HORMEL FOODS CORPORATION

Patent Trials and Appeals Board

Mar 3, 2022

2021001671 (P.T.A.B. Mar. 3, 2022)

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. 15/989,596 05/25/2018 Brian J. Srsen H5000.444.103 8823 25281 7590 03/03/2022 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 03/03/2022 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): DBCLAW-Docket@dbclaw.com USPTO.PATENTS@dbclaw.com dmorris@dbclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BRIAN J. SRSEN, RICHARD M. HERREID, JAMES E. MINO, and BRIAN E. HENDRICKSON Appeal 2021-001671 Application 15/989,596 Technology Center 1700 Before ADRIENE LEPIANE HANLON, JEFFREY B. ROBERTSON, and JAMES C. HOUSEL, Administrative Patent Judges. HOUSEL, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 27, 29-35, 37-39, 41-46, and 48-51. See Final Office Action (“Final Act.”) dated April 17, 2020, 1. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Hormel Foods Corporation as the real party in interest. Appeal Brief (“Appeal Br.”) filed September 11, 2020, 3. Appeal 2021-001671 Application 15/989,596 2 CLAIMED SUBJECT MATTER The invention recited in the claims on appeal relates to processes of fully cooking bacon or other meat2 prior to sale to the consumer. Specification (“Spec.”) filed May 25, 2018, ¶¶ 2, 3. Bacon so-prepared is referred to as “precooked bacon.” Id. ¶ 3. 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. Appellant discloses that the conventional 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. Appellant discloses a two-step process that is said to avoid these problems. Spec. ¶¶ 7, 8. 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) and to form a fat barrier around the bacon pieces such that any condensation that did form was kept from contacting the underlying bacon thereby preventing flavor dilution. Id. ¶ 23. In the second step, the preheated bacon pieces are transferred to a cooking compartment in which heat is provided by steam or some other heating source, such that the internal surfaces of the cooking compartment 2 In accordance with the Specification (Spec. ¶ 20), we refer to meat pieces generically as “bacon pieces” unless the context demands otherwise. Appeal 2021-001671 Application 15/989,596 3 are kept at a temperature below the smoke point of the fat from the bacon (375°F). Id. ¶ 21. Thus, off-flavors are said to be avoided. Id. ¶ 22. The bacon pieces are cooked in the cooking compartment to a water activity level of 0.92 or less. Id. ¶ 27. Claim 27, reproduced below from the Claims Appendix to the Appeal Brief, is illustrative of the claimed subject matter: 27. A method of making precooked bacon pieces using a hybrid cooking system, comprising: preheating bacon pieces to a temperature of at least 140°F to create preheated bacon pieces, the preheating forming a barrier with melted fat around the preheated bacon pieces; transferring the preheated bacon pieces to a cooking compartment of an oven, the cooking compartment being heated with steam, 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, 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. Independent claim 35 recites a method similar to claim 27, except for referring generically to “meat pieces,” the preheating step is conducted in a microwave oven, the cooking is conducted using a generic “heating source,” and the cooking compartment’s internal surfaces are kept at a temperature below a smoke point of fat of the meat pieces. Independent claim 45 recites a method similar to claim 27, except for referring generically to “meat pieces,” and steam assists in keeping the Appeal 2021-001671 Application 15/989,596 4 cooking compartment’s internal surfaces below a smoke point of fat of the meat pieces. REFERENCES The Examiner relies on the following prior art to reject the claims: Name Reference Date Purser US 6,319,527 B1 Nov. 20, 2001 Falk et al. (“Falk”) US 2004/0086610 A1 May 6, 2004 Howard US 2009/0181138 A1 July 16, 2009 REJECTIONS The Examiner maintains, and Appellant requests our review of, the following rejections under 35 U.S.C. § 103(a): 1. Claims 27, 29-34, 45, 46, and 48-51 as unpatentable over Howard in view of Purser; and 2. Claims 35, 37-39, and 41-44 as unpatentable over Howard in view Purser and Falk. OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) (“[I]t has long been the Board’s practice to require an applicant to identify the alleged error in the examiner’s rejections.”)). After considering Appellant’s arguments and the evidence of