Ex Parte Burns et al

Patent Trial and Appeal Board

Oct 19, 2016

13738517 (P.T.A.B. Oct. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/738,517 01/10/2013
21884 7590 10/19/2016
WELSH FLAXMAN & GITLER LLC
2000 DUKE STREET, SUITE 100
ALEXANDRIA, VA 22314
FIRST NAMED INVENTOR
David Burns
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
NOVA-012 5621
EXAMINER
TARAZANO, DONALD LAWRENCE
ART UNIT PAPER NUMBER
1791
MAILDATE DELIVERY MODE
10/19/2016 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DAVID BURNS, THOMAS STEFFIE, and ALECIA EPPELSHEIMER
Appeal2015-004378
Application 13/738,517
Technology Center 1700
Before LINDA M. GAUDETTE, N. WHITNEY WILSON, and LILAN REN,
Administrative Patent Judges.
GAUDETTE, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2015-004378
Application 13/738,517
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner's decision2
finally rejecting claims 1 and 4---6 under 35 U.S.C. § 103(a) as unpatentable over
Garwood (US 2006/0292274 Al, pub. Dec. 28, 2006) in view of Christensen (US
2007/0224206 Al, pub. Sept. 27, 2007). We have jurisdiction under 35 U.S.C.
§ 6(b ).
We REVERSE.
The "invention relates to the sterilization of ground meat ... using
supercritical C02." Specification filed Jan. 10, 2013 ("Spec."), 2:3-5.
"Hamburger meat, or ground beef, poses an elevated risk of illness because
grinding can mix live E. coli bacteria throughout the meat, and consumers often
undercook their hamburgers." Spec. 3: 11-13. According to the Specification, at
the time of the invention, known methods of sterilizing ground meat produced a
product that was too expensive, lost vital taste and texture characteristics, or
became unsightly. Id. at 2:9-12. The inventors are said to have discovered a
method of sterilizing ground meat during processing that avoids the drawbacks of
the prior art methods. See id. at 4:5-8.
Appellants rely on limitations in claim 1, the sole independent claim on
appeal, in support of patentability as to all appealed claims. See generally App. Br.
7-15. Claim 1 reads as follows:
1. A method for sterilizing a ground meat product through the
application of supercritical C02 during the processing of the ground
meat comprising:
feeding meat into a grinder where it is ground into ground meat;
transmitting the ground meat to an extruder;
1 Appellants identify the real party in interest as Novasterilis, Inc. Appeal Brief
filed Aug. 7, 2014 ("App. Br."), 1.
2 Final Office Action mailed February 26, 2014 ("Final Act.").
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Appeal2015-004378
Application 13/738,517
introducing supercritical C02 into the extruder as the ground
meat passes through the extruder; and
controlling the pressure and speed at which the ground meat
passes through the extruder to maintain the ground meat in contact
with the supercritical C02 while in the extruder to achieve a log
reduction in colony forming units of microbial contaminants so as to
sterilize the ground meat.
Appellants do not dispute the Examiner's finding that Garwood discloses a
method of treating boneless meat with C02, but contend the Examiner reversibly
erred in finding that Garwood teaches grinding the meat prior to treatment with
supercritical C02 as required by claim 1. See, e.g., App. Br. 10. Appellants
contend grinding of the meat prior to exposure to supercritical C02 is an essential
feature of the claimed method because grinding provides the enhanced surface area
necessary to achieve the desired sterilizing effects of the supercritical C02. Id. at
7-8.
Garwood discloses an apparatus and a method for treating meat using C02.
Garwood i-f 2. Garwood's apparatus includes a hopper from which boneless beef is
conveyed at a measured and controlled rate through conduits and spaces, e.g.,
1228, 1229, 190, 192, 198. Id. i-fi-117, 24. The beef, combined with water and C02,
is pressurized to an elevated pressure, e.g. 2500 psig, and then transferred to
cylinder 1216. Id. ,-r 17. Cylinder 1216 includes pistons for oscillating pressure
between 0 psig and 5000 psig in a controlled manner. Id. i-f 25. Temperature is
monitored so as not to exceed or fall below predetermined limits. Id. Thereafter,
the beef is transferred out of cylinder 1216 through a series of conduits/cylinders
such that pressure is substantially lowered. Id. i-f 2 7. The beef may be directed
thereafter through an inline grinder. Id.
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Appeal2015-004378
Application 13/738,517
Garwood discloses the apparatus
can be used to provide three procedures of varying pressure and
temperature conditions of carbon dioxide that affect microorganisms
in a detrimental manner .... Such procedures include: (1) oscillating
between low and high pressure to cause ice crystal formation and
