Ex Parte Albritton

Board of Patent Appeals and Interferences

Jan 19, 2011

11059807 (B.P.A.I. Jan. 19, 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.
11/059,807 02/17/2005 Dora M. Albritton HDA 2-001 9744
266 7590 01/20/2011
MUELLER AND SMITH, LPA
MUELLER-SMITH BUILDING
7700 RIVERS EDGE DRIVE
COLUMBUS, OH 43235
EXAMINER
BEKKER, KELLY JO
ART UNIT PAPER NUMBER
1781
MAIL DATE DELIVERY MODE
01/20/2011 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
__________

Ex parte DORA M. ALBRITTON
__________

Appeal 2010-008538
Application 11/059,807
Technology Center 1700
__________

Before DONALD E. ADAMS, LORA M. GREEN, and
FRANCISCO C. PRATS, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL1
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s rejection of claims 1-6 and 8-13. We have jurisdiction under 35
U.S.C. § 6(b).

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.
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STATEMENT OF THE CASE
Claims 1 and 12 are the independent claims on appeal, and read as
follows:
1. A method for making chocolate-coated pig skin product, comprising
the steps of:
(a) deep frying cured pig skins in cooking oil heated to between about
350°F to 400°F to form fried pig skins having a moisture content of between
about 10 to about 15 percent;
(b) tempering said fried pig skins;
(c) coating said tempered pig skins with lukewarm chocolate to form
chocolate-coated pig skins; and
(d) tempering said chocolate-coated pig skins to form a chocolate-
coated pig skin product.

12. A method for making chocolate-coated pig skin product, comprising
the steps of:
(a) deep frying cured pig skins in cooking oil having a temperature of
350°F to 400°F for between about 1 to 2 minutes to form fried pig skins
having a moisture content of between about 10 to about 15 percent;
(b) spicing said deep fried pig skins;
(c) tempering said fried pig skins by cooling said fried pig skins for
about 1 hour at room temperature;
(d) coating said tempered pig skins with chocolate heated to between
about 150°F to about 175°F to form chocolate-coated pig skins; and
(e) tempering said chocolate-coated pig skins by cooling said
chocolate-coated pig skins for between about 1 to 2 hours at room
temperature to form a chocolate-coated pig skin product.

The following grounds of rejection are before us for review:
I. Claims 1-6 and 8-12 stand rejected under 35 U.S.C. § 103(a) as
being rendered obvious by the combination of Ryan2 and Halpern.3

2 Ryan, “Scooter Schmillowitz’s Pork Rind Fondue” Bert Christiensen’s
Weird & Different Recipes, page 1, http://bertc.com/pork_rind_fondue.htm
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II. Claim 13 stands rejected under 35 U.S.C. § 103(a) as being
rendered obvious by the combination of Ryan and Halpern as
further combined with Igoe.4
We affirm.
ISSUE
Has the Examiner established by a preponderance of the evidence that
the combination of Ryan and Halpern renders obvious the process of claims
1 and 12?
And if yes, has the Examiner further established by a preponderance
of the evidence that the combination of Ryan and Halpern as further
combined with Igoe render obvious the process of claim 13?

FINDINGS OF FACT
FF1 According to the Specification, the “present invention is addressed to
a method for making a chocolate-coated pig skin product.” (Spec. 2.)
FF2 The Specification teaches:
The cured pig skins are deep fried for about 1 to 2 minutes in
cooking oil maintained at about 350°F to 400°F. Cooking the
skins at a temperature below 350°F will result in the skins being
hard. If cooked above 400°F, the skins will burn. Any
conventional cooking oil may be used, with the oil selected
partially determining the organoleptic properties of the fried
skins. For example, frying in peanut oil or olive oil gives the

