Fernando Baeza Ortega et al.

Patent Trials and Appeals Board

Nov 30, 2020

2019006942 (P.T.A.B. Nov. 30, 2020)

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.
14/234,444 01/23/2014 Fernando Baeza Ortega 2013-2070A 4126
513 7590 11/30/2020
WENDEROTH, LIND & PONACK, L.L.P.
1025 Connecticut Avenue, NW
Suite 500
Washington, DC 20036
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
11/30/2020 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
eoa@wenderoth.com
kmiller@wenderoth.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte FERNANDO BAEZA ORTEGA,
ANTONIO EGEA FERNÁNDEZ, MIGUEL ANGEL ROMERO LÓPEZ,
JOSE RAMON PUMARINO ÁLVAREZ, JAIME BORGEAUD, and
JOSE MARIA GUZMAN ARCOS

Appeal 2019-006942
Application 14/234,444
Technology Center 1700
____________

Before ROMULO H. DELMENDO, JEFFREY B. ROBERTSON, and
MICHAEL G. McMANUS, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL

Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the
Examiner’s decision to reject claims 1–7, and 21. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Higienizo
Tecnicas Reunidas, S.L.U. Appeal Brief dated May 1, 2019 (“Appeal Br.”)
2.
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Application 14/234,444

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CLAIMED SUBJECT MATTER

The present application generally relates to “the preservation of by-
products from industries such as the meat, fish, fish farming and horticulture
industries.” Specification filed Jan. 23, 2014 (“Spec.”) 1:7–8. The claimed
invention is based on the application of a preservative to a by-product
without milling or cutting the by-product. Id. at 1:8–12. The Specification
teaches that “the procedure of the invention provides that the preservatives
be applied or added to the container of the byproducts every time the by-
products are loaded, in the state in which they have been generated, i.e.,
without grinding, milling, etc.” Id. at 2:20–23.
Claim 1 is illustrative of the subject matter on appeal and is
reproduced below with certain limitations bolded for emphasis:

1. A method of preserving by-products from food processing
without applying cold, the method comprising:
loading the by-products in one or more layers into a collecting
silo, hopper or container;
adding a preservative to each of the one or more layers of the by-
products simultaneously with the loading of each of the one or
more layers of the by-products;
nebulizing the preservative in an amount incorporating the
nebulized preservative jointly with pressurized air
simultaneously with the loading of each of the one or more layers
of the by-products;
uniformly distributing the nebulized preservative on each of the
one or more layers of the by-products simultaneously with the
loading of each of the one or more layers of the byproducts;
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and
storing the by-products without any prior crushing,
grinding, milling, cutting or other disintegrating of the by-
products.
Appeal Br. 12 (Claims App.) (emphasis added; reformatted for clarity)
REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Glabe et al. (“Glabe”) US 6,329,003 B1 Dec. 11, 2001
Filin et al. (“Filin”)2 SU 1337037 A2 Sept. 15, 1987

DISCUSSION
The Examiner rejects claims 1–7 and 21 under pre-AIA 35 U.S.C.
§ 103(a) as obvious over Filin in view of Glabe. Final Office Action dated
Feb. 7, 2019 (“Final Act.”) 2–5.
Filin is titled “Introducing preservatives into silage-type animal feed
by conveying feed along conveying pipe via mixer into which air and
preservative are sprayed and mixed.” Filin 1. In support of the rejection, the
Examiner finds that Filin teaches a process for uniform application of a
preservative to animal feed that is not refrigerated. Final Act. 2–3. The
Examiner finds that Filin does not, however, teach the limitation regarding
storage “without any prior crushing, grinding, milling, cutting or other
disintegrating” as required by claim 1. Id. at 3. In this regard, the Examiner
looks to Glabe.

2 The Examiner relies on an English language translation of the title and
abstract.
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Glabe is titled “CHICKEN MEAT PRODUCT AND METHOD OF
MAKING.” Glabe, code (54). The Examiner finds that Glabe teaches the
preservation of whole chicken meat or parts of the chicken. Final Act. 3.
The Examiner finds that although Glabe teaches that the chicken is
refrigerated, it is “notoriously well known” that preserved foods such as
meats can be stored without refrigeration. Id. The Examiner concludes that
“it would have been obvious to treat the animal feed of Filin with the
preservative and store it without any prior cutting or chopping.” Id. The
Examiner further concludes that such process would permit one to omit the
cutting step and thereby reduce costs. Id.
Appellant argues that the Rejection should be reversed on several
bases. Appeal Br. 3–10. First, Appellant argues that the Examiner
improperly failed to ascribe patentable weight to certain limitations. Id. at
3–5. Appellant argues that the Examiner has disregarded the steps requiring
1) loading the by-products in layers, 2) distributing the preservative, and 3)
storing the by-products without milling or cutting. Id. at 3–4.
Appellant further argues that, in the Response to Arguments section of
the Final Office Action, the Examiner states “[i]n response to applicant’s
argument regarding crushing, grinding, milling or cutting, it is noted that the
by-product could be crushed later in the process, or not crushed at all
depending on the nature of the by-product and [its] intended use.” Id. at 3.
Appellant argues that this indicates a failure to accord patentable weight to
the negative limitation requiring storage “without any prior crushing,
grinding,” etc. Id. at 4–5.
In the Answer, the Examiner contends that the Final Office Action
“addressed every single recitation of claim 1.” Examiner’s Answer dated
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July 11, 2019 (“Ans.”) 7. The Examiner directs us to Filin’s teaching that
“[i]ntroducing preservatives into silage-type animal feed by conveying feed
along conveying pipe via mixer into which air and preservative are sprayed
and mixed.” Id. (citing Filin, Title). The Examiner further determines as
follows:
Filin et al[.] discloses agricultural by-product such as
silage-type animal feed that is contained in the container. Filin et
al[.] discloses spraying the preservative under pressure with air
onto silage-type animal feed. Filin et al[.] discloses uniform
distribution of preservative, Filin et al[.] does not disclose
application of low-temperatures.
Filin discloses mixing of by-products in a state that they
have been generated to this point with the preservative.

