Ex Parte Srsen et al

Patent Trial and Appeal Board

Dec 28, 2017

13207065 (P.T.A.B. Dec. 28, 2017)

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.
13/207,065 08/10/2011 Brian J. Srsen H5000.444.102 5184
25281 7590
DICKE, BILLIG & CZAJA
FIFTH STREET TOWERS
100 SOUTH FIFTH STREET, SUITE 2250
MINNEAPOLIS, MN 55402
EXAMINER
LEFF, STEVEN N
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
01/02/2018 ELECTRONIC
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.
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE
THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN J. SRSEN1
and Richard M. Herreid
Appeal 2017-003900
Application 13/207,065
Technology Center 1700
Before MARK NAGUMO, JEFFREY R. SNAY, and JANE E. INGLESE,
Administrative Patent Judges.
NAGUMO, Administrative Patent Judge.
DECISION ON APPEAL
Brian J. Srsen and Richard M. Herreid (“Srsen”) timely appeal
under 35 U.S.C. § 134(a) from the Final Rejection2 of all pending claims 2,
13, and 27^40. We have jurisdiction. 35 U.S.C. §6. We reverse.
1 The real party in interest is identified as Hormel Foods Corporation.
(Appeal Brief, filed 4 May 2016 (“Br.”), 3.)
2 Office Action mailed 16 December 2015 (“Final Rejection”; cited as
“FR”).
Appeal 2017-003900
Application 13/207,065
OPINION
A. Introduction3
The subject matter on appeal relates to processes of fully cooking
bacon or other meat4 prior to sale to the consumer. (Spec. 1 [0002].) Bacon
so-prepared is referred to as “precooked bacon.” (Id. at [0003].)
Conventional microwave cooking of bacon is said to involve multiple
microwave ovens arranged in series with a conveyer running through them
in a continuous manner. (Id. ) According to the '065 Specification, the
finished product tends to be tough in texture and to have char marks near the
cure solution injection sites. (Id.) Continuous spiral ovens with electrical
heating elements or thermal oil heat exchangers to heat the circulating gas
are also used to prepare precooked bacon. (Id.) They are said to have
heating surfaces much hotter than the target temperature for the circulating
gas, which is said to result in texture and flavor issues. (Id.) In particular,
off flavors are said to arise, and the flavor intensity of the cure solution is
said to be noticeably reduced. (Id.)
Srsen seeks patent protection for a two-step process that is said to
avoid these problems. In the first step, the bacon pieces are preheated to
reduce condensation when the pieces are transferred to the cooking chamber
(especially a steam-heated cooking chamber), compared to introducing cold
3 Application 13/207,065, Hybrid bacon cooking system,
filed 10 August 2011, claiming the benefit of a provisional application filed
11 August 2010. We refer to the “’065 Specification,” which we cite as
“Spec.”
4 Following the '065 Specification (Spec. 4 [0020]), we refer to meat pieces
generically as “bacon pieces” unless the context demands otherwise.
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Application 13/207,065
bacon pieces directly to the cooking compartment. (Id. at 5 [0023].)
Moreover, the warming is said to melt some of the bacon fat, which then
forms a barrier layer of melted fat around the preheated bacon pieces. (Id.)
The melted fat is said to keep any condensation that does form from
contacting the bacon under the fat and diluting the flavor. (Id.) In the
second step, the preheated bacon pieces are transferred to a cooking
compartment in which heat is provided by steam or some other indirect
heating method, such that the internal surfaces of the cooking compartment
are kept at a temperature below the smoke point of the fat from the bacon
(375°F). (Id. at 5 [0021].) Thus, the off-flavors are said to be avoided.
(Id. at [0022].) The bacon pieces are cooked in the cooking compartment to
a water activity level of 0.92 or less.5 (Id. at 7 [0027], last sentence.)
