Application of Robert A. Boyer, Arthur A. Schulz and Edmond A. Schatzman

376 F.2d 977, 54 C.C.P.A. 1287

• Court: Court of Customs and Patent Appeals
• Decided: April 27, 1967
• Docket: Patent Appeal 7701
• Status: Published

Opinions

WORLEY, Chief Judge.

This appeal is from the decision of the Board of Appeals affirming the examiner’s rejection of claims 1-12 in appellants’ application,¹ entitled “Method of Manufacturing a Protein Food Product,” as obvious in view of the prior art.

The invention relates to a method of forming edible protein products designed to simulate natural meats of mammals, fish or fowl. According to the specification, the protein products produced by processes disclosed in certain prior art patents were too dark in color and possessed relatively poor flavor and texture. Appellants treat various protein materials — soy or casein protein, for example — with sulfite materials² to produce a product having lighter color, improved flavor and texture, and increased resistance to bacterial and fungal growth, as reflected in claim 1:

1. The method of forming an edible protein product which comprises precipitating protein from a protein-containing solution, said precipitation being carried out under spinning conditions to form the precipitating protein into filaments, and treating the protein with at least approximately 0.25% by weight of a sulfite.

The references are:

Smith et al. 2,370,266 Feb. 27, 1945. Boyer 2,682,466 June 29, 1954.

Recognizing that Boyer, one of the prior art patents cited in appellants’ specification, meets the terms of the claims except for treatment of the protein with sulfite, the examiner turned to Smith, who discloses that an industrial problem relating to the dark color of soybean, peanut, casein or cottonseed protein may be obviated by treating them with 0.25-3% sodium hydrosulfite to lighten the protein color. The proteins which Smith treats in that manner are used in the paper coating industry or “wherever a light colored protein is required.” “[I]t would be obvious,” said the examiner, “to treat the Boyer protein filaments with the Smith et al. protein-improving agent.” The board agreed.

We appreciate appellants’ arguments directed to the allegedly non-analogous nature of the Smith patent to the problem at hand, as well as the arguments and affidavits relating to the “appearance,” “appeal,” “flavor,” “texture” and “aroma” of appellants’ sulfite-treated products in comparison with the products of the prior art. But, as the board and solicitor point out, an improvement in color of Boyer’s protein product which can be used to simulate the white meat of fowl, and a concomitant improvement in appeal and appearance, might well be expected from sul-fite treatment in view of the Smith reference. Considering all the evidence, we think sufficient reason is provided by the prior art for doing what appellants have done, and we find no reversible error in the decision below.

Appellants also ask us to reverse the decision of the Director of the Chemical Examining Operation, acting for the Commissioner of Patents, refusing to direct the examiner to enter claims 14-21, submitted after appeal had been taken to the board and the examiner’s Answer written,³ for purposes of interference with an issued patent. The examiner found, and the Director agreed, that the claims sought to be entered were not supported by appellants’ application. In its decision, the board regarded such action to be “a matter which is not ap-pealable” to it.

Until such time as the board has ruled on the patentability of claims 14-21 to appellants in an application properly presenting them, we cannot review that question. See In re Pavlecka, 319 F.2d 180, 50 CCPA 1342; In re Smitley, 296 F.2d 767, 49 CCPA 803; In re Korum, 154 F.2d 185, 33 CCPA 923. We are without authority to review the action of the Commissioner in matters of this nature. 35 U.S.C. § 141; In re Jewett, 247 F.2d 953, 45 CCPA 714, and cases cited therein.

The decision is affirmed.

Affirmed.

1 . Serial No. 168,807, filed January 25, 1962.

2 . Appellants use such sulfites as sodium sulfite, sodium metabisulfite, and sodium hydrosulfite. Webster’s New International Dictionary, 3rd Edition, 1961, defines “sodium sulfite” as “the crystalline normal salt Na2SC>3 used chiefly as a reducing agent, bleaching agent, and anti-chlor, in * * * preserving foods,” and “sodium metabisulfite” as “a compound Na2S2Ü5 * * * used chiefly as a reducing agent, bleaching agent, and antichlor, in preserving foods and silage 5^ í|í

3 . See Patent Office Rule 116(c).