Ex Parte 6319526 et al

Board of Patent Appeals and Interferences

May 25, 2011

90006317 (B.P.A.I. May. 25, 2011)

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.
90/006,317 07/03/2002 6319526 01473.302800 9581
25763 7590 05/26/2011
DORSEY & WHITNEY LLP - MINNEAPOLIS (IP/PT-23)
INTELLECTUAL PROPERTY PRACTICE GROUP
ATTENTION: PATENT PROSECUTION DOCKETING DEPARTMENT
50 SOUTH SIXTH STREET, SUITE 1500
MINNEAPOLIS, MN 55402-1498
EXAMINER
KUNZ, GARY L
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
05/26/2011 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
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.
95/000,003 01/08/2002 6319526 01473.302300 4575
25763 7590 05/26/2011
DORSEY & WHITNEY LLP - MINNEAPOLIS (IP/PT-23)
INTELLECTUAL PROPERTY PRACTICE GROUP
ATTENTION: PATENT PROSECUTION DOCKETING DEPARTMENT
50 SOUTH SIXTH STREET, SUITE 1500
MINNEAPOLIS, MN 55402-1498
EXAMINER
KUNZ, GARY L
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
05/26/2011 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
____________

LEPRINO FOODS CO.
Requester and Respondent

v.

Patent of LAND O’ LAKES, INC.
Patent Owner and Appellant
____________

Appeal 2011-005022
Reexamination Control Nos. 95/000,003 and 90/006,317
Patent 6,319,526 B1
Technology Center 3900
____________

Before ROMULO H. DELMENDO, SALLY G. LANE, and
RICHARD M. LEBOVITZ, Administrative Patent Judges.

LEBOVITZ, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2011-005022
Reexamination Control Nos. 95/000,003 and 90/006,317
Patent 6,319,526 B1

2
This is a decision on appeal in a merged ex parte and inter partes
reexamination of U.S. Patent No. 6,319,526. The Patent Owner appeals the
Examiner’s decision to reject claims as anticipated under 35 U.S.C. § 102
and as obvious under 35 U.S.C. § 103. The Board’s jurisdiction for this
appeal is under 35 U.S.C. §§ 6(b), 134, and 315. We affirm.

BACKGROUND
The patent in dispute in this appeal is U.S. Patent No. 6,319,526 B1,
issued November 20, 2001, having claims to a process of manufacturing a
pasta filata cheese or a mozzarella-like cheese (hereinafter, “the ‘526
patent”).
A request for inter partes reexamination pursuant to 37 C.F.R. § 1.915
was filed on January 8, 2002, by Third-Party Requester John W. Behringer,
for Leprino Foods Company, and was assigned Control No. 95/000,003.
Reexamination was ordered.
A request for ex parte reexamination, pursuant to 37 C.F.R. § 1.510,
was subsequently filed on July 3, 2002, by the same Third-Party Requester,
John W. Behringer, for Leprino Foods Company, and was assigned Control
No. 90/006,317. Reexamination was also ordered.
The Third-Party Requester requested merger of the ‘317 proceeding
with the ‘003 proceeding. The merger was granted (Decision Merging
Reexamination Proceedings, mailed January 30, 2003).
In the substitute Appeal Brief filed August 6, 2009, claims 1-14 and
16-163 were under appeal. On August 10, 2009, Patent Owner filed an
amendment cancelling claims 104-113, 124, and 137-163. Therefore,
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claims 1-14, 16-103, 114-123, and 125-136 are pending in this merged
proceeding.
The claims stand rejected by the Examiner under multiple grounds:
1. Claims 1-4, 7-14, 16-22, 25-29, 31, 32, 35, 36, 38, 40-48, 51, 62-
69, 89-92, and 95-101 stand rejected as anticipated under 35 U.S.C. § 102(e)
as anticipated by Rhodes1 (Right of Appeal Notice (“RAN”) 22).
2. Claims 5, 6, 10, 12, 13, 14, 23, 24, 25, 30, 33, 34, 37, 39, 45, 46,
47, 49, 50, 52-61, 65, 68, 70-103, 114-123, 125, and 126-136 stand rejected
under multiple grounds under 35 U.S.C. § 103 as obvious in view of Rhodes
and several different secondary publications. The grounds are listed on
pages 47-81 in the RAN as grounds II-XXIII.2 The grounds are also
summarized on pages 10-11 of Appellant’s Appeal Brief, dated July 28,
2010 (“App. Br.”). Most of the obviousness rejections were challenged on
the same basis as the anticipation rejection. Because the rejections are
lengthy, we will not repeat them here, but refer to the RAN and Appeal Brief
for the specific statements of the rejections.
3. Claim 1 stands rejected under 35 U.S.C. § 103(a) as obvious in
view of Rhodes and Bottazzi (RAN 81; ground XXIV). Because we affirm
the rejection of claim 1 as anticipated by Rhodes alone, as discussed further
below, we do not reach this obviousness rejection.

