psi (414 Mpa) to about
10,000 psi (69 MPa) within 1-10 ms, and further decreasing the pressure in
a second stage at a lesser pressure rate to approximately 5,000 psi (35 MPa).
Id. ( citing Carter Fig. 3). The Examiner found one of ordinary skill in the art
would have used Carter's two-stage depressurization process in Yuan's
method based on Carter's disclosure that the two-stage depressurization
process provides a greater lethality to the microorganisms. Id. ( citing Carter
2:42-57).
For the reasons discussed below, the Appellant has argued
persuasively that the evidence of record fails to support the Examiner's
finding that one of ordinary skill in the art would have had a reason to
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Appeal2018-003383
Application 14/278,695
modify Yuan based on the teachings of Carter. See generally, Appeal
Br. 6-9.
Each of independent claims 23, 3 7, and 41 recites steps involving the
treatment of a food product. See Appeal Br., Claims Appendix 1-3. The
Appellant argues that Carter discloses a process that is of "special utility ...
[to] medical and dental tools ... [and] any other device or instrument which
itself would not be structurally, adversely affected [by] the method of ...
[Carter's] invention," but fails to disclose or suggest that the process can be
used for treating food products. Appeal Br. 7 ( quoting Carter 2: 16-22). The
Appellant further notes that Carter's disclosure in column 2, lines 42-57,
does not support the Examiner's finding (Final 3) that Carter teaches that a
two-stage depressurization process provides a greater lethality to
microorganisms. Appeal Br. 7.
Having reviewed the disclosure in Carter relied-upon by the
Examiner, as well as the reference in its entirety, we determine that even if
one of ordinary skill in the art would have understood Carter's process as
being applicable to the treatment of food products, the Examiner has not
explained sufficiently why one of ordinary skill in the art would have
replaced Yuan's depressurization step with Carter's depressurization
process. As argued by the Appellant (see Appeal Br. 7), Carter discloses that
microorganisms are deactivated by subjecting them to two destructive
phases: "[t]hey are first subjected to high pressure deactivation, and then to
an explosive decompression deactivation" (Carter 2:49-53). Carter defines
the explosive decompression phase as "the rapid removal of pressure from
the pressure chamber within an elapsed time measured in milliseconds, such
as, for example, one to ten milliseconds." Id. at 2:53-57. The Examiner has
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Appeal2018-003383
Application 14/278,695
not directed us to, nor do we find, any indication in Carter that the alleged,
second decompression phase, i.e., the further reduction in pressure that
occurs when fluid flows from the bore into the second chamber after the
substantially instantaneous pressure reduction (see Carter 7:62-8:16, Fig. 3
(illustrating the further reduction in pressure after the pressure in the first
chamber reaches the restoring threshold of lOK psi)), has any effect on the
. .
m1croorgamsms.
Yuan's "HPP treatment includes the application of the external
pressure to the controlled atmospheric environment for a selected time
period so as to effect compression of the substance within the environment,
followed by rapid depressurization of the controlled atmospheric
environment." Yuan ,r 21. Yuan discloses that "[t]he combination of the
HPP treatment with the controlled atmospheric environment in the package
results in an acceleration of the destruction and inactivation of
microorganisms ... [ and that] [ t ]he controlled atmospheric
environment further retards the growth rate of any microorganisms
that may have survived the HPP treatment." Yuan ,r 28. The Examiner has
not explained why one of ordinary skill in the art would have modified
Yuan's rapid depressurization step by adding a second pressure reduction
phase given Yuan's disclosure that its process already destroys and
inactivates microorganisms and Carter's absence of any disclosure that the
alleged, second decompression phase contributes to the destruction and
inactivation of microorganisms.
Accordingly, we do not sustain the rejections of independent claims
23, 3 7, and 41, or the claims dependent therefrom.
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Appeal2018-003383
Application 14/278,695
23, 25-27, 103(a)
30,31,36,41
28,29,37--40 103(a)
24,32 103 a
33 103(a)
34,35 103(a)
Overall
Outcome
CONCLUSION
Yuan, Carter 23, 25-27,
30, 31, 36,
41
Yuan, Carter, 28, 29,
Me er 37--40
Yuan, Carter, Tin 24,32
Yuan, Carter, Ting, 33
Sato
Yuan, Carter, Ting, 34,35
Ber man
23--41
REVERSED
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