December 19, 2002. Date obtained by Internet Archive,
http://web.archive.org/web/*/http://bertc.com/pork_rind_fondue.htm
3 Halpern, US 3,401,045, Sept. 10, 1968.
4 Igoe et al, “Peanut Oil,” Dictionary of Food Ingredients 3rd Edition, page
104, Chapman and Hall 1996.
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pig skins a light, less greasy taste. If a more oleaginous taste is
desired, then a heavier cooking oil, such as lard may be used.
The temperature of the cooking oil should be maintained during
the cooking process and may be monitored with a cooking
thermometer or gauge. When the skins have been sufficiently
cooked, they will become “puffed” in texture and float to the
surface of the cooking oil. The surface of the skin also will be a
light brown. The moisture content of the skins should be no
greater than 10 to 15 percent of the total weight.

(Id. at 5.)
FF3 As to the first tempering stage, the Specification teaches that the stage
“involves cooling the pig skins under conditions and for a time effective to
achieve a chocolate accepting surface,” which “may mean cooling to achieve
a uniform temperature throughout the skin.” (Id. at 6.)
FF4 As to the second tempering stage, after the skins have been coated
with chocolate, the Specification teaches that stage “involves cooling the
chocolate covered skins under conditions and for a time such that the
chocolate adheres to the surface of the pig skin, hardens and forms a
continuous or discontinuous coating of desired thickness.” (Id. at 7.)
FF5 The Examiner’s statement of the rejection over the combination of
Ryan and Halpern may be found at pages 4-11 of the Answer. As Appellant
only presents separate arguments as to claims 1 and 12, we focus our
analysis on those claims, and claims 2-6 and 8-11 stand or fall with the claim
on which they depend, i.e., claim 1. 37 C.F.R. § 41.37(c)(1)(vii).
FF6 Specifically, the Examiner finds that:
Ryan teaches a method for making a chocolate-coated
pig skin product comprising melting chocolate for an hour in a
fondue pot set on low, dipping pork rinds into the fondue,
placing the dipped rinds on a sheet of wax paper until cool,
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dipping the cooled rinds in the chocolate a second time and
repeating the procedure, i.e. dipping pork rinds into the fondue
and placing the dipped rinds on a sheet of wax paper until cool,
and then freezing the chocolate coated pork rinds until serving.

(Ans. 4.)
FF7 Ryan is a recipe for a pork rind fondue, wherein a large bag of pork
rinds (i.e., pig skin) is used. (See Ryan.)
FF8 The Examiner notes that Ryan “is silent to the method in which the
pork rinds are pre-processed.” (Ans. 6.)
FF9 The Examiner cites Halpern for teaching a process for preparing
smoked pork rinds. (Id.)
FF10 The Examiner finds that Halpern teaches “frying at about 400-425F
and the term about means near or close to, the teachings of Halpern overlap
a portion of the instantly claimed temperature range of between about 350-
400F” as required by claims 1 and 12. (Id. at 7; see also Halpern col. 3, ll.
22-29.) The Examiner further finds that “temperature and time are inverse
variables and to slightly adjust the processing parameters for frying foods
would have been obvious to one of ordinary skill in the art.” (Ans. 7.)
FF11 As to the moisture content of the fried pig skin, the Examiner finds
that
since Ryan in view of Halpern teaches of frying the pig skins at
substantially the same temperature, including at 400F, and for
substantially the same amount of time, at about 1 minute, one of
ordinary skill in the art would expect that the pig skins as taught
by Ryan in view of Halpern would have substantially the same
moisture content from frying as the instantly claimed pig skins
absent any clear and convincing arguments and/or evidence to
the contrary. This position is further support as appellant states
in the specification, page 5 lines 18-22, that when the skins
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have been sufficiently cooked, to a moisture content of 10-15%,
they will become puffed in texture and float and as Halpern
teaches of removing the pig skins from cooking after they have
become fully puffed (Column 3 lines 29-34). Furthermore, it
would have been obvious and common sense to one of ordinary
skill in the art at the time the invention was made to vary the
moisture content in the pig skins depending on the desired
crunchiness or softness of the final product.

