OKI, Hisaharu et al.

Patent Trials and Appeals Board

Aug 10, 2021

2020004705 (P.T.A.B. Aug. 10, 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.
14/383,407 09/05/2014 Hisaharu Oki TCP-030 8019
32628 7590 08/10/2021
KANESAKA BERNER AND PARTNERS LLP
2318 MILL ROAD
SUITE 1400
ALEXANDRIA, VA 22314-2848
EXAMINER
PRAKASH, SUBBALAKSHMI
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
08/10/2021 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):
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office@uspatentagents.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HISAHARU OKI and YUKIO MURATA

Appeal 2020-004705
Application 14/383,407
Technology Center 1700
Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and
SHELDON M. MCGEE, Administrative Patent Judges.
MCGEE, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 4, 10, and 20–31. We have jurisdiction.
35 U.S.C. § 6(b).
We affirm.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real parties in interest as Chokichi Sato and each of the named
inventors, Hisaharu Oki and Yukio Murata. Appeal Br. 2.
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CLAIMED SUBJECT MATTER
The claims are directed to a method for the sterilization and
preservation of foodstuffs, such as rice, barley/wheat, corn, peanuts, and
soybeans. Appeal Br. 13 (Claims App.).
Independent claim 4, reproduced below, is illustrative of the claimed
subject matter:
4. A method for sterilization and preservation of foodstuffs,
comprising:
dropping a foodstuff from an upper end opening of an
upright cylindrical unit down therethrough, and
contacting the foodstuff with overheated steam jetted out
of an inner wall of said cylindrical unit having a temperature of
250°C to 620°C for 20 seconds to 0.5 second simultaneously
with addition and mixing of 0.1 – 5.0 parts by weight of calcium
oxide powders relative to 100 parts by weight of the foodstuff to
and with said foodstuff.
OPINION
The sole rejection on appeal pertains to claims 4, 10, and 20–31 which
stand rejected under pre-AIA 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Kagitani,2 Sato,3 and Yoshida.4 Final Act.5 2–6.
We review the appealed rejection for reversible error based on the arguments
and evidence presented by Appellant. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte

2 Kagitani, JP 2001/213715, published August 7, 2001. We rely on the
uncontested English-language machine translation.
3 Sato, JP 2010/214093 A, published September 30, 2010 (“Sato ̓ 093”). We
rely on the uncontested English-language machine translation as well as the
U.S. publication of Sato, US 2011/0165299 A1.
4 Yoshida, JP 2004-033202 A, published February 5, 2004.
5 We refer to the Final Office Action dated April 18, 2019, from which this
appeal is taken.
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Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with
approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining
that even if the Examiner had failed to make a prima facie case, “it has long
been the Board’s practice to require an applicant to identify the alleged error
in the examiner’s rejections”)).
Upon consideration of Appellant’s arguments in light of the evidence
in the appeal record, we determine that Appellant has identified no
reversible error in the obviousness rejection. We therefore affirm the
rejection for the reasons expressed by the Examiner and below.
Appellant argues the rejection of claims 4, 10, 20, and 22–31 as a
group, and separately argues claim 21. Therefore, consistent with our rules,
we select independent claim 4 as representative, and decide the appeal of
claims 10, 20, and 22–31 based on claim 4. 37 C.F.R. § 41.37(c)(1)(iv). We
address claim 21 separately.
Claim 4
Appellant first argues that the claimed foodstuff subject matter is
distinguished from the foodstuffs of Kagitani’s Examples 2–4 because these
examples “incorporated the fired scallop shell powder” containing calcium
oxide “in [the] food itself.” Appeal Br. 7 (citing Kagitani ¶¶ 21–32). This
argument lacks persuasive merit because Kagitani recognizes placing
calcium oxide powder onto the foodstuff. See Kagitani ¶ 11 (explicitly
disclosing that “[b]aking powder of the obtained scallop shells . . . may be
sprayed on the food.”).
Appellant also discusses four examples contained within the
Specification which purportedly demonstrate unexpected results of the
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claimed subject matter. Appeal Br. 7–9. For multiple reasons, Appellant’s
evidence fails to rebut the obviousness rejection.
“It is well established that the objective evidence of nonobviousness
must be commensurate in scope with the claims.” In re Lindner, 457 F.2d
506, 508 (CCPA 1972). Here, the examples relied on by Appellant describe
a two-step process in which four foodstuffs were each contacted with
overheated steam and, subsequently, calcium oxide powders. Spec. 10:13–
11:18; 13:20–25; 15:14–19; 17:8–13. Claim 4, however, recites that these
contacting steps are done “simultaneously.” Appeal Br. 13 (Claims App.).
Furthermore, the examples relied on by Appellant are specific to one
steam temperature (400oC), a single duration of steam contact (0.7 seconds),
and a single concentration of calcium oxide powders (0.1 parts by weight) to
100 parts by weight of a foodstuff. Spec. 10:13–11:18; 13:20–25; 15:14–19;
17:8–13. These examples are not commensurate with the broader scope of
the claims on appeal.
Specifically, independent claim 4 recites ranges of steam temperature
(250°C to 620°C) and contact duration (0.5 to 20 seconds) for contacting the
foodstuff. Likewise, claim 4 similarly recites a concentration range of
calcium oxide powders (0.1–5.0) to 100 parts by weight of a foodstuff. Each
of these ranges are broad vis-à-vis the examples relied upon here. See
Lindner, 457 F.2d at 508 (“Here only one mixture of ingredients was
tested. . . . The claims, however, are much broader in scope, . . . and we
have to agree with the Patent Office that there is no ‘adequate basis for
reasonably concluding that the great number and variety of compositions
included by the claims would behave in the same manner as the [single]
tested composition.’”) (bracketed material in original).
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Moreover, when data is proffered to rebut a prima facie case of
obviousness, “the results must be shown to be unexpected compared with
the closest prior art.” In re Baxter Travenol Labs., 952, F.2d 388, 392 (Fed.
Cir. 1991). No such comparison exists in the record before us.
Thus, for these reasons, and those provided by the Examiner, we
sustain the obviousness rejection of claims 4, 10, 20, and 22–31.
Claim 21
Claim 21, dependent from claim 4, requires that the “foodstuff is one
selected from the group consisting of rice, barley/wheat, corn, peanuts, and
soybeans.” Appeal Br. 20 (Claims App.).
Appellant argues that the claimed foodstuff subject matter is
distinguished from the applied prior art’s foodstuff because Kagitani teaches
the addition of calcium oxide to cereal powder. Appeal Br. 10.
While Kagitani discusses certain embodiments that add calcium oxide
powders to cereal flour (see, e.g., Kagitani ¶¶ 6, 11, 23), the full scope of
Kagitani’s disclosure is not limited to those embodiments. As set forth
supra, Kagitani discloses that “[b]aking powder of the obtained scallop
shells . . . may be sprayed on the food.” Id. ¶ 11 (emphasis added). We
agree with the Examiner that Kagitani does not preclude other foods from
the broad disclosure. See id. ¶ 2 (disclosing that the other foods that may be
preserved by calcium oxide powders include rice cake, along with noodles,
oil, processed vegetables, meats, cheeses, etc.) (emphasis added). “It is well
settled that a prior art reference is relevant for all that it teaches to those of
ordinary skill in the art.” In re Fritch, 972 F.2d 1260, 1264 (Fed. Cir. 1992).
Therefore, we are not persuaded that the skilled artisan would have viewed
Kagitani’s disclosure as narrowly as Appellant urges.
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Moreover, as the Examiner found, it was known that superheated
steam may be used to sterilize grains, soybeans, and vegetables. Ans. 10
(citing Sato ʼ093 ¶ 48); Final Act. 4. Significantly, this finding is
uncontested by Appellant, i.e., no Reply Brief was filed.
Thus, for these reasons, and those provided by the Examiner, we
sustain the obviousness rejection of claim 21.
CONCLUSION
The Examiner’s rejection is affirmed.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
4, 10, 20–31 103(a) Kagitani, Sato, Yoshida 4, 10, 20–
31

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).
AFFIRMED