Ex Parte Chong

Board of Patent Appeals and Interferences

Jun 29, 2007

10106402 (B.P.A.I. Jun. 29, 2007)

The opinion in support of the decision being entered today
is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte ZHU ZHAO CHONG

Appeal 2007-1685
Application 10/106,402
Technology Center 1700
____________

Decided: June 29, 2007
____________

Before PETER F. KRATZ, JEFFREY T. SMITH and
LINDA M. GAUDETTE, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal from the Examiner’s rejection of claims 1-20 and
25-33.1 Although the action appealed from was a non-final rejection, we
have jurisdiction pursuant to 35 U.S.C. §§ 6 and 134 since these claims have
been twice presented and rejected. See Ex parte Lemoine, 46 USPQ2d 1420,
1423 (Bd. Pat. App. & Int. 1994).
We affirm.

1 An oral hearing was conducted on June 6, 2007.
Appeal 2007-1685
Application 10/106,402

Appellant's invention relates to a method for processing porkhide dog
chews. Independent claim 1 is illustrative:
1. A method of processing porkhide dog chews, comprising
the following steps:

subjecting pigskin rawhide to defatting and depilation
treatment;

splitting the rawhide into a plurality of layers of split rawhide
material;

subjecting the split rawhide material to shaping and drying to
produce a shaped hide product; and

smoking the shaped hide product with gaseous smoke to dye
and flavor the shaped hide product, resulting in a finished porkhide
dog chew.

The Examiner relies on the following prior art references to show
unpatentability:

Meyer US 4,163,804 Aug. 7, 1979
Lynch US 6,033,715 Mar. 7, 2000
Wenzhou Huaheng Plastics & Leather Co. Standard Q/NHH 01-2001
(2/6/01)
A.D. Livingston, Cold-Smoking & Salt-Curing Meat, Fish, & Game, 43-47
& 83-112, (1995)
Appellant’s Admitted Prior Art (“AAPA”), Specification 1-2

The Examiner made the following rejections:
1. Claims 1, 6, 11-20, and 25-33 under 35 U.S.C. § 103(a) as
unpatentable over AAPA in view of Wenzhou and as evidenced by Lynch;
2. Claims 1, 6, 11-20, and 25-33 under 35 U.S.C. § 103(a) as
unpatentable over AAPA in view of Meyer and as evidenced by Lynch;

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Appeal 2007-1685
Application 10/106,402

3. Claims 2-5 and 7-10 under 35 U.S.C. § 103(a) as unpatentable over
AAPA in view of Wenzhou and further in view of Lynch; and
4. Claims 2-5 and 7-10 under 35 U.S.C. § 103(a) as unpatentable over
AAPA in view of Meyer and further in view of Lynch.
ISSUES
I. The Examiner and Appellant disagree over whether Wenzhou is a
printed publication under 35 U.S.C. § 102(a). The issues for us to decide
are: Has the Examiner provided a reasonable basis to conclude that
Wenzhou was disseminated or otherwise made available to the public prior
to the date of invention? If yes, then has Appellant provided sufficient
evidence to overcome the Examiner’s showing?
For the reasons discussed below, we answer the first question in the
affirmative and the second question in the negative.
II. The Examiner contends that it would have been obvious to one of
ordinary skill in the art to use smoking as the drying method in AAPA based
on Meyer’s teaching that smoking was an effective means for drying
rawhide. Appellant contends that the Examiner’s rejection is improperly
based on hindsight reasoning. The issue for us to decide is: Has the
Examiner identified a teaching, motivation or suggestion in the prior art for
combining AAPA and Meyer in the manner claimed?
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Appeal 2007-1685
Application 10/106,402

For the reasons discussed below, we answer this question in the
negative.

RELEVANT FINDINGS OF FACT
1) AAPA discloses a process of making dog chews which
includes the steps of subjecting rawhide to a defatting and
depilation treatment; splitting the rawhide into a plurality of
layers of rawhide material; and shaping, drying, dyeing and
flavoring the split layers of rawhide to form animal-hide dog
chews. AAPA also discloses shredding the finished-product
hide and mixing with adhesive, mould-pressing and forming,
and drying, dying, and flavoring to produce an adhesive product
dog chew. (Specification 1:20-2:3).
2) AAPA discloses that the process of dyeing and flavoring
consists of using food dyes and flavor essences on the surface
of the finished product. (Specification 2:10-12).
3) Page 1 of Wenzhou includes the following: "Published
02.06.2001" and "Implemented 02.06.2001".
4) Friendog Xie Huaien testified that the Wenzhou document is
a statement of Wenzhou’s Dog-Chewing Bones Manufacturing
Standards (Q/NHH 01-2001). According to Mr. Huaien, the
date which appears on the first page of the Wenzhou document,
i.e., February 6, 2001, is the date on which Wenzhou updated
its manufacturing standards to include the smoking method
developed by Zhu Zhao Chong. Statement of Friendog Xie
Huaien (Feb. 25, 2005).
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Appeal 2007-1685
Application 10/106,402