Claim 13 is representative and reads:
A method of making precooked bacon pieces using a hybrid
cooking system, comprising:
preheating bacon pieces with a microwave oven to a
temperature of 140°F to 210°F to create preheated bacon pieces,
the preheating forming a barrier with melted fat around
the preheated bacon pieces and
reducing an amount of condensation that forms on the
preheated bacon pieces when transferred to a cooking
compartment of an oven,
5 The Specification does not explain the significance of this value, but
Kunert (see full cite infra at 5 n.10) teaches that “[i]f it is desired to create a
shelf stable product, the desired water activity level is 0.85 or less. If it is
desired to create a product that must be refrigerated, the desired water
activity level is 0.92 or less.” (Kunert 2 [0020].) (In the food sciences,
water activity, aw, is generally defined as the ratio of the partial vapor
pressure of water in the food sample to the partial vapor pressure of pure
water at the same temperature.)
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Application 13/207,065
the barrier preventing any condensation that forms from
contacting the preheated bacon pieces under the melted
fat and diluting flavor in the preheated bacon pieces;
transferring the preheated bacon pieces to the cooking
compartment of the oven,
the cooking compartment heated with steam from an
external steam generator,
the external steam generator being external to the
cooking compartment,
the steam being injected into the cooking compartment
and being approximately 400°F to 1000°F when the
steam leaves the external steam generator,
the cooking compartment including internal surfaces,
the steam assisting in keeping the internal surfaces at a
temperature below 375°F thereby reducing off flavors
during cooking in the cooking compartment; and
cooking the preheated bacon pieces in the cooking
compartment to a water activity level of 0.92 or less to
create precooked bacon pieces.
(Claims App., Br. 16—17; some indentation, paragraphing, and emphasis
added.)
Remaining independent claims 29 and 37 are similar but broader, in
certain respects. Claim 29 recites “meat pieces” instead of “bacon pieces,”
preheating by “a microwave oven, an infrared oven, and hot air” “external
heating source” for the second cooking compartment, which has internal
surfaces that are kept at a temperature below the smoking point of fat from
the meat pieces. {Id. at 17.) Claim 37 is similar to claim 29, but recites
preheating with a microwave oven.
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Application 13/207,065
The Examiner maintains the following grounds of rejection6,7:
A. Claims 2, 13, 28—35, and 37-40 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Jeppson,8 Falk,9 and Kunert.10
Al. Claims 27, 28, and 36 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Jeppson, Falk, Kunert, and Howard.* 11
B. Claims 2, 13, and 27 40 stand rejected under
35 U.S.C. § 103(a) in view of the combined teachings of
Purser12 and Wilson.13
6 Examiner’s Answer mailed 7 November 2016 (“Ans.”).
7 Because this application was filed before the 16 March 2013, effective
date of the America Invents Act, we refer to the pre-AIA version of the
statute.
8 Morris R. Jeppson, Treating food products with microwave energy and hot
gas of decreasing humidity, U.S. Patent No. 3,409,447 (1968).
9 Jon Allan Falk et al., Method and apparatus for cooking meat, U.S. Patent
Application Publication 2004/0086610 Al (2004).
10 Gale F. Kunert et al., Method of making bacon pieces, U.S. Patent
Application Publication 2006/0165862 Al (2006), issued as U.S.
Patent 8,337,934 on 25 December 2012, assigned to Hormel Foods Corp.,
the real party in interest in this appeal.
11 David Howard, Process for producing precooked bacon slices, U.S.
Patent Application Publication 2009/0181138 Al (2009).
12 David E. Purser, Method of preparing a uniformly tender meat product,
U.S. Patent No. 6,319,527 B1 (2001).
13 Robert B. Wilson, Continuous feed volumetric heating and convection
oven, U.S. Patent Application Publication 2007/0023413 Al (2007).
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Application 13/207,065
B. Discussion
The Board’s findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
A
The Examiner finds that Jeppson teaches a method of cooking bacon
that meets the requirements of the independent claims but for failing to teach
the temperature of the precooking site (FR 3,11. 21—22), disclosing internal
surfaces in the cooking compartment less than 375°F (or less than the
smoking temperature of fat from the bacon or meat) (id. at 11. 14—16), and
cooking to a water activity level of 0.92 or less (id. at 11. 22—23). The
Examiner finds that Falk teaches a method of cooking bacon with
microwave energy to a temperature of 145°F, “since such a temperature
causes the fat barrier layer on the surface to melt.” (Id. at 11. 30-32.) The
Examiner reasons further that the use of steam from an external heat source,
as opposed to an internal source, would have made internal surface
temperatures less than 375°F obvious. (Id. at 11. 14—20.) Finally, the
Examiner finds that Kunert teaches cooking bacon “to a water activity level
for the purpose of preservation.” (Id. at 4,11. 18—20.) On the basis of these
findings, the Examiner concludes that the claimed methods of cooking bacon
would have been obvious.
As Srsen points out (Br. 7—9), there are several difficulties with these
findings. Initially, however, we do not find persuasive Srsen’s argument
(id. at 8,11. 16—18; 9,11. 10-11) that Jeppson teaches away from the claimed
invention because the claimed invention requires separate exposure to
microwave energy for preheating and to hot gas flow for cooking. As the
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Application 13/207,065
Examiner holds (Ans. 10), the transitional phrase “comprising” leaves the
claims open to non-recited elements—here, the presence of, e.g., steam or
hot air in the microwave preheating stage, or of microwave excitation during
the steam cooking stage. Nonetheless, as Srsen argues (Br. 8,11. 6—11;
11. 18—20; Reply14 1—2), the purpose of the process steps described by
Jeppson are not well-aligned with the purposes of the claims on appeal.
Jeppson seeks to improve on prior art blanching processes of preparing
foods for freeze-drying. (Jeppson, col. 1,11. 36-41.) Jeppson teaches that
blanching is accomplished by passing the food through a steam chamber or
a hot water bath to partially cook the food or to inactivate enzymes in the
food. {Id. at 11. 64—66.) However, the moisture content of the food may be
increased by as much as 10%, which “may substantially increase the cost
and time required for the subsequent preservative processing.” {Id. at 11. 69-
71.)
In order to avoid the increase in water content associated with
blanching, Jeppson heats the food with microwaves, which interact primarily
with the water, leading to heating throughout the product volume, but less so
at and near the surface. As a result, the surface regions may be under­
heated; or the interior may be over-heated if microwave exposure is
prolonged to adequately heat the surface regions. (Id. at col. 2,11. 25 40.)
In order to compensate for the lack of surface heating as well as evaporative
cooling at the product surface, Jeppson teaches that “a very humid gas flow
may be utilized during the initial portions of the microwave irradiation.”
{Id. at 11. 51—54.) Once the desired degree of surface heating has been
14 Reply Brief filed 6 January 2017 (“Reply”).
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Application 13/207,065
obtained, the humidity of the gas flow may be reduced to a very low value.
{Id. at 11. 54—58.) As a result, some of the water may be removed, and
subsequent freeze drying or other preservation may be obtained “with
substantially less energy requirements and with shortened processing times.”
{Id. at 11. 65-67.)
Although there can be no doubt that a large variety of cooking
conditions can be achieved using the apparatus described by Jeppson, the
Examiner has not explained why it would have been obvious to modify
processes taught by Jeppson for preparing foods (including bacon (Jeppson
col. 7,1. 61)) for subsequent freeze-drying to obtain processes for fully
precooking bacon. As Srsen argues (Br. 8,11. 18—20), maintaining the high
humidity conditions taught by Jeppson to prevent evaporative cooling would
appear to be contrary to forming a melted fat coating on the surface of the
bacon. The Examiner has not come forward with evidence or argument why
this step of Jeppson would be compatible with the process conditions
required by the appealed claims. Nor has the Examiner explained how
Jeppson could be modified, e.g., to provide a low humidity initial heating
stage, melt fat, and still achieve the functions disclosed by Jeppson to be
critical to the preparation of foods for freeze drying. Falk appears to be of
little help in providing a reason to preheat to at least 140°F. The fat melted
in the process described by Falk encapsulates salt to prevent the salt from
contacting non-denatured meat protein that has been reduced in size by
grinding or dicing, i.e., meat protein at temperatures below 120°F.
