Ex Parte Parker et al

Patent Trial and Appeal Board

May 25, 2016

13497843 (P.T.A.B. May. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/497,843 03/23/2012 Jay David Parker
38550 7590 05/26/2016
CARGILL, IN CORPORA TED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
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.
N00042US01 1636
EXAMINER
STIJLII, VERA
ART UNIT PAPER NUMBER
1791
MAILDATE DELIVERY MODE
05/26/2016 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 PATENT TRIAL AND APPEAL BOARD
Ex parte JAY DA YID PARKER and BROCK AARON ZENTZ
Appeal2016-004963
Application 13/497,843
Technology Center 1700
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision finally rejecting claims 1, 5-18, and 22 under 35 U.S.C. § 103(a).
We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Claim 1 is illustrative of the appealed subject matter (emphasis
added):
1. A process for preserving fresh-ground meat comprising
the steps of:
a) packaging fresh ground meat in a sealed package;
1 The Real Party in Interest is stated to be Cargill Incorporated (App. Br. 3).
Appeal2016-004963
Application 13/497,843
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 at least
about 85, 000 psi pressure so that 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 1 to about 300 seconds and
wherein the packaged fresh ground meat is at a temperature of
from 30° to 45°F. during the pressurization process;
e) then reducing the pressure on the packaged fresh ground
meat to ambient pressure; and
f) removing the fresh ground meat from the pressurization
vessel.
(App. Br. 19, Claims Appendix.)
The Examiner maintains, and Appellants appeal, the following
rejections under 35 U.S.C. § 103(a):
(a) Claims 1, 5, 6, 10-18 and 22 as being unpatentable over Meyer
(WO 2009/003040 Al, published Dec. 31, 2008); and
(b) Claims 7-9 as being unpatentable over Meyer in view of Yuan et
al. (US 2003/0170356 Al, published Sept. 11, 2003) (hereinafter "Yuan").
The Examiner also provisionally rejected claims 1, 2, and 5-19 for
obviousness type double patenting over: (i) claims 1-3, 6-19, 21, and 22 of
copending Application No. 13/497,876 and (ii) claims 1-11 of copending
Application No. 13/700,579.
At the outset, we do not reach the merits of the Examiner's
provisional double patenting rejections. Ex parte Jerg, 2012 WL 1375142 at
*3 (BP AI 2012) (informative) ("Panels have the flexibility to reach or not
2
Appeal2016-004963
Application 13/497,843
reach provisional obviousness-type double-patenting rejections.") (citing Ex
parte Monda, 95 USPQ2d 1884 (BPAI 2010) (precedential)).
With the exception of claims 14-17, Appellants do not make separate
substantive arguments in support of patentability of any of the claims (see
generally, Appeal Br. 10-16; Reply Br. 2-5). Accordingly, our discussion
will focus on the obviousness rejection of independent claim 1. Claims 14-
17 will be addressed separately.
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellants' contentions, we find that the preponderance of evidence of
record supports the Examiner's conclusion that independent claim 1 and all
of its dependent claims are unpatentable over the applied prior art.
Appellants have failed to show that the Examiner erred reversibly. We
sustain the Examiner's§ 103 rejections, as listed in (a) and (b) above, of all
the appealed claims for essentially the reasons set out by the Examiner in the
Final Office Action and the Answer.
We add the following primarily for emphasis.
The Examiner finds Meyer teaches sterilizing food product, including
raw ground beef, through the application of pressure within 325-350 MPa,
i.e., 47,137-50,763 psi (Final Act. 2 (citing Meyer, Abstract; Example 9;
claim 14)). The Examiner determined that "[o]ne of ordinary skill in the art
would have been motivated to vary the specific pressure values based on the
specific food product treated and time of pressure application" (Final Act.
2). The Examiner further finds Meyer teaches that "'[t]he disclosed methods
may be conducted within a pressure vessel chamber which is maintained at
3
Appeal2016-004963
Application 13/497,843
-1 °C or less' (30.2 °F or less)" (Final Act. 2 (citing Ivleyer 7)). Thus, the
relied upon reference, Meyer, discloses a process for preserving fresh
ground meat by applying pressure within a temperature range that overlaps
with the instant claimed process having temperature ("wherein the packaged
fresh ground meat is at a temperature of from 30° to 45°F during the
pressurization process" (claim 1)) requirements (see, e.g., Ans. 7 (citing
Meyer, 22 (claim 14); Abstract)).
It is well established that where the claimed ranges overlap or lie
inside ranges disclosed by the prior art, a prima facie case of obviousness
exists. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); In re
Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997); In re Woodruff, 919 F.2d
1575, 1578 (Fed. Cir. 1990); In re Wertheim, 541F.2d257, 267 (CCPA
1976).
Appellants argue that "[t]he Examiner has made an error in fact by not
recognizing that the present claims require pressurization of packaged fresh
ground meat that is at a temperature of from 30° to 45°F., and that this meat
is therefore by definition is ... not considered to be frozen" (App. Br. 11 ).
As stated by the Examiner, Appellants' argument is not persuasive because
the Specification distinguishes fresh ground meat, available at "(35°-42°F)",
from "frozen (generally 0°-32°F)" (Ans. 9).
