Ex Parte Haus

Board of Patent Appeals and Interferences

Mar 15, 2012

11425582 (B.P.A.I. Mar. 15, 2012)

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.
11/425,582 06/21/2006 Alfred P. Haus JR. 297715-00003 9478
3705 7590 03/15/2012
ECKERT SEAMANS CHERIN & MELLOTT
600 GRANT STREET
44TH FLOOR
PITTSBURGH, PA 15219
EXAMINER
PARSLEY, DAVID J
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
03/15/2012 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte ALFRED P. HAUS, JR.
__________

Appeal 2010-011852
Application 11/425,582
Technology Center 3600
__________

Before DONALD E. ADAMS, ERIC GRIMES, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

FREDMAN, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a method
of tracking processed meat. The Examiner rejected the claims as anticipated
and obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse and
enter New Grounds of Rejection.

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Application 11/425,582

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Statement of the Case
Background
“The present invention is generally directed to meat processing and,
more specifically, to a method of tracking processed meat from the time of
handling at an initial production facility” (Spec. 1 ¶ 0003).
The Claims
Claims 16, 20, 22-24, and 27 are on appeal. Claim 16 is
representative and reads as follows:
16. A method of tracking processed meat provided to
the public from the time the raw meat was handled by an
initial production facility, comprising:
printing unique, sequential bar codes on a film to
form a film having an identifier printed thereon;
providing a batch of meat to be processed;
preparing a plurality of portions of processed meat
from the batch of meat;
wrapping each of the portions of processed meat
with a portion of the film such that each portion has a
separate identifier comprising one unique, sequential
identifier to form a shippable meat product;
scanning the unique sequential bar codes of at least
the first and last shippable meat product formed from the
batch of meat to associate at least the first and last
shippable meat products from the batch with a separate
unique, sequential bar code;
storing data corresponding to at least the first and
last shippable meat products in a searchable database;
and
transferring the shippable meat product to a
secondary production facility for further processing.

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The issues

A. The Examiner rejected claims 16, 20, and 22-24 under 35 U.S.C. §
102(b) as anticipated by Montanari
1
(Ans. 3-4).
B. The Examiner rejected claim 27 under 35 U.S.C. § 103(a) as obvious
over Montanari (Ans. 4-5).
A. & B. 35 U.S.C. § 102(b) and 103(a) over Montanari
The Examiner finds that Montanari “discloses a method of tracking
processed meat provided to the public from the time the raw meat was
handled by an initial production facility, comprising, printing unique,
sequential bar codes on a film to form a film having an identifier printed
thereon” (Ans. 3).
Appellant contends that “it is evident that Montanari discloses a „tag‟
that is information printed on a substrate. The substrate is smaller than the
object, e.g. meat or a box, to which it is applied. That is, Montanari does not
disclose a film that is wrapped about the meat” (Appeal Br. 5).
Appellant contends that
if the peel-and-stick label shown in Figure 1 of Montanari,
which appear to be about actual size, was used the wrap, i. e.
enclose a portion of meat, the label would (1) enclose a
fraction of an ounce of meat, and (2) be so crumpled that it
would be unable to serve its function. As such, no one of
ordinary skill in the art would consider a peel-and-stick label
to be a “film”

(Appeal Br. 6-7).

1
Montanari et al., US 5,478,990, issued Dec. 26, 1995.
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We find that Appellant has the better position. While we might
reasonably agree with the Examiner that the label of Montanari is a film, we
agree with Appellant that it is unreasonable to interpret that label as a film
which can be used to wrap portions of processed meat as required by claim
16. We therefore are constrained to reverse the anticipation and obviousness
rejections over Montanari.

New Grounds of Rejection

Under the provisions of 37 C.F.R. § 41.50(b), we enter the following
new grounds of rejection.

Claims 16, 20, and 22-24 are rejected under 35 U.S.C. § 103(a) as
obvious over Montanari and Tolson.
2

Claim 27 is rejected under 35 U.S.C. § 103(a) as obvious over
Montanari, Tolson, and Turbak.
3

Findings of Fact
1. Montanari teaches “a method for tracking the production
history of food products, and particularly meat products, to enable
verification of the origin of such products and to trace back the source of
problems that may arise at the consumer level of product distribution”
(Montanari, col. 3, ll. 11-15).

2
Sidney S. Tolson, US 5,398,427, issued Mar. 21, 1995.
3
Albin F. Turbak, US 3,961,086, issued Jun. 1, 1976.
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2. Montanari teaches
generation of a Tracking Number (TN) identifying a
particular food product at a certain point in the production
process. By way of illustration, a meat producing animal is
preferably identified with a TN at birth. The Tracking
Number is maintained as the animal is transferred from
raiser, to feedlot, to slaughterhouse, fabrication plant,
distributor, and finally to the ultimate consumer. After an
animal is slaughtered, labels (or tags) displaying the
Tracking Number are generated for each quarter of the
animal. Subsequent labels are generated to identify specific
portions of meat produced during the fabrication of the
animal, and further labels are generated that accompany the
portion of meat ultimately sold to a retail customer.

