Givaudan SA

Patent Trials and Appeals BoardAug 20, 2021

2021002633 (P.T.A.B. Aug. 20, 2021)

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. 16/305,992 11/30/2018 Karen VAN DAM GIV.P30697 1059 23575 7590 08/20/2021 CURATOLO SIDOTI CO., LPA 24500 CENTER RIDGE ROAD, SUITE 280 CLEVELAND, OH 44145 EXAMINER GEORGE, PATRICIA ANN ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 08/20/2021 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): docket@patentandtm.com pair@patentandtm.com sidoti@patentandtm.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte KAREN VAN DAM, CHRISTIAN AULENBACHER, STEPHAN HAIBER, and SUSANNA MAGDALENA VORSTER Appeal 2021-002633 Application 16/305,992 Technology Center 1700 Before ADRIENE LEPIANE HANLON, JEFFREY T. SMITH, and JENNIFER GUPTA, Administrative Patent Judges. SMITH, Administrative Patent Judge. DECISION ON REQUEST FOR REHEARING This is in response to a Request, filed July 20, 2021, (“Request” or “Req. Reh’g”) for rehearing of our Decision dated May 21, 2021(“original Decision” or “Dec.”), in which we affirmed the Primary Examiner’s final decision to reject claims 1, 3–7, and 9–15. (Req. Reh’g 1–3.) Because the Appellant’s arguments in the Request fail to establish that we misapprehended or overlooked any point in our original Decision, as discussed further below, we decline to modify our original Decision in any substantive respect for the reasons given in our original Decision and below. 37 C.F.R. § 41.52(a) (2018). Appeal 2021-002633 Application 16/305,992 2 Appellant argues: The Board overlooks Appellant’s main argument at pages 8–9 of its Appeal Brief and pages 2–3 of its Reply Brief that the Examiner’s reasoning is based on the incorrect premise that the Arboix composition may include 100% sodium chloride, and up to 50% of the sodium chloride can be replaced. (Req. Reh’g 2). Contrary to Appellant’s argument, we did not overlook Appellant’s argument appearing at pages 8–9 the Appeal Brief and pages 2–3 the Reply Brief in reaching our determination to affirm the Examiner’s rejections. We reviewed each of the rejections on appeal for reversible error based upon the issues identified in the Appeal Brief and “in light of the arguments and [any] evidence produced thereon” (see Dec. 4–7). In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). Appellant has not persuasively shown error in the Examiner’s determination that Arboix teaches curing meat products utilizing a composition that is used to totally or partially replace (50 wt% or less) sodium chloride. (Final Act. 4–5; Arboix 2). Appellant has failed to specifically refute our statement in the decision that: Arboix throughout the disclosure indicates that the described compositions are suitable for use as a partial replacement of sodium chloride for the use of curing meat products. Arboix specifically states “[a] first objective of the present invention is to provide a composition for the total or partial replacement of sodium chloride in the manufacture of partially dehydrated cured raw meat products.” (Arboix 2, underlining added.) Describing the results obtained by the exemplified embodiments Arboix states: “although reference has been made herein to examples of making partially dehydrated Appeal 2021-002633 Application 16/305,992 3 cured raw meat products in the total absence of sodium chloride, similar results could be obtained if the sodium chloride substitution were not total but partial.” (Arboix 6, underlining added.) (Dec. 6). Appellant repeats the argument presented for the first time in the Reply Brief regarding the sodium chloride content of 40–60%. (Req. Reh’g 3). As stated in the decision, Appellant failed in the principal brief to address the Examiner’s reliance on Underwood to address this claim limitation. Appellant also failed to present an explanation establishing a showing of good cause explaining why these new arguments were not presented in the Appeal Brief. (Dec. 6–7). Accordingly, Appellant’s arguments in the Request for Rehearing lack persuasive merit. CONCLUSION Thus, we decline to modify our decision to affirm the Examiner’s § 103 rejections of the appealed claims. DECISION Outcome of Decision on Rehearing: Claims Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted 1, 3–7, 9, 10, 12–15 103 Arboix, NCHFP, Underwood 1, 3–7, 9, 10, 12–15 11 103 Arboix, NCHFP, Underwood, Claim, 11 Appeal 2021-002633 Application 16/305,992 4 Claims Rejected 35 U.S.C. § Reference(s)/Basis Denied Granted Allen, Allied, Kemco, Matis Overall Outcome 1, 3–7, 9– 15 FINAL OUTCOME OF APPEAL AFTER REHEARING Final Outcome of Appeal after Rehearing: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 3–7, 9, 10, 12–15 103 Arboix, NCHFP, Underwood 1, 3–7, 9, 10, 12–15 11 103 Arboix, NCHFP, Underwood, Claim, Allen, Allied, Kemco, Matis 11 Overall Outcome 1, 3–7, 9–15 RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). DENIED