5) Meyer discloses a puffable, thermoplastic composition
derived from animal parts. (Abstract).
6) In Meyer’s method, pork skins are first dried to reduce
moisture content to between 10 and 25%. (Meyer 5:24-25).
Meyer teaches that “conventional flavorings may be added
during the drying step, i.e., the drying may be in combination
with wood smoke which adds a smoked flavor. Conventional
amounts of salt, pepper and other spices may also be added at
this time.” (Meyer 5:41-45).
ANALYSIS AND CONCLUSIONS
I. Has the Examiner provided a reasonable basis to conclude that
Wenzhou was disseminated or otherwise made available to the public prior
to the date of invention? If yes, then has Appellant provided sufficient
evidence to overcome the Examiner’s showing?
Appellant contends that the Examiner’s reliance on the publication
date which appears on Wenzhou is not sufficient to establish that the
document is a printed publication under 35 U.S.C. § 102(a). We disagree.
See Cooper Cameron Corp. v. Kvaerner Oilfield Products, Inc., 291 F.3d
1317, 1324, 62 USPQ2d 1846, 1851 (Fed. Cir. 2002) (finding that “[t]he
presence of the earlier date on the report indicates that it may have been
available as of that date and would thus qualify as prior art under §
102(a).”). In our view, the phrase "Published 02.06.2001" provides a
reasonable basis to conclude that Wenzhou was disseminated or otherwise
made available to the public as of February 6, 2001. Thus, the burden was
properly shifted to Appellant to demonstrate that Wenzhou Huaheng Plastics
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Appeal 2007-1685
Application 10/106,402

& Leather Co. retained its manufacturing specifications as confidential,
internal documents which were unavailable to the public.
Appellant has attempted to show that Wenzhou is not a printed
publication under 35 U.S.C. § 102(a) through an unsworn Statement of
Friendog Xie Huaien. Mr. Huaien’s statement suggests that the smoking
method described in Wenzhou was invented by Mr. Chong. However, Mr.
Huaien’s statement does not establish invention of the claimed subject
matter prior to February 6, 2001. See 37 C.F.R. §1.131. Likewise, Mr.
Huaien’s statement that Wenzhou discloses a manufacturing standard does
not establish that the document was not available to the public, e.g., outside
contractors. Accordingly, we find that Appellant has failed to show that the
Examiner improperly relied on Wenzhou as a printed publication under 35
U.S.C. § 102(a).2
Appellant has not addressed the merits of the Examiner’s rejections
based on Wenzhou. Therefore, the rejection of claims 1, 6, 11-20, and 25-33
under 35 U.S.C. § 103(a) as unpatentable over AAPA in view of Wenzhou
and as evidenced by Lynch is affirmed and the rejection of Claims 2-5 and
7-10 under 35 U.S.C. § 103(a) as unpatentable over AAPA in view of
Wenzhou and further in view of Lynch is affirmed.
II. Has the Examiner identified a teaching, motivation or suggestion
in the prior art for combining AAPA and Meyer in the manner claimed?

2 Moreover, the reported February 06, 2001 publication date is more than
one year prior to the U.S. filing date of this application. Thus, the reported
publication date indicates Wenzhou to be available as prior art under 35
U.S.C. § 102(b). Thus, Wenzhou cannot be antedated with a showing under
37 C.F.R. §1.131 or a showing pursuant to M.P.E.P. 715.01(c).
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Appeal 2007-1685
Application 10/106,402

The Examiner relies on AAPA for a teaching of a method of making
dog chews by defatting and depilation, splitting, shredding and mixing with
adhesive, shaping and drying, and flavoring (Specification 1 and 2). The
Examiner acknowledges that AAPA does not teach the use of pigskin and
smoking. However, the Examiner maintains that it would have been obvious
to one of ordinary skill in the art to incorporate the pigskin and smoking of
Meyer into the generic drying method of AAPA since, inter alia, Meyer
teaches that smoking was an effective means for drying rawhide. (Answer
13-14).
Appellant contends that the applied prior art fails to teach or suggest
the claimed step of "smoking the shaped hide product with gaseous smoke
to dye and flavor the shaped hide product, resulting in a finished porkhide
dog chew." (Reply Br. 10 (emphasis added)). Appellant argues that
Meyer’s use of an air or smoke oven is for the limited purpose of reducing
the moisture content of skins or comminuted particles at an intermediate
stage of production. (Reply Br. 11). Appellant contends that, at best, Meyer
discloses shaping a smoked and partially dehydrated product, not smoking a
shaped hide product as required by the claims. (Reply Br. 11).
As correctly pointed out by the Examiner, the test for determining
obviousness is what the combined teachings of the references would have
suggested to one of ordinary skill in the art. (Answer 12). In this case,
however, we are persuaded by Appellant’s arguments that the combined
teachings of the references simply do not disclose or suggest the claimed
invention. Meyer discloses an intermediate processing step of smoke-drying
to reduce moisture content of pork skins to a suitable range, i.e., 10-25%, for
conducting additional processing steps, including grinding, followed by
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Appeal 2007-1685
Application 10/106,402

extrusion, shaping and frying. Like Appellant, we fail to see how one of
ordinary skill in the art would somehow conclude that Meyer’s technique of
smoke drying to reduce moisture in an intermediate product would impart
dye and flavor to the final, shaped hide product in the manner required by
the claimed subject matter. See KSR Int’l. Co. v. Teleflex, Inc., 127 S. Ct.
1727, 1741, 82 USPQ2d 1385, 1396 (2007) See also, In re Fritch, 972
F.2d 1260, 1266, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992) (“The mere fact
that the prior art may be modified in the manner suggested by the Examiner
[is not sufficient to show obviousness.]”).
Accordingly, the rejection of claims 1, 6, 11-20, and 25-33 under
35 U.S.C. § 103(a) as unpatentable over AAPA in view of Meyer and as
evidenced by Lynch and the rejection of claims 2-5 and 7-10 under
35 U.S.C. § 103(a) as unpatentable over AAPA in view of Meyer and further
in view of Lynch are reversed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2006).

AFFIRMED

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