WTI, Inc.

Patent Trials and Appeals Board

Aug 6, 2021

2020004738 (P.T.A.B. Aug. 6, 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.
15/017,009 02/05/2016 Jasdeep K. Saini 822322-1030 9157
24504 7590 08/06/2021
THOMAS | HORSTEMEYER, LLP
3200 WINDY HILL ROAD, SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
LACHICA, ERICSON M
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
08/06/2021 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):
docketing@thomashorstemeyer.com
ozzie.liggins@tkhr.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 JASDEEP K. SAINI, KEVON LEDGERWOOD,
JAMES L. MARSDEN, and WOLFGANG LUDWIG1
____________

Appeal 2020-004738
Application 15/017,009
Technology Center 1700
____________

Before JEFFREY B. ROBERTSON, N. WHITNEY WILSON, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.

KENNEDY, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 6, 10, 11, 13, 15–18, 20–27, 31, and 32. We
have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.
BACKGROUND
The subject matter on appeal relates to methods of food processing
and preservation involving the use of high pressure and pathogen inhibitors.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. The Appellant identifies the real party in interest as
“World Technology Ingredients (WTI), Inc.” Appeal Br. 3.
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E.g., Spec. 1; Claim 1. Claim 1 is reproduced below from page 22 of the
Appeal Brief (Claims Appendix):
1. A method of high-pressure processing of a food product
comprising:
adding an effective amount of a secondary inhibitor to the food
product, wherein the secondary inhibitor is an organic acid or a
consumable salt thereof;
sealing an unfrozen food product comprising the secondary
inhibitor in a vacuum sealed package;
placing the vacuum sealed package including the unfrozen food
product therein into a pressure vessel comprising a pressure
medium; and
pressurizing the pressure vessel having the vacuum sealed
package including the unfrozen food product therein to a
predetermined pressure from about 60,000 psi to about 100,000
psi for a period of time of from about 100s to about 400s, and
wherein the food product is a ready-to-eat food product selected
from the group consisting of ready-to-eat beef, ready-to-eat
poultry, ready-to-eat pork, and ready-to-eat fish, and
wherein the effective amount is effective to slow the growth of
Listeria monocytogenes by at least 50% as compared to the same
food product under the otherwise same conditions except without
the secondary inhibitor.
REJECTIONS ON APPEAL
The claims stand rejected under 35 U.S.C. § 103 as follows:
1. Claims 1, 6, 10, 11, 13, 15–18, 20–22, and 27 over Trahan
(US 2013/0078339 A1, published Mar. 28, 2013) and Singh (US
2008/0311259 A1, published Dec. 18, 2008).
2. Claims 23–26 over Trahan, Singh, and Ludwig (US 2010/0310738
A1, published Dec. 9, 2010).
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3. Claim 31 over Trahan, Singh, and Monte (US 5,389,391, issued
Feb. 14, 1995).
4. Claim 32 over Trahan, Singh, Ludwig, and Monte.
ANALYSIS
After review of the cited evidence in the appeal record and the
opposing positions of the Appellant and the Examiner, we determine that the
Appellant has not identified reversible error in the Examiner’s rejections.
Accordingly, we affirm the rejections for reasons set forth below, in the
Final Action dated August 12, 2019, and in the Examiner’s Answer.
Rejection 1
The Appellant presents separate arguments for claims 1, 13, and 15.
We address those claims below. The remaining claims subject to
Rejection 1 will stand or fall with the claim from which they depend. See
37 C.F.R. § 41.37(c)(1)(iv).
Claim 1. The Examiner finds, and the Appellant does not
persuasively dispute, that Trahan discloses a method of high pressure
processing of a food product comprising each element of claim 1 except that
Trahan “is silent” regarding (1) “the food product being a ready to eat beef
food product,” (2) the recited pressure range of 60,000–100,000 psi, and
(3) “the particular pathogen whose growth is being slowed.” Ans. 4–6.
As to (1), the Examiner finds that Trahan discloses the use of its
process with meat, but not specifically with ready-to-eat beef. Id. at 7. The
Examiner finds that “the particular type of meat . . . does not provide a
patentable distinction over the prior art” because a person of ordinary skill
“would apply the teachings of [the combined prior art] to any meat food
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product desired in order to inactivate any harmful microorganisms and
pathogens.” Id. at 7–8.
As to (2), the Examiner finds that Singh discloses a high pressure
pasteurization process of meat that uses pressures of 70,000–87,000 psi for a
time sufficient to kill or deactivate targeted pathogens, including listeria. Id.
at 6. The Examiner finds that, because “both [Trahan and Singh] are
directed towards the same field of endeavor of high pressure processing of
food products,” “[i]t would have been obvious to . . . modify [Trahan] and
use [the pressures of Singh].” Id. We also note that Trahan itself discloses
pressures within the scope of claim 1. E.g., Trahan at Fig. 2 (6,000 bar,
which corresponds to about 87,000 psi), ¶¶ 4, 23.
As to (3), the Examiner finds that Singh discloses the use of a high
pressure process to kill or deactivate listeria, and that “[t]he pathogen listeria
is known in the art to be the genus of the species listeria monocytogenes.”
Ans. 6. The Examiner further finds that, given Trahan’s broad goal of
killing pathogenic microorganisms, it would have been obvious to use the
method of the combined prior art to kill any known undesirable pathogens,
including any particular species of listeria such as listeria monocytogenes,
“since the presence of pathogens are undesirable in food products.” Id. at 7.
In view of those findings, the Examiner concludes that the subject
matter of claim 1 would have been obvious to a person of ordinary skill in
the art.
The Appellant first argues that the Examiner has not established a
reasonable expectation of success in making the proposed combination
because Trahan’s disclosure of controlling “‘pathogens’ generically” does
not specifically teach controlling listeria monocytogenes, and the Examiner
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has not “provided any evidence that all pathogens can be treated in the
same” way. Appeal Br. 14.
That argument is not persuasive of reversible error in the Examiner’s
rejection. Trahan broadly teaches control of “pathogens.” E.g., Trahan at
Abstr. Trahan teaches that high pressure processing (HPP) techniques “can
be used to mitigate or eliminate the risk that bacterial, mold, yeast, and
parasites will survive or multiply in or on HPP-treated articles.” Id. ¶ 2.
Trahan repeatedly references control of pathogens broadly. E.g., id. ¶¶ 6, 7,
8, 9, 14, 20. There is no dispute that listeria monocytogenes is a known
pathogen.
Although Trahan does not specifically mention listeria, and Trahan
acknowledges that some pathogens are resistant to some methods of
pathogen control, Singh teaches the use of high pressure pasteurization to
control listeria. Singh ¶ 29.
Those disclosures are adequate to suggest to a person of ordinary skill
in the art that the method of the combined prior art would have been
effective for controlling listeria monocytogenes. In that regard, we observe
that Trahan discloses the use of pressures that substantially overlap both the
range disclosed by Singh and the range recited by claim 1. Compare Trahan
¶ 23 (35,000–87,000 psi), with Singh ¶ 8 (70,000–87,000 psi) and
Appellant’s Claim 1 (60,000–100,000 psi). Even if a person of ordinary
skill could not have known with certainty that the proposed combination
would be effective against listeria monocytogenes specifically, “[t]he
reasonable expectation of success requirement for obviousness does not
necessitate an absolute certainty for success.” PAR Pharm., Inc. v. TWI
Pharm., Inc., 773 F.3d 1186, 1198 (Fed. Cir. 2014). The Appellant’s
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arguments concerning expectation of success do not persuade us of
reversible error in the rejection.
The Appellant next argues that Trahan “teaches away from applying
his high pressure process (HPP) to control Listeria monocytogenes” because
Trahan allegedly “distinguishes between controlling spores and cysts in
foodstuffs as compared to controlling bacteria, in particular the anaerobic
bacteria Listeria monocytogenes.” Appeal Br. 14.
That argument is not persuasive of reversible error. The Appellant
provides no citation in support of the Appellant’s allegation that Trahan
distinguishes between control of spores/cysts and bacteria. Nor does the
Appellant address disclosures in Trahan that indicate HPP techniques are
broadly effective against spores, cysts, and bacteria, which contradicts the
Appellant’s allegation. See, e.g., Trahan ¶¶ 2 (“HPP techniques can be used
to mitigate or eliminate the risk that bacteria, mold, yeast, and parasites will
survive or multiply . . . .”), 6 (similar), 68 (“Maintenance of the foodstuff at
the applied pressure results in damage to microorganisms (e.g., bacteria,
molds, yeast, and parasites) . . . .”). On this record, we are not persuaded
that Trahan teaches away from the use of its process to control bacteria as
opposed to spores and/or cysts.
The Appellant also argues that Singh’s process is directed to liquids
and, therefore, is “significantly different” from the process of Trahan.
Appeal Br. 15. The Appellant argues that Singh’s method “is contrary to the
method of the present claims” because Singh’s process includes a heating
step. Id. at 15–16.
Those arguments are not persuasive of reversible error in the
rejection. Claim 1 does not preclude the use of a heating step. See Appeal
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Br. 22 (Claims Appendix). Moreover, as explained above, the pressures
taught by Trahan substantially overlap with those taught by Singh, and
Singh teaches that its method is effective against listeria. Singh ¶ 29. Even
accepting that Singh principally concerns liquids as opposed to solids, Singh
also expressly discloses use of its process “with or without additional
ingredients such as dairy, vegetable, and meat products.” Id. ¶ 32. The
Appellant provides no persuasive basis to believe that a method adequate to
control listeria in products such as those of Singh would not likewise be
effective on meat products such as those of Trahan.
We have carefully considered the Appellant’s arguments, but we are
not persuaded of reversible error in the Examiner’s rejection of claim 1.
Claim 13. Claim 13 depends from claim 1 and recites that “the
