McANINCH, Terry et al.

Patent Trials and Appeals Board

Nov 8, 2019

14092348 - (D) (P.T.A.B. Nov. 8, 2019)

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.
14/092,348 11/27/2013 Terry McANINCH 3494-P11484.1US 2653
137604 7590 11/08/2019
Magleby Cataxinos & Greenwood
170 S. Main Street, Suite 1100
Salt Lake City, UT 84101
EXAMINER
COX, AMBER M
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
11/08/2019 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):
PTOMail@mcgiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte TERRY McANINCH, ELIS M. OWENS, and WAYNE LARSON
____________

Appeal 2019-001152
Application 14/092,348
Technology Center 1700
____________

Before LINDA M. GAUDETTE, JEFFREY B. ROBERTSON, and
MERRELL C. CASHION, JR., Administrative Patent Judges.

CASHION, 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 1–23. Appeal Br. 4. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as BIRKO
CORPORATION. Appeal Br. 2.
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The invention is generally directed to a method for processing tripe.
Spec. ¶ 2. Claim 1 illustrates the invention (formatting added):
1. A method for processing tripe, comprising:
bleaching the tripe with at least one bleaching agent and
at least one alkaline material in a refiner for a period of time
sufficient to bleach the tripe;
treating the bleached tripe with an alkaline solution at a
temperature of at least 110°F to rehydrate the tripe; and
in order to retain the water present within the rehydrated
tripe,
rapidly chilling the rehydrated tripe within a 3
minute-time period with cold water having a temperature
less than 40°F before packaging and freezing the chilled,
rehydrated tripe.

Independent claim 16 is directed to a similar method but includes
additional process steps.
Appellant requests review of the Examiner’s rejection of claims 1–23
under pre-AIA 35 U.S.C. § 103(a) as unpatentable over McKinzie (US
7,470,444 B2, issued December 30, 2008), Topps (US 2009/0004353 A1,
published January 1, 2009), Tripe (Tripe for human consumption, ADDING
VALUE TO THE SCOTTISH RED MEAT SUPPLY CHAIN, 1–10 (2009),
https://www.qmscotland.co.uk/sites/default/files/Added+Value+Topic+5+Tr
ipe.pdf (“Tripe”)) and McNeil (Ian McNeil et al., CSIRO Workshop -
Production of Chilled Meat for Export, CARCASS CHILLING 39–52 (1991)
(“McNeil”)). Appeal Br. 4.
Appellant presents arguments for independent claims 1 and 16 as well
as dependent claim 9. See generally Appeal Br. Appellant relies on the
arguments presented for claims 1 and 16 to address their respective
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dependent claims 2–8, 10–15, and 17–23. Accordingly, we select claim 1 as
representative of the subject matter claimed. Claims 2–8 and 10–15 stand or
fall with claim 1. We address the arguments for claims 9 and 16 separately
with the understanding that claims 17–23 stand or fall with claim 16.