1 U.S. Patent No. 6,120,809, issued Sept. 19, 2000.
2 It appears that ground XIII (RAN 65) was intended to include claims 127-
133 as indicated in grounds XIV, XV, etc.
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Patent 6,319,526 B1

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Claim 1 is representative and reads as follows:
1. A process of manufacturing, a pasta filata cheese or a
mozzarella-like cheese comprising:
providing a milk composition having a selected protein
and fat composition;
pasteurizing the milk composition;
forming a coagulum from the milk composition;
cutting the coagulum to separate curd and whey;
draining the whey from the curd;
heating the curd without aqueous immersion to an
approximate temperature range of 130° F. to 160° F.;
adding a cheese emulsifying salt or a dairy ingredient or
both prior to mechanical working;
mechanically working the curd into a fibrous mass; and
forming the cheese into a selected shape.
(App. Br. 37.)
CLAIM INTERPRETATION

Legal Principles
During reexamination, as with original examination, the
PTO must give claims their broadest reasonable construction
consistent with the specification. In re Am. Acad. of Sci. Tech
Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). Therefore, we look
to the specification to see if it provides a definition for claim
terms, but otherwise apply a broad interpretation.
In re ICON Health & Fitness, Inc., 496 F.3d 1374, 1379 (Fed. Cir. 2007);
see also In re Suitco Surface, Inc., 603 F.3d 1255, 1259 (Fed. Cir. 2010).
“In some cases, the ordinary meaning of claim language as understood
by a person of skill in the art may be readily apparent even to lay judges, and
claim construction in such cases involves little more than the application of
the widely accepted meaning of commonly understood words … In such
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circumstances, general purpose dictionaries may be helpful.” Phillips v.
AWH Corp., 415 F.3d 1303, 1314 (Fed. Cir. 2005).

Findings of Fact (“FF”)
FF1
In the manufacture of pasta filata cheeses like Mozzarella, curd
solids are typically heated in a hot water bath. . . .
Spent hot water containing cheese solids, salt and energy is a
major economic concern when considering commercial
mozzarella cheese manufacture. . . .
Elimination or at least reduction in quantity of such spent hot
water would be beneficial in terms of production cost
(improved vat milk to finished cheese solids retention) as well
as harm to the natural environment.
(‘526 patent, col. 1, ll. 6-30 (“Background of the Invention”).)

FF2
The present invention includes a process for making a pasta
filata type cheese. Most common of such cheeses are
mozzarella and provolone. Traditional manufacturing processes
for making such cheese varieties are characterized by the fact
that after the whey is drained off, the curd is immersed in hot
water or hot whey and the submerged curd is worked and
stretched while it is in a plastic condition to impart into the
curd, the fibrous texture that characterizes such cheese varieties.
(‘526 patent, col. 2, l. 66 - col. 3, l.7.)

FF3
According to the process of the present invention, the working
of the mozzarella curd in a hot liquid is eliminated. The
working of the curd occurs in a substantially liquid-free
environment. By liquid-free is meant that the curd is not
immersed in a liquid such as water or whey. The curd does have
water entrapped within and may have some surface wetness, but
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such moisture content is insufficient to be considered
immersion.
(‘526 patent, col. 3, ll. 8-15.)

FF4
The process of the present invention initially starts out in a
traditional manner. . . .
The standardized cow’s milk is then pasteurized . . . . The milk
is acidified before or after pasteurization using any one of a
number of substances or a combination thereof. The milk may
be directly acidified with a mineral or organic acid or a
microbial starter or any other acidulent. The milk is set
(coagulated) with rennet or other suitable proteolytic agent.
After the milk has gelled, the curd is cut, curd and whey are
heated after which the fluid whey is drained off. . . .
(‘526 patent, col. 3, l. 66 - col. 4, l. 21.)

FF5
It has also been discovered that by the addition of various
ingredients such as generally recognized as safe (GRAS)
ingredients to the mozzarella curd before it has been heated
results in improved control of analytical and functional
characteristics.
(‘526 patent, col. 3, ll. 23-27.)

FF6
. . . [T]he GRAS ingredients are added prior to heating and
working the curd.
One GRAS ingredient includes a prepared emulsifying
salt combination. . . . Alternatively, this functional salt blend
may be an ingredient of the initial starter culture growth
medium. . . .
Non-dairy components may be added to the curd prior to
working. . . .
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Dairy ingredients may also be added prior to working of
the curd. . . .
(‘526 patent, col. 4, ll. 30-60.)

FF7
The addition of GRAS ingredients may be done in a
temperature range of between 20º F and 160º F. The blending
of such ingredients can be done in a twin screw auger type
mixer in which the augers overlap thereby insuring thorough
mixing. . . . A number of such blenders may be required to
insure that the flow of the cheese curd is continuous to the
subsequent heating and kneading steps. The number of blenders
required is determined by dwell time in the blenders that is
required to adequately mix all the ingredients and the through
put required in the subsequent heating and kneading steps.
(‘526 patent, col. 5, ll. 39-51.)

FF8
After grinding, the curd of the present invention is
preferably worked in a dry environment. By working is meant
that the curd is heated and then mechanically kneaded and
stretched to a viscous molten state wherein the curd develops
into a fibrous mass. By fibrous is meant that the curd develops
texture.
(‘526 patent, col. 5, ll. 10-15; emphasis added.)