record, we are not persuaded of reversible error in the stated rejections for the findings, reasoning, and conclusions set forth in the Examiner’s Answer, which we adopt as our own. We offer the following for emphasis. Appeal 2021-001671 Application 15/989,596 5 Rejection 1: Obviousness based on Howard and Purser The Examiner rejects claims 27, 29-34, 45, 46, and 48-51 under 35 U.S.C. § 103(a) as unpatentable over Howard in view of Purser. Ans. 3-6. Appellant argues the claims as a group, focusing on the common limitations of independent claims 27 and 45. Appeal Br. 11-15. We, therefore, select claim 27 as representative; claims 29-34, 45, 46, and 48-51 stand or fall with claim 27. 37 C.F.R. § 41.37(c)(1)(iv) (2020). The Examiner finds that Howard teaches a method of making precooked bacon pieces substantially as recited in claim 27, wherein the preheating step begins moisture crusting the bacon pieces, which the Examiner finds forms a barrier with melted fat around the bacon pieces. Id. at 3-4. The Examiner also finds that Howard’s cooking compartment includes internal surfaces whose temperature is kept below 375°F with steam, thereby reducing off flavors during cooking. Id. at 4. In addition, the Examiner finds that Howard teaches preheating with a heating medium at 250°F, which is capable of preheating the bacon pieces to a temperature of at least 140°F. Ans. 4. In this regard, the Examiner finds that Purser teaches a method of making precooked meat pieces comprising preheating the meat pieces to a temperature of at least about 140°F, or specifically 150°F, prior to transferring the meat pieces to a cooking compartment. Id. The Examiner concludes that it would have been obvious to preheat Howard’s bacon pieces to a temperature of 150°F, as suggested by Purser, for initiating moisture crusting and ensuring a shelf-stable product. Id. at 4-5. Further, though finding that Howard fails to specify the water activity level of the final precooked bacon pieces, the Examiner finds that Howard Appeal 2021-001671 Application 15/989,596 6 teaches that the bacon pieces may be cooked to any desired degree of crispness. Ans. 5. The Examiner finds that Purser also teaches that the preheated meat pieces are steam cooked to a water activity level of 0.92 or less to create precooked meat pieces. Id. The Examiner concludes that it would have been obvious to have cooked Howard’s bacon pieces to a desired degree of crispness corresponding to a water activity level of 0.92 or less to produce a shelf stable product, as Purser suggests, with desired crispness. Id. Appellant argues that the Examiner fails to explain how Howard’s moisture crusting process forms a barrier with melted fat around the preheated bacon pieces and prevents any condensation that forms from contacting and flavor-diluting the preheated bacon under the melted fat. Appeal Br. 11. Appellant contends that Howard’s moisture crusting allows for moisture to contact and penetrate the bacon slices, which thereby results in flatter sliced product. Id. Appellant also contends that Howard is silent as to the problem of flavor-dilution in the bacon pieces. Id. at 11-12. Appellant further urges that the limitation, “preventing any condensation that forms from . . . diluting flavor in the preheated bacon pieces” is not an intended use, but results in a structural difference between the claimed invention and the prior art. Id. at 13. This argument is not persuasive of reversible error. Contrary to Appellant’s position, the Examiner explains that Howard teaches a preheating step which contacts the raw bacon pieces with dry superheated steam at a temperature of 250°F, which begins the moisture crusting process. Ans. 9. The Examiner further explains that Howard’s dry superheated steam would not provide moisture because “dry superheated steam” contains Appeal 2021-001671 Application 15/989,596 7 sufficient heat energy such that, upon contact with a cooler surface, this surface is heated without condensation of water. Id. at 9-10. Appellant fails to direct our attention to any evidentiary support or persuasive technical reasoning that Howard’s dry superheated steam cannot preheat without condensation, or cannot preheat sufficiently so as to form a fat barrier prior to condensation. As the Examiner finds (id. at 10), Howard does not teach that the flatter bacon pieces are the result of water penetration of the bacon. We note that Appellant does not limit the heat source of the preheating step of claim 27 or otherwise