Ex Parte DIERENFELDDownload PDFPatent Trials and Appeals BoardMay 28, 201914289306 - (D) (P.T.A.B. May. 28, 2019) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 14/289,306 05/28/2014 25281 7590 05/30/2019 DICKE, BILLIG & CZAJA FIFTH STREET TOWERS 100 SOUTH FIFTH STREET, SUITE 2250 MINNEAPOLIS, MN 55402 FIRST NAMED INVENTOR Jeffrey Dean DIERENFELD 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. H5000.476.101 7221 EXAMINER MCCLAIN-COLEMAN, TYNES HAL. ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 05/30/2019 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): USPTO.PA TENTS@dbclaw.com dmorris@dbclaw.com DBCLA W-Docket@dbclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte JEFFREY DEAN DIERENFELD Appeal2018-006973 Application 14/289,306 Technology Center 1700 Before JEFFREY T. SMITH, MICHELLE N. ANKENBRAND, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. § 134(a) from a rejection of claims 1-18. 2 We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 The real party in interest is identified as "HORMEL FOODS CORPORATION." Appeal Brief of December 18, 2017 ("Br."), 3. 2 Final Office Action of July 27, 2017 ("Final Act."). In this opinion, we also refer to the Examiner's Answer of April 20, 2018 ("Ans."), and the Reply Brief of June 18, 2018 ("Reply Br."). Appeal2018-006973 Application 14/289,306 CLAIMED SUBJECT MATTER The claims are directed to a method for smoking meat using a moisture cooking technique. Spec. ,r 1. 3 Claim 1, reproduced below, is illustrative of the claimed subject matter: 1. A method for smoking meat, comprising: applying a dry smoke powder to an exterior surface of a meat to create a treated meat; inserting the treated meat into a cooking bag; sealing the cooking bag to create a bagged meat; and cooking the bagged meat with steam to a safe minimum internal temperature of the meat, the dry smoke powder permeating the bagged meat during steam cooking resulting in a smoked meat having a smoked flavor and a smoked color. Claims Appendix ( emphases added) (Br. 14 ). REFERENCES The prior art references the Examiner relied upon in rejecting the claims on appeal are: Morgan Koenig Buse us 5,298,270 CA 1,111,706 WO 00/62632 REJECTIONS Mar. 29, 1994 Nov. 3, 1981 Oct. 26, 2000 Claims 1-5, 7, 8, 12, 13, and 15 are rejected under 35 U.S.C. § 103 as being unpatentable over Morgan in view of Koenig. Final Act. 2. Claims 1-6, 8, 10-14, and 16-18 are rejected under 35 U.S.C. § 103 as being unpatentable over Buse in view of Koenig. Final Act. 8. 3 Application No. 14/289,306, filed May 28, 2014 ("Specification" or "Spec."). 2 Appeal2018-006973 Application 14/289,306 The remaining dependent claims are rejected under 35 U.S.C. § 103 as being unpatentable over Morgan in view of Koenig and in further view of additional references as well as Buse in view of Koenig in further view of an additional reference. Final Act. 6, 7, 11. OPINION We review the appealed rejections for error based upon the issues Appellant identifies, and in light of the arguments and evidence produced thereon. Cf Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011) ("[I]t has long been the Board's practice to require an applicant to identify the alleged error in the examiner's rejections")). After having considered the evidence presented in this Appeal and each of Appellant's contentions, we are not persuaded that Appellant has identified reversible error, and we affirm the Examiner's§ 103 rejections for the reasons expressed in the Final Office Action and the Answer. We add the following primarily for emphasis. Rejection over Morgan & Koenig 4 In rejecting claim 1 over Morgan in view of Koenig, the Examiner finds that Morgan describes a method that includes the recited steps of 4 Appellant does not present separate arguments for the rejection of claims 2-5 and 7 over Morgan in view of Koenig. Br. 5-10. Appellant does not present separate arguments for the rejections of claims 6, 9, 10, 14, and 16 over Morgan in view of Koenig and in further view of additional references. Id. at 10. The rejections of claims 2-7, 9, 10, 14, and 16 therefore stand or fall with the rejection of claim 1 over Morgan in view of Koenig. See id.; see also 37 C.F.R. § 4I.37(c)(1)(iv)(2013). Appellant also presents a separate 3 Appeal2018-006973 Application 14/289,306 applying a smoke flavoring to the surface of a meat, inserting the meat into a cooking bag, sealing the cooking bag, and cooking the meat with steam. Final Act. 3 ( citing various portions of Morgan). The Examiner cites Koenig for the use of a dry smoke powder for flavoring the meat. Id. ( citing various portions of Koenig). Based on the various similarities between Morgan and Koenig (for example, they are both directed to flavoring and cooking meat), the Examiner finds that a skilled artisan would have implemented these known steps to arrive at claim 1. Id. at 4. Appellant argues that the process in Morgan is not identical to the process recited in claim 1 and, therefore, teaches away from the claimed invention. Br. 7. Appellant points to Morgan's statement that "[ n Jo other cooking process or recipe can duplicate this its [sic.] flavor and taste" as support. Br. 7. "Under the proper legal standard, a reference will teach away when it suggests that the developments flowing from its disclosures are unlikely to produce the objective of the applicant's invention." Syntex (US.A.) LLC v. Apotex, Inc., 407 F.3d 1371, 1380 (Fed. Cir. 2005) (citations omitted). As the Examiner finds, Morgan discloses placing flavored meat inside a cooking bag which may be subsequently subjected to a steam cooking environment. Ans. 14 ( citing various portions of Morgan, including Morgan 1 :50-55). The record before us supports the Examiner's findings. Appellant's argument that the prior art process is not identical to the one recited does not show that "a person of ordinary skill, upon reading the reference, would be discouraged from following the path set out in the argument for claims 8, 12, 13, and 15. Br. 9-10. We therefore address claims 1, 8, 12, 13, and 15 in this section. 4 Appeal2018-006973 Application 14/289,306 reference, or would be led in a direction divergent from the path that was taken by the applicant." In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Appellant also argues that a skilled artisan would not have varied the steps in Morgan to arrive at the recited process. Br. 8. More specifically, Appellant argues that Morgan's process applies a sauce after the meat is smoked and applying the smoke flavor to already smoked meat would change the flavor of the meat in contradiction to Morgan's teaching. Id. (arguing that any change to Morgan's process is not enabled in Morgan). We are not persuaded by this argument because Morgan specifically provides that the steps and ingredients "may be varied" and "adapted" for various scenarios. Morgan 3 :20-25, 63---64, 67---68 ( cited in Final Act. 5). As the Examiner points out, claim 1, reciting a method comprising various steps, is an open ended claim and does not exclude additional steps, such as adding a sauce in between the smoking and cooking steps described in Morgan. Ans. 16-1 7. The record before us shows that all of the recited steps are known in the art and the Examiner reasonably establishes that a skilled artisan would have implemented these knowns steps to arrive at claim 1. See KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,417 (2007) ("If a person of ordinary skill can implement a predictable variation [ of a known work], § 103 likely bars its patentability. "). We are also not persuaded by Appellant's argument that the Examiner reversibly erred by finding that Morgan teaches or suggests "cooking the bagged meat with steam" as recited in claim 1. Morgan teaches that cooking may be done "in a steam table." Morgan 1: 50-55. Given that the Specification provides that the steam cooking recited in claim 1 may be 5 Appeal2018-006973 Application 14/289,306 performed by any suitable steam oven (Spec. ,r 24), we discern no reversible error in the Examiner's finding here. With regard to the Examiner's finding that Koenig teaches or suggests "applying a dry smoke powder to an exterior surface of a meat to create a treated meat" as recited in claim 1, Appellant acknowledges that Koenig describes applying a dry flavoring composition to a meat product. Br. 9. Appellant, however, argues that the Examiner erred because Koenig does not teach cooking the meat product in a bag or cooking with steam. Id. This argument does not address the Examiner's fact findings because the Examiner cites Koenig for the use of a dry smoke powder for flavoring the meat and not cooking the meat product in a bag or cooking with steam. See Final Act. 3. Moreover, Appellant's argument attacks Koenig individually, but one cannot show nonobviousness by attacking the references individually where, as here, the rejection is based on a combination of references. In re Keller, 642 F.2d 413,426 (CCPA 1981). We are, therefore, not persuaded. Appellant additionally argues that Koenig teaches away from seasoning an entire turkey as recited in claims 8, 12, 13, and 15, because Koenig describes the dry flavoring composition as more effective on a meat product of a certain thickness. Br. 9. Appellant has not directed us to evidence that Koenig discourages seasoning an entire turkey. A skilled