FF9
The curd is then heated preferably in a liquid-free environment
and mechanically worked until the curd forms a fibrous mass.
(‘526 patent Abstract.)

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FF10
The curd is preferably heated to a temperature range of 130º to
160º F. Steamed-jacketed and/or infused vessels equipped with
mechanical agitators (waterless cookers) are used to heat and
work the curd blend. The curd blend may also be heated and
worked in horizontal cookers that employ screw-augers to stir
or work the curd while live steam is injected directly into the
cheese. Another equipment option is direct culinary steam
injection into flowing curd mass.
(‘526 patent, col. 5, ll. 17-25.)

Discussion
Claim 1 is directed to a process of manufacturing a pasta filata cheese
or a mozzarella-like cheese. The process involves certain conventional steps
of cheese production, such as pasteurization, coagulation, and separation of
the whey from the curd (FF4; claim 1). The process also comprises the
following recited process steps, which are at the heart of the dispute in this
appeal:
• “heating the curd without aqueous immersion to an approximate
temperature range of 130° F. to 160° F.”;
• “adding a cheese emulsifying salt or a dairy ingredient or both prior
to mechanical working”; and
• “mechanically working the curd into a fibrous mass.”
We address the interpretation of these limitations below.

• “adding a cheese emulsifying salt or a dairy ingredient or both prior to
mechanical working”
According to the ‘526 patent, it was discovered that “the addition of
various ingredients . . . to the mozzarella curd before it has been heated
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results in improved” control of cheese characteristics (FF5). The ingredients
are characterized as those which are generally recognized as safe (GRAS),
and include salts, non-dairy, and dairy components (FF6). The ‘526 patent
expressly states that the GRAS ingredients, such as salts and dairy
components, are “added prior to heating and working the curd” (FF6). The
latter step of adding a salt or diary ingredient “prior to . . . working” is
reflected in the claim limitation “adding a cheese emulsifying salt or a dairy
ingredient or both prior to mechanical working.” The claim does not require
the salt or dairy ingredient to be added prior to “heating the curd without
aqueous immersion,” but the claim does not exclude this order of steps from
its scope.
The proper interpretation of the claimed term “mechanical working”
is disputed by the parties in this appeal.
Appellant interprets “mechanical working” to include processes in
which the curd is rotated, tumbled, or turned in a device at various rotations
per minute (“RPM”) (App. Br. 13-17). The Requester contends that
“mechanical working” means when “the curd has been heated, kneaded, and
stretched into a fibrous mass” (Requester Respondent Br. 4).
Quite simply, Appellant interprets “mechanical working” to be any
mechanical agitation of the curd, including mixing and blending of
ingredients into the curd. The Requester, on the other hand, proposes a
narrower interpretation, where “mechanical working” means the mechanical
agitation step in which the curd is transformed into a fibrous mass,
characteristic of the finished cheese.
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Thus, under Appellant’s interpretation, the salt or dairy product must
be added before any mechanical agitation has occurred. In contrast, the
Requester’s interpretation permits addition of the salt and diary ingredient to
the curd as long as it takes place before the final step in which the curd is
worked into a fibrous mass.
To resolve this dispute, we first turn to the written description of the
‘526 patent. The ‘526 patent expressly defines the term “working”:
By working is meant that the curd is heated and then
mechanically kneaded and stretched to a viscous molten state
wherein the curd develops into a fibrous mass.
(FF8.) Based on this definition, Appellant contends that “working” means
“heating” and “mechanical working” and that “mechanical working”
therefore has a broader meaning that includes any agitation or mixing of the
curd (e.g., by rotation, tumbling, or turning of the curd in a device).
Appellant’s construction of “mechanical working” is unreasonably
broad.
First, claim 1 expressly recites “mechanically working the curd into a
fibrous mass.” Thus, the plain language of the claim would be reasonably
understood to limit “mechanical working” to the labor exerted to turn the
curd into the fibrous mass.
Second, and independently, the written description of the ‘526 patent
distinguishes between (a) the step in which the curd is mixed with cheese
ingredients and (b) the step in which the mixed cheesed is worked into a
fibrous mass, the last step of the cheese-making process. We explain this in
more detail below.
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At column 5, lines 39-51, the ‘526 patent refers to “blending” and
“adequately mix[ing] all the [GRAS] ingredients” (FF7). The latter appear
to be the conventional steps in which curd and other ingredients are
combined together.
The patent describes a different and additional step of applying heat
and then “mechanically” kneading the curd, a process which is defined in the
patent as “working.” (FF8.) In this step, the curd, which previously has been
mixed and blended with GRAS ingredients, is transformed into a fibrous
mass characteristic of a filata or mozzarella-like cheese.
In other words, the patent refers to two separate steps in its cheese-
making process, and uses different language to characterize each of the
steps:
• mixing and blending GRAS ingredients (such as salt and dairy) into
the curd; and
• heating and mechanically kneading the mixed curd until it forms a
fibrous mass of cheese, which together are defined as “working.”
The mixing and blending steps are performed prior to kneading the
mixed curd into the fibrous cheese mass. The term “working” is used to
characterize the subsequent heating and kneading step. It is therefore clear
that the term “working” has a special meaning that refers to the heat and
labor involved in the final steps of making the cheese product. The patent
uses the phrase “mechanically kneaded” to characterize the latter step in
which the curd is worked into a fibrous mass. Thus, “mechanical working”
would logically be understood to refer to the same process because it uses
the term “working,” but to denote just the mechanical labor applied to
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12
produce the fibrous mass. This construction is consistent with the ‘526
patent abstract, which specifically states that the “curd is . . . mechanically
worked until the curd forms a fibrous mass.” (FF9.)
Appellant contends that the term “mechanically working” should also
include the steps in which GRAS ingredients are “blend[ed]” and “mix[ed]”
(FF7). However, as explained above, the ‘526 patent uses the phrase
“mechanically working” in the abstract (FF9) and in the claim to refer to the
specific step in which the curd is converted into a fibrous mass. On the
other hand, the ‘526 patent uses blending and mixing to refer to the
conventional process in which ingredients are combined together. Thus,
Appellant’s interpretation is not supported by the evidence.
We do not disagree with Appellant that working, as defined in the
‘526 patent, comprises a heating step and a mechanical working step, both
which are used to transform the cheese components into a finished fibrous
mass. However, there is inadequate support for interpreting “mechanical
working” to encompass the conventional step of blending and mixing of
GRAS or other ingredients into the curd. Rather, in view of the description
in the ‘526 patent (FF8 & FF9) “mechanical working” would be understood
to mean the labor used to turn the curd components into the fibrous mass.
While it may be true that the heating facilitates the process of forming the
fibrous mass, such transformation only occurs when the curd is being
“mechanically worked.” Under these conditions, instead of simply mixing
ingredients together, agitation – the mechanical work – kneads and stretches
the curd into the fibrous mass.
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Consistent with the interpretation that “mechanical working” excludes
“heating,” claim 1 recites a step of heating, indicating that the “heating’
component of “working” (FF8) is not included in the step of “mechanical
working.”

