Ex parte GORLICH

Board of Patent Appeals and Interferences

Sep 25, 1997

08117446 (B.P.A.I. Sep. 25, 1997)

Application for patent filed September 7, 1993.1
1
THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered today (1)
was not written for publication in a law journal and (2) is
not binding precedent of the Board.
Paper No. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
Ex parte MICHAEL P. GORLICH
_____________
Appeal No. 96-2297
Application 08/117,4461
______________
ON BRIEF
_______________
Before STONER, Chief Adiministrative Patent Judge, and COHEN
and STAAB, Administrative Patent Judges.
COHEN, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal from the final rejection of claims 1
through 3, all of the claims in the application.
Appeal No. 96-2297
Application 08/117,446
2
Appellant's invention pertains to a method of packaging
red meat products. A basic understanding of the invention can
be derived from a reading of exemplary claim 1, a copy of
which appears below.
1. A method of packaging red meat products,
comprising the steps of:
a. placing a meat product on a package tray;
b. creating a relatively low oxygen content
environment around the meat product on the
tray; c. covering the meat product on the tray
to maintain the low oxygen content
environment around the meat product;
d. uncovering the meat product in the tray when it
is ready for blooming;
e. exposing the meat product on the tray to an
increased oxygen content atmosphere; and
f. re-covering the bloomed meat product
on the tray.
As evidence of obviousness, the examiner has relied
upon the references listed below:
Hirsch et al. 4,055,672 Oct. 25,
1977
(Hirsch)
Sanborn, Jr. 4,437,293 Mar. 20,
1984 (Sanborn)
Appeal No. 96-2297
Application 08/117,446
3
Appeal No. 96-2297
Application 08/117,446
A "SUPPLEMENT TO THE APPEAL BRIEF" (Paper No. 16) added2
omitted matters.
4
The following rejection is the sole rejection before us
for review.
Claims 1 through 3 stand rejected under 35 U.S.C. § 103
as being unpatentable over Hirsch in view of Sanborn.
The full text of the examiner's rejection and response to
the argument presented by appellant appears in the office
action dated October 27, 1994 and the main and supplemental
answers (Paper Nos. 5, 12 and 14), while the complete
statement of appellant's argument can be found in the main and
reply briefs (Paper Nos. 11 and 13). 2
In the main brief (page 7), appellant indicates that
claims 1 through 3 can be grouped together as one set. In
light of this statement, we select claim 1 for review, and
claims 2 and 3 shall stand or fall therewith. See 37 CFR §
1.192(c)(7).
Appeal No. 96-2297
Application 08/117,446
In our evaluation of the applied references, we have3
considered all of the disclosure of each reference for what it
would have fairly taught one of ordinary skill in the art.
See In re Boe, 355 F.2d 961, 965, 148 USPQ 507, 510 (CCPA
1966). Additionally, this panel of the board has taken into
account not only the specific teachings of each reference, but
also the inferences which one skilled in the art would
reasonably have been expected to draw from the disclosure.
See In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA
1968).
5
OPINION
In reaching our conclusion on the obviousness issue
raised in this appeal, this panel of the board has carefully
considered appellant's specification and claims, the applied
references, 3
and the respective viewpoints of appellant and the examiner.
As a consequence of our review, we make the determination
which follows.
We cannot sustain the examiner's rejection of appellant's
claims under 35 U.S.C. § 103.
Appeal No. 96-2297
Application 08/117,446
6
As we readily discern from a review of claim 1, a method
of packaging red meat products is claimed that requires, inter
alia, the step of re-covering bloomed meat product on a tray.
Appeal No. 96-2297
Application 08/117,446
7
We turn now to the examiner's evidence of obviousness.
Like the examiner (Paper No. 5), a reading of the Hirsch
document reveals to us that the steps of appellant's claimed
method of packaging red meat products is addressed thereby but
for the claimed re-covering step.
To overcome this deficiency, the examiner proffers the
patent to Sanborn.
We find that the patent to Sanborn teaches a reclosable
package (Figures 8 and 10) for food products (cured or sliced
processed meats and cheeses) where the package is evacuated
and/or gas flushed and hermetically sealed. Once the package
is torn open and the outer hermetic seal is removed, a closure
strip can be manually opened and closed or resealed (column 7,
line 7 through 16).
Based upon the teachings of the two patents before us,
and the examiner's applied rationale for combining same, we do
not
Appeal No. 96-2297
Application 08/117,446
8
perceive a reasonable basis for concluding that appellant's
particular method would have been obvious. More specifically,
we are of the opinion that the applied patents (in particular,
the Sanborn patent) simply would not have motivated one of
ordinary skill to alter the disclosed method of Hirsch to
include a reclosable step to re-cover a red meat product after
blooming effects have occurred to "positively maintain and
prolong freshness of the meat product" (answer, page 2), the
rationale advanced by the examiner. The Sanborn disclosure is
not related to a method pertaining to the packaging of red