artisan would have adjusted the amount of flavoring based on the thickness and type of meat product. A statement that the flavoring composition may be more effective when applied to a particular thickness of the meat does not teach away from seasoning meat products of other thicknesses. See Syntex, 407 F.3d at 1380 ("A statement that a particular combination is not a 6 Appeal2018-006973 Application 14/289,306 preferred embodiment does not teach away absent clear discouragement of that combination."). Appellant argues that neither Morgan nor Koenig teaches or suggests "the dry smoke powder permeating the bagged meat during steam cooking resulting in a smoked meat having a smoked flavor and a smoked color" as recited in claim 1, but does not dispute the Examiner's relevant findings. Compare Ans. 14--15, 21-22, 24, 26-28 (citing Morgan 2:30-35, 3:1-12 and various portions of Koenig), with Reply Br. 2-5 ( arguing without addressing the Examiner's fact findings). For example, the Examiner finds that Koenig undisputedly describes producing a meat product with a smoke flavor and color. Ans. 4 (citing Koenig 4:29-5:3; see Reply Br. 3 (arguing without addressing the Examiner's finding with regard to Koenig). Where, as here, the Examiner establishes a reasonable belief that the prior art teaches all the recited process steps resulting in a prior art product having a smoked flavor and color, the burden of proof shifts to Appellant to show otherwise. See In re Best, 562 F.2d 1252, 1255 (CCPA 1977). Appellant has not made such a showing and, therefore, has not identified reversible error. Rejection over Buse & Koenig 5 In rejecting claim 1 over Buse and Koenig, the Examiner finds that Buse teaches every step recited in claim 1 except for applying dry smoke 5 Appellant does not present separate arguments for the rejection of claims 2---6, 8, 10, and 11 over Buse in view of Koenig. Br. 10-12. Appellant also does not present separate arguments for the rejections of claims 7, 9, and 15 over Buse in view of Koenig and in further view of an additional reference. Id. at 12. The rejections of claims 2-10, 11, and 15, therefore stand or fall with the rejection of claim 1 over Buse in view of Koenig. See id.; see also 37 C.F.R. § 4I.37(c)(1)(iv)(2013). Appellant also presents a separate 7 Appeal2018-006973 Application 14/289,306 powder, which the Examiner finds Koenig teaches. Final Act. 9. Appellant argues that Buse does not teach or suggest "cooking the bagged meat with steam" as recited in claim 1, but does not address the Examiner's finding that Buse describes cooking a meat product "in a full-steam environment." Compare Buse 9: 11-14 ( cited in Final Act. 8 among other portions of Buse), with Br. 11. On this record, Appellant, therefore, does not identify reversible error. Appellant next argues that Buse cannot be combined with Koenig. Br. 11. Appellant reasons that because examples 1 and 3 of Buse describe using a brine that includes a smoke flavor, applying the smoke flavor as the dry powder as Koenig teaches would be unnecessary. Id. We are not persuaded that the Examiner reversibly erred because Appellant does not adequately address the Examiner's rationale in combining the references. Compare id., with Final Act. 9-10 (providing a rationale supported by citation to the record for combining the references); see also KSR Int 'l Co. v. Teleflex Inc., 550 U.S. 398,416 (2007) ("The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results."). Appellant's attorney argument is also unpersuasive because it is unsupported by evidence. See Johnston, 885 F .2d at 15 81 ("Attorneys' argument is no substitute for evidence."). We, therefore, discern no reversible error here. Appellant's remaining arguments are directed to Koenig and mirror those raised for the rejection over Morgan in view of Koenig. See Br. 11-12 ( arguing that Koenig teaches away from applying the seasoning to an entire argument for claims 8, 12-14, and 16-18. Br. 11-12. We, therefore, address claims 1, 8, 12-14, and 16-18. 8 Appeal2018-006973 Application 14/289,306 turkey as recited in claims 8 and 12-14 and 16-18 and that Koenig does not teach or suggest "the dry smoke powder permeating the bagged meat during steam cooking resulting in a smoked meat having a smoked flavor and a smoked color"). 6 They are unpersuasive based on the detailed analysis supra. 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 6 Appellant also argues that Morgan does not teach certain limitations for the rejection over Buse in view of Koenig. Br. 12. This argument is unpersuasive because it is not based on the references supporting the rejection. 9 Copy with citationCopy as parenthetical citation