• “heating the curd without aqueous immersion”
The meaning of the phrase “without aqueous immersion” is also in
dispute in this appeal. The terms in a claim are given their broadest
reasonable meaning as they would be understood by the ordinary skilled
worker in the light of the patent Specification. Consequently, we first turn to
the patent’s written description to determine what illumination is accorded to
the disputed phrase.
In the “Background of the Invention,” the ‘526 patent described prior
art methods of manufacturing pasta filata cheeses in which curd solids were
“typically heated in a hot water bath.” (FF1.) The ‘526 patent stated that in
these “[t]raditional manufacturing processes,” after the whey is drained off,
“the curd is immersed in hot water or hot whey and the submerged curd is
worked and stretched” into the cheese’s characteristic texture (FF2). The
‘526 patent identified the “spent hot water” produced during the traditional,
prior art manufacturing as a problem because of its effect on cost and its
harm to the environment (FF1 & FF2). The ‘526 inventors characterized
their “present invention” as a process in which “the working of the
mozzarella curd in a hot liquid is eliminated,” addressing the prior art
manufacturing problem (FF3). The inventors stated that the “working of the
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curd occurs in a substantially liquid-free environment. By liquid-free is
meant that the curd is not immersed in a liquid such as water or whey.” (Id.)
In sum, the ‘526 patent clearly conveys to the ordinary skilled worker
that the curd is not “immersed” in liquid during the working step. The term
“immersed” is not defined by the ‘526 patent. We thus adopt its ordinary
meaning as “to plunge into or place under a liquid.”3 This meaning is
consistent with how the term “immersed” is used in the ‘526 patent. First,
the patent refers to heating the curd in a “hot water bath” (FF1), a process
which would be reasonably understood to mean that the curd is placed under
water. Secondly, the patent also refers to the curb as being “submerged”
during the working step (FF2), another description which conveys the idea
of the curb being under water during the traditional cheese-making
processes.
While the ‘526 patent expressly distinguishes its own invention from
the prior art cheese-making process in which the curd is immersed in water,
it does not expressly exclude liquid from its process. Rather, the ‘526 patent
acknowledges that “curd does have water entrapped within and may have
some surface wetness, but such moisture content is insufficient to be
considered immersion.” (FF3.) Thus, although the ‘526 patent states the
curd is “worked in a dry environment” (FF8), “dry” does not exclude “some
surface wetness.” Consistently, the ‘526 patent describes steam injection as
one method of heating the curd during the working process (FF10), a method
which would be reasonably understood to involve at least wetting its surface
with water, if not more.

3 RANDOM HOUSE DICTIONARY 664 (College ed. 1968).
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In sum, the phrase “heating the curd without aqueous immersion,”
when read in light of the ‘526 patent’s written description, would be
interpreted by the ordinary skilled worker to exclude processes in which the
curd is heated when submerged in a liquid, but to permit the surface of the
curd to be wetted during the heating step.

ANTICIPATION REJECTION BY RHODES
Legal Principles
“To anticipate a claim, a prior art reference must disclose every
limitation of the claimed invention, either explicitly or inherently.” In re
Schreiber, 128 F.3d 1473, 1477 (Fed. Cir. 1997).
“[W]hen the PTO shows sound basis for believing that the products of
the applicant and the prior art are the same, the applicant has the burden of
showing that they are not.” In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990).

