CARGILL, INCORPORATED

Patent Trials and Appeals Board

Aug 27, 2020

15220165 - (D) (P.T.A.B. Aug. 27, 2020)

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.
15/220,165 07/26/2016 Jay David Parker N0042-US-CNT 1644
77992 7590 08/27/2020
CARGILL, INCORPORATED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
08/27/2020 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):
patent_docketing@cargill.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAY DAVID PARKER and BROCK AARON ZENTZ
Appeal 2019-005794
Application 15/220,165
Technology Center 1700
Before LINDA M. GAUDETTE, KAREN M. HASTINGS, 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 1 and 4–18. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.2

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 Cargill, Incorporated.
Appeal Brief (“Appeal Br.”) filed March 4, 2019, at 3.
2 This Decision also cites to the Specification (“Spec.”) filed July 26, 2016,
the Examiner’s Answer (“Ans.”) dated May 24, 2019, and the Reply Brief
(“Reply Br.”) filed July 23, 2019.
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Application 15/220,165

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CLAIMED SUBJECT MATTER
The invention relates to a process for the preservation of ground meat
by application of high pressure. Spec. ¶ 2.
Claim 1, reproduced below from the Claims Appendix to the Appeal
Brief, is illustrative of the claimed subject matter:
1. A process for preserving fresh ground meat comprising
the steps of:
a) packaging fresh ground meat in a sealed package;
b) placing the packaged fresh ground meat in a
pressurization vessel and closing the vessel;
c) pressurizing the pressurization vessel containing the
packaged fresh ground meat to an elevated pressure of about
60,000 psi to about 115,000 psi pressure so the packaged fresh
ground meat is placed under the elevated pressure;
d) maintaining the elevated pressure on the packaged
fresh ground meat for a time of from about 30 to about 300
seconds;
e) then reducing the pressure on the packaged fresh
ground meat to ambient pressure; and
f) removing the packaged fresh ground meat from the
pressurization vessel,
wherein the packaged fresh ground meat is at a
temperature from about 30o to about 45oF throughout all of
steps a)–f).

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REFERENCES
The Examiner relies on the following prior art:
Name Reference Date
Yuan et al. (“Yuan”) US 2003/0170356 A1 Sept. 11, 2003
Meyer WO 2009/003040 A1 Dec. 31, 2008

REJECTIONS
The Examiner maintains, and Appellant requests our review of, the
following rejections under 35 U.S.C. § 103(a):
1. Claims 1, 4–6, and 10–18 as unpatentable over Meyer; and
2. Claims 7–9 as unpatentable over Meyer in view of Yuan.
The Examiner also provisionally rejects claims 1 and 4–18 on the
ground of nonstatutory obviousness-type double patenting over claims 1–12
of copending U.S. Patent Application No. 15/362,326. However, because the
copending application is now abandoned, this provisional rejection is moot.
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 the
argued claims and each of Appellant’s arguments, we are not persuaded of
reversible error in the appealed rejections. We offer the following for
emphasis only.
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For purposes of this appeal, to the extent that the claims on appeal are
separately argued, we will address them separately consistent with 37 C.F.R.
§ 41.37(c)(1)(vii).
Rejection 1: Obviousness over Meyer
Appellant argues the claims subject to this rejection as a group. In
accordance with 37 C.F.R. § 41.37(c)(1)(iv) (2018), we select claim 1 as
representative; claims 4–6 and 10–18 stand or fall with claim 1.
The Examiner finds that Meyer discloses a process for sterilizing
various meat products, such as raw ground beef, by pressurizing the meat
products to an elevated pressure of at least 250 mPa for a period of at least
180 seconds. Ans. 5–6. More particularly, the Examiner finds that Meyer
discloses a process comprising steps substantially as recited in claim 1. Id. at
5. The Examiner further finds that Meyer teaches applying pressures up to
350 mPa and maintaining a temperature of 0oC during the process. Id. at 6,
7, 9. Finding that Meyer also teaches that the pressure application time is
dependent on the type of meat, the temperature, and the pressure, the
Examiner concludes that it would have been obvious to vary the time,
temperature, and pressure based on the type of meat and the initial level of
product contamination. Id. at 8. With regard to the limitation of claim 1
requiring “fresh” ground meat, the Examiner finds that Appellant defines
“fresh” as it relates to ground meat products as having a temperature of 35–
42oF. Id. at 8. Although the Examiner acknowledges that Meyer teaches
freezing the product to an initial temperature of less than or equal to -2oC
prior to pressurization, the Examiner finds that Meyer teaches an example of
pressurization of raw ground beef contaminated with Salmonella was
effective at -30oC, -20oC, and 0oC. Id. at 9. The Examiner, therefore,
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concludes that Meyer’s pressurization treatment would have been expected
to be effective either at or below -2oC or above 0oC. Id. The Examiner also
concludes that the slight difference in the temperature of Meyer’s and
Appellant’s meat products would not impart any patentable distinction to the
pressurization process absent evidence of criticality or unexpected results.
Id.
Appellant argues that Meyer requires frozen, rather than fresh, treated
materia. Appeal Br. 10. Appellant asserts that Meyer’s products are not just
cold, but must be in a physical state of having ice crystals. Id. Appellant also
asserts that each of Meyer’s embodiments requires frozen products, at least
during the first pressurization treatment. Id. at 11–13; Reply Br. 2–4.
Moreover, Appellant contends that modification of Meyer’s process to arrive
at the process of claim 1 is not a mere optimization of temperature because
the modification would require changing the initial physical state of the
material, i.e., frozen, to a state that is not permitted by Meyer, i.e., fresh.
Appeal Br. 13–14. Appellant also contends that such a modification to
Meyer “is not a mere exercise in ‘common sense’ or ‘ordinary creativity’”
because it would be contrary to Meyer’s principle of operation. Id. at 14
(citation omitted). Further, Appellant contends that such a modification “is
not a mere ‘result effective variable’” because Meyer “does not recognize
temperature as a result-effective variable” and “one would not attempt to
optimize temperature outside of the permitted range of the Meyer
disclosure.” Id. at 14–15 (citation omitted).
Appellant’s arguments are not persuasive of reversible error because
Meyer discloses operating the pressurization treatment at a temperature
within the range recited in claim 1. Claim 1 recites that the packaged fresh
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ground meat is at a temperature of from about 30o to about 45oF. Although
claim 1 recites “fresh ground meat” and the Specification teaches that
“fresh” ground meat products have a temperature of 35–42oF, claim 1
permits the temperature of the “fresh” ground meat to be below freezing,
i.e., 30oF or -1oC. As the Examiner finds, and Appellant does not dispute,
Meyer discloses performing the process at a temperature up to -2oC, and
even teaches an embodiment wherein raw ground beef contaminated with
Salmonella is pressured treated at 0oC (or 32oF). Thus, Meyer broadly
discloses operating the pressurization process at temperatures (-1oC and 0oC)
close or within the temperature range recited in claim 1. Moreover, the
Examiner finds, and Appellant does not dispute, that Meyer discloses that
the pressurization treatment of contaminated ground beef successfully
sterilized the beef at operating temperatures of -30oC, -20oC, and 0oC. As
such, as the Examiner notes, Meyer’s pressurization treatment performs
equally well at temperatures close to and within the range recited in claim 1.
See E.I. DuPont de Nemours & Co. v. Synvina C.V., 904 F.3d 996, 1006
(Fed. Cir. 2018) (“[A] prima facie case of obviousness typically exists when
the ranges of a claimed composition overlap the ranges disclosed in the prior
art.” (quoting In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003))).
Given these facts, although Appellant urges that Meyer’s teaching that
the product must be frozen during the pressurization treatment, a
preponderance of the evidence reasonably establishes that the ordinary
artisan would not have expected any difference in performance between
fresh and frozen ground meat products at temperatures within the range of
claim 1. Appellant has not directed our attention to any evidence of record
demonstrating otherwise, such as unexpected results. As such, a
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preponderance of the evidence supports the Examiner’s reasoned position
that it would have been prima facie obvious to preserve, under elevated
pressure, fresh ground meat at a temperature that overlaps the claimed
range.3
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 1, 4–6, and 10–18 over Meyer.
Rejection 2: Obviousness over Meyer and Yuan
The Examiner acknowledges that Meyer fails to disclose a headspace
over the packaged meat comprising an oxygen displaced gas environment
comprising a gas selected from CO2, CO, N2, N2O, H2, Ne, Ar, Kr, Xe, and
mixtures thereof, as recited in claims 7–9. Ans. 10–11. However, the
Examiner finds that Yuan teaches a method of high pressure treating a food
substance including flushing the substance with one or more process gases
selected from CO2, CO, N2, N2O, H2, Ne, Ar, Kr, and Xe and sealing the
substance in a storage container so as to retain the substance in a controlled
atmospheric environment that includes the selected process gases. Id. The
Examiner further finds that Yuan teaches that control of the amount and type
of gases in the enclosed environment enhances the biocidal efficacy of the
high pressure treatment as well as ensuring desirable sensory qualities of the
substance are retained during storage. Id. at 11. Therefore, the Examiner
concludes that it would have been obvious to have modified Meyer’s process
to employ a headspace over the meat product including one or more process
gases selected from CO2, CO, N2, N2O, H2, Ne, Ar, Kr, and Xe in order to
enhance the biocidal efficacy of Meyer’s high pressure sterilization

3 This conclusion is the same as reached by the Board in Appeal No. 2016-
004963, dated May 26, 2016, on the same issue.
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treatment as well as retain desirable sensory qualities of the product during
storage as suggested by Yuan. Id.
Appellant argues that Yuan does not provide a teaching that would
motivate a change to Meyer’s process to meet the claims. Appeal Br. 15.
Appellant notes that Yuan broadly describes high pressure treatment of a
food substance at pressures of about 50 mPa to about 10,000 mPa and
temperatures from cooled to heated (about -300oC to about 150oC). Id. at
15–16. However, Appellant contends that Yuan is so general in its
description of process parameters that it does not provide a teaching that
would motivate a modification to Meyer’s process, in particular to preserve
fresh ground meat at a temperature from about 30oF to about 45oF during the
pressurization process. Id. at 16.
Appellant’s arguments are not persuasive of reversible error because
Appellant fails to address the Examiner’s rejection, i.e., the Examiner’s
findings regarding Yuan and the obviousness conclusion based thereon. In
addition, as discussed above, Appellant has not identified any deficiencies in
the Examiner’s findings and conclusions regarding Meyer, as it relates to
claim 1. Nonetheless, we note that Yuan discloses that the food substance
may be fresh produce and meats, and specifically teaches examples utilizing
pressures of 70,000 psi for time periods between 2–5 minutes at a
temperature of about 10oC for treating samples. Yuan ¶¶ 19, 33.
Accordingly, we sustain the Examiner’s obviousness rejection of
claims 7–9 over the combination of Meyer and Yuan.
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 1
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and 4–18 under 35 U.S.C. § 103(a) as unpatentable over Meyer, alone or in
view of Yuan, is affirmed.
DECISION SUMMARY
In summary:
Claims
Rejected
35
U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 4–18 Nonstatutory
Obviousness-type
Double Patenting*

1, 4–6, 10–18 103(a) Meyer 1, 4–6, 10–18
7–9 103(a) Meyer, Yuan 7–9
Overall
Outcome
1, 4–18
* As explained above, this rejection is moot.
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