thawing in rapid succession, (2) raising pressure to create a dense
phase of carbon dioxide with a low pH, and (3) raising pressure to
change to supercritical carbon dioxide to affect the cell wall lipids of . .
mi croorgamsms.
Id. i-f 37. Garwood discloses that each of the three sets of conditions can be
sequenced in any order and repeated any number of times. Id.
Garwood discloses that C02 becomes a supercritical fluid when it is
pressurized above about 1100 psig and heated above about 88 °F (36 °C). Id.
Garwood describes three embodiments in which the apparatus is used in a manner
that exposes meat to supercritical C02. Id. ff 41, 42, 44. In each of these
embodiments, beef is mixed with C02 in a first vessel, transferred to a second
vessel in which pressure and temperature conditions are adjusted to conditions that
produce supercritical C02, and then ejected from the second vessel to achieve a
chilling effect via a grinder. Id.
In rejecting claim 1, the Examiner relies primarily on the embodiment
described in Garwood paragraph 44. See Final Act. 3; Ans. 8-9.3 The method
described in paragraph 44 includes the following steps: (1) pressurizing beef and
C02 to a pressure of about 500 to 5000 psig in a first vessel that "may include an
extruder"; (2) transferring the beef and C02 to a second vessel and adjusting to a
temperature of about 30 to 104 °F and a pressure of about 500 to 5000 psig; and (3)
transferring the mixture via a grinder to a third vessel at a lower pressure and
3 We note the Examiner relies on Christensen solely for a suggestion of using a
sterilizing additive (see appealed claim 4) in Garwood's method. See Final Act. 3-
4.
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Appeal2015-004378
Application 13/738,517
temperature of about 32 °F. Garwood if 44. According to Garwood, the conditions
in step (2) produce supercritical C02. Id. if 37.
The Examiner contends "[ o ]ne of ordinary skill in the art would recognize
that beef, in passing through an extruder, would be ground into an amorphous
mass, e.g. ground beef." Ans. 9. The Examiner has not identified persuasive
evidence to support this finding and, as noted by Appellants, there is no disclosure
in Garwood that the beef being treated is ground by the extruder. Reply Brief filed
February 25, 2015 ("Reply Br."), 7. For example, there is no indication in
Garwood that use of a grinder is unnecessary in embodiments where an extruder is
used in the first step. Cf Spec. 7-8 (wherein a grinder is first used to grind the
meat to the desired consistency, and the ground meat is then conveyed to packing
machinery via an extruder). To the contrary, in the embodiment described in
paragraph 44, Garwood discloses the optional use of both an extruder and a
grinder. Like the present Specification (see page 7), Garwood suggests the
extruder merely provides a means to control the speed at which the meat is moved
through a vessel (if 44).
The Examiner also contends that Garwood teaches "the order of the steps
may be repeated or performed in any order," and "a common sense ordering of the
processes of Garwood[] would comprise[] grinding of the beef, under carbon
dioxide, extrusion of the ground beef under carbon dioxide and packaging in to a
chub package." Ans. 9-10. As explained by Appellants, the Examiner's argument
is not supported by the disclosure in Garwood. See Reply Br. 4--8.
Garwood describes subjecting beef to three types of conditions that will
detrimentally affect microorganisms. Garwood iii! 35-37. Garwood suggests that
these conditions can be resequenced and repeated using the piston system in
cylinder 1216. See id. iii! 25, 41--44. We do not agree with the Examiner's reading
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Appeal2015-004378
Application 13/738,517
of Garwood (see Ans. 8 (citing Garwood Abstract, iii! 4, 16, 37, 38)) as teaching
that processes occurring outside cylinder 1216 can be reordered, i.e., transfer of
beef via an extruder into cylinder 1216 and transfer of beef out of cylinder 1216
via a grinder. Moreover, even if Garwood's equipment were arranged such that
grinding occurred prior to transfer of the beef to cylinder 1216 via an extruder, the
Examiner has not identified a teaching or suggestion of treating beef with
supercritical C02 in the extruder. See Reply Br. 8. Rather, in the description in
Garwood relied on by the Examiner, Garwood only discloses treating beef with
supercritical C02 in cylinder 1216. See id.
For the above-stated reasons, Appellants have persuaded us of error in the
Examiner's conclusion of obviousness. Accordingly, the Examiner's decision to
reject claims 1 and 4---6 is:
REVERSED
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