Ex Parte Gutzmann et al

Patent Trial and Appeal Board

Aug 30, 2013

11779596 (P.T.A.B. Aug. 30, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/779,596 07/18/2007 Timothy A. Gutzmann 00163.2306USU1 2505
92160 7590 08/30/2013
Merchant & Gould Ecolab
P.O. Box 2903
Minneapolis, MN 55402
EXAMINER
KING, FELICIA C
ART UNIT PAPER NUMBER
1793
MAIL DATE DELIVERY MODE
08/30/2013 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
____________

Ex parte TIMOTHY A GUTZMANN, SCOTT L. BURNETT,
TERESA C. PODTBURG, PETER W. BODNARUK,
JOY G. HERDT, and JOCELYN H. CHOPSKIE
____________

Appeal 2012-003234
Application 11/779,596
Technology Center 1700
____________

Before BRADLEY R. GARRIS, HUBERT C. LORIN, and
JEFFREY T. SMITH, Administrative Patent Judges.

SMITH, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-003234
Application 11/779,596

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STATEMENT OF THE CASE
This is an appeal under 35 U.S.C. § 134 from a final rejection of
claims 1-7, 13-15, 17, and 18. We have jurisdiction under 35 U.S.C. § 6.
Appellants (Reply Br. 3) indicate the following rejections from the
Examiner’s Answer and Final Office action are presented for our review:
Claims 1-7, 13-15, 17, and 18 under 35 U.S.C. § 103(a) as
unpatentable over Hilgren (WO 02/054866 A1 published July 18, 2002) and
Isaacs (US 6,033,705 issued Mar. 7, 2000).1
Claim 13 under 35 U.S.C. § 103(a) as unpatentable over Hilgren and
Isaacs further in view of Eutech Instruments, Measuring the pH Value of
Meat, (1997) http://www.eutechinst.com/techtips/tech-tips35.htm.
Claims 1-7, 14, 15, 17, and 18 under 35 U.S.C. § 103(a) as
unpatentable over Hilgren, Isaacs, and Philipp (EP 0940090 A1 published
Sept. 8, 1999).
Claim 13 under 35 U.S.C. § 103(a) as unpatentable over Hilgren,
Isaacs, and Phillip and further in view of Eutech Instruments.
Claim 1 is illustrative of the subject matter on appeal:
1. A method of treating a food product comprising:

a) applying a first oxidative antimicrobial composition to
the food product, the first oxidative antimicrobial composition

1 We note Appellants consider the Examiner has improperly included a new
ground rejection in the Answer. (Reply Brief, 4-6). Questions regarding
actions taken by the Examiner, such as the insertion of a new ground of
rejection, are petitionable under 37 CFR § 1.181 to the Commissioner.
Since Appellants have failed to timely file a petition, we will address the
rejections as presented in the Examiner’s Answer.
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Application 11/779,596

3
comprising an antimicrobial agent selected from the group
consisting of peracid and acidified sodium chlorite;

b) introducing a second non-oxidative antimicrobial
composition into a package for the food product within 48
hours of the first antimicrobial composition, the second non-
oxidative antimicrobial composition comprising octanoic acid,
a coupling agent and a buffer, wherein the second non-oxidative
antimicrobial composition has a pH of about 1.0 to about 5.6,
and ceases having antimicrobial effect shortly after being
introduced to the package;

c) packaging the food product; and

d) sealing the packaging.

OPINION
After consideration of the Examiner’s rejections and Appellants’
responses we affirm the Examiner’s decision to reject claims 1-7, 13-15, 17,
and 18.
The dispositive issue for this appeal is: Did the Examiner err in
finding that the combined teachings of (1) Hilgren and Isaacs, and (2)
Hilgren, Isaacs, and Philipp suggest a method of treating a food product
comprising applying a first oxidative antimicrobial composition to the food
product and introducing a second non-oxidative antimicrobial composition
into a package for the food product as required by the subject matter of
claim 1?
We have reviewed each of Appellants’ arguments for patentability.
However, we are in complete agreement with the Examiner that the claimed
subject matter would have been obvious to one of ordinary skill in the art
within the meaning of § 103 in view of the applied prior art.
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Application 11/779,596

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The Examiner found that Hilgren teaches antimicrobial treatments that
comprise oxidative and non-oxidative compositions. (Ans. 4-5; 8-9). The
oxidative antimicrobial composition comprises peroxyacids and the non-
oxidative antimicrobial composition comprises octanoic acid. (Id.; Hilgren
10). The Examiner found that Hilgren discloses the antimicrobial
compositions can have a pH from 4-7. (Ans. 4, 8; Hilgren 14). The
Examiner also found that Hilgren discloses that the antimicrobial
composition is applied at various stages of the food product processing.
(Ans. 4, 8; Hilgren 25-30).
The Examiner found that Isaacs discloses polymeric films, such as
space film, bags or food casing, are suitable for application of C4 to C14
antimicrobial compositions to a food product. (Ans. 5, 9; Isaacs, col 8,
ll. 50-65). The Examiner further found that
Isaacs discloses first applying an antimicrobial agent to
foodstuff (including meat and poultry [col. 10, lines 10-16]) and
then packaging the treated food in a package that has an
antimicrobial composition applied to the packaging to remove,
retard, or reduce microbial contamination or growth without
causing a substantial organoleptic depreciation of the foodstuff
[col. 1, lines 8-16; col. 3, lines 33-42; col. 9, lines 54-65].
(Ans. 10).
The Examiner found that Philip discloses the successive application of
compositions comprising antimicrobial components to food products. (Id. at
5; Philip, 0019, 0020].
The Examiner found that the cited prior art would have rendered
obvious to a person of ordinary skill in the art the application of
antimicrobial compositions at various stages of food processing to prevent
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Application 11/779,596

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the growth of microbes and to extend the shelf life of the food product.
Inclusive therein is the multistage application of the antimicrobial
compositions to the food product before and after packaging. (Ans. 5, 10-
11).
Appellants argue that the claimed invention is patentable over the
combination of Hilgren and Isaacs. (Reply Br. 6-7). Appellants specifically
argue that Isaacs fails to specify the pH of the antimicrobial composition and
that Isaacs does not disclose that the non-oxidative composition ceases to
have an antimicrobial effect shortly after being introduced into the package.
(Id. at 6).
Appellants’ arguments are not persuasive of patentability.
Appellants’ arguments regarding the pH did not address the Examiner’s
finding that Hilgren discloses suitable pH for the antimicrobial
compositions. Moreover a person of ordinary skill in the art would possess
sufficient skill to determine the appropriate pH of antimicrobial
compositions for the treatment of food products.
The claimed invention specifies that the non-oxidative antimicrobial
compositions comprises octanoic acid. Appellants have failed to explain
error in the Examiner’s determination that octanoic acid is included in
Isaacs’ disclosure of C4 to C14 containing antimicrobial compositions. An
antimicrobial composition that comprises octanoic acid would meet the
requirements of the claimed invention.

Appellants’ arguments regarding claims 2-7 are also not persuasive of
patentability. Appellants’ arguments only describe the additional features of
the dependent claims. We affirm the rejection of these claims for the
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Application 11/779,596

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reasons presented by the Examiner. A person of ordinary in the art would
have sufficient skill to determine the appropriate interval for application of a
first and second antimicrobial composition to a food product.
We also affirm the rejections of claim 13 for the reasons presented by
the Examiner. Appellants’ argument for patentability of claim 13 is that the
Eutech Instruments publication does not remedy the shortcomings of the
Hilgren and Isaacs combination. (App. Br. 13; Reply Br. 9). This argument
does not address the reason Eutech was cited and is not persuasive for the
reasons discussed above.

For the foregoing reasons, and those presented by the Examiner, the
obviousness rejections of claims 1-7, 13-15, 17, and 18 are affirmed
ORDER
The rejections of claims 1-7, 13-15, 17, and 18 under 35 U.S.C.
§ 103(a) are affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED

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