effective amount [of secondary inhibitor] is from about 0.1% to about 1.5 %
(w/w) based upon the weight of the food product.” Appeal Br. 23 (Claims
Appendix).
The Examiner finds that Trahan teaches inclusion of its inhibitor in
amounts effective to preferably inhibit pathogen growth by at least a five log
reduction factor. Ans. 5. The Examiner also finds that Trahan discloses that
the amount of inhibitor “is a result effective variable” that a person of
ordinary skill in the art would “adjust in order to achieve the desired results
of killing off unwanted microorganisms and pathogens present in the food
product,” and that the Appellant has not shown any criticality or unexpected
results associated with the claimed amount of inhibitor. Id. at 9.
The Appellant argues that “there is no teaching in either” Trahan or
Singh “of a secondary inhibitor being provided in such quantity [of claim
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13] in order to control the growth of Listeria in a ready-to-eat meat food
product.” Appeal Br. 16–17.
That argument is not persuasive for reasons explained above as to
claim 1, and because that argument fails to acknowledge or otherwise
identify error in the Examiner’s result-effective variable rationale. See In re
Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s
practice to require an applicant to identify the alleged error in the examiner’s
rejections . . . .”); In re Aller, 220 F.2d 454, 456 (CCPA 1955) (“Normally, it
is to be expected that a change . . . in concentration . . . would be an
unpatentable modification.”).
Claim 15. Claim 15 depends from claim 1 and recites that “the
effective amount [of secondary inhibitor] is effective to prevent the
outgrowth of Listeria monocytogenes to ≤2 log cfu/g.” Appeal Br. 23
(Claims Appendix).
The Examiner relies on essentially the same reasoning discussed
above as to claim 13.
The Appellant argues that the claims contemplate at least “7 variables
[that] would need to be recognized as result-effective variables,” and that the
Examiner has failed to explain where the prior art teaches all seven of those
variables. Appeal Br. 18.
That argument is not persuasive. Claim 15 concerns the concentration
of secondary inhibitor. In view of that, we agree with the Examiner that the
relevant variable for purposes of an optimization rationale is the
concentration of secondary inhibitor, and, as explained above with respect to
claim 13, the Appellant has not persuasively identified reversible error in the
Examiner’s reasoning. That, for example, “the type of food product
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processed,” Appeal Br. 12, might be considered a variable, is not indicative
of error in the rejection because both Trahan and Singh expressly teach
meats. E.g., Trahan at Abstr.; Singh ¶ 32. As another example, that the
pressure of the process is a variable, see Appeal Br. 12–13, also fails to
indicate reversible error in the rejection because, as set forth above, both
Trahan and Singh teach pressures that substantially overlap or fall
completely within the claimed pressure range. The Examiner’s analysis
adequately addresses each of the alleged variables that the Appellant
identifies.
On this record, the Appellant’s fail to identify reversible error in the
Examiner’s rejection of claim 15. See Jung, 637 F.3d at 1365.
Rejection 2
Claims 23 and 25, subject to Rejection 2, further specify the identity
of the secondary inhibitor. Claim 23 requires the secondary inhibitor to be
“a buffered dried vinegar,” and claim 25 requires the secondary inhibitor to
be “a vinegar-derived acetate salt having a pH of about 5.0 to about 10.0.”
Appeal Br. 24 (Claims Appendix).
The Examiner finds Trahan teaches that its inhibitor may be acetic
acid or a consumable salt of vinegar. Ans. 13–14. The Examiner further
finds that Ludwig teaches the use of vinegars to control pH of food “during
various stages of processing as well as for the finished consumable product,”
and that Ludwig teaches vinegar derived food additives with a pH of about
4.5 to about 10.0. Id. at 17. The Examiner finds that it would have been
obvious “to modify the vinegar secondary inhibitor of Trahan . . . and
incorporate a buffered dried vinegar by adding buffering agents as taught by
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Ludwig in order to control the pH levels of the food being processed.” Id. at
17–18.
The Appellant repeats the Appellant’s arguments concerning
reasonable expectation of success and optimization of “7 variables.” Appeal
Br. 19–20.
Those arguments are not persuasive for reasons set forth above.
Rejections 3 and 4
Rejection 3 concerns claim 31, which depends from claim 1.
Rejection 4 concerns claim 32, which depends from claim 25. The
Appellant presents no separate arguments as to claims 31 and 32 beyond
those discussed and found unpersuasive above. Accordingly, we affirm the
Examiner’s rejections of claims 31 and 32.
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CONCLUSION
In summary:
Claims
Rejected
35
U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 6, 10, 11,
13, 15–18,
20–22, 27
103 Trahan, Singh
1, 6, 10, 11, 13,
15–18, 20–22,
27

23–26 103 Trahan, Singh, Ludwig 23–26
31 103 Trahan, Singh, Monte 31
32 103 Trahan, Singh, Ludwig, Monte 32
Overall
Outcome
1, 6, 10, 11, 13,
15–18, 20–27,
31, 32

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