Findings of Fact (“FF”)
FF11
Rhodes describes a method of making a cheese product.

FF12
[A]n object of the one aspect of the present invention [is] to
provide a system and method for reintroducing whey protein
concentrate into cheese curds so as to increase the amount of
cheese to be produced by a given quantity of milk.
(Rhodes, col. 5, ll. 55-58.)

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FF13
According to Rhodes, the “whey protein is mixed with the cheese
curds and subjected to negative pressure. This causes the whey protein to be
absorbed into the cheese curds.” (Rhodes, col. 6, ll. 30-33.)

FF14
The concentrated whey protein is moved by pump 198 through
the conveying line 200 to the infuser 186. In the infuser 186, a
mixture is formed between the concentrated whey protein and
the cheese curds. As the curds and whey protein are subjected
to negative pressure, and preferably to an elevated temperature,
the concentrated whey protein coats the cheese curds and is
drawn into the cheese curds.
(Rhodes, col. 11, ll. 37-45.)

FF15
Heating of the infuser 186 is provided by a water heater 234
that keeps water between 100 and 160 degrees Fahrenheit
depending on the type of cheese being produced. Supply lines
238 and return lines 240 connect the chiller 230 and the heater
234 to a jacket shell 242 about the infuser 186.
As the cheese curds 254 fall with each rotation of the infuser
186, the cheese curds are coated with the prob[i]otics and whey
protein, and expand and absorb the prob[i]otics and whey
protein with which they are mixed. After repeated turning,
substantially all of the prob[i]otics and whey proteins are
absorbed into the cheese curds.
(Rhodes, col. 15, ll. 7-17.)

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FF16
. . . salt may be added to the mixture during the infusing process
to provide the familiar taste of the cheese. Likewise, an enzyme
can be added during the infusing process if desired. Heat is then
continued to be applied and a vacuum is pulled on the product
to finish.
(Rhodes, col. 15, ll. 18-22.)

FF17
The cheese curds and whey protein are then heated and turned
to mix the two components together. As the mixture is heated
and turned, the mixture is subjected to a negative pressure. It is
believed that the stronger the vacuum the better. . . . The
negative pressure causes the whey protein to be drawn into the
cheese curds. Because the whey protein is absorbed into the
cheese curds, the resulting product lacks the characteristic whey
taste that many people find objectionable.

As the cheese curds and whey mixture is tumbling, salt may be
added to provide the proper taste for the cheese. The amount of
salt which is added depends on the type of cheese.
(Rhodes, col. 15, l. 58 - col. 16, l. 3.)

Example 1 (Cols. 22-25)
FF18
The mozzarella curd was added to the infuser while it was
turning at 4 RPM. The infuser is preferably turning while the
cheese is added as it will mat and clump if the infuser is
stopped.
(Rhodes, col. 23, ll. 31-34.)

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FF19
55 pounds of 88% protein Whey Protein Isolate was added to
130 pounds of water and the mixture was pasteurized and
denatured by raising the temperature to 160º F. and holding for
15 minutes.
(Rhodes, col. 23, ll. 39-43.)

FF20
The denatured and pasteurized 80% Whey Protein Isolate was
cooled . . . [and] added to the infuser and the vacuum pump was
energized and a vacuum of 26.5 inches was developed. The
speed of the infuser was 4 RPM and the time required for the
liquid Whey Protein Isolate to be infused into the curd was 25
minutes. The warm water (120º F. to 130º F.) was required to
maintain a curd temperature of 115º F., as the curd needed to
continue to ripen. Thus, warm water was circulated through the
jacket and flights. . . . The high vacuum evaporates water from
the curd and lowers the curd temperature.
(Rhodes, col. 23, ll. 47-61.)

FF21
The cheese curd was allowed to ripen for an additional 23
minutes to a pH of 5.43 and then the water temperature was
raised to 155º F. and circulated through the jacket and the
flights. The RPM of the infuser was increased to 8.
(Rhodes, col. 23, ll. 62-65.)

FF22
The door was opened and 18 pounds of fine salt was added to
the infuser. The door was closed and the vacuum pump was
energized and a vacuum of 26 inches was developed.
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(Col. 23, l. 66 - col. 24, l. 2.)

FF23
When the cheese curd temperature reached 128º F., the cheese
began to form fibrous strands that stretched from the bottom to
the top on each of the internal flights. At this point, an
additional 40 pounds of hot water (140º F.) and 15 pounds of
the lecithin phospholipid mixture as prepared in Example 5 was
added to the infuser. The cheese then started to form a
homogenous mass of kneaded and stretched ‘pasta filata’
cheese. The RPM of the infuser was lowered to 6. The entire
curd formed into a single mass of pasta filata Mozzarella at
130º F. There was distinct fibrous strands stretching from the
bottom to the top of the infuser.
(Rhodes, col. 24, ll. 2-12.)

FF24
There was no observable sticking of the cheese to the sidewalls
of the infuser. This is generally a problem in pasta filata
cookers . . . . This was not the case with this invention using the
infuser to knead, fuse, and stretch the curd into a homogenous
mass.
(Rhodes, col. 24, ll. 12-18.)

Discussion
The Rhodes patent describes a method of making cheese which the
Examiner found met all the recited steps of claim 1. Appellant challenges
the Examiner’s determination. Appellant contends that Rhodes does not
describe the recited steps of “heating the curd without aqueous immersion”
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and “adding a cheese emulsifying salt or a dairy ingredient or both prior to
mechanical working” (App. Br. 13-22).

Mechanical working step
In the cheese-making process described in Example 1 of Rhodes,
curds were added to the infuser while it was turning at 4 RPM (FF18). Next,
whey was added to the infuser, while the infuser speed was 4 RPM (FF19 &
FF20). During the infusion process, the temperature was regulated by
circulating water through a jacket and a vacuum was applied (FF20). Salt
was added and the vacuum applied again (FF22). When the cheese reached
128º F, a lecithin mixture was added and then “cheese then started to form a
homogenous mass of kneaded and stretched ‘pasta filata’ cheese. The RPM
of the infuser was lowered to 6 RPM.” (FF23).
Neither party disputes that the infuser was rotating during the entire
cheese-making process described in Example 1. Appellant contends that the
rotating motion of the infuser is encompassed by the phrase “mechanical
working,” when the latter is given its broadest reasonable interpretation.
Appellant further contends that, because the infuser was turning and rotating
throughout Rhodes’s cheese-making process, no salt or dairy ingredient was
added by Rhodes “prior to mechanical working,” as recited in claim 1.
Rather, Appellant contends the salt and dairy ingredients were added during
or after “mechanical working,” but not before. For example, salt was added
to the infuser (FF22), but this was after the curd had been rotated (FF18 &
FF21) – a step which Appellant characterizes as “mechanical working.”
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As explained above, Appellant’s interpretation of “mechanical
working” is unduly broad and not supported by the ‘526 patent. The term
“mechanical working,” as recited in claim 1, has a special meaning that
refers to the step in which the curb is kneaded and transformed into a fibrous
mass. It does not refer to conventional steps in which whey, salt, and other
ingredients are combined with the curd without formation of a fibrous mass.
Appellant argues that the infuser is rotating throughout the cheese-
making process of Rhodes. Appellant contends there is no difference in the
rotating motion that occurs when the curd is mixed with the salt and other
components (FF18, FF20, & FF21) and when the curd forms in a fibrous
mass.
The definition in the ‘526 patent makes clear that “working” is a
special process involving heating and “mechanically knead[ing]” to develop
the curd into a fibrous mass (FF9). As the term “working” is only used in
the ‘526 patent in the context of forming the fibrous mass, the Examiner
reasonably interpreted it to be limited to this process. In re Zletz, 893 F.2d
319, 321 (Fed. Cir. 1989) (“When the applicants state the meaning that the
claim terms are intended to have, the claims are examined with that
meaning, in order to achieve a complete exploration of the applicant’s
invention and its relation to the prior art.”).
Like the ‘526 patent, Rhodes characterizes the motion that turns the
curd into a fibrous mass as involving kneading (FF23 & FF24). While
heating facilitates the process of forming the fibrous mass, such
transformation only occurs when the curd is being “mechanically worked.”
Under these conditions, the rotation may be set at a similar speed, but
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instead of simply mixing ingredients together, kneading and stretching
occurs.
Thus, as found by the Examiner, Rhodes describes adding the salt and
dairy components prior to the working step in which the curd is transformed
into a fibrous mass, meeting the corresponding claim limitation. Appellant
did not dispute this conclusion, but rather argued that the claim was properly
interpreted to require that the salt or dairy product be added before any
mechanical agitation has occurred, an interpretation which we have found to
be unreasonably broad.

• Without aqueous immersion
The ‘526 patent specifically distinguishes its invention from certain
prior art processes in which the curd is immersed or submerged in a liquid
(FFF1-FF3). To reflect its invention, the claims are drawn to the
manufacture of cheese, which comprises a step of “heating the curd without
aqueous immersion.” We have interpreted this phrase to exclude processes
in which the curd is heated when submerged in a liquid, but to permit the
surface of the curd to be wetted during the heating step. The issue is
whether Rhodes describes aqueous immersion as part of its cheese-making
process.
We begin with the description in Rhodes. The Rhodes patent
discloses a method in which whey is mixed with the curd and then subjected
to negative pressure, which causes the whey to be absorbed into the curd
(FF11-FF14). Rhodes takes “concentrated” whey and pumps it into the
infuser where the “whey protein coats the cheese curds and is drawn into the
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cheese curds” (FF14). Rhodes does not describe submerging or immersing
the curd in liquid, as described in the background of the ‘526 patent (FF1 &
FF2). Instead, Rhodes describes pumping whey and other ingredients
(probiotics) into the infuser, and then rotating the mixture repeatedly so the
cheese curds are coated (FF14 & FF15).
Although Rhodes does not expressly describe immersing the curd in
liquid, Appellant contends that this is what happens when the Rhodes
process is accomplished. Appellant argues:
The curd is typically cut into small pieces, such as one-quarter
inch cubes, and then added to the infuser. Rhodes ‘809 patent,
col. 34, lines 24-25. A liquid, such as water, containing the
enhancing agents or ingredient is added to the infuser and then
the infuser is subjected to a vacuum. The liquid remains in the
bottom of the infuser while the flights carry the curd out of the
liquid to a height where the curd pieces tumble back into the
liquid. The small cut curd pieces are cyclically immersed into
the liquid and subsequently removed from the liquid with the
rotating the flights. When the cut curd pieces are removed from
the liquid, they are coated with and absorb the liquid. This is
how the curd pieces are infused, subjecting the curd pieces to a
vacuum which expands the pores of the curd and immersing the
curd into a liquid.
(App. Br. 18.)
Appellant did not provide adequate evidence to rebut the Examiner’s
conclusion that Rhodes describes a process that does not involve aqueous
immersion. According to Rhodes, liquid whey protein is added to the curd
while the curds are rotating inside the infuser (FF15, 17, & 20-21). As the
curds tumble, they become “coated” with whey and other components (FF14
& FF15). This process is carried under pressure to draw whey into the curd
(FF13, FF14, & FF15). Based on Rhodes’s description, the Examiner had
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reasonable basis to believe that Rhodes was carried out “without aqueous
immersion,” as required by the claim. This shifted the burden to Appellant
to prove that immersion occurred, a burden that cannot be met by only
attorney argument, as presented here.
Appellant conjectures that prior to becoming coated, the curds are
immersed, but provided only attorney argument to support this position.
Appellant also states that the “water added to a curd,” under the conditions
described in Rhodes, “will remain in liquid form at the bottom of the
infuser,” immersing the curd in a pool of water (App. Br. 18).
Appellant ignores the disclosure in Rhodes that the curds are tumbling
and rotating at the same time as the whey (and probiotics) are introduced
into the infuser. No expert testimony or objective evidence has been offered
to counter the Examiner’s reasonable conclusion that immersion does not
take place in Rhodes. The Examiner’s conclusion is reasonable for at least
two reasons:
First, Rhodes describes coating, not immersing the curds.
Second, the curds are being turned and mixed in the whey. It is not
clear from Appellant’s explanation how a pool of liquid would form when
the curds are being continuously tossed with whey liquid concentrate in the
infuser.
Appellant also contends that the “only way liquid can be drawn into
the curd is if the liquid is pooled in the bottom of the infuser,” but provided
no objective evidence to support this position. (App. Br. 20.) Arguments of
counsel cannot take the place of evidence lacking in the record. Estee
Lauder, Inc. v. L'Oreal, S.A., 129 F.3d 588, 595 (Fed. Cir. 1997).
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In sum, the preponderance of the evidence supports the Examiner’s
determination that Rhodes described “heating the curd without aqueous
immersion” as that phrase is properly interpreted.

OBVIOUSNESS REJECTIONS
Claims 70 and 114
Claims 70 and 114 are independent claims reciting cheese
manufacturing processes similar to the process of claim 1, starting with a
milk composition and then forming a curd which is mechanically worked
into a fibrous mass. Claim 70 further comprises “adding, a cheese
emulsifying, salt composition, a non-dairy ingredient, a dairy ingredient or
any combination thereof via a starter culture medium.” Claim 114 similarly
recites: “adding a cheese emulsifying salt or a dairy ingredient or both or a
non-dairy ingredient via a starter culture medium prior to mechanical
working.” Neither claim, as found by the Examiner, specifies the product to
which the starter culture medium is added. Thus, the plain language of the
claim permits the starter culture to be added to the “milk composition” or the
“curd.” Although the addition of the starter culture is recited in the claim
after the curd has been formed, there is no express language in the claim that
requires this order. Consequently, we interpret the claims to be open to
adding the starter culture to either the milk or the curd.
The Examiner provided a logical reason as to why a starter culture
with the claimed ingredients would be added to the milk composition (RAN
65-67). Appellant did not identify an error in the Examiner’s conclusion and
we find none.
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Appellant contends that Rhodes with Botazzi is not compatible
because the two publications use different methods of heating the curd (App.
Br. 24). This argument is not persuasive. Both publications are directed to
processing curd and are therefore analogous art which would have been
considered pertinent to the claimed subject matter by one of ordinary skill in
the art. Wyers et al. v. Master Lock Co., 616 F.3d 1231, 1237 (Fed. Cir.
2010).
37 C.F.R. § 1.131 DECLARATION

Legal Principles

§ 1.131 Affidavit or declaration of prior invention.
(a)When any claim of an application or a patent under
reexamination is rejected, the inventor of the subject matter of
the rejected claim, the owner of the patent under reexamination,
or the party qualified under §§ 1.42, 1.43, or 1.47, may submit
an appropriate oath or declaration to establish invention of the
subject matter of the rejected claim prior to the effective date of
the reference or activity on which the rejection is based.

. . .

(b)The showing of facts shall be such, in character and weight ,
as to establish reduction to practice prior to the effective date of
the reference, or conception of the invention prior to the
effective date of the reference coupled with due diligence from
prior to said date to a subsequent reduction to practice or to the
filing of the application.

