Tracey Williams (F/K/A Tracey Jenschke) et al.

Patent Trials and Appeals Board

Aug 2, 2019

13941704 - (D) (P.T.A.B. Aug. 2, 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.
13/941,704 07/15/2013 Tracey Williams (f/k/a Tracey Jenschke) 15721.0237USC2 2843
96845 7590 08/02/2019
Advent, LLP
The Advent Building
17838 Burke Street
Suite 200
Omaha, NE 68118
EXAMINER
PRAKASH, SUBBALAKSHMI
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
08/02/2019 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):
Boumstein@adventip.com
sloma@adventip.com
uspto@adventip.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
________________

Ex parte TRACEY WILLIAMS (f/k/a Tracey Jenschke),1
Larry Quint, and Brian Degner
________________

Appeal 2018-006889
Application 13/941,704
Technology Center 1700
________________

Before CATHERINE Q. TIMM, MARK NAGUMO, and
SHELDON M. McGEE, Administrative Patent Judges.

NAGUMO, Administrative Patent Judge.

DECISION ON APPEAL
ConAgra Foods RDM (“Williams”) timely appeals
under 35 U.S.C. § 134(a) from a Non-Final Rejection2 of all pending
claims 21, 22, 24–28, 31, and 33–40. We have jurisdiction. 35 U.S.C. § 6.
We reverse.

1 The applicant under 37 C.F.R. § 1.46, and hence the appellant under
35 U.S.C. § 134, is the real party in interest, identified as ConAgra Foods
RDM. (Appeal Brief, filed 14 December 2017 (“Br.”), 3.)
2 Office Action mailed 8 May 2017 (“Office Action”; cited as “OA”);
a Request for Continued Examination under 37 C.F.R. § 1.114 was filed on
16 July 2016.
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Application 13/941,704

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OPINION
A. Introduction3
The subject matter on appeal relates to processes of permeating a meat
with a marinade. According to the ′704 Specification, “[p]alatability, i.e.,
texture characterized by the attributes of tenderness and juiciness, is the
sensory quality that most influences product acceptability on part of the
consumer.” (Spec. 3 [0006].) Precooked meats, which are becoming
increasingly popular, are said to present additional problems due to the
competing concerns of food safety on the one hand, and palatability on the
other. (Id. at 3 [0007].) The Specification reveals that the palatability of
meats may be increased by adding functional ingredients, but “the large
particle size or lack of uniform dispersion among the ingredients may cause
the ingredients to distribute unevenly, or even congeal within the delivery
mechanism before being delivered to the food product.” (Id. at 4 [0008].)
As a result, “undesirable results such as uneven distribution of flavor, dry
pockets, oily pockets, toughness, or uneven texture may occur.” (Id.)
Williams seeks patent protection for methods of treating meat with a
homogenized dispersion of functional ingredients “that distributes
throughout a meat, wherein the particle size of macromolecular ingredients

3 Application 13/941,704, Food product permeated with homogenized
dispersion, filed 15 July 2013, as a continuation of 11/732,065,
filed 2 April 2007, now abandoned, which is a continuation of 11/707,250,
filed 13 February 2007, now abandoned, and claiming the benefit of two
provisional applications filed on 19 October 2006 and on 3 October 2006.
We refer to the ′704 Specification, which we cite as “Spec.”
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Application 13/941,704

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within the homogenized dispersion is reduced to form a homogenized
dispersion with increased ingredient functionality.” (Id. at [0010].)
Claim 21 is representative and reads:
A process for making a meat product with a homogenized
marinade, comprising:
preparing a marinade, wherein the marinade includes:
a lipid from about 1.0% to about 20.0% by weight of
the marinade,
water from about 50% to about 90% by weight of the
marinade,
a fiber, and
passing a stream of the marinade over a cantilevered blade
at a pressure from about 1500 to about 3000 psi to produce
a homogenized marinade having a mean particle size
from about 25 microns to about 40 microns;
feeding at least a portion of the homogenized marinade
into an injector; and
penetrating the meat with the injector to form a
penetration in the meat and
injecting the homogenized marinade in the penetration.
(Claims App., Br. 25; some formatting, and emphasis added.)
Remaining independent claims 34 and 39 recite similar, but more
detailed limitations regarding the characteristics of the homogenized
marinade.
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The Examiner maintains the following grounds of rejection4, 5:
A. Claims 21, 24–28, 31, 39, and 40 stand rejected
under 35 U.S.C. § 103(a) in view of the combined teachings
of Halden,6 Jurcso,7 and Camin.8
A1. Claims 22 and 33 stand rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Halden, Jurcso, Camin,
and Samson.9
A2. Claim 34 stands rejected under 35 U.S.C. § 103(a) in view of
the combined teachings of Halden and Jurcso.
A3. Claims 35–38 stand rejected under 35 U.S.C. § 103(a) in
view of the combined teachings of Halden, Jurcso, and
Camin.
B. Discussion
The Board’s findings of fact throughout this Opinion are supported by
a preponderance of the evidence of record.
Williams urges the Examiner erred in finding that Jurcso (or any of
the other references) teaches a homogenized marinade having a mean

4 Examiner’s Answer mailed 26 April 2018 (“Ans.”).
5 Because this application claims the benefit of an application filed before
the 16 March 2013 effective date of the America Invents Act, we refer to the
pre-AIA version of the statute.
6 Jonas P. Halden et al., Marinating or pickling of meat, U.S. Patent
No. 5,158,794 (1992).
7 John F. Jurcso, Dressing or marinade of the multiple-phase separating
type, U.S. Patent No. 5,104,679 (1992).
8 Henry J. Camin et al., Starchy food-based fine particle fat substitute, U.S.
Patent No. 6,485,775 B1 (2002).
9 Alan D. Samson, et al., Method for continuously processing meat
substrates, U.S. Patent Application Publication 2007/0031550 A1 (2007).
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particle size [of the lipid in the water] from about 25 microns to
about 40 microns, as recited in claim 1. (The average particle sizes of the
lipid in the water recited in remaining independent claims 34 and 39 fall
within this range.)
The Examiner finds that Jurcso teaches a continuous aqueous phase
having suspended oil droplets with a particle size diameter of
between 0.5 and about 50 micrometers. (OA 3, ll. 11–13.)
As Williams points out (Br. 10), the principal teaching in Jurcso as to
oil droplet size reads, “[t]he first oil droplets typically have an average
diameter of less than about 10μ, and may have a range between about 0.01μ
and about 250μ, typically about 0.5μ to about 250μ, and preferably
about 0.5μ to about 50μ.” (Jurcso col. 2, ll. 51–55; emphasis added.)
The Examiner does not direct our attention to any other disclosure in
the record relevant to the average oil drop size in the marinade. Jurcso
discloses clearly that the typical average droplet size is less than about 10μ.
It has not escaped our attention that Jurcso discloses measured approximate
average diameters of first oil droplets of 10μ and 15μ. (Id. at col. 8,
Table IV (Inventive Compositions (d) and (d1).) Both of these average
diameters are significantly less than the minimum mean particle size of
about 25 microns recited in independent claims 21 and 39, as well as the
minimum mean particle size of about 38 microns recited in independent
claim 34.
The Examiner appears to have conflated the difference between the
mean particle size and the range of particle sizes. In general, the range (i.e.,
the minimum and the maximum particle sizes observed in a sample), without
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Application 13/941,704

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more, has no special relation to the mean (roughly speaking, the average)
particle size. Again, the Examiner has not directed our attention to any
evidence or reasoned argument explaining why the range would have
resulted to an average oil droplet size of about 25 to about 40 microns.
We are therefore persuaded of harmful error in the appealed
rejections.
C. Order
It is ORDERED that the rejection of claims 21, 22, 24–28, 31,
and 33–40 is reversed.
REVERSED