(Id. at 8.)
FF12 As to the temperature of the chocolate used for coating the pig skins,
the Examiner concludes that
it would have been obvious and common sense to one of
ordinary skill in the art at the time the invention was made for
the chocolate to be heated to a lukewarm temperature, i.e. a
moderately warm temperature at which the chocolate was liquid
enough to coat onto a surface, but not hot enough to burn.

(Id. at 9.)
FF13 The Examiner’s statement of the rejection over the combination of
Ryan and Halpern, as further combined with Igoe, may be found at pages
11-12 of the Answer.
FF14 The Examiner cites Igoe for its teaching that “peanut oil is mainly
used in cooking oils and deep fat frying because of its long frying life and
high smoke point.” (Id. at 12.)

PRINCIPLES OF LAW
The Supreme Court has emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
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creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l Co. v. Teleflex Inc., 550 U.S. 398. 418 (2007). “If a person of ordinary
skill can implement a predictable variation, § 103 likely bars its
patentability.” Id. at 417. Under the correct obviousness analysis, “any
need or problem known in the field of endeavor at the time of invention and
addressed by the patent can provide a reason for combining the elements in
the manner claimed.” Id. at 420.
“In cases involving overlapping ranges . . . even a slight overlap in
range establishes a prima facie case of obviousness.” In re Peterson, 315
F.3d 1325, 1329 (Fed. Cir. 2003). In addition, as noted by the Peterson
court, “[t]he normal desire of scientists or artisans to improve upon what is
already generally known provides the motivation to determine where in a
disclosed set of percentage ranges is the optimum combination of
percentages.” Id. at 1330.
Moreover:
Where . . . the claimed and prior art products are
identical or substantially identical, or are produced by identical
or substantially identical processes, the PTO can require an
applicant to prove that the prior art products do not necessarily
or inherently possess the characteristics of his claimed
product…. Whether the rejection is based on “inherency”
under 35 U.S.C. § 102, on “prima facie obviousness” under 35
U.S.C. § 103, jointly or alternatively, the burden of proof is the
same, and its fairness is evidenced by the PTO’s inability to
manufacture products or to obtain and compare prior art
products.

In re Best, 562 F.2d 1252, 1255 (CCPA 1977) (emphasis added.)

