Ex Parte Ludvigsen

Patent Trial and Appeal Board

Feb 21, 2019

13702530 (P.T.A.B. Feb. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/702,530 12/27/2012
2292 7590 02/25/2019
BIRCH STEW ART KOLASCH & BIRCH, LLP
8110 Gatehouse Road
Suite 100 East
FALLS CHURCH, VA 22042-1248
FIRST NAMED INVENTOR
Bent Ludvigsen
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
15877-000029/US/NP 1015
EXAMINER
STIJLII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
02/25/2019 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):
mailroom@bskb.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BENT LUDVIGSEN
Appeal2018-003527
Application 13/702,530
Technology Center 1700
Before LINDA M. GAUDETTE, MICHELLE N. ANKENBRAND, and
LILAN REN, Administrative Patent Judges.
REN, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2018-003527
Application 13/702,530
STATEMENT OF THE CASE
Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection2 of
claims 16-29. We have jurisdiction under 35 U.S.C. § 6(b). 3
We affirm.
CLAIMED SUBJECT MATTER
The claims are directed to a recovery of non-coagulated product in red
meat fat reduction processes. Abst. Claim 16, reproduced below, is
illustrative of the claimed subject matter:
16. A method for producing a defatted, non-coagulated meat
product comprising the steps of:
- heating ground fatty meat tissue to a temperature below
the coagulation temperature of the fatty meat tissue,
- adding water or steam to the fatty meat tissue,
- separating the fatty meat tissue into a liquefied fat-
containing portion and a defatted meat portion,
- recovering an aqueous phase from the liquefied fat-
containing portion, wherein blood proteins and cytoplasm
proteins are dissolved in the aqueous phase,
- concentrating the aqueous phase at a temperature of 50°C
or less by removing water to generate a concentrated aqueous
phase, wherein the blood proteins and the cytoplasm proteins
dissolved in the aqueous phase do not coagulate; and
- adding and mixing the concentrated aqueous phase to the
defatted meat portion, wherein the concentrated aqueous phase
maintains the temperature of 50°C or less during the adding and
m1xmg.
Claims Appendix.
1 The real party in interest is identified as "ALF A LAV AL CORPORA TE
AB." Appeal Brief of August 29, 2017 ("Br."), 1.
2 Non-Final Office Action of April 4, 2016 ("Act."). In this opinion, we also
refer to the Examiner's Answer of November 30, 2017 ("Ans."). No Reply
Brief was filed.
3 The record shows that the Examiner previously issued Non-Final
Rejections on April 24, 2015 and April 22, 2016 as well as Final Rejections
on December 3, 2015 and October 25, 2016.
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Appeal2018-003527
Application 13/702,530
REFERENCES
The prior art references relied upon by the Examiner in rejecting the
claims on appeal are:
Ciantar
Holst-Pedersen
US 2004/0265470 Al Dec. 30, 2004
GB 2,106,367 A Sept. 27, 1982
The Production of Fish Meal and Oil, 3. The Process, www.fao.org/
docrep/003/X6899E/X6899E04.htm (April 3, 2013) ("the Production").
REJECTIONS
Claims 16-29 are rejected under 35 U.S.C. 103 as being unpatentable
over Ciantar, Holst-Pedersen, and the Production. Act. 2.
OPINION
Appellant first argues that the Examiner reversibly erred in rejecting
claim 164 because Holst-Pedersen "requires the product to be subjected to
drying and sterilization at least at 110°C for at least 10 minutes" which
would cause "the product of Holst-Pedersen [to be] coagulated." Br. 7, 8
( emphasis removed).
From the outset, open-ended claim 16 does not recite a drying step
and/or a sterilization step. Whether the prior art final product, upon drying
and sterilization as described in Holst-Pedersen, may be coagulated, does
not patentably distinguish the method claim at issue5 Appellant's argument,
4 Appellant does not present separate arguments for claims 17-29 and they
stand or fall with claim 16. Br. 6-14; see also 37 C.F.R.
§ 41.37(c)(1)(iv)(20I3).
5 Although the preamble of the claim recites a "method for producing a
defatted, non-coagulated meat product," we decline to limit the process steps
by the product described in the preamble. See Kropa v. Robie, 88 USPQ
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Appeal2018-003527
Application 13/702,530
based on unclaimed features, cannot impart patentability to the claim. In re
Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998).
Furthermore, Appellant does not dispute the Examiner's finding that
Ciantar teaches or suggests the method step of "heating ground fatty meat
tissue to a temperature below the coagulation temperature of the fatty meat
tissue." Compare Act. 2-3 (citing Ciantar ,r,r 48, 89, & 100 for various
recited steps including the one at issue here), with Br. 7-8 ( arguing without
addressing the cited portions of Ciantar). Appellant does not dispute the
Examiner's finding that Holst-Pedersen teaches or suggests the steps of
"adding water or steam to the fatty meat tissue," "separating the fatty meat
tissue into a liquefied fat-containing portion and a defatted meat portion,"
and "recovering an aqueous phase from the liquefied fat-containing portion."
Compare Act. 4, with Br. 7-8. Appellant does not dispute the Examiner's
finding that Holst-Pedersen describes heating the raw material "to a
temperature between 50 and 60 °C" in support of the rejection. Compare
Act. 3--4 (citing Holst-Pedersen at 1:4--10, 1:53-63), with Br. 7-8 (citing
Holst-Pedersen at 1: 128-2:3). Because the record before us supports these
findings and Appellant has not challenged them, we accept them as facts.
See In re Kunzmann, 326 F.2d 424,425 n.3 (CCPA 1964). Based on the
foregoing, we are unpersuaded that Appellant identifies reversible error in
the Examiner's findings in this aspect of the obviousness analysis.
Appellant next argues that the Examiner reversibly erred in finding
that combined prior art teaches or suggests the steps of "concentrating the
aqueous phase at a temperature of 50°C or less" and "adding and mixing the
concentrated aqueous phase to the defatted meat portion, wherein the
478,481 (CCPA 1951) (holding that claim preamble does not further limit
claims if it merely states a purpose or intended use of subject matter).
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Application 13/702,530
concentrated aqueous phase maintains the temperature of 50°C or less
during the adding and mixing" (the "concentrating steps"). Br. 9. More
specifically, Appellant acknowledges that Ciantar discloses heating the
material "to a temperature within the range 40-50°C. in order to preserve
protein functionality," but argues that because both Holst-Pedersen and the
Production disclose sterilization at 100°C and because Holst-Pedersen is
silent with regard to the concentrating steps, the combined teaching would
have led the skilled artisan to "concentrate the aqueous phase at a
temperature of at least 110°C in order to kill the bacteria." Id. ( citing
Ciantar ,r 89). Appellant argues that combining Ciantar with Holst-Pedersen
and the Production would impermissibly alter the principles of operation of
sterilization at 100°C in these references. Id. at 10.
As we noted earlier, claim 16 does not preclude a sterilization step to
remove bacteria from the product - for example, after the concentrating
steps. Appellant's argument is therefore not commensurate in scope with
that of the claim. See In re Hiniker Co., 150 F.3d at 1369 (holding that
unclaimed features cannot patentably distinguish the prior art). The
Examiner's proposed combination is directed to the concentrating steps at
issue which do not involve a sterilization step and any purported principle of
operation for sterilization would not have been altered as a result.
Furthermore, Appellant acknowledges that the Production "discloses
that temperatures below 90°C should be utilized" for steps such as drying.
Br. 13; see also Act. 5 (finding that the Production describes material
sensitive to heat should accordingly be heated minimally).
"[W]here there is a range disclosed in the prior art, and the
claimed invention falls within that range, there is a presumption
of obviousness. But the presumption will be rebutted if it can
be shown: ( 1) That the prior art taught away from the claimed
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Application 13/702,530
invention; or (2) that there are new and unexpected results
relative to the prior art."
Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir.
2004) (internal citations omitted).
In this case, the Examiner's finding is undisputed that, based on the
combined prior art teaching, a skilled artisan would have had an apparent
reason to apply the lower temperature "within the range 40-50°C. in order to
preserve protein functionality" in various parts throughout the process
including the concentrating steps. Compare Act. 6 ( citing Ciantar ,r 89),
with Br. 9--14; see also Ans. 12 (explaining that the Production "discloses
that degradation of protein, loss of volatile components and loss of important
amino acids and vitamins may occur due to the heat exposure during
evaporation of the stickwater" and "that significance of these changes should
be considered with the special view to the marketing and end use of such
products"). Given that Appellant does not identify reversible error in either
the Examiner's fact findings or rationale supporting the obviousness
rejection and that Appellant does not argue that the prior art teaches away or
that there are unexpected results, we sustain the Examiner's obviousness
rejection.
DECISION
The Examiner's decision is affirmed.
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)(l )(iv).
AFFIRMED
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