Ex Parte Dolezal et al

Patent Trial and Appeal Board

Apr 29, 2013

10826957 (P.T.A.B. Apr. 29, 2013)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
10/826,957 04/08/2004 Howard G. Dolezal JR. CGL02/0295US1 2273
38550 7590 04/30/2013
CARGILL, INCORPORATED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
04/30/2013 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 HOWARD G. DOLEZAL JR., DAVE MCKENNA,
DANIEL L. SCHAEFER, and RUDY STEINER
__________

Appeal 2012-002249
Application 10/826,957
Technology Center 1700
____________

Before HUBERT C. LORIN, MICHAEL P. COLAIANNI, and
GRACE KARAFFA OBERMANN, Administrative Patent Judges.

COLAIANNI, Administrative Patent Judge.

DECISION ON APPEAL

Appeal 2012-002249
Application 10/826,957

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Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
34, 35, 37-51, 53-67, 69, and 70. We have jurisdiction over the appeal
pursuant to 35 U.S.C. § 6(b).
We REVERSE.
Appellants’ invention is directed to a method for improving the
appearance of meat derived from a dark-cutting fresh-meat slaughter animal
by treating the dark-cutter meat with a pH-lowering agent to ameliorate the
dark color of the muscle (Spec. para. [001]).
Claim 34 is illustrative:
34. A method of treating meat, comprising: identifying
meat in a dark-cutting carcass by evaluating grading pH and
color, and after onset of rigor mortis contacting said meat
derived from said dark-cutting carcass with an amount of at
least one pH-lowering agent, wherein the meat has a grading
pH and grading color of a dark burgundy/purple, and the
amount of pH-lowering agent is sufficient to lower the pH and
to lighten the color from the grading color of a dark
burgundy/purple to a red color of at least a portion of said meat.
Appellants appeal the following rejections:
1. Claims 34, 35, 37, 38, 43, 45-51, 53, 54, 59, 60, 62-67, 69, and 70 are
rejected under 35 U.S.C. § 103(a), as being unpatentable over Neraal
(GB 968,331 published Sept. 2, 1964) in view of Wulf (D. M. Wulf et
al., Relationships Among Glycolytic Potential, Dark Cutting (Dark,
Firm, and Dry) Beef, and Cooked Beef Palatability, 80 J. ANIMAL SCI.
1895 (2002)).
2. Claims 39-42 and 55-58 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Neraal in view of Wulf and Formanek
(US 6,379,739 B1 issued Apr. 30, 2002).
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Application 10/826,957

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3. Claims 44 and 61 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Neraal in view of Wulf and Holdren (US 5,736,186
issued Apr. 7, 1998).

ISSUE
Did the Examiner engage in impermissible hindsight in finding that it would
have been obvious to use Neraal’s method of treating meat to prevent
discoloration to treat Wulf’s dark-cutter meat so as to improve the color of
the dark-cutter meat? We decide this issue in the affirmative.

FINDINGS OF FACT AND ANALYSES
The Examiner’s findings regarding Neraal and Wulf may be found on
pages 5-9 of the Answer. The Examiner finds that Neraal teaches all the
limitations of claim 34 except for using a dark-cutting carcass (Ans. 6). The
Examiner finds that Wulf teaches that dark-cutting meat is caused by
insufficient glycogen in the muscle of the slaughtered animal which does not
degrade to form sufficient lactic acid such that the pH of the meat is too high
(i.e., basic) to form desirable meat color (i.e., red) (id.). The Examiner finds
that Wulf recognizes the problem associated with undesirable color of dark-
cutting meats due to the higher-than-normal ultimate meat pH (id.). The
Examiner concludes that one skilled in the art would have been motivated to
modify Neraal and to employ pH reducing treatment for meat derived from
dark-cutting carcasses in order to reduce pH to the values associated with
normal beef (id. at 7). The Examiner adds that one of ordinary skill would
have been motivated to make the proposed modification of Neraal to
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improve the color of the meat and also produce more desirable, aesthetically
pleasant and less susceptible to microbial growth meat cuts (id.).
Regarding the claim limitation of lightening the color of the meat due
to the addition of the pH lowering agent, the Examiner finds that Wulf
teaches that normal meat has a lighter color with a lower pH than darker
meat with a higher pH (id.). The Examiner finds that the lightening effect
would have been expected to take place as an inherent result of the pH
reduction treatment (id. at 7-8). The Examiner also finds that the
combination of Neraal and Wulf would have disclosed the same starting
material and method as claimed such that the ordinarily skilled artisan would
recognize the lightening of color as an inherent result of the process
disclosed (id. at. 8).
Appellants argue that Neraal does not relate to dark-cutting meats and
Neraal’s disclosure is directed to preventing discoloration of properly
colored meat and meat products (App. Br. 11). Appellants contend that
Wulf does not disclose a process that reduces pH post-rigor mortis to affect
color of the meat (id. at 11-12). Appellants argue that Wulf does not teach
that by changing the pH level of a meat sample one can rehabilitate dark
cutter meat (id. at 12). Appellants contend that the Examiner has engaged in
impermissible hindsight by using Appellants’ disclosure as a roadmap to
combine the teachings of the two references (id.).
The preponderance of the evidence favors Appellants’ argument of
nonobviousness. Neraal is directed to using a pH stabilizing compound to
prevent the discoloration of meat products (Neraal 1:66-70, 86-88; Example
4). Wulf discloses the problems of dark-cutting meat and concludes that the
solution is pre-slaughter methods of increasing the glycolytic potential (GP)
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or lessening stress-induced reductions in the GP to thereby reduce the
incidence of dark cutting carcasses (Wulf 1902). Wulf does not disclose
adding a pH reducing compound to the dark cutting meat to affect the color.
Based on these findings, we agree with Appellants that none of the
prior art teaches or suggests using a pH reducing compound to ameliorate
the color of dark cutting meat. Rather, Neraal discloses using a pH reducing
compound to maintain a desirable existing color. Wulf teaches to avoid
forming dark cutting meat by controlling the glycolytic potential in the live
animal. However, claim 34 and 50 both recite a method wherein a
discolored dark cutting meat is made more desirable by treatment with pH-
lowering compound. The Examiner’s findings do not convince us that the
applied prior art would have taught or suggested the claimed method absent
hindsight.
On this record, we reverse all of the Examiner’s § 103 rejections that
depend on the combination of Neraal and Wulf.

DECISION
The Examiner’s decision is reversed.

ORDER
REVERSED

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