(Falk 1 [0004], 3 [0028].) In a similar way, although Kunert explains why a
water activity level of less than 0.92 is desirable for precooked foods, the
Examiner has not established that that level of activity would have been
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Application 13/207,065
considered suitable for preparing foods for freeze-drying, as taught by
Jeppson.
Put another way, while we do not understand Srsen to dispute that the
conditions taught by Jeppson could be modified to meet the conditions
required by the claimed processes, the Examiner has not explained why a
person of ordinary skill in the art would have made such modifications, or
how such modifications could be done without defeating the purposes of
Jeppson.
The Examiner’s findings regarding the teachings of Howard and the
further limitations of the dependent claims do not cure the fundamental
problems with the rejection of the independent claims.
We therefore reverse Rejections A and A1 in view of Jeppson and the
secondary references.
B
The Examiner finds that although “Purser teaches [Applicants[’]
same claimed two step cooking process,” including a finished product water
activity (85%) meeting the water activity limitation of about 0.92 or less,
Purser does not teach transferring the preheated meat pieces to a cooking
compartment. (FR 6,11. 10—18.) The Examiner finds that Wilson teaches
multiple chambers comprising microwave generators and external steam
generating means. {Id. at 1. 25 to 7,1. 5.) The Examiner concludes it would
have been obvious to conduct the stages taught by Purser in separate
chambers taught by Wilson.
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Srsen urges that the first step of the process disclosed by Purser is a
drying step that produces a hardened skin on the meat slice that protects the
internal layers of protein from further drying. (Br. 12,11. 18—22.) Srsen
argues further that “[t]he skin formed by drying the meat is quite different
from forming a barrier with melted fat.” {Id. at 11. 25—26.) Srsen concludes
that Purser teaches away from the claimed invention. {Id. at 11. 26.)
As for Wilson, Srsen urges that because Wilson teaches that each
cooking chamber has both microwave [“volumetric heating”:
Wilson 1 [0008], 4 [0033]) and convection heating {id. at 1 [0008]
and 3 [0027]), including steam {id. at 3 [0027]), that “Wilson does not teach
having separate cooking apparatuses” (Br., sentence bridging 12—13.)
While we reject Srsen’s arguments regarding Wilson, we find the
preponderance of the evidence supports Srsen’s arguments regarding Purser.
Although the Examiner determines that Purser describes the “same two-step
cooking process” (FR 6,1. 17) and “achieve[s] precooked meat pieces at
applicants^] same claimed water activity level” (id. at 1. 20), the conclusion
that the claimed process is taught appears to rely at least in part on a theory
of inherency—namely, that the same meat piece is cooked, and that the same
character of the meat piece will be obtained at the end of the preheating step
as well as at the end of the cooking step—means that the process of cooking
is the same at every stage of the process.
The condition, recited in each of the independent claims, of forming a
barrier of melted fat around the preheated bacon or meat pieces, serves to
exclude processes that, although they may raise the bacon or meat pieces to
a temperature greater than 140°F by microwave heating, do not form a
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Application 13/207,065
melted fat barrier on the beacon pieces. Such a limitation in a process claim
is not an “intended use,” and cannot be ignored. The Examiner has not
explained how the critical drying step disclosed by Purser is compatible with
the critical melted fat barrier formed by the preheating step of the appealed
claims.
Accordingly, we also reverse Rejection B.
Non-obviousness does not require discovery of a process step that was
unknown or unachievable by the prior art. Rather, a non-obvious process
may, and indeed most often does arise from a combination of previously
known procedures. It therefore does not suffice, to establish a prima facie
case of obviousness, to demonstrate that the artisan could have combined
various prior art procedures and arrived at the claimed invention. Rather, it
is critical to show that the prior art also would have suggested that
combination to the artisan. Here, the art and reasoning of record are
insufficient to show why the artisan would have modified processes taught
by the primary references in ways that are at odds with the purpose of those
prior art process, in order to arrive at the claimed processes on appeal.
C. Order
It is ORDERED that the rejection of claims 2, 13, and 27-40 is
reversed.
REVERSED
11