OPINION
After review of the respective positions the Appellant provides in the
Appeal Brief and the Examiner provides in the Final Action and the Answer,
we affirm the Examiner’s prior art rejection of claims 1–23 for the reasons
the Examiner presents. We add the following for emphasis.
Claim 1
The Examiner finds that McKinzie discloses a method of processing
tripe that differs from the method of claim 1 in that (1) McKinzie does not
teach or suggest treating the bleached tripe with an alkaline solution at a
temperature of at least 110°F to rehydrate the tripe, (2) McKinzie does not
disclose retaining the water present within the rehydrated tripe as well as the
cold water having a temperature less than 40°F or (3) rapidly chilling the
rehydrated tripe before packaging and freezing the chilled, rehydrated tripe.
Final Act. 3–9.
Regarding difference (1), the Examiner finds Topps discloses
treatment of meat to enhance moisture retention during storage by
administering a composition containing sodium carbonate, wherein the
amount of composition applied to the meat can be optimized to accomplish
maximum retention of water. Final Act. 4; Topps Abst., ¶¶ 13, 19, 29, 27,
53. The Examiner also finds Topps discloses that one of the most common
meat treatments consists of using an alkylating agent (alkaline solution) to
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increase the pH of meat, wherein the pH of a meat carcass has decreased or
the meat carcass has lost water. Final Act. 4; Topps ¶¶ 3, 5. The Examiner
determines that it would have been obvious to one skilled in the art to treat
the refined, bleached tripe with an alkaline solution to increase the yield of
the tripe by increasing the water retention because both McKinzie and Topps
teach improved yields of meat products by treatment with alkaline solutions.
Final Act. 4–5.
Regarding difference (2), the Examiner finds Tripe discloses rapidly
chilling tripe to 3°C or less (37.4°F or less) after refining and before it leaves
a plant. Final Act. 7; Trip 6 (Refrigeration). The Examiner determines it
would have been obvious to one skilled in the art to use cold water having a
temperature of less than 40°F in McKinzie’s process to cool the tripe in view
of Tripe’s teachings. Final Act. 7.
Regarding difference (3), the Examiner finds McNeil discloses that
rapidly chilling meat carcasses quickly reduces the meat surface temperature
and that achieving a temperature of 0°C or less within 2 hours reduces the
amount of drip (purge) in vacuum-packed products and the evaporative
weight loss. Final Act. 8–9; McNeil 39, 41. The Examiner determines that
it would have been obvious to one of ordinary skill in the art to rapidly chill
McKinzie’s tripe having an increased overall product yield to a temperature
of 0°C or less in a short time period, as taught by McNeil, to reduce weight
loss and the purging of moisture. Final Act. 9.
Appellant does not contest the Examiner’s specific findings regarding
McKinzie. Appeal Br. 5–6. Instead, Appellant argues that Topps is directed
to a method of treating meat to enhance moisture retention where the term
“enhanced moisture retention” means an increase in the ratio of the cooked
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weight to the uncooked weight for a meat product while the inventive
method is directed to an increase in the weight ratio of treated uncooked
meat to untreated uncooked meat. Appeal Br. 6–7; Topps ¶¶ 7, 34, 39.
Thus, Appellant contends that Topps is contrary to the claimed invention
and one skilled in the art would not have considered Topps in an effort to
increase the weight ratio of treated uncooked meat to untreated uncooked
meat. Appeal Br. 7.
These arguments do not persuade us of reversible error in the
Examiner’s determination of obviousness. As the Examiner notes, Topps’s
Examples 3 and 5 show that meat products treated with an alkaline solution
did not exhibit moisture loss prior to cooking. Ans. 17; Topps ¶¶ 52–58
(Example 3), ¶ 56 (“After treatment with the Test Composition, the water
binding capacity of the meat was improved.”), ¶¶ 75–79 (Example 5), ¶ 79
(“There was also no discernable difference between the fillets that were
frozen for 7 days as compared to the fillet that was refrigerated for 24
hours.”).
Moreover, Topps discloses that the invention is directed to treating
meat products to retain moisture during storage and cooking. Topps ¶ 7.
Thus, one skilled in the art would reasonably infer from these disclosures
that meat products treated with Topps’s alkaline solution effectively retain
moisture in both uncooked and cooked conditions. See In re Fritch, 972
F.2d 1260, 1264–65 (Fed. Cir. 1992) (holding that a reference stands for all
of the specific teachings thereof as well as the inferences one of ordinary
skill in the art would have reasonably been expected to draw therefrom).
Thus, based on the record before us, we agree with the Examiner that the
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ordinary artisan would not have understood Topps’s disclosure as limited to
moisture retention of cooked meat.
Appellant argues that, absent impermissible hindsight, one skilled in
the art would not have arrived at a process that involves treating the
bleached tripe (uncooked meat) with an alkaline solution at a temperature of
at least 110°F, as claimed, from the combined teachings of the cited art.
Appeal Br. 7.
This argument also lacks persuasive merit. As the Examiner explains,
McKinzie teaches treating tripe in a refiner with a cleaning mixture
comprising a bleaching solution in the form of hydrogen peroxide (bleaching
agent) mixed with an alkaline detergent (alkaline material) at a temperature
of about 150°F. Ans. 15; Final Act. 3; McKinzie, col. 2, ll. 19–21, 29–30,
col. 3, ll. 1–16, col. 6, ll. 41–46. The Examiner relies on Topps’s teachings
of using an alkaline solution to improve moisture retention in meat products
as the basis for reapplying McKinzie’s alkaline solution to the tripe surface
after the bleaching/alkaline (refining) treatment (at the disclosed temperature
of about 150°F) and followed by rinsing with cold water to obtain a refined
and rehydrated tripe product with maximum increased yield (weight). Ans.
