McANINCH, Terry et al.Download PDFPatent Trials and Appeals BoardNov 8, 201914092348 - (D) (P.T.A.B. Nov. 8, 2019) 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. 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. Appeal 2019-001152 Application 14/092,348 2 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 Appeal 2019-001152 Application 14/092,348 3 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 Appeal 2019-001152 Application 14/092,348 4 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 Appeal 2019-001152 Application 14/092,348 5 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 Appeal 2019-001152 Application 14/092,348 6 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 Appeal 2019-001152 Application 14/092,348 7 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 Appeal 2019-001152 Application 14/092,348 8 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 Appeal 2019-001152 Application 14/092,348 9 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 Appeal 2019-001152 Application 14/092,348 10 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 Copy with citationCopy as parenthetical citation