Discussion
Appellant seeks to disqualify the Rhodes patent as prior art against the
claimed invention. To accomplish this, a declaration under 37 C.F.R. §
1.131 was provided to establish that the claimed invention was reduced to
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practice prior to the effective filing date of the Rhodes patent. The
declaration was by Clint Garoutte, an employee of Land O’Lakes, Inc.
(LOL), the owner of the ‘526 patent. Mr. Garoutte is not one of the named
inventors of the ‘526 patent. However, Appellant stated in the Appeal Brief
that all three inventors of the ‘526 patent were no longer employed by the
patent owner (App. Br. 34). Appellant stated that, under § 1.131(a), the
owner of a patent under reexamination can sign a declaration to establish
invention of the claimed subject matter (id.). Appellant stated that Mr.
Garoutte signed the declaration on behalf of the patent owner (id.).
In addition to objecting to Mr. Garoutte’s execution of the declaration
because it had not been shown that the inventors were unavailable or
unwilling to sign it, the Examiner also found the declaration deficient for
substantive reasons.
The Examiner agrees with the TPR that the
conclusionary statements offered throughout the Declaration are
nothing more than an invitation to the USPTO to identify where
the 162 pending claims might be found in a collection of
documents provided by the Patent Owner. They fail to provide
any facts or analysis of either the claimed invention or the
Exhibits upon which the conclusion rests.
(RAN 13-14.)
Because we agree with the Examiner’s substantive determination, we
do not reach his other statements about why the declaration was defective.
Under § 1.131(a), “an appropriate oath or declaration” may be
submitted “to establish invention of the subject matter of the rejected claim
prior to the effective date of the reference or activity on which the rejection
is based.” The facts must show reduction to practice or conception “of the
invention.” 37 C.F.R. § 1.131(b). The “invention” corresponds to the
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subject matter which is claimed. The Examiner therefore properly
determined that the showing of facts must establish that the claimed
invention, including all steps and features recited in the claim, were reduced
to practice prior to the effective filing date of the Rhodes patent.
The Examiner is correct that the Garoutte declaration did not provide
adequate evidence that the subject matter of the claims was reduced to
practice prior to the effective filing date of the Rhodes patent.
Mr. Garoutte testified in his written declaration:
Based upon my review of the unreadacted [sic]
documents that are being submitted as redacted document as
Exhibits A-P, and upon information and belief, LOL reduced
the invention claimed in Dahlstrom ‘526 to practice prior to the
effective filing date of October 29, 1997, the filing date of U.S.
Provisional Application Serial No. 60/063,990 of which Rhodes
‘809 claims the benefit.
(Garoutte Decl. ¶ 5.)
In subsequent paragraphs, Mr. Garoutte wrote that he had reviewed
certain documents attached as exhibits to his declaration, and “[u]pon and
belief,” the patent owner LOL had conducted pilot plant trials “utilizing the
claimed method” to evaluate certain process parameters, such as citrate
concentrations, effects of hydrocolloids, salt concentrations, etc. (e.g., id. at
¶¶ 7, 8, 9, & 11-21).
As concluded by the Examiner, Mr. Garoutte did not clearly show
how the methods described in Exhibits A-P met the claimed method
limitations. To establish an actual reduction of practice, the patent owner
has the burden of demonstrating that the method reduced to practice includes
all the elements of the claimed method (Manual of Patent Examining
Procedure (MPEP) §§ 715.07 & 2185.05, Eighth Edition (August 2001),
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revised July 2010). See also In re Borkowski, 505 F.2d 713, 718-19 (CCPA
1974).
Here, as found by the Examiner, conclusionary statements were made
by Mr. Garoutte, but he did not adequately identify a correspondence
between the claimed method steps and the method said to have been
performed in the exhibits. As Mr. Garoutte did not demonstrate that the
methods described in Exhibits A-P represented embodiments of the claimed
invention, his § 1.131 declaration is ineffective to disqualify the Rhodes
patent as prior art.

SUMMARY
We affirm the anticipation rejection of claims 1-4, 7-14, 16-22, 25-29,
31, 32, 35, 36, 38, 40-48, 51, 62 -69, 89-92, and 95-101.
We affirm the obviousness rejection of claims 5, 6, 10, 12, 13, 14, 23,
24, 25, 30, 33, 34, 37, 39, 45, 46, 47, 49, 50, 52-61, 65, 68, 70-103, 114-123,
125, and 126-136 (rejections II-XXIII).
We do not reach the obviousness rejection of claim 1 under ground
XXIV.
Claims not separately argued fall with claims 1, 70, and 114. See 37
C.F.R. 41.37(c)(1)(vii).

TIME PERIOD FOR RESPONSE
Requests for extensions of time in this inter partes reexamination
proceeding are governed by 37 C.F.R. § 1.956. See also 37 C.F.R. § 41.79.

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AFFIRMED

bim

FOR PATENT OWNER:

DORSEY & WHITNEY, LLP
50 SOUTH SIXTH STREET
SUITE 1500
MINNEAPOLIS, MN 55402-1498

FOR THIRD-PARTY REQUESTER:

TOWNSEND & TOWNSEND & CREW, LLP
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