Ex Parte Osborn et al

Patent Trial and Appeal Board

Nov 21, 2012

11084785 (P.T.A.B. Nov. 21, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/084,785 03/18/2005 Matthew S. Osborn CGL02/0270US3 2272
38550 7590 11/23/2012
CARGILL, INCORPORATED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
EXAMINER
PARSLEY, DAVID J
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
11/23/2012 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 MATTHEW S. OSBORN and RONN HOUTZ
__________

Appeal 2011-011685
Application 11/084,785
Technology Center 3600
__________

Before JEFFREY N. FREDMAN, ERICA A. FRANKLIN, and
ULRIKE W. JENKS, Administrative Patent Judges.

JENKS, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the rejection
of claims directed to a meat processing system. The Patent Examiner
rejected the claims for obviousness. We have jurisdiction under 35 U.S.C.
§ 6(b). We affirm.
Appeal 2011-011685
Application 11/084,785

2
STATEMENT OF THE CASE
The invention is directed to a meat processing system, and “relates to
a hide-on carcass wash for reducing microbes during meat processing. More
specifically, it relates to applying a fluid to an animal hide prior to removal
to reduce microbes of the carcass.” (Spec. ¶ 002.)

Claims 35-57 are on appeal, and can be found in the Appendix of the
Appeal Brief (App. Br. 16-19). Claim 35 is the sole independent claim and
is representative of the claims on appeal, and reads as follows (emphasis
added):
35. A meat processing system comprising a series of stations in
order:
A first station for stunning an animal;
A second station for exsanguinating the animal;
A third station that is a wash station where at least one
antimicrobial agent is applied to a hide of a hide-on animal carcass;
and
A fourth station that is a hide removal area configured to at
least partially remove at least a portion of the hide from the hide-on
animal carcass, wherein a conveyor system transports the hide-on
animal carcass through at least the third and fourth stations.

The following grounds of rejection are before us for review:
Ground 1. The Examiner has rejected claims 35-38, 40-43, and 47-
57 under 35 U.S.C. § 103(a) as unpatentable over Lawler1 in view of Norrie2
and further in view of either Simon3 or alternatively in view of Clayton.4

1 Lawler, Jr. et al., US 6,196,912 B1, issued Mar. 6, 2001.
2 Norrie US 4,829,637, issued May 16, 1989.
3 Simon et al., US 4,554,707, issued Nov. 26, 1985.
Appeal 2011-011685
Application 11/084,785

3
As Appellants do not argue the claims separately, we focus our
analysis on claim 35, and claims 36-38, 40-43, and 47-57 stand or fall with
that claim. 37 C.F.R. § 41.37 (c)(1)(vii).
Ground 2. The Examiner has rejected claims 39 and 44-46 under 35
U.S.C. § 103(a) as unpatentable over Lawler as modified by Norrie and
Clayton, and Lawler as modified by Norrie and Simon, and further in view
of Tsang.5

ISSUE
The Examiner takes the position that Lawler disclosed a meat
processing system comprising the steps of stunning the animal, bleeding the
animal and washing the animal. (Ans. 4.) “Lawler further discloses after the
wash station that the hide-on animals are conveyed - at 42, out of the wash
station, but does not specifically disclose where the animals are conveyed
after the wash station.” (Ans. 4.) The Examiner acknowledged that “Lawler
does not disclose the antimicrobial agent is applied to a hide of a hide-on
animal carcass.” (Ans. 4.) Examiner finds that Norrie disclosed the
application of an “antimicrobial agent to the hide of a hide-on animal
carcass” (Ans. 4) after killing and bleeding the animal. The Examiner
concludes that the ordinary artisan would have found it obvious to “take the
device of Lawler and the applying the antimicrobial agent to the hide of the
hide-on animal carcass of Norrie, so as to ensure that any contaminants are
removed from the carcass prior to further processing.” (Ans. 4.) The

4 Clayton et al., US 4,862,557, issued Sept. 5, 1989.
5 Tsang, US 6,733,379 B2, issued May 11, 2004.
Appeal 2011-011685
Application 11/084,785

4
Examiner combines Clayton or Simon in the rejection for the limitation of
removing an animal hide. (Ans.5).
Appellants contend that the references in any combination would not
teach or suggest “a system having a hide removal area configured to remove
the hide after treatment with an antimicrobial agent . . . [there is] no reason
to change the prior art practice of NOT applying antimicrobial agent to the
hide of an animal after exsanguination but prior to hide removal.” (App. Br.
14.)
The issue with respect to these rejections is: Does the evidence of
record support the Examiner’s conclusion that the combination of references
renders obvious the application of an antimicrobial agent to the hide prior to
the removal of the hide in the meat processing system as claimed?

FINDINGS OF FACT
FF1. The Specification provides that “[t]he antimicrobial agent may be any
chemical or substance capable of killing, neutralizing, or removing
microorganisms. In one embodiment, the antimicrobial agent is water or
some combination of water and at least one other antimicrobial agent”
(Spec. ¶036)(emphasis added).
FF2. The wash system provided in the Specification contains a “heater 108
[that] may heat the wash solution to a temperature ranging from about 100 to
about 190 degrees Fahrenheit. . . . Alternatively, the heater 108 heats the
wash solution to another temperature known to kill microbes.” (Spec. ¶054.)
FF3. Lawler disclosed a meat processing system that includes a step for
stunning the animal (Lawler col. 4, ll. 47-49), attaching the animal to a
Appeal 2011-011685
Application 11/084,785

5
wheeled shackle that is mounted on an overhead rail and allows bidirectional
movement of the animal (id. 4, ll. 47-61), an exsanguination step (id. col. 5,
ll. 55-63) followed by a rinse (id. 8, ll. 46-57). At the rinse station the
operator must insert the nozzle “into the carotid artery of the cow 14 . . .
Upon proper insertion, the operator manually open a valve 160 to begin the
flow of injectable solution into the circulatory system of the cow 14.”
(Lawler 8, ll. 46-57.)
FF4. Norrie disclosed moving the animal through various zones in a meat
processing system. After the slaughter of the animal, the animal is hung to
allow body fluids to drain. (Norrie col. 1, ll. 10-13). The “[c]arcass
processing apparatus having an overhead carrier for suspension of carcasses,
a carcass conveyor located below the carrier with an angled support surface,
the conveyor moving in unison with the carcass along the carrier” (Norrie
Abstract). In the first zone “the carcass hangs vertically, and bodily fluids
drain. The carcass is also subject to deluge flow of water for washing. The
washing water will be at an elevated temperature but not at the high scalding
temperature.” (Norrie col. 4, ll. 52-56.) In the next two zone the carcass is
“subjected to a continuous deluge of water at a higher scalding temperature,
flowing downwardly over the length of the carcass.” (Id. col. 5, ll. 1-13.)
“After exiting zone Z3 the carcass is then moved along a rail (not shown) to
further procssing [sic. processing] in the plant, or may be removed from the
rail for further processing.” (Id. col. 5, ll. 21-23.)
FF5. Clayton disclosed that after the “the animal is killed and hung dead
down from a hook. As shown in step 1, the animal's hide is removed and the
head is separated from the carcass and placed on a separate production
Appeal 2011-011685
Application 11/084,785

6
line 1.” (Clayton col. 2, ll. 27-30.) “After the warm water wash, the head
and carcass pass before a spray of acetic acid maintained from 80 degrees
fahrenheit to 150 degrees fahrenheit as shown in step 3. The duration . . . for
such a spray is about 5 to 25 seconds.” (Clayton col. 2, ll. 47-52.)
FF6. Simon disclosed a carcass processing procedure of “sequentially
scalding the unprocessed pig carcass in a liquid bath at a temperature of
substantially 57° to 59° C for about 5.5 minutes . . . Use of such a relatively
low temprature [sic. temperature] loosens the bristles . . . Thus the skin that
is treated in this manner is as strong as a raw hide.” (Simon col. 1, ll. 44-
57.) After scalding the carcass in a liquid bath the hide is skinned from the
carcass. (Id. col. 1, l. 58.)
FF7. Tsang disclosed
A process and apparatus for removing or reducing the levels of
pathogenic bacteria present on an eviscerated carcass. The process
includes introducing the eviscerated carcass to a cleaning apparatus.
The cleaning apparatus generally includes a housing structure having
an entrance and an exit. Disposed within the housing structure is a
rotating brush assembly and a spray assembly. The brushing
assembly provides brushing and massaging actions to the surfaces of
the carcass whereas the spraying assembly simultaneously directs a
cleaning solution onto the surfaces of the carcass.
(Tsang, Abstract)

PRINCIPLES OF LAW
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).

