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Steuben Foods, Inc. v. Nestle USA, Inc.

United States Court of Appeals, Federal Circuit

March 13, 2018

STEUBEN FOODS, INC., Appellant
v.
NESTLE USA, INC., Appellee

         Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. IPR2015-00195.

          Thomas Fisher, Oblon, McClelland, Maier & Neu-stadt, LLP, Alexandria, VA, argued for appellant. Also represented by W. Cook Alciati, Charlie Avigliano, Steuben Foods, Inc., Jamaica, NY.

          Tyler Michael Akagi, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for appellee. Also represented by Thomas H. Jenkins; Virginia L. Carron, Kevin D. Rodkey, Atlanta, GA.

          Before Dyk, Reyna, and Hughes, Circuit Judges.

          Hughes, Circuit Judge.

         Steuben Foods, Inc. appeals from the final decision of the Patent Trial and Appeal Board in an inter partes review, finding claims 1-10, 14, 16-21, 25, 27, 29, and 32- 36 of U.S. Patent No. 6, 475, 435 B1 unpatentable as obvious. Because we find no reversible error in the Board's decision, we affirm.

         I

         Aseptic packaging involves putting a sterile food product into a sterile package within a sterile environment. The '435 patent is generally directed to providing such a sterile environment in a sterilization tunnel, which is a tunnel pressurized with sterile air to a level above atmospheric pressure. The overpressure creates a flow of sterile air out of the tunnel, ensuring that contaminants cannot flow into it.

         More specifically, the '435 patent discloses an apparatus and method for providing sterilization zones in an aseptic packaging sterilization tunnel that surrounds containers with pressurized gas. '435 patent, col. 1 ll. 12- 14, col. 3 ll. 30-31. The aseptic sterilant used in the apparatus may be hydrogen peroxide. Id. at col. 2 ll. 23- 27, col. 5 ll. 2-6. Figure 3 of the patent, reproduced in its annotated form below, illustrates the distinct sterilization zones in the sterilization tunnel-starting with the fourth zone (orange), followed by the first (blue), the second (red), and the third (green) zones-with the zones providing various concentration levels of sterilant within the tunnel. The fourth sterilization zone 165 includes the bottle sterilization apparatus. It has the highest hydrogen peroxide sterilant level-about 1, 000 parts per million (ppm). Id. at col. 9 ll. 54-58. The first sterilization zone 164 includes the activation and drying apparatus. The hydrogen peroxide sterilant level in that zone is about 3 ppm. Id. at col. 9 11. 58-59. The second sterilization zone 166 includes the main product filler apparatus, and the lid sterilization and heat sealing apparatus. It has the lowest concentration level of hydrogen peroxide sterilant at about less than 0.5 ppm and typically about 0.1 ppm. Id. at col. 9 11. 59-63. The third sterilization zone 172 includes a bottle discharge apparatus. The

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         hydrogen peroxide sterilant concentration level in that zone is about 0.1 ppm. Id. at col. 10 11. 1-2.

         Nestle USA, Inc. challenged claims of the '435 patent in an inter partes review. The Board instituted trial on claims 1-10, 14, 16-21, 25, 27, 29, and 32-36 of the patent. The challenged claims are directed to the sterilization tunnel and further recite maintaining a specific ratio of sterilant concentration levels in the plurality of zones in the tunnel.

         Claim 1 is illustrative ...


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