Ex Parte Huisinga et al

Patent Trial and Appeal Board

Mar 29, 2017

12713380 (P.T.A.B. Mar. 29, 2017)

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.
12/713,380 02/26/2010 Benjamin P. Huisinga P07300US1-231 4607
34082 7590 03/31/2017
7ART FY T AW FTRM PT .f
EXAMINER
CAPITAL SQUARE THAKUR, VIREN A
400 LOCUST, SUITE 200
DES MOINES, IA 50309-2350 ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
kconrad@zarleylaw.com
skosiek@ zarleylaw.com
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PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL
AND APPEAL BOARD
Ex parte BENJAMIN P. HUISINGA, JOS J. KOBUSSEN, and
ROBERT W. DAMSTETTER
Appeal 2016-002626
Application 12/713,380
Technology Center 1700
Before MICHAEL P. COLAIANNI, DONNA M. PRAISS, and
AVELYN M. ROSS, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal 2016-002626
Application 12/713,380
Appellants appeal, under 35 U.S.C. § 134(a), the final rejection of
claims 1—7, 10, 12, 16, 17, 20, 21, and 24—27. We have jurisdiction over the
appeal pursuant to 35 U.S.C. § 6(b).
We REVERSE.
Appellants’ invention is directed to a method of producing cellulose
encased sausages, including partially cooking an encased sausage, hot
peeling the encased sausage, and finishing the cooking of the sausage inside
the final packaging (Spec 2:11—15).
Claim 1 is illustrative:
1. A method of producing sausages, comprising the steps of:
partially cooking an encased sausage to a temperature between
125°F and 145°F;
hot peeling the casing from the partially cooked sausage
wherein the sausage is at a temperature of between 100°F and
140°F;
packaging the peeled sausage; and
finishing the cooking of the peeled sausage inside the
packaging with intermittent cooking;
wherein the peeled sausages are vacuum packed into the
packaging prior to cooking.
Appellants appeal the following rejections:
1. Claims 1, 12, and 24 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Freund (US 1,631,723; iss. June 7, 1927) in view of
Menges (US 2,301,564; iss. Nov. 10, 1942), Grey (US 2,630,598; iss.
Mar. 10, 1953), Demarest (US 2,839,780; iss. June 24, 1958), Doyle
(US 3,390,422; iss. July 2, 1968), Treheme (GB 2,248,010 A; pub.
Mar. 25, 1992), Burroughs (US 2008/0145495 Al; pub. June 19,
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Appeal 2016-002626
Application 12/713,380
2008), Schneider (US 2,767,097; iss. Oct. 16, 1956), and Snyder (US
2,328,751; iss. Sept 7, 1943).
2. Claims 2 and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Freund in view of Menges, Grey, Demarest, Doyle, Treheme,
Burroughs, Schneider, Snyder, Masana (M.O Masana et al., Foot-and-
mouth disease virus inactivation in beef frankfurters using a biphasic
cooking system, 12 Food Microbiology 373—380 (1995) (hereinafter
“Masana”), and Konanayakam (US 6,989,170 B2; iss. Jan. 24, 2006).
3. Claims 3, 7, 10, 16, and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Freund in view of Menges, Grey, Demarest, Doyle,
Schneider, Snyder, Stiles (US 4,138,767; iss. Feb. 13, 1979), and
Andersen (US 4,222,150; iss. Sept. 16, 1980).
4. Claims 3, 4, 7, 10, 16, and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Freund in view of Treheme, Burroughs, and
Snyder.
5. Claims 5, 6, and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Freund in view of Masana, and Konanayakam.
6. Claims 25—27 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Freund in view of “Cooking Most Smoked Meats” (Bob Hanson,
Cooking Most Smoked Meats, MeatingPlace.COM,
http://webcache.googleusercontent.com/search?q=cache:qF3IulpFql
OJ:www.meatingplace.com/Archives/Arc (last visited Sept. 4, 2014)),
Lustig (US 3,589,915; iss. June 29, 1971), Maher (US 3,903,313; iss.
Sept. 2, 1975), and Barnett (US 3,113,870; iss. Dec. 10, 1963).
7. Claims 1, 12, 24, and 25 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Union Carbide (US 1,187,635; pub. Apr. 8, 1970)
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Appeal 2016-002626
Application 12/713,380
in view of Menges, Grey, Demarest, Doyle, Treheme, Burroughs,
Tauber (US 3,121,638; iss. Feb. 18, 1964), and Snyder.
8. Claims 2 and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Union Carbide in view of Masana, and Konanayakam.
9. Claims 3, 4, 7, 10, 16, and 17 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Union Carbide in view of Menges, Grey, Demarest,
Tauber, Doyle, Andersen, Stiles, Treheme, Burroughs, and Snyder.
10. Claims 5, 6, and 21 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Union Carbide in view of Masana and
Konanayakam.
11. Claims 25—27 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Union Carbide in view of Freund, Cooking Most Smoked Meats,
Lustig, Maher, and Barnett.
FINDINGS OF FACT & ANALYSIS
Appellants argue that Snyder teaches away from intermittent cooking
of the peeled sausage inside the packaging (App. Br. 3—4). Appellants
contend that Snyder teaches maintaining a cooking temperature in the
container and thus does not teach “intermittent cooking” (id.).
The Examiner’s findings regarding the various prior art references are
located on pages 3 to 29 of the Final Action. In each rejection of the
independent claims 1 and 3, the Examiner relies on Snyder to teach
intermittent cooking (Final Act. 7 and 14). The Examiner finds that
Appellants have not provided a detailed definition of intermittent cooking
and Snyder’s reversing of the direction of the gas flow in the oven after an
interval constitutes intermittent cooking (Ans. 2—4).
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Appeal 2016-002626
Application 12/713,380
The Examiner’s position is undermined by Snyder’s teaching that the
temperature of the heater maintains the desired temperature for cooking
(Snyder 1, col. 2,11. 46—50). If the temperature is maintained, then the
cooking in Snyder must be continuous and not include periods of time when
the cooking is stopped (i.e., intermittent cooking). The Examiner defines
“intermittent” as “occurring at irregular intervals; not continuous or steady”
(Ans. 3). Appellants do not contest this definition. Applying the
unchallenged definition to the claim term, a reasonable meaning of
“intermittent cooking” is cooking that occurs at irregular intervals or not
continuously or steadily. That Snyder maintains the desired temperature
which is used to cook the food indicates that Snyder teaches continuous
cooking. Even if the Examiner is correct that some temperature variation
occurs in Snyder’s device, the mere variation in temperature does not
necessarily constitute intermittent cooking (especially in light of Snyder’s
teaching to maintain a desired temperature). The Examiner has not shown
the applied prior art taught or would have suggested all of the limitations in
the claims.
On this record, we reverse all the Examiner’s § 103 rejections.
DECISION
The Examiner’s decision is reversed.
REVERSED
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