Appeal No. 2003-2147
Application No. 09/392,243
referencing use of calcium propionate, BHT, and BHA as alternatively acceptable
preservatives...” Brief, page 13. Appellants argue that “[t]he Van Gorp patent suggests
the use of oxygen scavengers as preservatives. The Van Gorp patent does not suggest
the incorporation of either an oxidizer (such as hydrogen peroxide) or an acidifier (such
as phosphoric acid) in the process disclosed in the Van Gorp patent.” Brief, page 14.
In addition, appellants provide evidence, Exhibit D, Jay, James M., Modern Food
Microbiology, pages 259-296 (1986), which according to appellants, demonstrates there
is no support for the position that the Oles phosphoric acid “would have functioned
equivalently to the preservatives disclosed by Van Gorp...” Brief, page 14.
Appellants argue that Oles relies on a synergistic combination of acidifying
agents (a combination of (1) acetic acid or other organic acid and (2) phosphoric acid),
whereas the Van Gorp patent principally relies on an oxygen scavenging stabilizer ...
[and] demonstrates the wide difference in operating function between the preservatives
of the Van Gorp patent and the preservatives of the Oles patent. Brief, page 14.
Finally, appellants argue that Balslev “actually teaches away from using
hydrogen peroxide as a preservative in the process disclosed in the Van Gorp patent.
The Van Gorp patent principally teaches preservation by scavenging oxygen from the
mucosa tissue with oxygen scavengers. ... According to the Balslev patent the
hydrogen peroxide serves an oxidizing bactericide. ... An oxidizing agent provides
oxygen to an active site via a chemical reaction. Providing oxygen to mucosa tissue is
exactly the opposite result of that desired by the preservatives principally employed in
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