meat that is intended to be bloomed. Additionally, it appears
to us that an alteration of the Hirsch method, as proposed,
would appear to run counter to the patentee's objective
(column 2, lines 15 through 24) of having the exposed gas
permeable film layer effect an "integral, sealed protective
package [that] will still surround the product after removal
of the outer gas impermeable layer, thereby continuing to
provide full protection against contamination". For these
reasons, the examiner's rejection cannot be supported.
Appeal No. 96-2297
Application 08/117,446
9
NEW GROUND OF REJECTION
Under the authority of 37 CFR § 1.196(b), this panel of
the board introduces the following new ground of rejection.
Claims 1 through 3 are rejected under 35 U.S.C. § 103 as
being unpatentable over Hirsch.
The steps of appellant's method of packaging red meat
products, as set forth in claim 1, is responded to by the
teaching of Hirsch (Figures 1 and 2) with the exception of the
recitation of paragraph f. of the claim specifying a "re-
covering of the bloomed meat product on the tray".
At this point, we note that an obviousness question
cannot be approached on the basis that artisans having
ordinary skill would have known only what they read in
references, because such artisans must be presumed to know
something about the art apart from what the references
disclose. See In re Jacoby, 309 F.2d 513, 516, 135 USPQ 317,
319 (CCPA 1962). Further, a conclusion of obviousness may be
Appeal No. 96-2297
Application 08/117,446
10
made from common knowledge and common sense of the person of
ordinary skill in the art without any specific hint or
suggestion in a particular reference. See In re Bozek, 416
F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969).
With the above in mind, we recognize the following
practice. Supermarket or retail outlet consumers, at the time
of appellant's invention (circa 1993), would have expected
packaged meat product, as displayed in a retail outlet, to be
placed in a plastic bag (the bag being closed off with a
closure tie) when the display packaging showed signs of
leakage or the packaged product was surrounded with a
significant amount of visible liquid; additionally, of course,
the retail outlet would have been expected to place the
purchased packaged meat in a plastic or paper bag at the
checkout counter. In each of the above circumstances wherein
already packaged meat is placed into a bag, it can fairly be
said that the packaged meat product and tray would have been
covered thereby.
Appeal No. 96-2297
Application 08/117,446
The test for obviousness is what the combined teachings4
of references would have suggested to one of ordinary skill in
the art. See In re Young, 927 F.2d 588, 591, 18 USPQ2d 1089,
1091 (Fed. Cir. 1991) and In re Keller, 642 F.2d 413, 425, 208
USPQ 871, 881 (CCPA 1981).
11
In applying the test for obviousness, we reach the4
conclusion that it would have been obvious to one having
ordinary skill in the art to effect re-covering of the bloomed
meat product on a tray that is produced according to the
packaging method disclosed by Hirsch by following the known
practice of inserting same in a bag. In our opinion, the
incentive for this re-covering of the previously covered
package of Hirsch would have simply been for the expected
benefit of, for example, addressing a package leakage problem,
avoiding a possible leakage problem, or for carrying a
purchased product to one's home. Accordingly, we conclude
that the method of appellant's claim 1 would have been
obvious. As to the method step set forth in claim 2, we are
of the view that this step would have been fairly suggested by
the indication by Hirsch of the desirability of "thorough
circulation" (column 6, lines 46 through 51). Relative to
Appeal No. 96-2297
Application 08/117,446
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claim 3, placing the package of Hirsch in a plastic bag, as
above, responds to the broadly recited method step of
overwrapping a meat product and tray.
Any request for reconsideration or modification of this
decision by the Board of Patent Appeals and Interferences
based upon the same record must be filed within one month from
the date of the decision. 37 CFR § 1.197. Should appellant
elect to have further prosecution before the examiner in
response to the new rejection under 37 CFR § 1.196(b) by way
of amendment or showing of facts, or both, not previously of
record, a shortened statutory period for making such response
is hereby set to expire two months from the date of this
decision.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
Appeal No. 96-2297
Application 08/117,446
13
In summary, this panel of the board has reversed the
rejection of claims 1 through 3 under 35 U.S.C. § 103 as being
unpatentable over Hirsch in view of Sanborn. Additionally, we
have introduced a new ground of rejection pursuant to 37 CFR
§ 1.196(b).
Appeal No. 96-2297
Application 08/117,446
14
The decision of the examiner is reversed.
REVERSED
37 CFR 1.196(b)
BRUCE H. STONER, JR. )
Chief Administrative Patent Judge)
)
)
)
)
IRWIN CHARLES COHEN ) BOARD OF
PATENT
Administrative Patent Judge ) APPEALS
) AND
)
INTERFERENCES
)
)
LAWRENCE J. STAAB )
Administrative Patent Judge )
)
Appeal No. 96-2297
Application 08/117,446
15
TIMOTHY N. TROP
ARNOLD, WHITE and DURKEE
P.O. BOX 4433
HOUSTON, TX 77210