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ANALYSIS
As to claim 1, Appellant argues that the combination of Ryan and
Halpern specifically fails to teach the steps of: 1) cooking the pigskins at a
temperature of 350º to 400ºF; 2) using lukewarm chocolate to coat the fried
pigskins; and 3) tempering the coated pigskins. (App. Br. 9.) As to claim
12, Appellant argues that the combination fails to teach the step of tempering
the fried pig skins by cooling them for around an hour at room temperature
before coating them with the chocolate. (Id.)
Specifically, Appellant argues that Halpern teaches away from
cooking the skins at 350º to 400ºF as Halpern teaches a temperature of 400º
to 425ºF. (Id.) Ryan, Appellant asserts, is vague, and does not give
“specific facts on, for example, tempering, cooling, or type of pigskin used,
etc.” (Id.) Appellant argues further that Ryan fails to teach that “the cooked
skins must be without moisture prior to coating or dipping in the chocolate.”
(Id.) Appellant further asserts that the combination of art relied upon by the
Examiner does not teach the combination of cooking temperature and final
moisture content. (Id. at 10.)
As to the tempering, Appellant argues that the claim requires a second
tempering step, which is desirable for “increasing throughput of product,
which is desirable in commercial contexts,” and the combination of
references relied upon by the Examiner “does not teach how to speed up the
process line to make more . . . product in less time.” (Id.)
Appellant asserts that the Examiner is relying on improper hindsight,
arguing that “the Examiner states that all of Appellant’s process limitations
are ‘obvious,’ sometimes bolstering with art remotely related at best.” (Id.)
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Appellant’s arguments have been carefully considered, but are not
found to be convincing. As to the step of cooking the skins at a temperature
of 350º to 400ºF, as noted by the Examiner, Halpern teaches cooking the
skins at a temperature of about 400 to 425 ºF (FF10). Thus, the temperature
range of Halpern overlaps the claimed range, thus rendering the claimed
range prima facie obvious. We also agree it would have been well within
the level of skill of the ordinary artisan to optimize the temperature and
cooking time to achieve a fried pig skin product to have the desired
crispiness.
As to moisture content, we again agree that the Examiner has set forth
a prima facie case that the moisture content would be an inherent property of
the fried pig skin product, and as the temperature of Halpern overlaps the
claimed temperature, and as the instantly disclosed process and the process
of Halpern “pops” the pig skin until they are completely expanded, the
Examiner has set forth sufficient evidence to shift the burden to Appellant to
demonstrate that the fried pig skin product does not have the claimed
moisture content. (FF11.) Moreover, we also agree with the Examiner that
it would have been obvious and common sense to one of ordinary skill in the
art at the time the invention was made to vary the moisture content in the pig
skins depending on the desired crunchiness or softness of the final product.
(Id.)
As to using lukewarm chocolate to coat the fried pigskins, as noted by
the Examiner, Ryan teaches melting the fondue containing the chocolate in a
crock pot on low. (FF6.) We also agree with the Examiner that it would
have been well within the level of the ordinary artisan to determine the
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correct temperature used for the coating chocolate such that the chocolate is
melted but does not burn. (FF12.)
As to the first tempering step required by claims 1 and 12, while
Halpern does not specifically teach cooling the fried pork skin chips, it
would have been obvious to do so in order for the chips to be consumed
and/or packaged for later consumption, such as use in the recipe of Ryan.
As to cooling the skins for 1 hour as required by claim 12, first the use of
“comprising” does not exclude additional cooling steps, and second, it
would have been well within the level of skill of the ordinary artisan to
determine the amount of time the fried pig skin product needs to cool to
room temperature. As to tempering the chocolate-coated pig skin product,
we note that Ryan specifically teaches cooling the chocolate-coated product.
And again, it would have well within the level of skill of the ordinary artisan
to determine the amount of time the chocolate-coated pig skin product needs
to cool to room temperature, such as the 1 to 2 hours as specifically recited
by claim 12. As to Appellant’s argument that the steps recited in claim 12
allow for increasing throughput of product, Appellant is arguing limitations
that are not found in the claim. Moreover, the reason to combine the
references provided by the Examiner need not be the same as that of
Appellant.
As to claim 13, Appellant argues that while Igoe teaches “that peanut
oil is ‘mainly used in cooking oils because of its long frying life and high
smoke point,’” that misses the point “as to why Appellant chose peanut oil,”
which was to give the pig skins “a light, less greasy taste.” (App. Br. 10.)
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Appellant argues further that Igoe does not make up for the deficiencies of
the combination of Ryan and Halpern. (Id.)
Again, Appellant’s argument is not convincing, because, as noted
above, the reason to combine the references provided by the Examiner need
not be the same as that of Appellant.

CONCLUSIONS OF LAW
We conclude that the Examiner has established by a preponderance of
the evidence that the combination of Ryan and Halpern renders obvious the
process of claims 1 and 12. We further conclude that the Examiner has
established by a preponderance of the evidence that the combination of Ryan
and Halpern as further combined with Igoe render obvious the process of
claim 13.
We thus affirm the rejection of claims 1-6 and 8-12 under 35 U.S.C.
§ 103(a) as being rendered obvious by the combination of Ryan and
Halpern, as well as the rejection of claim 13 under 35 U.S.C. § 103(a) as
being rendered obvious by the combination of Ryan and Halpern as further
combined with Igoe.

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

AFFIRMED

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cdc
MUELLER AND SMITH, LPA
MUELLER-SMITH BUILDING
7700 RIVERS EDGE DRIVE
COLUMBUS, OH 43235