Ex Parte Evans et alDownload PDFPatent Trial and Appeal BoardJun 30, 201490011597 (P.T.A.B. Jun. 30, 2014) Copy Citation 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. 90/011,597 03/24/2011 Susan P. Evans 247097-077USPB 4097 56356 7590 06/30/2014 PACTIV CORPORATION c/o NIXON PEABODY LLP 300 S. Riverside Plaza 16TH FLOOR CHICAGO, IL 60606 EXAMINER JASTRZAB, KRISANNE MARIE ART UNIT PAPER NUMBER 3991 MAIL DATE DELIVERY MODE 06/30/2014 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ PACTIV LLC Patent Owner and Appellant ____________ Appeal 2014-001667 Reexamination Control 90/011,597 US 6,395,195 Technology Center 3900 ____________ Before LORA M. GREEN, RICHARD M. LEBOVITZ, and JEFFREY B. ROBERTSON, Administrative Patent Judges. LEBOVITZ, Administrative Patent Judge. DECISION ON APPEAL This is a decision on an appeal by Patent Owner Pactiv LLC, from the Patent Examiner’s rejections of claims 1-9 and 11-25 in this ex parte reexamination proceeding. The Board’s jurisdiction for this appeal is under 35 U.S.C. §§ 6(b), 134(b), and 306. We affirm. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 2 I. STATEMENT OF CASE This appeal involves US 6,395,195 (“the ʼ195 patent) which issued May 28, 2002. The named inventors are Susan P. Evans, Vinod K. Luthra, and Gary R. DelDuca. A Request for Ex Parte Reexamination of the ʼ195 patent was submitted by a third-party requester on March 24, 2011. Claims 1-25 are pending. Claims 1-9 and 11-25 stand rejected by the Examiner. Final Rej’n (dated November 19, 2012). The patentability of claim 10 has been confirmed. Id. Patent Owner appeals from the final rejection of claims 1-9 and 11-25. Claims 1-9 are original claims. Claims 11-25 were added during the reexamination. The real party in interest in this ex parte reexamination proceeding is the patent owner, Pactiv LLC. Appeal Br. 2 (dated May 14, 2013.) Patent Owner states that it is involved in litigation involved in the ʼ195 patent. That litigation is against Multisorb Technologies, Inc. in Civil Action No. 10-cv-07609 (Pactiv Corporation v. Multisorb Technologies, Inc.) in the United States District Court, Northern District of Illinois. U.S. Patent Nos. 6,183,790; 5,698,250; 5,948,457; 5,811,142; 6,231,905; 6,315,921 and 6,395,195 have been asserted in that litigation. Id. Reexaminations have been instituted on all seven asserted patents. Id. An oral hearing was held April 30, 2014. A transcript of the hearing will be entered into the record in due course. The technology in the ʼ195 patent involves packaging for meat. The ʼ195 patent teaches that “[p]ackaging systems which provide extremely low levels of oxygen are desirable because it is well known that the fresh quality of meat can be preserved longer under anaerobic conditions than under Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 3 aerobic conditions.” Col. 1, ll. 44-48. The ʼ195 patent describes prior art systems in which the atmosphere is evacuated of oxygen and optionally filled with gases other than oxygen to preserve the meat. Col. 1, l. 31 to col. 2, l. 28. One problem in storing meat is that it oxidizes and turns an undesirable brown color. It is critically important to quickly remove the oxygen from meat to prevent it from turning brown. Especially important in preventing the irreversible change from red to brown is the rate at which oxygen is scavenged. If oxygen is removed quickly, the packaged meat turns a purple red color. This purple red color quickly "blooms" to a bright red color upon removal of the outer layer of packaging. Col. 2, ll. 35-41. The ʼ195 patent describes the invention as providing “an iron-based oxygen scavenging packet which exhibits an increased rate of oxygen absorption especially in the confines of a concomitant meat packaging system.” Col. 2, l. 66 to col. 3, l. 2. The ʼ195 patent claims an oxygen scavenging packet which comprises an iron based oxygen absorber and an oxygen uptake accelerator. The “oxygen uptake accelerator accelerates the rate of oxygen uptake of the iron-based absorber.” Col. 3, ll. 5-6. The accelerator can be water, acids, and other electron acceptors. Col. 3, ll. 12- 13. The concept of using an oxygen scavenger and water in packaging systems to prevent the detrimental effect of oxygen exposure is acknowledged in the patent not to be new. Col. 2, ll. 42-45. The ʼ195 patent writes in the background section: “Several oxygen scavengers utilize the oxidation of particulate iron as a method to absorb oxygen. A small amount of water is essential for this reaction..” Col. 2, ll. 44-47. The claims are Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 4 directed to an oxygen absorber comprising iron and a liquid oxygen uptake accelerator comprising water, both which were acknowledged in the patent’s background section to be known ways of reducing oxygen in meat packages. Claims Independent claim 1 and 15 are reproduced below. All the claims recite that the “the oxygen absorber is capable of reducing the oxygen content of a predetermined volume” (referred to here as the “capable of reducing oxygen content” limitation) and require the “oxygen uptake accelerator being present in said packet in an amount between about 0.2 and 1.4 mL per 2.5 grams of iron.” The underlining in claim 15 indicates that it is a newly added claim that was not part of the originally issued claims. 1. A method of reducing the oxygen concentration in an enclosed space comprising: a. placing an oxygen scavenging packet within said enclosed space, said oxygen scavenging packet comprising: i. an oxygen permeable material formed in a closed packet; and ii. an oxygen absorber within said closed packet, said oxygen absorber comprising iron; and b. introducing a liquid oxygen uptake accelerator comprising water directly onto said oxygen absorber, wherein said liquid oxygen uptake accelerator is introduced in an amout relative to the amount of said oxygen absorber, such that when the oxygen uptake accelerator and oxygen absorber are brought into contact, the oxygen absorber is capable of reducing the oxygen content of a predetermined volume containing about 2 vol % oxygen to less than 0.5 vol % oxygen at a temperature of about 34° F. in more than 90 minutes after said oxygen uptake accelerator and oxygen absorber are brought into contact, said oxygen uptake accelerator being present in said packet in an amount between about 0.2 and 1.4 mL per 2.5 grams of iron. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 5 15. A method of reducing the oxygen concentration in an enclosed space comprising: placing a retail cut of raw meat within said enclosed space; placing an oxygen scavenging packet within said enclosed space, said oxygen scavenging packet comprising (a) an oxygen permeable material formed into a closed packet; and (b) an oxygen absorber within said closed packet, said oxygen absorber comprising iron; and introducing a liquid oxygen uptake accelerator comprising water directly onto said oxygen absorber, said liquid oxygen uptake accelerator being introduced in an amount relative to the amount of said oxygen absorber, such that when said liquid oxygen uptake accelerator and oxygen absorber are brought into contact, the oxygen absorber is capable of reducing the oxygen contact of a predetermined volume containing about 2 vol % oxygen to less than 0.5 vol % oxygen at a temperature of about 34 ° F. in no more than 90 minutes after said liquid oxygen uptake accelerator being present in said oxygen scavenging packet in an amount between about 0.2 and 1.4 mL per 2.5 grams of iron. Rejections The claims stand rejected under 19 grounds of rejection which are listed in the Appeal Brief on pages 7-8. For convenience, we will refer to the grounds of rejection discussed below by the numbering set fort in the Appeal Brief. II. SNQ ISSUES Patent Owner contends that 17 of the 19 rejections set forth by the Examiner were not part of the original SNQs of patentability and under Belkin Int'l Inc. v. Kappos, 696 F.3d 1379 (Fed. Cir. 2012) are prohibited. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 6 Appeal Br. 8-9. According to Patent Owner, Belkin affirmed the Board’s decision not to consider any references that the Director had decided did not form a substantial new question (SNQ) of patentability. Id. Although Belkin involved an inter partes reexamination, Patent Owner contends that it is pertinent to this ex parte reexamination because the statues are comparable. Id. at 9-10. Based on Belkin, Patent Owner contends that the Board should not reach the rejections in this appeal because they involve references and combination of references that were not part of the original SNQ of patentability. Id. at 10-11. Patent Owner argues “to the extent that any amended, new or substituted claim overcomes the SNQ of patentability, further rejection of those claims based on patentability exceeds the statutory authority granted to the PTO under the reexamination statute.” Id. at 12. Patent Owner contends the rejections under the initial SNQ were overcome, and that the case should be remanded to the Examiner to allow the claims. Id. at 14. Belkin involved an inter partes reexamination proceeding and therefore is not applicable to this ex parte reexamination. We decline to extend a holding in decision on an appeal in a specific inter partes reexamination proceeding to an ex parte reexamination proceeding, which was invoked under a different statutory and regulatory regime. See 35 U.S.C. § 303 (2002) and 37 C.F.R. § 1.510 for Ex Parte Reexamination; 35 U.S.C. § 312 (2011) and 37 C.F.R. § 1.913 (2002) for Inter Partes Reexamination. Nonetheless, an SNQ was not found in Belkin. The court explicitly said: Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 7 Indeed, the PTO may make any new rejection, as long as that rejection also meets the substantial new question of patentability requirement. See 35 U.S.C. § 303(a) (“On his own initiative, and any time, the Director may determine whether a substantial new question of patentability is raised by patents and publications discovered by him . . . .”). Thus, the scope of reexamination may encompass those issues that raise a substantial new question of patentability, whether proposed by the requester or the Director, but, unless it is raised by the Director on his own initiative, it only includes issues of patentability raised in the request under § 311 that the Director has determined raise such an issue.” Patent Owner contends that the rejections based on Komatsu 1 and Yoshikawa 2 are improper because they do not raise an SNQ. Appeal Br. 33 and 37. In the initial request for reexamination, Requester stated that Komatsu and Yoshikawa were of record during prosecution of the ʼ195 patent, but were not applied by the Examiner. Request 5 and 9. “The existence of a substantial new question of patentability is not precluded by the fact that a patent or printed publication was previously cited by or to the Office or considered by the Office.” 35 U.S.C. § 303(a). For example, it is proper to order a reexamination when “old art is being presented/viewed in a new light, or in a different way, as compared with its use in the earlier examination(s), in view of a material new argument or interpretation presented in the request.” M.P.E.P. § 2642(II.A). A declaration by George McKedy accompanied the Request. Mr. McKedy is employed by Multisorb Technologies, Inc., and carried out experiments based on Komatsu to show that the “capable of reducing 1 Komatsu et al., US 4,166.807 issued September 4, 1979. 2 Yoshikawa et al., US 4,127,503 issued November 28, 1978. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 8 oxygen limitation” in the claims was met by Komatsu. Request 6. The declaration thus casts a new light on Komatsu. Accordingly, Komatsu was properly considered by the Examiner in this reexamination. Patent Owner contends that a declaration does not constitute prior art, and, therefore, is not properly cited in an SNQ. However, the declaration is not being cited as prior art, but rather to show a fact that existed on the filing date of the ʼ195 patent, i.e., that Komatsu inherently meets the claimed “capable of reducing oxygen limitation” limitation. Yoshikawa describes experiments which are similar to those in Komatsu (Komatsu at col. 1, ll. 63-65) and thus the McKedy declarations casts a new light on it, as well. III. HAMON REJECTION Claims 1, 3, 5, 7, 9, and 11-14 stand rejected under 35 U.S.C. § 102(b) as anticipated by Hamon. 3 Ground 3. The Examiner found Hamon described all the elements of the claimed method of reducing oxygen in an enclosed space, including showing “examples utilizing the activation agent (or accelerator as stated in the instant claims) and iron in amounts as claimed in the independent claims.” Final Rej’n 8-9. The Examiner concluded that “[a]s such, Hamon would inherently achieve the oxygen absorption rates claims.” Id. at 9. Legal principles Where, as here, the claimed and prior art products are identical or substantially identical, or are produced by identical or substantially identical processes, the PTO can require an 3 Hamon, et al., EP 0468880 published January 1, 1992 Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 9 applicant to prove that the prior art products do not necessarily or inherently possess the characteristics of his claimed product. . . . Whether the rejection is based on “inherency” under 35 U.S.C. § 102, on “prima facie obviousness” under 35 U.S.C. § 103, jointly or alternatively, the burden of proof is the same, and its fairness is evidenced by the PTO’s inability to manufacture products or to obtain and compare prior art products. In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (footnote omitted). Once “the PTO shows sound basis for believing that the products of the applicant and the prior art are the same, the applicant has the burden of showing that they are not.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (citation omitted). Findings of Fact H1. Hamon identifies a general problem encountered with food products sensitive to oxygen: Many products will degrade in contact with oxygen in the air and must be kept free of oxygen. In particular, food products are often packaged under vacuum or under an inert atmosphere, because the presence of oxygen [causes them] physical and chemical damage and biological. Hamon at p. 1, ll. 4-6. H2. Hamon give specific examples of very sensitive products: When one is for very sensitive products to oxygen, especially fats or wet products such as mayonnaise, fruit, power solutions, or even glue, this type of absorber is inadequate. Indeed, sensitive products in the development of microorganisms must quickly be in a low-oxygen atmosphere. Absorbers must have a rate of absorption oxygen higher, and in this case a too long residence time in the air can affect their subsequent absorption and thus the system reliability. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 10 Hamon at p. 1, ll. 39-44. H3. Haman states that the “present invention relates to a packaging system for absorbing oxygen and/or [ ] carbon dioxide, allowing storage and use in optimal conditions.” Hamon at p. 1, ll. 1-3. H4. Hamon describes a composition for absorbing oxygen that comprises iron powder, “a support material, water retaining, [such] as silica gel,” an electrolyte (NaCl), and activated carbon. Hamon at p. 1, ll. 22-25. H5. The support material “needs to retain water.” Hamon at p. 2, l. 48. In addition to silica gel, Hamon discloses the support can be forms of clay and kaolinite. Id. at ll. 46-48. H6. Hamon describes placing the elements in a bag permeable to oxygen. Hamon at p. 1, l. 28. H7. The iron is maintained in a dry atmosphere until use, when “hydration of the support [comprising iron] are obtained by introducing electrolyte in the form of a brine at 17%.” Hamon at p. 2, ll. 51-52. H8. Hamon describes an example in which a system comprising 2.2 grams of iron powder [oxygen absorber] in one compartment and 0.8 ml brine [oxygen uptake accelerator] in a second compartment is used, or 0.8 ml brine/2.2 gram or 0.9 ml water/2.5 gram iron, which falls within the claimed “an amount [of oxygen uptake accelerator] between about 0.2 and 1.4 mL per 2.5 grams of iron.” Hamon at p. 3; see also Answer 10. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 11 Discussion Patent Owner contends that Hamon does not anticipate the claims. The claims require iron and an oxygen accelerator. The accelerator can be water. ‘195 patent, Abstract. Patent Owner argues that water is retained by the support material described in Hamon. Appeal Br. 23. Specifically, Patent Owner contends: “Because Hamon’s absorber has very little free water, it does not function like the presently claimed liquid oxygen uptake accelerator (water) in the independent claims.” Id. To support this position, Patent Owner relied upon declarations by Gary R. DelDuca, a co- inventor of the ʼ195 patent. Mr. DelDuca is Technical Manager and/or Technical Sales Manager for the Patent Owner in the area of modified atmosphere packaging (MAP) for meats. First DelDuca Decl. ¶ 2. His responsibilities have included designing, developing, and implementing such modified atmosphere packaging for meat and processes using the same. Id. Mr. DelDuca testified that, when the water is retained in the support material in Hamon, “its consistency is like toothpaste.” Second DelDuca Decl ¶ 6. Mr. DelDuca testified that the claimed accelerator – water – “accelerates the rate of oxygen uptake of the oxygen absorber.” Id. Mr. DelDuca concludes that there “would be no expectation to one skilled in the art that the Hamon absorber with very little free water would work or function like the claimed liquid oxygen uptake accelerator of the independent claims.” Id. That argument is not persuasive. It is true that Hamon describes its support material as “need[ing] to retain water.” H5. However, one of the Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 12 support materials described in Hamon is silica (H4), which is also used by the ʼ195 patent. ʼ195 patent at col. 3 at ll. 61-64; col. 8 at ll. 39-52. As the materials are the same in both the ʼ195 patent and Hamon, the Examiner had reasonable basis to believe that they would be expected to function the same. Best, 562 F.2d at 1255; Spada, 911 F.2d at 708. Thus, even if the materials were employed for different purposes as asserted by Mr. DelDuca (Second DelDuca Decl. ¶ 8), this does not alter the fact that the materials are the same and thus would be reasonably expected to behave in the same way. Furthermore, silica is characterized in the ʼ195 patent as follows: “a water attracting agent such as silica gel can be used to attract water and at times to supply water in the packet initially.” ‘195 patent at col. 2, ll. 46-49. Thus, even though silica attracts water, the evidence of record supports the Examiner’s position that water associated with silica gel can serve as an oxygen uptake accelerator. Mr. DelDuca did not address this fact. Mr. DelDuca did not provide an adequate factual basis for concluding that the water in the support material as described by Hamon would not be capable of serving as an oxygen uptake accelerator. “introducing a liquid oxygen uptake accelerator comprising water directly onto said oxygen absorber” Claim 1 also recites “b. introducing a liquid oxygen uptake accelerator comprising water directly onto said oxygen absorber.” Patent Owner argues that Hamon does not disclose this step. Appeal Br. 25. This position is not supported by the evidence. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 13 Rather, we agree with the Examiner’s position that Harmon discloses this limitation. (Final Rej. 9.) Specifically, as articulated by the Examiner, Hamon describes two compartments: one with the iron reducing agent and the other with the support material comprising the electrolyte. Hamon at p. 2. The compartments are determined by a weld, which is ruptured to mix the support material with electrolyte with the iron. Id. Thus, the mixing of the support material with electrolyte and the iron would serve as “introducing a liquid oxygen uptake accelerator comprising water directly onto said oxygen absorber.” “capable of reducing oxygen content” limitation Patent Owner also argues “there would be no expectation of success to one skilled in the art using Hamon’s oxygen scavenger in the applications of retail cuts of raw meat disclosed with the claimed oxygen absorber of the present application.” Appeal Br. 26. That argument is only applicable to claims, such as claim 15, which recite “raw meat.” For example, claims 1 and 5 do not require the oxygen absorber to perform in an environment with raw meat. With respect to the “capable of reducing oxygen content” limitation, which is said prevent the formation of metmyoglobin in meat, Hamon describes iron and water (saline) in amounts that meet the limitations of claims 1, 5, and 15 (H8), giving the Examiner reasonable basis to believe that they would possess the recited properties, e.g., “capable of reducing the oxygen content of a predetermined volume containing about 2 vol % oxygen to less than 0.5 vol % oxygen at a temperature of about 34° F. in no more Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 14 than 90 minutes after said oxygen uptake accelerator and oxygen absorber are brought into contact.” Best, 562 F.2d at 1255; Spada, 911 F.2d at 708. Paragraph 13 of Mr. DelDuca’s first declaration describes problems with achieving bloom but does not provide a factual basis for the contention that iron and water in the same amounts as claimed would not achieve this result. Summary In sum, Mr. DelDuca’s declarations are insufficient to rebut the Examiner’s findings that the subject matter of claims 1, 3, 5, 7, 9, and 11-14 are anticipated by Hamon. IV. KOMATSU Claims 5, 7, 9, 13, and 14 stand rejected under 35 U.S.C. § 102(b) as anticipated by Komatsu as evidenced by the declaration by George McKedy. Ground 1. Independent claim 5 is drawn to scavenging packet comprising: “a. an oxygen permeable material formed into a closed packet for holding an oxygen absorber; b. an oxygen absorber comprising iron within the packet of (a); and c. a liquid oxygen uptake accelerator [comprising water].” The absorber and accelerator are recited to be in the following amount: “said oxygen uptake accelerator being present in said packet in an amount between about 0.2 and 1.4 mL per 2.5 grams of iron.” The claim is a product claim but recites that that the packet has the following capability: “when the liquid accelerator and oxygen absorber are brought into contact, the oxygen absorber is capable of reducing the oxygen content of a Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 15 predetermined volume containing about 2 vol % oxygen to less than 0.5 vol % oxygen at a temperature of about 34° F. in no more than 90 minutes after said accelerator and oxygen absorber are brought into contact.” The Examiner contends that Komatsu anticipates claim 5, and claims 7, 9, 13, and 14 which depend from it. Final Rej’n. 6-7. The following findings of fact from Komatsu are pertinent to this determination. Findings of Fact K1. “In order to preserve foodstuffs, such as vegetables, fish, shellfish, meats, processed foodstuffs, such as potato chips, cakes, peanuts, etc., and so on, it is necessary to prevent the foodstuffs from getting moldy and from putrefying.” Komatsu, col. 1, ll. 7-11. K2. Oxygen is said to cause the putrefaction and change in foodstuff quality. Komatsu at col. 1, ll. 21-25. The inventors describe their efforts to find an oxygen absorbent that is usable for preventing putrefaction and change in quality of food stuffs. Id. at col. 1, ll. 55-62. K3. The inventors disclose they “found that an oxygen absorbent comprising at least one metal halide and iron containing 0.05 to 5% by weight of sulfur on the basis of the weight of iron does not involve such risk from hydrogen evolution, but does have sufficient oxygen-absorbing property.” Komatsu, col. 2, ll. 14-21. K4. “It is critical that iron constituting the oxygen absorbent contain 0.05 to 5% by weight, preferably 0.1 to 1 % by weight of sulfur on the basis of the weight of iron. A compound comprising a metal halide and iron Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 16 containing less than 0.05% by weight of sulfur does not have the effect of suppressing evolution of hydrogen.” Komatsu, col. 2, ll. 29-34. K5. “The oxygen-absorbing reaction by the oxygen absorbent of this invention utilizes reactions for forming hydroxides of iron. Therefore, it is essential that the oxygen absorbent contain water or a compound having water of hydration, or the system in which the oxygen absorbent is used contain steam. When the oxygen absorbent contains water, the water may be free water or water of hydration.” Komatsu, col. 3, ll. 26-33. K6. Requester cited the examples in Table 6 of Komatsu for describing water in an amount that meets the claim limitation of an uptake accelerator “being present in said packet in an amount between about 0.2 and 1.4 mL per 2.5 grams of iron.” Example 3 of Komatsu teaches in Run No. 1 described in Table 6 a composition consisting of 2 grams of iron powder, 2 grams of NaCl and .4 grams (approximately .4 mL) of water used to absorb oxygen. Runs No.2 and 3 of the same example use the same ratio of water to iron (.4 mL of water to 2 grams of iron) but vary the oxygen absorbing composition by adding additional fillers. Thus, in all three of these examples, Komatsu teaches a ratio of .5 mL of water per 2.5 grams of iron, which is within the range of from .2 mL to 1.4 mL of water per 2.5 grams of iron, claimed in the ʼ195 patent. Request for Reexamination 6. K7. “A filler may be added to the oxygen absorbent in order to increase the oxygen absorption rate and the amount of oxygen absorbed and to make handling of the oxygen absorbent easy.” Komatsu at col, 3, ll. 60- 63. The fillers include active carbon, active clay, colloidal silica, silica alumina gel, and anhydrous silica. Id. at col. 3, ll. 63 to col. 4, ll. 3. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 17 K8. Example 1 tests the oxygen absorbing properties of a “variety of oxygen absorbent” which “were prepared by mixing 1 gr of Fe powder containing 0.2% of S and each of the metal halides shown in Table 1.” Komatsu at col. 5, ll. 37-40. K9. The iron is placed in a perforated polyethylene film-laminated bag. Komatsu at col. 5, ll. 41-42. Discussion Komatsu describes a similar problem to the one described in the ʼ195 patent of preserving the quality of food, including meats. K1-K2. Oxygen is said by Komatsu to be the cause of the change in food quality during storage. K2. The ʼ195 patent also identifies oxygen as the culprit in meat spoilage. ʼ195 patent at col. 1, ll. 23-49. Komatsu and the ʼ195 patent take the same approach to reduce the oxygen present in the package which contains the food. Komatsu utilizes iron, characterizing it as an oxygen absorbent. K3-K4. Claim 5 also uses iron as an oxygen absorber. Komatsu states that water is essential to promote the oxygen absorbing reaction and uses it in its examples. K5-K6. Claim 5 requires a liquid oxygen uptake accelerator comprising water. Komatsu thus teaches both elements recited in claim 5 to remove oxygen from the package environment in which the food is stored. The amounts of each of these elements are recited in claim 5 to be as follows: “said oxygen uptake accelerator [water] being present in said packet in an amount between about 0.2 and 1.4 mL per 2.5 grams of iron.” Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 18 Requester provided evidence that these limitations are met by the examples in Table 6 of Komatsu. K6; Final Rej’n 6. Komatsu also describes the iron and water as being present in a perforated polyethylene film-laminated bag (K9), meeting limitation a. of claim 5 of “an oxygen permeable material formed into a closed packet for holding an oxygen absorber.” Thus, all three structural limitations a through c of claim 5 are described by Komatsu. Claim 5 also has a functional limitation that “when the liquid accelerator and oxygen absorber are brought into contact, the oxygen absorber is capable of reducing the oxygen content of a predetermined volume containing about 2 vol % oxygen to less than 0.5 vol % oxygen at a temperature of about 34° F. in no more than 90 minutes after said accelerator and oxygen absorber are brought into contact.” Komatsu does not expressly describe that its oxygen absorbent system possesses this property. However, Komatsu describes all three of the recited structural elements in claim 5, including the iron and water in the claimed ratio. The ʼ195 patent does not describe any special way in which the reduction of oxygen was achieved other than by varying the ratio of the liquid accelerator (water) and oxygen absorbent (iron). ʼ195 patent at e.g., col. 7, l. 16 to col. 8, l. 45; col. 11. It was reasonable, therefore, for the Examiner to have determined that the elements described in Komatsu, which are identical to those which are claimed, also possess the claimed functional property. Final Rej’n. 6. In reaching the anticipation determination, the Examiner relied on the McKedy declaration. Final’n Rej. 6-7. Mr. McKedy testified in his declaration that he “conducted an experiment in accordance with Example 3, Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 19 Run 2 of Komatsu, to determine the efficacy of that composition in a refrigerated environment.” McKedy Decl. ¶ 7. Mr. McKedy stated that he “duplicated the Example described by Komatsu as closely as possible, to determine the results at refrigerated temperatures, and with an initial oxygen content of approximately 2.0%.” Id. at ¶ 9. However, as pointed out by Patent Owner, Mr. McKedy did not include sulfur in its example which is said by Komatsu to be “critical” in its formulation. K3-K4. Mr. McKedy did not also use the same perforated polyethylene film-laminated bag described in Komatsu. K9. Because of these differences and others identified by Patent Owner between Komatsu’s example and what Mr. McKedy did in his experiments (Appeal Br. 27-32), we give this declaration little weight. Nonetheless, the results described in the declaration are consistent with the Examiner’s determination that a composition having the amounts of water and iron described in Komatsu would meet the functional limitation of claim 5. Moreover, since Komatsu meets all the structural elements of claim 5, it is unnecessary to rely on the McKedy declaration to have established a reasonable basis upon which to believe that Komatsu’s composition meets the structural limitations of claim 5. In an attempt to rebut this reasonable presumption, Patent Owner argues that “Komatsu teaches in Example 3 that after 5 hours, the oxygen concentration varies from 0.5 to 20.3% depending on the run.” Appeal Br. 33. The results of Example 3 are summarized in Table 6. Table 6 shows that different formulations, which vary in the filler and water hydration compound, achieved different reductions in the oxygen concentration present in the container. The Examiner relied on Run 2 (Answer 11-12), Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 20 which achieved the greatest reduction in oxygen, not the other run numbers listed in Table 6. Thus, the fact that there was variation in the different runs, which contain different forms and amounts of the water of hydration compound, does not contradict the results of Run 2. Patent Owner did not provide sufficient evidence to rebut the determination that Komatsu’s teaching of an oxygen absorber comprising iron and a liquid oxygen uptake accelerator in the claimed amounts would satisfy the “capable of reducing oxygen” limitation of claim 5. When the evidence it considered in its entirely, we conclude that a preponderance of the evidence supports the determination that Komatsu anticipates the subject matter of claim 5, and dependent claims 7, 9, 13, and 14 which were not separately argued. V. YOSHIKAWA Claims 5, 9, 13, and 14 stand rejected under 35 U.S.C. § 102(b) as anticipated by Yoshikawa as evidenced by the McKedy Declaration. Ground 2. The following findings of fact are pertinent to this determination: Y1. “In order to preserve foodstuffs, such as vegetables, fish, shellfish, meats, processed foodstuffs, such as potato chips, cakes, peanuts, etc., and so on, it is necessary to prevent the foodstuff's from getting moldy and from putrefying.” Yoshikawa at col. 1, ll. 8-12. Y2. “[I]t was found that an oxygen absorbent powder in which a small amount of the metal halide is coated on the surface of metal powder and which has a minor water content rapidly absorbs oxygen in a sealed container, when it coexists with foodstuffs.” Yoshikawa at col. 2, ll. 15-19. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 21 Y3. A group of metal powders are described in Yoshikawa. Yoshikawa at col. 3, ll. 14-17. Iron is described as “preferred.” Id. at col. 3, 16-17. Iron is used in the oxygen absorbent powder in the examples. Id. at cols. 5-12. Y4. Yoshikawa describes “an oxygen absorbent comprising a metal powder coated with a definite amount of a metal halide and having a minor amount of water.” Yoshikawa at col. 1, ll. 5-7. Y5. In Comparative Example 2 (at col. 6, ll. 31-33), Yoshikawa describes mixing 0.2 ml water with 1 gram iron which is equivalent to 0.5 ml water to 2.5 grams iron (multiply each side by 2.5) , which falls within the claimed “amount between about 0.2 and 1.4 mL per 2.5 grams of iron.” See Request for Reexamination 11. Discussion The Examiner found that “Yoshikawa ʼ503 teaches substantially the same invention as that found in Komatsu (and is, in fact, referred to in Komatsu) so the evidence provided by the McKedy declaration is pertinent to Yoshikawa ʼ503 as well.” Final Rej’n 8. Thus, the Examiner found that Yoshikawa ʼ503 inherently meets the functional limitations regarding absorbent capacity set forth in the independent claim 5 of the ʼ195 patent.” Final Rej’n 8. Patent Owner makes the same unavailing arguments as they did for the Komatsu rejection, particularly pointing out alleged deficiencies in the experiments performed by Mr. McKedy. Appeal Br. 35-37. However, as indicated above, one of the examples of Yoshikawa falls within the scope of Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 22 claim 5 (Y5), giving the Examiner reasonable basis upon which to believe that the “capable of reducing oxygen” limitation was met. Best, 562 F.2d at 1255; Spada, 911 F.2d at 708. Patent Owner contends that the amount of oxygen absorbed in the example was poor. Appeal Br. 36. Mr. DelDuca testified: Typically, the order of magnitude needed for absorption of oxygen in connection with retail cuts of meats in in hundred(s) of milliliters of oxygen. One skilled in the art would use not such an oxygen absorbent of Yoshikawa '503 with retail cuts of meat. First DelDuca Decl. ¶ 26. Claim 5 is a product claim and is not limited to use with retail meats. This argument is therefore unpersuasive. When the evidence it considered in its entirely, we conclude that a preponderance of the evidence supports the determination that Yoshikawa anticipated the subject matter of claims 5, and dependent claims 9, 13, and 14. VI. REJECTIONS BASED ON KOMATSU, YOSHIKAWA, AND HAMON Claims 1, 3, 11, and 12 stand rejected as obvious under 35 U.S.C. § 103(a) as obvious in view Komatsu with Hamon (Ground 4) and Yoshikawa and Hamon (Ground 5). Patent Owner challenges the rejections on the same basis as they did for the anticipation rejections based on Komatsu and Yoshikawa. Appeal Br. 39-41. As we did not find these arguments persuasive, we conclude that a preponderance of the evidence Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 23 establishes that claims 1, 3, 11, and 12 are prima facie obvious for the reasons set forth by the Examiner. Final Rej’n 10-12. VII. SAKAI AND HAMON REJECTION Claims 5, 7, 9 and 13-21 stand rejected under 35 U.S.C. § 103(a) as obvious in view of Sakai 4 and Hamon. Ground 14. Independent claim 5 is a product claim and was described above. Independent claim 15 is a method claim for “reducing the oxygen concentration in an enclosed space comprising” a step of placing a retail cut of raw meat in an enclosed space and then placing an oxygen absorber comprising iron and a liquid oxygen uptake accelerator in the space. The latter two components are in the same ratio as in claim 5 and have the same capablility of reducing oxygen limitation as all the other claims. Independent claim 19 is similar to claim 5 but additionally recites a “retail raw cut of raw meat.” The Examiner found that Sakai teaches a method of preserving raw meat by sealing the meat in a gas impermeable container with an oxygen scavenger capable of reducing the oxygen concentration within the container to 5% or less within 24 hours and preferably to 0.1 % or less in 12 hours. Final Rej’n 17. The Examiner found that the oxygen scavenger utilized by Sakai is iron, the same one recited in claim 5 and 15. Sakai at p. 3, ll. 9-11. The Examiner further relied on Hamon, as described above, for its teaching of an oxygen absorber (iron) and liquid oxygen uptake accelerator comprising water. Final Rej’n 17. The Examiner determined that it would have been obvious one of ordinary skill in the art “to utilize the containment 4 Sakai, JP 58-158129 issued Sept. 20, 1983. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 24 system and activator, as well as the ratios of constituents as taught in Hamon with the oxygen scavenger of Sakai because it would provide enhanced absorption of oxygen thereby preventing the onslaught of oxidative deterioration of the meat.” Id. at 18. As to the “capable of reducing oxygen content” limitation, the Examiner found “Hamon clearly teaches optimizing the activity of this same oxygen scavenger thus it is held that the enhanced optimization of the scavenger of Sakai with the activator of Hamon would intrinsically provide the activity levels instantly claimed.” Id. Patent Owner argues that the combination of Sakai and Hamon is improper. Sakai is directed to preserving meat and identifies meat such as “chicken, pork, beef, etc.” and fish such as “tuna, bonito, etc.” Page 3 of Sakai; DelDuca First Decl. 36. Hamon, on the other hand, specifically identifies the following products to be used with its packaging system: dried fish, pastries, mayonnaise, fruit, power solutions and glue. Id. None of these products has anything to do with Sakai. Id. Appeal Br. 51. That argument is not persuasive. Hamon generally teaches that food products are sensitive to oxygen, and makes specific mention of certain food products, including “fats.” H1-H2. Even if meat is not specifically mentioned, there is no indication that it is excluded from Hamon. Rather, Hamon’s teachings are said to be generally applicable to foods which are sensitive to oxygen. H1-H3. Sakai specifically teaches that red meat is sensitive to oxygen and that depleting oxygen from the environment in which the meat is stored preserves the meat’s red color. Sakai at p. 1, l. 30 Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 25 to p. 2, l. 30. Consequently, one of ordinary skill in the art would have found Hamon’s solution pertinent to Sakai. Patent Owner also argues that the problem of obtaining consistent blooming is unique to raw meat and requires a rapid reduction in oxygen. Appeal Br. 51. All that the claims require is that the “the oxygen absorber is capable of reducing the oxygen content of a predetermined volume containing about 2 vol % oxygen to less than 0.5 vol % oxygen at a temperature of about 34° F. in no more than 90 minutes after said liquid oxygen uptake accelerator and oxygen absorber are brought into contact” and that the iron and accelerator are in a specific ratio. It has already been established that Hamon meets the ratio limitation, making it reasonable to expect that Hamon would meet the “capable of reducing the oxygen content” limitation, as well. Patent Owner has not provided adequate evidence to the contrary. Patent Owner attempts to distinguish the claimed subject matter over Sakai by identifying deficiencies in it with respect to whether Sakai accomplished meat bloom. Appeal Br. 49. However, the rejection relies on the combination of iron – taught by both Sakai and Hamon – with an oxygen accelerator in the ratio taught by Hamon. Supra. at 23. Hamon’s teachings have already been found to meet the claimed “capable of reducing oxygen content” limitation and therefore would reasonably have been believed to achieve meat bloom. In sum, we find that a preponderance of the evidence supports the Examiner’s determination that independent claims 5, 15, and 19, and Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 26 dependent claims 7, 9, 13, 14, and 16-21 are prima facie obvious in view of Sakai and Hamon. VIII. REJECTIONS BASED WEINKE, KOMATSU, YOSHIKAWA, AND MCKEDY DECLARATION Claims 19-25 stand rejected under 35 U.S.C. § 103(a) as obvious in view of Weinke, 5 Komatsu, and the McKedy declaration, and Weinke, Yoshikawa, and the McKedy declaration. Grounds 17 and 18. Independent claims 19 and 22 are drawn to a meat packaging system with the same limitations as claim 5, but also comprising “a retail raw cut of raw meat.” Claim 24 is drawn to method of manufacturing a modified atmosphere package that involves placing a retail cut of raw meat in a package and supplying an oxygen scavenger and liquid uptake accelerator as recited in the other independent claims in this appeal. Komatsu and Yoshikawa are cited by the Examiner for their teaching of an oxygen absorber comprising iron and a liquid oxygen uptake accelerator as described above. Final Rej’n 19. Komatsu and Yoshikawa also describe problems with preserving foods, including meat. K1 and Y1. Weinke is said by the Examiner to teach “a package for containing raw meats under anaerobic conditions during storage to prevent oxidative deterioration of the meat prior to display for consumer purchase.” Final Rej’n 19. The Examiner concluded that it would have been obvious to one of ordinary skill in the art to have used the oxygen scavenger of Komatsu and Yoshikawa in Weinke’s packaging system “because it would enhance 5 Weinke, US 3,574,642 issued April 13, 1971. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 27 the protection provided by the inert gas flushing of Weinke by absorbing any residual oxygen present with the enhanced action of the scavenger preventing the onslaught of oxidative deterioration of the meat.” Id. at 20 and 21. The Examiner provided a logical reason for combining the cited publications. Final Rej’n. 19-21. Patent Owner did not identify a deficiency in this reasoning, but rather argued deficiencies in Weinke. Appeal Br. 54- 58. Those arguments are unpersuasive because such alleged deficiencies are made up for by Komatsu and Yoshikawa. The rejection is based on the combination of publications, not each individually as argued by Patent Owner. For the reasons given by the Examiner, we conclude that a preponderance of the evidence establishes that claims 19-25 are prima facie obvious in view of Weinke, Komatsu, and the McKedy declaration, and Weinke, Yoshikawa, and the McKedy declaration. IX. REJECTIONS BASED ON SAKAI, HAMON, AND WEINKE Claims 22-25 stand rejected under 35 U.S.C. § 103(a) as obvious over Sakai, Hamon and Weinke. Ground 19. Claims 22 and 24 require first and second packages. The Examiner relied upon Weinke to teach the specifically claimed packaging system and Sakai and Hamon for their teaching of the oxygen scavenger and accelerator. Final Rej’n 21. Patent Owner’s arguments are the same as those based Hamon and Sakai which have already been found unpersuasive. Appeal 56. Consequently, we conclude that a preponderance of the evidence establishes Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 28 that claims 22-25 would have been prima facie obvious in view of Sakai, Hamon, and Weinke. X. GROUNDS 6-13, 15, AND 16 Claims 2, 4, 6, and 8 stand rejected less than 35 U.S.C. § 103 as obvious under Grounds 6-13, 15, and 16. Patent Owner argued that the secondary references cited in these rejections do not address the deficiencies of the already discussed Haman, Komatsu, and Yoshikawa. Appeal Br. 58. We have already found these arguments unpersuasive. Accordingly, we conclude that a preponderance of the evidence establishes that 2, 4, 6, and 8 would have been prima facie obvious to one of ordinary skill in the art for the reason set forth by the Examiner. XI. OBJECTIVE EVIDENCE OF NONOBVIOUSNESS Factual considerations that underlie the obviousness inquiry include the scope and content of the prior art, the differences between the prior art and the claimed invention, the level of ordinary skill in the art, and any relevant secondary considerations. Graham v. John Deere Co., 383 U.S. 1, 17-18 (1966). Relevant secondary considerations include commercial success, long-felt but unsolved needs, failure of others, and unexpected results. KSR Int'l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007); In re Soni, 54 F.3d 746 (Fed. Cir. 1995). Secondary considerations are “not just a cumulative or confirmatory part of the obviousness calculus but constitute independent evidence of nonobviousness . . . [and] enable[] the court to avert the trap of hindsight.” Leo Pharm. Prods., Ltd. v. Rea, 726 F.3d 1346, 1358 (Fed. Cir. 2013) (internal quotation marks and citations omitted). “This Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 29 objective evidence must be ‘considered as part of all the evidence, not just when the decisionmaker remains in doubt after reviewing the art.’” Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc., 699 F.3d 1340, 1349 (Fed. Cir. 2012) (internal citations omitted). A. LONG FELT NEED Patent Owner contends that the problem of obtaining consistent blooming with retail cuts of pigment-sensitive raw meats has been present for many years (Appeal Br. 41-42). About 25 years after the issuance of Weinke and numerous years after the issuance/publication of Yoshikawa ʼ503, Komatsu and Sakai, the Applicants filed an application in 1996, which the present invention claims benefit to, that discloses oxygen scavenging packet and packages, systems and methods that use the oxygen scavenging packet to assist in obtaining consistent blooming with retail cuts of pigment-sensitive raw meats, while extending the shelf life of these retail cuts of raw meat. Appeal Br. 42. Yoshikawa and Komatsu each disclose “meats” as a food product that experience mold and putrefaction during storage. Y1 and K1. Iron and water, the same components in independent claims 1, 5, 15, 19, 22, and 24, are described by Yoshikawa and Komatsu to facilitate the preservation process by removing oxygen from the environment in which the food products are stored. Y2, Y5, K5, and K6. Patent Owner’s arguments appear to be premised on the position that Yoshikawa, Komatsu, and Sakai, would not produce consistent blooming of raw meat. However, as discussed above, consistent bloom would have been reasonably expected to have been Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 30 achieved because the same ratio of iron and water recited in the claims are described by Yoshikawa and Komatsu. Based on the evidence in the ʼ195 patent, the skilled worker would have understood that these values are responsible for the “capable of reducing oxygen” limitation and the consistent blooming which is said to be achieved. The ʼ195 patent also discusses other prior art methods that allow meat to bloom. ʼ195 patent at col. 1, l. 60 to col. 2, l. 11. In view of this disclosure and the evidence discussed above, it cannot be concluded that the inventors solved a long felt need to achieve consistent blooming of meat. B. COPYING Patent Owner contends “[t]here is at least one company (Multisorb Technologies, Inc.) that is making, using, selling and offering for sale products that use the systems, products and/or methods described in the present invention. See Exhibit 3.” Appeal Br. 45. Patent Owner states that it “believes that Multisorb Technologies, Inc. has copied its inventive concepts and Multisorb Technologies, Inc. has not received permission to use the inventive concepts of the present invention.” Id. Patent Owner has not provided sufficient evidence to establish copying. Exhibit 3 is a complaint by Patent Owner against Multisorb Technologies. The complaint alleges infringement by Multisorb of the ʼ195 patent (Exhibit 3) but does not state that Multisorb copied Patent Owner’s technology in the ʼ195 patent. Patent Owner contends that the complaint is sufficient to establish copying since the evidence of such would not be accessible to them except Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 31 through discovery and the complaint, itself, is sufficient because of Rule 11 obligations. Appeal Br. 45-46. However, Patent Owner has not pointed to a statement in the complaint alleging that Multisorb had copied the products claimed in the ʼ195 patent. Contrary to Patent Owner’s contention, the Federal Circuit has required evidence of copying: Not every competing product that arguably falls within the scope of a patent is evidence of copying. Otherwise every infringement suit would automatically confirm the nonobviousness of the patent. Rather, copying requires the replication of a specific product. This may be demonstrated either through internal documents, see Akamai Techs., Inc. v. Cable & Wireless Internet Servs., Inc., 344 F.3d 1186, 1196-97 (Fed. Cir. 2003); direct evidence such as disassembling a patented prototype, photographing its features, and using the photograph as a blueprint to build a virtually identical replica, see Advanced Display Sys., Inc. v. Kent State Univ., 212 F.3d 1272, 1285 (Fed. Cir. 2000); or access to, and substantial similarity to, the patented product (as opposed to the patent), Cable Elec. Prods., Inc. v. Genmark, Inc., 770 F.2d 1015, 1027 (Fed. Cir. 1985), overruled on other grounds by, Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1359 (Fed. Cir. 1999) (en banc) Iron Grip Barbell Co., Inc. v. USA Sports, Inc., 392 F.3d 1317, 1325 (Fed. Cir. 2004). Thus, we are not persuaded by Patent Owner’s mere allegation that the claimed packaging system was copied. C. UNEXPECTED RESULTS Patent Owner provides evidence of testing performed using Multiform’s MRM 100 scavenger packet that was activated using an oxygen scavenger accelerator. Appeal Br. 46-48. According to Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 32 Patent Owner, the experiment showed that “Multiform’s MRM 100 scavenger packet with the claimed oxygen uptake accelerator produced a desirable result in that the retail cut of raw meat did not tum to an unacceptable brown color (metmyoglobin).” Id. at 46. On the other hand, Patent Owner contends that results with the same packet, but without accelerator, were unacceptable. Multiform's MRM 100 scavenger packet (without being activated with the claimed liquid oxygen uptake accelerator) took "approximately 30 hours for the percent oxygen to be reduced to approximately 0.5% (5,000 PPM) and more than 40 hours for the percent oxygen to be reduced to near 0.0% oxygen." See also, col. 6, lines 10-37; FIG. 5 of U.S. Patent No. 5,928,560. This process using Multiform's MRM 100 scavenger packet without being activated with the claimed liquid oxygen uptake accelerator failed because the retail cut of raw meat turned an unacceptable brown color (metmyoglobin). First DelDuca Decl. 31. According to Mr. DelDuca: This was a surprising and unexpected result since those skilled in the art believed that oxygen scavengers could not be used with retail cuts of raw meat because the activation times were too slow to prevent the raw meat from turning metmyoglobin. First DelDuca Decl. ¶ 30. Mr. DelDuca’s testimony is not persuasive. 6 First, it is taught in the prior art that the activity of oxygen absorbent is enhanced by the addition of a liquid oxygen uptake accelerator. Specifically, Komatsu teaches “it is essential that the oxygen absorbent 6 We note that Mr. DelDuca did not identify the disclosure in US 5,928,560 where the conditions shown in Figure 5 were tested on meat. Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 33 contain water or a compound having water of hydration, or the system in which the oxygen absorbent is used contain steam.” K5. Komatsu also teaches it “was found that the mixture of a metal powder, a metal halide and water has rapid oxidizing rate, U.S. Ser. No. 816,134 flIed on July 15, 1977 now U.S. Pat. No. 4,127,503 [Yoshikawa].” Komatsu, col. 1, ll. 63-65. Hamon also teaches the addition of water to iron, the oxygen absorbent. H7 and H8. Accordingly, the observation that water enhanced the activity of iron would not have been unexpected because that result is described in the prior art. The second question is whether it would have been reasonably expected that the enhanced activity of the oxygen absorbent would “produced a desirable result in that the retail cut of raw meat did not tum to an unacceptable brown color (metmyoglobin).” First DelDuca Decl. ¶ 30. Sakai was relied upon by the Examiner for its teaching of method for preserving meat using deoxidizers, making it “possible to make the meat have a freshly reddish tinge caused by oxymyoglobin quickly as soon as the packaging container is opened.” Sakai, p. 2, ll. 5-8. Based on this disclosure, there was a reasonable expectation that an oxygen scavenger could, under storage conditions, preserve the meat’s red color when opened. Patent Owner takes the position that Saki is not reliable because “Sakai did not disclose any examples that bloomed a ‘fresh’ red color.” Appeal Br. 42. To support this position, Patent Owner provided declarations by Mr. DelDuca and Melvin C. Hunt, Ph.D. Dr. Hunt has a Ph.D. in Food Science, and testified that he has “performed numerous research projects in Meat Science and Muscle Biology including major emphasis on pigment Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 34 chemistry, meat color, meat packaging, and factors effecting microbial soundness.” Hunt Decl. ¶ 1 & 2) Both declarants worked in the field of the claimed invention and thus possess the requisite knowledge expected of one of ordinary skill in the art. Consequently, we conclude that the declarants are qualified to testify as to the matters in their declarations. Dr. Hunt testified in his written declaration that the data in Table 1 of Sakai does not support the Examiner’s conclusion that Sakai’s deoxidizer was successful at recovering the meat’s red color (“bloom”) when opened. Hunt Dec. ¶ 6. Dr. Hunt identified discussed data in Sakai’s Table 1, such as the metamyoglobin levels, which he argues are inconsistent with Sakai’s statements that the meat color recovered its color when a deoxidizer was used, but remained brownish when a deoxidizer was not used. Id. at 6-8. Based on these alleged inconsistencies and lack of correlations, Dr. Hunt concluded that “the results of Table 1 and descriptions of the same in Sakai are not credible.” Id. at 9 First, we shall consider the credibility of Sakai’s teachings if Dr. Hunt’s statements about the inconsistencies in Sakai are given full weight. For example, Dr. Hunt identified an alleged lack of correlation between the amount of metmyoglobin and color of the meat. Hunt Decl. ¶ 8. The question is whether such inconsistencies, when assumed to be true, undermine Sakai’s teaching that deoxidizers would be useful to preserve meat in Weinke’s package. To begin, we cannot ignore the fact, that despite Dr. Hunt’s doubt about Sakai’s data in Table 1 (V.1.B.i.-iv), Sakai still made strong Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 35 statements about the benefit of a deoxidizer in promoting a red color upon opening the package: According to the present invention, meat is closely-sealed together with deoxidizers, and it is, therefore, possible to make the meat have a freshly reddish tinge caused by oxymyoglobin quickly as soon as the packaging container is opened. Page 2, lines 5-9. The inventors of the present invention and others had conducted the study on a method for closely-sealing meat together with deoxidizers to prevent the meat from discoloration. As a result, it was discovered that the reduction of oxygen concentration in the [sealed] container to a specific value within a specific interval of time [after sealing] made it possible to recreate the red color of meat as a fresh one after opening the container. Page 2, lines 23-29. The deoxidizer used in the present invention is required to be sufficient to reduce oxygen concentration in the sealed container to 5 % or less within 24 hours after closely-sealing the meat. A too-slow-acting deoxidizer is not preferable. Page 3, lines 4-7. Patent Owner did not establish that the statements reproduced above about the efficacy of a deoxidizer were all made in view of the results shown in Table 1. Even if the results in Table 1 are not credible, it has not been shown by Patent Owner that Sakai’s statements were completely based on these results, and that a lack of correlation or inconsistencies in Table 1 would offset Sakai’s statements that a red meat color would be recreated. Furthermore, Sakai describes of a list of deoxidizers (at p. 2, ll. 9-17). Example 1 uses only one deoxidizer, “S-100 (product name of a deoxidizer available from Mitsubishi Gasukagaku).” Sakai at p. 5, l. 13-15. Dr. Hunt’s criticism of Sakai’s experiments does not undermine Sakai’s statements Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 36 since such experiments were performed with only one example of deoxidizer, S-100, whose composition does not appear to have been identified by Dr. Hunt. We acknowledge that the declarants identified specific apparent discrepancies in the data collected from the actual experiments performed by Sakai, but despite the data, Sakai still concluded that the meat stored with a deoxidizer recovered its red color. In sum, the evidence provided by Paetnt Owner does not establish by preponderance of evidence that the observed bloom would have been unexpected by one of ordinary skill in the art. D. COMMERCIAL SUCCESS Patent Owner contends that Pactiv's ActiveTech® meat packages, systems and processes of the same have been commercially successful. Appeal Br. 48. Patent Owner states: “Specifically, the biggest protein processors in the U.S. in partnership with the biggest retailers have relied on Pactiv’s ActiveTech® meat packages, systems and processes of the same.” Id. In order to overcome a finding of obviousness by demonstrating commercial success, “[a] nexus between commercial success and the claimed features is required.” Brown & Williamson Tobacco Corp. v. Philip Morris Inc., 229 F.3d 1120, 1130 (Fed. Cir. 2000). In this case, Patent Owner has not provided evidence of a nexus between the claimed invention and Pactiv's ActiveTech® meat packages. Mr. DelDuca stated that the patent claims covered the commercial products, but did not provide Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 37 sufficient evidence of such nor that the reason for the success was due to a feature recited in the claim, rather than unclaimed feature or marketing or business strategies. First DelDuca Decl. ¶ 33. In addition to this, Patent Owner has not provided market data, sales figures, or any other information upon which it could be determined that the packages were commercial successful. See Tec Air, Inc. v. Denso Mfg. Mich., Inc., 192 F.3d 1353, 1361 (Fed. Cir. 1999); In re Huang, 100 F.3d 135, 140 (Fed. Cir. 1996); see also Answer 19. SUMMARY After considering the totality of the evidence before us, we conclude that the claimed subject matter of claims 1-9 and 11-25 would have been obvious to one of ordinary skill in the art based on the prior art cited by the Examiner for the reasons discussed above. Claims 1, 3, 5, 7, 9, 11-14 are anticipated by Komatsu, Yoshikawa, or Hamon. TIME PERIOD FOR RESPONSE Requests for extensions of time in this ex parte reexamination proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. § 41.50(f). AFFIRMED ak Appeal 2014-001667 Reexamination Control 90/011,597 Patent 6,395,195 38 PATENT OWNER: PACTIV CORPORATION C/O NIXON PEABODY LLP 300 S. Riverside Plaza, 16 th Floor Chicago, IL 60606 THIRD PARTY REQUESTER: Michael J. Didas HARTER SECREST & EMERY LLP 1600 Bausch & Lomb Place Rochester, NY 14604-2711 Copy with citationCopy as parenthetical citation