exclude the use of dry superheated steam for this step. Thus, on the record before us, we find that an ordinary artisan would have reasonably expected that Howard’s moisture crusting would necessarily form a barrier of melted fat on the bacon pieces. We agree with Appellant that the limitation of preventing condensation that forms from diluting flavor in the preheated bacon pieces, like the formation of a fat barrier, is not an “intended use” limitation, but instead serves to exclude processes that otherwise allow condensation to dilute flavor in the preheated bacon pieces. However, we disagree that this limitation necessarily results in a structural difference between the claimed invention and the prior art. As discussed above, the Examiner has adequately explained why an ordinary artisan would have reasonably expected that Howard’s preheating step and moisture crusting process necessarily results in the formation of a fat barrier on the preheated bacon pieces. Because it is this fat barrier which Appellant ascribes the function of preventing condensation from diluting flavor in the preheated bacon pieces, Howard’s fat barrier necessarily performs this function as well. Appeal 2021-001671 Application 15/989,596 8 Appellant next argues that Howard is silent regarding the problem of generating off flavors during cooking from internal cooking compartment surface temperatures at or above the smoke point of fat (i.e., 375°F). Appeal Br. 12. Appellant asserts that, in both the high and low temperature cooking embodiments, the temperature of the heating elements is higher than the desired temperature of the cooking medium, and would be above 375°F. Id.; Reply Br. 3. As such, Appellant contends that Howard generates volatile organics due to fat smoking when contacting the heating elements, thereby creating off flavors in the bacon. Appeal Br. 12. Appellant also contends that Howard teaches away from the present invention because the bacon has a low surface temperature to create condensation which enhances the browning process and protects the bacon during cooking. Id. at 13. This argument also is not persuasive of reversible error. Initially, we note that claim 27 merely recites that the cooking compartment includes internal surfaces, and the steam assists in keeping the internal surfaces at a temperature below 375°F to thereby reduce off flavors during cooking. However, claim 27 does not define or describe the internal surfaces of the cooking compartment nor does this claim require that all internal surfaces and elements of the cooking compartment be kept at a temperature below 375°F. Instead, claim 27 requires that the cooking compartment includes internal surfaces, but this recitation does not exclude the use of internal electrical heating elements.3 Thus, even if Howard’s heating elements have a 3 Although Appellant asserts that the internal surfaces of the cooking compartment can include the heating elements (Reply Br. 3), this assertion, even if correct, fails to require that the internal surfaces must include the heating elements. Further, the Specification appears to distinguish the heating elements from the surfaces of the oven. See Spec. ¶ 22. Appeal 2021-001671 Application 15/989,596 9 temperature greater than 375°F, an ordinary artisan would have reasonably expected that Howard’s cooking compartment includes internal surfaces that are at or near the temperature of the cooking medium, which may be as low as 325°F. Howard ¶¶ 29, 31. Moreover, Appellant fails to direct our attention to any evidentiary support or persuasive technical reasoning that Howard’s heating elements necessarily have a temperature of 375°F or greater to maintain the cooking compartment having an internal temperature as low as 325°F. See Ans. 11. Further, Howard recognizes the desire to remove volatile organics from the bacon cooking process. Howard ¶ 19. Although Appellant asserts that the amount of steam loss required to remove these organics and any air that would otherwise be present in the cooking compartment would be very inefficient and unsustainable (Appeal Br. 12), Howard nonetheless teaches the use of steam injection for this very purpose. Id. ¶¶ 21, 26-28. Howard also teaches the “low temperature” embodiment specifically “eliminates smoke and provides a product with little or no pit flavor notes. Id. ¶ 31; Ans. 12. Accordingly, we sustain the Examiner’s obviousness rejection of claims 27, 29-34, 45, 46, and 48-51. Rejection 2: Obviousness over Howard, Purser, and Falk The Examiner rejects claims 35, 37-39, and 41-44 as unpatentable over Howard in view Purser and Falk. Final Act. 6-9. Appellant argues the claims as a group, focusing on the common limitations of independent claim 35. Appeal Br. 15-16. We, therefore, select claim 35 as representative; claims 37-39 and 41-44 stand or fall with claim 27. 