15–16, 18–19; Final Act. 5. Thus, Appellant’s argument does not address
the Examiner’s reasons for combining the cited art. In re Keller, 642 F.2d
413, 425–26 (CCPA 1981) (citations omitted) (“The test [for obviousness] is
what the combined teachings of the references would have suggested to
those of ordinary skill in the art.”).
While Appellant asserts that it is critical that the refined meat be
treated with an alkaline solution at a temperature of at least 110°F to swell
the tripe tissue and rehydrate the tripe (Appeal Br. 9), Appellant directs us to
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no evidence in support of this assertion. Thus, Appellant has not explained
adequately why one skilled in the art, using no more than ordinary creativity,
would not have been capable of reapplying McKinzie’s alkaline solutions to
the bleached tripe for the reasons Topps presents. See KSR Int’l Co. v.
Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary skill is also a
person of ordinary creativity, not an automaton.”); see also In re Sovish, 769
F.2d 738, 743 (Fed. Cir. 1985) (presuming skill on the part of one of
ordinary skill in the art).
Appellant argues that Tripe does not teach or suggest anything about
rapidly chilling the rehydrated tripe within a 3 minute-time period with cold
water having a temperature less than 40°F before packaging and freezing the
chilled, rehydrated tripe to retain the water present within the rehydrated
tripe as claimed. Appeal Br. 8. Appellant additionally argues that McNeil
does not teach or suggest any guidance for selecting the most optimum time
period for rapid chilling because McNeil’s time period for rapid chilling is
rather a broad range of more than 0 minute but not more than 120 minutes.
Id. Thus, Appellant contends that it would not have been obvious that the
rapid chilling must be completed within 3 minutes, which is critical for the
present invention. Id.
Appellant’s arguments are unavailing because they do not address the
rejection the Examiner presents.
To the extent that Appellant argues that Tripe and McNeil do not
address Appellant’s problem, as explained by the Examiner (Ans. 20), one
skilled in the art need not see the identical problem addressed in a prior art
reference to be motivated to apply its teachings. Cross Med. Prods., Inc. v.
Medtronic Sofamor Danek, Inc., 424 F.3d 1293, 1323 (Fed. Cir. 2005); see
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also KSR, 550 U.S. at 420 (explaining that any need or problem known in
the art can provide a reason for combining the elements in the manner
claimed).
As the Examiner explains, Tripe and McNeil provide a motivation for
using cold water at a temperature less than 40°F (37.4°F or less) in the
process of McKinzie. Ans. 20. The Examiner also explains that McKinzie
teaches adding cold water to cool the tripe and then mixing for a few
minutes prior to removing the tripe for further processing and packaging. Id.
The Examiner determines that the claimed time period reasonably overlaps
or lies inside McKinzie’s “few minutes.” Id. Thus, there is a reasonable
basis for modifying McKinzie’s process by using cold water at a temperature
less than 40°F for a short period of time to rapidly chill the rehydrated tripe.
See Final Act. 3–9; In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988)
(“For obviousness under § 103, all that is required is a reasonable
expectation of success.”).
While Appellant asserts that the claimed time period to rapidly chill
the rehydrated tripe is critical (Appeal Br. 8), Appellant directs us to no
evidence in support of this assertion. Thus, in view of the noted disclosures,
Appellant has not explained adequately why one skilled in the art, using no
more than ordinary creativity, would not have been capable of determining
the appropriate time period to chill the rehydrated tripe to ensure that
moisture is retained. See KSR, 550 U.S. at 421; Sovish, 769 F.2d at 743.
Claim 9
Claim 9 requires the use of an alkaline solution comprising an alkaline
component selected from a limited number of alkaline components and
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mixtures. Appellant’s arguments focus on trisodium phosphate as the
alkaline component. Appeal Br. 9.
Appellant argues that Topps is directed to treating meat products with
phosphate-free compositions because phosphate compositions tend to
diminish texture, appearance and flavor in meat products. Appeal Br. 10;
see Topps ¶ 8. Thus, Appellant argues that Topps teaches away from using
the claimed phosphate alkaline component. Appeal Br. 10.
We are unpersuaded of reversible error in the Examiner’s
determination of obviousness because the arguments do not address the
rejection the Examiner presents.
As the Examiner explains, the rejection is based on reapplying the
alkaline solution of McKinzie. Ans. 22. McKinzie discloses using an
alkaline solution comprising potassium or sodium hydroxide as the alkaline
component, which are among the alkaline components listed in claim 9, to
treat tripe. Thus, Appellant has not shown reversible error in the Examiner’s
determination of obviousness.
Claim 16
Like claim 1, claim 16 is directed to a method of processing tripe and
further requires washing the tripe with water at a temperature of at least
120°F prior to bleaching.
Appellant argues that the combined teachings of the cited art do not
teach the disputed claim limitation. Appeal Br. 11.
We are unpersuaded by this argument because Appellant does not
explain adequately why the cited art fails to meet the disputed claim
limitation. Appellant’s argument is no more than “[a] statement which
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merely points out what a claim recites” and, thus, the statement is “not . . .
considered an argument for separate patentability of the claim.” 37 C.F.R.
§ 41.37(c)(iv)(2017).
Accordingly, we affirm the Examiner’s prior art rejection of claims 1–
23 for the reasons the Examiner presents and we give above.

CONCLUSION
In summary:

Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1–23 103(a) McKinzie, Topps,
Tripe, McNeil
1–23

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED