Ex Parte Srsen et alDownload PDFPatent Trial and Appeal BoardDec 28, 201713207065 (P.T.A.B. Dec. 28, 2017) Copy Citation 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. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): USPTO.PATENTS @dbclaw.com dmorris@dbclaw.com DBCLAW-Docket@dbclaw.com 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. 2 Appeal 2017-003900 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.) 3 Appeal 2017-003900 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. 4 Appeal 2017-003900 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). 5 Appeal 2017-003900 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 6 Appeal 2017-003900 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”). 7 Appeal 2017-003900 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 8 Appeal 2017-003900 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. 9 Appeal 2017-003900 Application 13/207,065 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 10 Appeal 2017-003900 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 Copy with citationCopy as parenthetical citation