37 C.F.R. § 41.37(c)(1)(iv) (2020). Appeal 2021-001671 Application 15/989,596 10 The Examiner’s findings, reasoning, and conclusions with regard to Howard and Purser are substantially the same as set forth in Rejection 1, and need not be repeated here. Final Act. 6-8. The Examiner acknowledges that Howard and Purser fail to teach or suggest the use of a microwave oven to perform Howard’s preheating step. Id. at 8. For this feature, the Examiner finds that Falk teaches the use of microwave ovens for preheating to a desired temperature prior to finish cooking. Id. The Examiner concludes that it would have been obvious to perform Howard’s preheating step with a microwave oven for the benefit of enabling fast adjustment to cooking parameters providing greater control over the cooking rate as taught by Falk. Id. Appellant initially asserts that Falk was applied only for teaching multiple ovens, which may be individually adjusted to provide a desired cooking rate. Appeal Br. 15. To the contrary, as indicated above, the Examiner relies on Falk for the use of a microwave oven for Howard’s preheating step. Appellant next asserts that Falk’s meat includes encapsulated salts which reduce the amount of interaction between the salts and denatured meat proteins, thereby reducing adherence of meat pieces to each other. Appeal Br. 15. Appellant also asserts that Falk’s process involves cooling of raw meat, dicing of the cooled meat, and placing the diced meat on a cooking belt, wherein the cool temperature of the diced meat and encapsulated salts in the dry cure makes the meat flow more easily on the belt and reduces the tendency of the meat to adhere to one another. Id. Appellant further asserts that Falk teaches that the fat barrier layer on the encapsulated salts melts, allowing the salts to interact with the cooking meat at a desired temperature. Appeal 2021-001671 Application 15/989,596 11 Id. Appellant contends that the problem to be solved by Falk is quite different from that of either Howard or Appellant. Id. “Because of these different problems to be solved,” Appellant argues “one having ordinary skill in the art would not combine these references as suggested by the Examiner to solve any of the problems of the present invention.” Id. at 16. Appellant’s argument is not persuasive of reversible error. Although Appellant asserts that Falk’s process is quite different from that claimed, we note that the Examiner relies on Howard, primarily, for teaching a process substantially as recited in the claims. Final Act. 6-8. The Examiner relies on Falk, without dispute, for its teaching of the use of a microwave oven for preheating meat pieces, wherein such ovens facilitate fast adjustment to cooking parameters and cooking rates. Id. at 8-9. In addition, the Examiner finds, without dispute, that Falk teaches that the microwave oven is capable of heating the meat pieces to a temperature sufficient to melt the fat barrier on the meat pieces. Id. at 9. Therefore, the Examiner’s conclusion that it would have been obvious to use a microwave oven to perform Howard’s preheating step in order to facilitate fast adjustment to cooking parameters and cooking rates is precisely the articulated reasoning with rational underpinning required of an obviousness rejection. KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). Accordingly, we sustain the Examiner’s obviousness rejection of claims 35, 37-39, and 41-44 over the combination of Howard, Purser, and Falk. Appeal 2021-001671 Application 15/989,596 12 CONCLUSION Upon consideration of the record and for the reasons set forth above and in the Examiner’s Answer, the Examiner’s decision to reject claims 27, 29-35, 37-39, 41-46, and 48-51 under 35 U.S.C. § 103(a) is affirmed. DECISION SUMMARY The following table summarizes the outcome of each rejection: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 27, 29-34, 45, 46, 48- 51 103(a) Howard, Purser 27, 29-34, 45, 46, 48- 51 35, 37-39, 41-44 103(a) Howard, Purser, Falk 35, 37-39, 41-44 Overall Outcome 27, 29-35, 37-39, 41- 46, 48-51 TIME PERIOD FOR RESPONSE No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED