Ex Parte Evans et al

Patent Trial and Appeal Board

Jun 30, 2014

90011597 (P.T.A.B. Jun. 30, 2014)

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.

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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
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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
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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.
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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.
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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:
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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.
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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
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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.
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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.

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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
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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.
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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
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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
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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
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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.
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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.”
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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,
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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),
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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.
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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
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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.

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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
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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
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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
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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