Appeal 2011-011685
Application 11/084,785

7
ANALYSIS
Ground 1. Obviousness of claims 35-38, 40-43, and 47-57 as unpatentable
over Lawler in view of Norrie and further in view of either Simon or
alternatively in view of Clayton.
Based on the combination of Lawler, Norrie, and Simon or in the
alternative Clayton, the Examiner concludes, that at the time of the claimed
invention it would have been prima facie obvious to “take the device of
Lawler and the applying the antimicrobial agent to the hide of the hide-on
animal carcass of Norrie, so as to ensure that any contaminants are removed
from the carcass prior to further processing” (Ans. 4) and include the “hide
removal station of Clayton et al. or alternatively Simon et al., so as to allow
for the animal to be prepared for further processing” (Ans.5).
Appellants contend that “[t]he rinse system of Lawler is not a hide
rinse as discussed in the present claims.” (App. Br. 11.) “Lawler only
carries out a vascular flushing prior to hide removal, and is silent about
washing of the hide at all.” (App. Br. 12.) Appellants contend “Norrie does
not disclose applying an antimicrobial agent to the hide of a hide-on
animal.” (App. Br. 12.)
We are not persuaded by Appellants’ arguments. We find that the
Examiner has established that the combined references provide the steps of
stunning the animal, exsanguinating the animal, washing the animal as well
as removing the hide. (FFs 3-6.) In particular, Lawler provides the step of
stunning the animal, attaching the animal to a rail system, draining the body
fluids from the animal, and performing a circulatory rinse of the animal
(FF3). Norrie disclosed a process of killing the animal, attaching the animal
Appeal 2011-011685
Application 11/084,785

8
to an overhead rail and draining body fluids while subjecting the animal to a
wash step before moving the animal along the rail for further processing
(FF4). The Examiner cites Clayton and Simon for the hide removal process
step (Ans. 5), and Simon specifically discloses removing the hide after
bathing the carcass (FF5). “The combination of familiar elements according
to known methods is likely to be obvious when it does no more than yield
predictable results.” KSR, 550 U.S. at 416.
Appellants contend that the washing step does not meet the limitation
of “where at least one antimicrobial agent is applied to a hide of a hide-on
animal carcass.” (App. Br. 11.) Appellants contend “Norrie does not
disclose applying an antimicrobial agent to the hide of a hide-on animal
carcass as asserted in the Office Action” (App. Br. 12), and “[l]ike Norrie,
Simon does not disclose applying an antimicrobial agent to the hide of a
hide-on animal carcass.” (App. Br. 13) Appellants’ position is that “[t]he
skilled artisan would have no reason to change the prior art practice of NOT
applying antimicrobial agent to the hide of an animal after exsanguination
but prior to hide removal.” (App. Br. 14.)
The claims require in pertinent part the limitation of “at least one
antimicrobial agent.” The Specification defines an antimicrobial agent to be
any “chemical or substance capable of killing, neutralizing or removing
microorganisms.” (FF1.) The Specification further discloses that water is
an antimicrobial agent. (FF1.) Thus, the limitation of ‘at least one
antimicrobial agent” is interpreted to include water. The limitation of “a
wash station where at least one antimicrobial agent is applied to the hide of a
Appeal 2011-011685
Application 11/084,785

9
hide on animal,” as recited in claim 35, is interpreted to encompass applying
water to the hide of an animal.
We are not persuaded by Appellants’ argument that water is not “an
antimicrobial agent.” As noted by the Examiner, Norrie uses water in the
washing steps, and water is encompassed by the definition of an
antimicrobial agent as provided in the Specification. (FFs 1, 2, 4.)
Additionally, Clayton discloses an acetic acid wash step after the removal of
the hide of the animal (FF5), while Simons discloses washing the hide in hot
water before removing the hide from the animal (FF6). Because the
Specification discloses that water is encompassed by the definition of “an
antimicrobial agent,” we find that the Examiner has established a prima facie
case of obviousness based on the cited references.
Appellants cite to the Williams article6 for “evidence that when water
is used as an antimicrobial intervention, the temperature of the water is 165
degrees F, or 73 degrees C.” (App. Br. 12.) Appellants assert that “a water-
only solution must be at an elevated temperature in order to kill microbes.”
(Reply Br. 3.) However, as discussed, the Specification expressly defines an
antimicrobial agent as encompassing the washing steps disclosed by Norrie,
even at temperatures that would not kill the microorganism. See Serrano v.
Telular Corp., 111 F.3d 1578, 1582 (Fed. Cir. 1997)(“The inventors’

6 Williams et al. 2010 Beef Cattle Report - Multiple Antimicrobial
Interventions for the Control of Escherichia Coli 0157:H7 in Very Small
Beef Processing Facilities, University of Nebraska, Lincoln, Institute of
Agriculture & Natural Resources,
http://beef.unl.eduibeefreports/201050.shtml
Appeal 2011-011685
Application 11/084,785

10
definition and explanation of the meaning of the word … as evidenced by
the specification, controls the interpretation of that claim term).
We conclude that the preponderance of the evidence of record
supports the Examiner’s conclusion that the combination of Lawler in view
of Norrie and further in view of either Simon or alternatively in view of
Clayton renders obvious the system of claim 35. We thus, affirm the
rejection of claim 35 under 35 U.S.C. § 103(a) as being obvious. As claims
36-38, 40-43, and 47-57 have not been argued separately, they stand with
claim 35. 37 C.F.R. § 41.37(c)(vii).

Ground 2. Obviousness of claims 39 and 44-46 as unpatentable over Lawler
as modified by Norrie and Clayton, and Lawler as modified by Norrie and
Simon, and further in view of Tsang.
Based on the combination of references, the Examiner concludes, that
at the time of the claimed invention it would have been prima facie obvious
to “take the device of Lawler as modified by Norrie and Clayton et al. and
Lawler as modified by Norrie and Simon et al. and add the scrubber of
Tsang, so as to allow for the device to more effectively clean any unwanted
material from the carcass.” (Ans.11).
Appellants contend that Tsang does nothing to overcome the basic
deficiency of the combination of references with respect the independent
claim 35. (App. Br. 14.)
We are not persuaded. “The Tsang reference was relied on for
disclosure of use of a brush to remove matter from an eviscerated carcass
and a recycling system.” (App. Br. 14.) The brushing step of Tsang would
Appeal 2011-011685
Application 11/084,785

11
meet the claim limitation of removing contaminants. As discussed above,
we have found no error in the Examiner reason for combining Lawler,
Norrie, and Clayton, or the combination of Lawler, Norrie, and Simon as
applied to claim 35. We agree with the Examiner’s conclusion that the
addition of the brushing step of Tsang “allow[s] for the device to more
effectively clean any unwanted [microbial] material from the carcass.”
(Ans. 11.)
We conclude that the preponderance of the evidence of record
supports the Examiner’s conclusion that the combination of Lawler in view
of Norrie and further in view of either Simon or alternatively in view of
Clayton renders obvious the method and device of claim 35. We thus,
affirm the rejection of claim 35 under 35 U.S.C. § 103(a) as being obvious,
and dependent claims 39 and 44-46 stand with claim 35. 37 C.F.R.
§ 41.37(c)(vii).

SUMMARY
We affirm the rejection of claims 35-38, 40-43, and 47-57 under 35
U.S.C. §103(a) as unpatentable over Lawler in view of Norrie and further in
view of either Simon or alternatively in view of Clayton.
We affirm the rejection of claims 39 and 44-46 are obvious under 35
U.S.C. 103(a) over Lawler as modified by Norrie and Clayton, and Lawler
as modified by Norrie and Simon, and further in view of Tsang.
AFFIRMED

lp