Appeal 2007-2673
Application 10/354,981
Examiner has determined that Sharma need not describe the claimed
packaging step since it is recited as an optional step in claim 1 (id).
The Appellants only contend that Sharma fails to teach or suggest
exposing a foodstuff to an aqueous solution containing dissolved ozone “at a
temperature and for a time sufficient to substantially sanitize the foodstuff”
as required by claim 1 (Br. 11 and Reply Br. 2-4).
The dispositive question is, therefore, whether Sharma teaches or
would have suggested exposing a foodstuff to an aqueous solution
containing dissolved ozone “at a temperature and for a time sufficient to
substantially sanitize the foodstuff” within the meaning of 35 U.S.C. §
103(a)? On this record, we answer this question in the affirmative.
According to page 450 of Sharma:
Table 3 lists the reductions in populations of E. coli O157:H7
on alfalfa seeds treated in water continuously sparged with
ozone…. The lowest reduction in population was 1.12 log10
CFU/g (92.1%) on seeds treated for 2 min and the highest
reduction was 2.21 log10 CFU/g (99.4%) on seeds treated for 64
min.
….
Since ozone sparging did not eliminate E. coli O157:H7 on
alfalfa seeds, sparging followed by heat was tested as a
multihurdle approach….Water (control) and ozone sparging
treatment followed by heating at 60oC for 3 h resulted in the
highest reductions in population of E. coli O157:H7. No
colonies were formed on TSAN, indicating less than 40 CFU/g
of seeds. [Emphasis added.]
According to page 8 of the Specification, Sharma’s ozone treatment
temperature and time employed above are sufficient to meet the claimed
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