(Montanari, col. 3, ll. 36-49).
3. Montanari teaches that the “labels used can contain information
in human readable form, but are preferably capable of being read by an
electronic device and of having the information encoded thereon accessed by
a computer. As such, labels are preferably bar-coded tags” (Montanari, col.
4, ll. 30-35).
4. Montanari teaches that as “ownership and possession of an
animal is transferred, the Animal Tracking Number (A-TN) is recorded on a
tag . . . such as a bar-code . . . and vital information . . . may be added to the
database record via such tag at various times in the growth of the animal, as
well as in the fabrication process” (Montanari, col. 10, ll. 20-28).
5. Montanari teaches that
by scanning the Q-TN and the Q-PIN tags, the information
contained on each tag is combined in the database record.
Once this is accomplished, the computer system can
determine the number of pieces that a particular quarter will
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be processed into, and hence will determine the correct
number of Production Tracking Number (P-TN) tags to be
generated for the tagging of subsequent smaller portions of
meat.

(Montanari, col. 14, ll. 1-8).
6. Montanari teaches that the “P-TN tag is preferably designed so
that the label can be peeled from its backing and attached to the outside of
the bag containing the meat cut. The bagged meat item is then vacuum
packaged” (Montanari, col. 14, ll. 46-49).
7. Montanari teaches that the “R-TN labels are preferably attached
sequentially as scanned to the bag containing each meat item” (Montanari,
col. 15, ll. 12-14).
8. Montanari teaches that the fabricator can “search his computer
database for the P-TN in question. The P-TN will permit identification of all
the information relative to the purchase, fabrication, slaughter, and feeding
of the animal. The consumer can thus be contacted and given a detailed
report of the meat product‟s origin and processing” (Montanari, col. 17, ll.
51-56).
9. Montanari teaches that the “A-TN in the bag remains attached
to one half of the carcass. Since conventional carcass rail systems do not
allow for any split carcasses to be moved out of order, the two halves of the
carcass are readily identifiable by their proximity. It is also possible,
however, to produce an additional identifying tag to attach to each carcass
half” (Montanari, col. 12, ll. 55-59).
10. Montanari teaches that the “the Q-TN is scanned and a record
of the grade for each carcass is entered into the database, providing valuable
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information relative to the feeding performance of the animal of origin. The
side of beef is then typically quartered and loaded onto a truck for transport
to a fabrication plant” (Montanari, col. 13, ll. 22-27).
11. Montanari teaches “the measurement of a food product, not
necessarily involving weight (i.e., grade, fat, nutritional information, etc.)”
(Montanari, col. 14, ll. 57-58).
12. Tolson teaches that the “United States Department of
Agriculture has recently issued a directive requiring that each retail package
containing a meat product must be labeled with safe handling instructions
concerning storage, preparation, cooking and preservation of leftovers”
(Tolson, col. 1, ll. 33-37).
13. Tolson teaches that in “response to this directive and for
reasons of appearance and economy, it has been found desirable to print the
information needed directly on the film in which the product is being
wrapped rather than on a separate label” (Tolson, col. 1, ll. 40-45).
14. Turbak teaches “a method for extending the storage life of fresh
meat which is normally subject to bacterial deterioration. The invention
comprises the steps of wrapping the meat in a first film which is permeable
to a sterilizing agent but impermeable to bacteria” (Turbak, col. 1, ll. 49-54).
15. Turbak teaches that “[s]aran and Mylar films, being difficult to
heat seal, are often used in the form of laminates to films that are easily heat-
sealed, e.g., nylon . . . Saran-coated heat-sealable films, e.g., saran-coated
nylon . . . may also be used” (Turbak, col. 2, l. 65 to col. 3, l. 3).

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Principles of Law
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).
“If a person of ordinary skill can implement a predictable variation, §
103 likely bars its patentability.” Id. at 417. As noted by the Court in KSR,
“[a] person of ordinary skill is also a person of ordinary creativity, not an
automaton.” 550 U.S. at 421.
Analysis
Montanari teaches a method of tracking processed meat provided to
the public from the time the animal was in a feedlot until the meat reached
the final consumer (FF 1-2) comprising printing unique bar codes having
identifiers (FF 3) which may be sequential (FF 7), providing a batch of meat
to be processed and preparing a plurality of portions of processed meat from
the batch of meat (FF 5). Montanari teaches wrapping each portion of
processed meat and labeling the wrapped portion (FF 6). Montanari teaches
scanning the unique sequential bar codes of every shippable meat product
from the batch to associate all of the products and storing that data in a
database (FF 7-9). Montanari teaches transferring the meat product to a
fabrication plant (FF 10).
Montanari does not teach printing the bar code directly on the film
which will be used to wrap the meat, but rather prints the bar code on a
separate label that is attached to the wrapping film (FF 6).
Tolson teaches that the “United States Department of Agriculture has
recently issued a directive requiring that each retail package containing a
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meat product must be labeled with safe handling instructions concerning
storage, preparation, cooking and preservation of leftovers” (Tolson, col. 1,
ll. 33-37; FF 12). Tolson teaches that in “response to this directive and for
reasons of appearance and economy, it has been found desirable to print the
information needed directly on the film in which the product is being
wrapped rather than on a separate label” (Tolson, col. 1, ll. 40-45; FF 13).
Applying the KSR standard of obviousness to the findings of fact, we
conclude that an ordinary artisan would have reasonably found it obvious to
modify Montanari‟s labeling method by directly printing the label
information on the film in which the meat product is being wrapped since
Tolson teaches such printing is desirable for reasons including appearance
and economy (FF 13). The ordinary artisan would have been motivated by
Tolson to print the bar codes directly on the wrapping film of Montanari in
order for the reasons given by Tolson (FF 13). Such a combination is
merely a “predictable use of prior art elements according to their established
functions.” KSR, 550 U.S. at 417.
With regard to claims 20 and 24, Montanari teaches “the measurement
of a food product, not necessarily involving weight (i.e., grade, fat,
nutritional information, etc.)” (Montanari, col. 14, ll. 57-58; FF 13).
With regard to claim 22, Montanari teaches that the “A-TN in the bag
remains attached to one half of the carcass. Since conventional carcass rail
systems do not allow for any split carcasses to be moved out of order, the
two halves of the carcass are readily identifiable by their proximity”
(Montanari, col. 12, ll. 55-59; FF 9). In this case, there is storage of data
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Application 11/425,582

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corresponding to some meat products and Montanari teaches extrapolation
of the other half of the carcass based on proximity (FF 9).
With regard to claim 23, Montanari teaches storing data to permit
tracking of the meat from slaughter until sale to the customer (FF 2).
Montanari and Tolson teach the limitations of claim 16 as discussed
above. Montanari and Tolson do not teach the use of a laminate film, as
required by claim 27.
Turbak teaches “a method for extending the storage life of fresh meat
which is normally subject to bacterial deterioration. The invention
comprises the steps of wrapping the meat in a first film which is permeable
to a sterilizing agent but impermeable to bacteria” (Turbak, col. 1, ll. 49-54;
FF 14). Turbak teaches that “[s]aran and Mylar films, being difficult to heat
seal, are often used in the form of laminates to films that are easily heat-
sealed, e.g., nylon . . . Saran-coated heat-sealable films, e.g., saran-coated
nylon . . . may also be used” (Turbak, col. 2, l. 65 to col. 3, l. 3; FF 15).
Applying the KSR standard of obviousness to the findings of fact, we
conclude that an ordinary artisan would have reasonably found it obvious to
utilize the nylon laminate film of Turbak to wrap the meat in the method of
Montanari and Tolson since Turbak teaches that Sara-coated nylon may be
used to wrap meat. Such a combination is merely a “predictable use of prior
art elements according to their established functions.” KSR, 550 U.S. at 417.
Conclusions of Law
The evidence of record supports the conclusion that the combination
of Montanari and Tolson renders claims 16, 20, and 22-24 obvious.
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The evidence of record supports the conclusion that the combination
of Montanari, Tolson, and Turbak renders claim 27 obvious.
SUMMARY
In summary, we reverse the rejection of claims 16, 20, and 22-24
under 35 U.S.C. § 102(b) as anticipated by Montanari.
We reverse the rejection of claim 27 under 35 U.S.C. § 103(a) as
obvious over Montanari.
We reject claims 16, 20, and 22-24 under 35 U.S.C. § 103(a) as
obvious over Montanari and Tolson.
We reject claim 27 under 35 U.S.C. § 103(a) as obvious over
Montanari, Tolson, and Turbak.
This decision contains new grounds of rejection pursuant to 37 C.F.R.
§ 41.50(b) (effective September 13, 2004, 69 Fed. Reg. 49960 (August 12,
2004), 1286 Off. Gaz. Pat. Office 21 (September 7, 2004)). 37 C.F.R. §
41.50(b) provides “[a] new ground of rejection pursuant to this paragraph
shall not be considered final for judicial review.”
Claims 16, 20, 22-24, and 27 are subject to the new grounds of
rejection as discussed above.
37 C.F.R. § 41.50(b) also provides that the Appellants, WITHIN
TWO MONTHS FROM THE DATE OF THE DECISION, must exercise
one of the following two options with respect to the new ground of rejection
to avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an appropriate amendment
of the claims so rejected or new evidence relating to the
claims so rejected, or both, and have the matter reconsidered
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by the Examiner, in which event the proceeding will be
remanded to the Examiner. . . .
(2) Request rehearing. Request that the proceeding be
reheard under § 41.52 by the Board upon the same record. . .

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

REVERSED, 37 C.F.R. § 41.50 (b)

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