Id. at 4. The Examiner further refers back to the Final Office Action’s
finding that “Glabe is relied upon as a teaching of the preservation of whole
chicken meat or parts of the chicken. The chicken is preserved through the
treatment with sodium diacetate.” Id. at 8; Final Act. 5. That is, the
Examiner relies on Glabe as teaching preservation that does not require
cutting or milling, etc.
In view of the foregoing findings, we are not persuaded that the
Examiner has failed to attribute patentable weight to the limitations at issue.
Second, Appellant argues that a person of ordinary skill in the art
would not have had adequate reason to combine the teachings of Filin and
Glabe. Appeal Br. 5–10. Appellant asserts that Glabe concerns chicken
intended for human consumption, teaches to refrigerate and package the
chicken, and discloses application of a preservative to the surface of the food
product (rather than penetrating into the interior). Id. at 5–6. Appellant
argues that Filin differs from Glabe in several respects.
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Appellant argues that Filin concerns the preservation of silage fodder
not suitable for human consumption. Id. at 7. Appellant further asserts that
Filin requires no refrigeration, teaches a preservative that penetrates into the
food product, and lacks any teaching of a packaging. Id. at 7–8.
Appellant additionally presents data described as a “[c]omparison
between two samples of 300 grams of chicken intestines.” Id. at 8. The data
purport to show that the claimed process “allows a reduction critical to the
decomposition and deterioration of the by-product, as compared to the
unprocessed by-product.” Id. at 9. Appellant states that this indicates “that
the effects of the preservation method of the present invention [are] not
limited to the surface of the by-products.” Id. Appellant further asserts that
the cereals and fodder of Filin would be expected to have a lower
enterobacteria level than the chicken meat of Glabe. Id. Appellant
additionally adds that “the claimed method provides for protection of
products with a moisture content much higher than that of the cited prior
art.” Id. As a consequence, Appellant argues, it would not have been
obvious to one of ordinary skill in the art to combine the method of Filin
with the method of Glabe. Id.
The foregoing is not persuasive of error. The rejection relies
principally upon Filin’s teachings regarding silage. See Final Act. 3 (“it
would have been obvious to treat the animal feed of Filin with the
preservative and store it without any prior cutting or chopping it”); see also
Ans. 9. The Examiner relies on Glabe as teaching that the preservative of
Filin may be applied to the animal feed without any cutting or milling step.
Appellant makes assertions and presents data in support of its argument that
one of skill in the art would not have regarded a preservative applied to the
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surface as adequate for preservation. Appeal Br. 8–10. Many of Appellant’s
assertions, however, are not supported by evidence of record.
Appellant states that “common knowledge in this field at the time the
invention was made required, in order for the preservatives to duly preserve
food products for silage feed, that the feed necessarily needed to be
chopped.” Id. at 8. This statement is unsupported by citation to evidence.
Appellant additionally includes a table indicating various measures of
degradation of chicken intestines. Id. This data is not included in the
Specification nor supported by any affidavit cited in the Appeal Brief. See
id. at 8. Appellant additionally makes certain statements regarding moisture
content and enterobacteria levels. Id. at 9. These statements are not
supported. Id.
Accordingly, the statements and data are viewed as mere attorney
argument. See In re Huang, 100 F.3d 135, 139–40 (Fed. Cir. 1996) (It is
well settled that arguments of counsel cannot take the place of factually
supported objective evidence.); see also Perfect Web Techs., Inc. v.
InfoUSA, Inc., 587 F.3d 1324, 1332 (Fed. Cir. 2009) (rejecting a
nonobviousness position that was “merely attorney argument lacking
evidentiary support”).
As persons of scientific competence in the fields in which they work,
examiners are responsible for making findings, informed by their scientific
knowledge, as to the meaning of prior art references to persons of ordinary
skill in the art. In re Berg, 320 F.3d 1310, 1315 (Fed. Cir. 2003). “Absent
legal error or contrary factual evidence, those findings can establish a prima
facie case of obviousness.” Id. Here, Appellant has not shown error in the
Examiner’s finding that one of skill in the art would have had reason to omit
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the cutting step of Filin. This is particularly so in view of the absence of
argument, supported by evidence, specific to the animal feed of Filin.
Accordingly, Appellant has not stated an adequate basis for reversal.

CONCLUSION

The Examiner’s rejection is affirmed.
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–7, 21 103(a) Filin, Glabe 1–7, 21

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED