Ex Parte Gutzmann et alDownload PDFPatent Trial and Appeal BoardAug 30, 201311779596 (P.T.A.B. Aug. 30, 2013) Copy Citation 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 2 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. Appeal 2012-003234 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. Appeal 2012-003234 Application 11/779,596 4 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 Appeal 2012-003234 Application 11/779,596 5 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 Appeal 2012-003234 Application 11/779,596 6 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 bar Copy with citationCopy as parenthetical citation