Appellants further assert that Meyer "specifically requires that the
product to be sterilized MUST be frozen [and, thus,] ... the only variation
of product temperature permitted in Meyer in optimizing as a result-effective
variable is within the temperature range[,] wherein the product remains
4
Appeal2016-004963
Application 13/497,843
ro -.-. /-r't. ., T""""ti. .11"' a ., ., , -. , ") , • ., • , rrozeff, ~Kep1y tir. 4 J. Appellants, arguments~ are not persuasive oecause n
is well established that a reference may be relied upon for all that it would
have reasonably suggested to one having ordinary skill in the art, including
non-preferred embodiments. In re Applied Materials, Inc. 692 F.3d 1298
("A reference must be considered for everything that it teaches, not simply
the described invention ... . ");see also, e.g., Merck & Co. v. Biocraft Labs.,
Inc., 874 F.2d 804, 807 (Fed. Cir. 1989).
The law is replete with cases in which the difference between the
claimed invention and the prior art is some range or other variable within the
claims. These cases have consistently held that the Appellants must show
that the particular range is critical, generally by showing that the claimed
range achieves unexpected results relative to the prior art range. See, e.g., In
re Peterson, 315 F.3d at 1329; In re Woodruff, 919 F.2d at 1578. The
burden rests with Appellants to establish ( 1) that the alleged unexpected
results presented as being associated with the claimed invention are, in fact,
unexpected, (2) that the comparisons are to the disclosure of the closest prior
art, and (3) that the supplied evidentiary showing is commensurate in scope
2 A "recognition in the prior art that a property is affected by the variable is
sufficient to find the variable result-effective." In re Applied Materials, Inc.,
692 F.3d at 1289, 1297 (Fed. Cir. 2012). Yuan, at iJ 24, teaches that:
[t]he amount of compressive heat transfer to the food items as a
result of the HPP treatment may be controlled in a number of
ways. For example, in situations where it is desirable to maintain
food items at substantially the same temperature during HPP
treatment, the food items may be cooled (e.g., refrigerated) for a
selected time period prior to HPP treatment.
Thus, the prior art teaches that the property of compressive heat transfer to
food is affected by temperature. One of ordinary skill in the art, therefore,
would know that temperature is a result-effective variable.
5
Appeal2016-004963
Application 13/497,843
with the claimed subject matter. See In re Klosak, 455 F.2d 1077, 1080
(CCPA 1972).
Appellants do not rely on any evidence in the Briefs demonstrating
that the particular claimed ranges are critical. Appellants have not identified
reversible error in the Examiner's reasoned determination that Meyer's
pressurization treatment would have been expected to have the same effect
on the meat product having initial temperature of either -2°C (28.4°F) or
above 32°C (Ans. 9). There has been no persuasive showing on this record
that the claimed ranges achieve unexpected results relative to the ranges
taught by Meyer (with or without Yuan).
Thus, a preponderance of the evidence supports the Examiner's
reasoned position that it would have been prima facie obvious to preserve,
under an elevated pressure, fresh ground meat at a temperature that overlaps
the claimed ranges.
Separately argued claims 14-17 of rejection (a)
Claims 14-17 are drawn to additional food inclusions, a group of food
inclusions, seasoning inclusions, and fresh ground meat that is free of non-
endogenous antimicrobial treatment chemicals, respectively. The Examiner
finds that Meyer discloses a list of representative meat products that are well
understood by the ordinary skilled artisan as including the flavorings and
seasonings recited in these claims (Final Act. 5; Ans. 12). The Examiner
determines that including various seasoning and flavoring ingredients would
have been obvious (Ans. 12). The Examiner further finds that "Meyer does
not specifically require non-endogenous antimicrobial treatment chemicals"
(id.).
6
Appeal2016-004963
Application 13/497,843
Appellants argue that the present invention is distinguished from the
prior art because Meyer's disclosed food products contain meat combined
with inclusions that are both cooked prior to freezing and pressure treatment
(App. Br. 15). Appellants further argue that the ordinary skilled artisan:
Id.
would not have thought from the Meyer disclosure that one could
successfully preserve fresh ground meat with high pressure as
presently claimed. In particular, one would not have expected
that fresh ground meat that is free of non-endogenous
antimicrobial treatment chemicals could be successfully
preserved in the manner of the present claims, as specifically
required in claim 1 7.
Appellants' arguments are not persuasive because it is well settled that
a reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in this art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264-65 (Fed.
Cir. 1992). In this case, the ordinary skilled artisan could reasonably infer
whether a food inclusion should be cooked or not, depending on the cooked
or uncooked nature of the ground meat product, with or without non-
endogenous antimicrobial treatment chemicals.
We affirm rejections (a) and (b).
DECISION
The Examiner's§ 103 rejections are affirmed.
TIME PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a).
AFFIRMED
7