Ex Parte Lanzrath et al

Patent Trial and Appeal Board

Sep 28, 2016

13700579 (P.T.A.B. Sep. 28, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/700,579 01125/2013 Russell Lanzrath
38550 7590 09/29/2016
CARGILL, IN CORPORA TED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
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.
N00085US01 3133
EXAMINER
STIJLII, VERA
ART UNIT PAPER NUMBER
1791
MAILDATE DELIVERY MODE
09/29/2016 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 RUSSELL LANZRATH, DAVID R. MCKENNA,
and BROCK AARON ZENTZ
Appeal2015-003692
Application 13/700,579
Technology Center 1700
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision finally rejecting claims 1-12 under 35 U.S.C. § 103(a). We have
jurisdiction over the appeal under 35 U.S.C. § 6(b ).
We AFFIRM.
Claim 1 is illustrative of the appealed subject matter:
1. A process for preserving at least one fresh cut of meat comprising the
steps of:
a) packaging the fresh cut of meat in a sealed package;
1 The Real Party in Interest is stated to be Cargill Incorporated (App. Br. 3).
Appeal2015-003692
Application 13/700,579
b) placing the packaged fresh cut of meat in a pressurization vessel
and closing the vessel;
c) pressurizing the vessel containing the packaged fresh cut of
meat to an elevated pressure of at least 50,000 psi so that the
packaged fresh cut of meat is placed under elevated pressure;
d) maintaining the elevated pressure on the packaged fresh cut of
meat for a time of from about 1 to about 3 00 seconds and at a
temperature of from -2°C to 8°C;
e) reducing the pressure on the packaged fresh cut of meat to
ambient pressure; and
t) removing the fresh cut of meat from the pressurization vessel.
(App. Br. 17, Claims Appendix.)
The Examiner maintains, and Appellants appeal, the following
rejections under 35 U.S.C. § 103(a):
(a) Claims 1-7 and 10-12 as being unpatentable over Meyer (WO
2009/003040 Al, published Dec. 31, 2008); and
(b) Claims 8 and 9 as being unpatentable over Meyer in view of Yuan
et al. (US 2003/0170356 Al, published Sept. 11, 2003) (hereinafter "Yuan").
The Examiner also provisionally rejected claims 1-11 for obviousness
type double patenting over: (i) claims 1-3, 6-19, 21, and 22 of previously
copending Application No. 13/497,876 and (ii) claims 1, 2, and 5-19 of
previously copending Application No. 13/497,843. Both of these related
applications2 are now abandoned; thus these provisional rejections are now
moot.
2 Application No. 13/497,876 was a related appeal 2014-008071 in which we
affirmed the Examiner in a decision dated May 26, 2016; likewise
Application No. 13/497,843 was another related appeal 2016-004963 in
which we also affirmed the Examiner in a decision dated May 26, 2016.
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Application 13/700,579
With the exception of claims 8 and 9, Appellants do not make
separate substantive arguments in support of patentability of any of the
claims (see generally Appeal Br. 10-14; Reply Br. 2--4). Accordingly, our
discussion will focus on the obviousness rejection of independent claim 1.
Claims 8 and 9 will be addressed separately.
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellants' contentions, we find that the preponderance of the evidence of
record supports the Examiner's conclusion that independent claim 1 and all
of its dependent claims are unpatentable over the applied prior art.
Appellants have failed to show that the Examiner erred reversibly. We
sustain the Examiner's § 103 rejections, as listed above, of all the appealed
claims for essentially the reasons set out by the Examiner in the Final Office
Action and the Answer.
We add the following primarily for emphasis.
It is well established that a reference may be relied upon for all that it
would have reasonably suggested to one having ordinary skill in the art,
including non-preferred embodiments. In re Applied Materials, Inc., 692
F.3d 1289, 1298 (Fed. Cir. 2012) ("A reference must be considered for
everything that it teaches, not simply the described invention ... . ");see also
e.g., Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807 (Fed. Cir.
1989).
Appellants mainly focus on their assertion that Meyer requires that the
meat product to be sterilized must start out as frozen, whereas the claims
recite pressurizing "a fresh cut of meat" (App. Br. 1 O; Reply Br. 3). The
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Application 13/700,579
Examiner aptly points out that the claims do not preclude freezing the fresh
cut of meat (Ans. 2, 10). However, even assuming arguendo that the claims
are limited to pressurizing a fresh cut of meat that has never been frozen,
Appellants have not persuasively rebutted the Examiner's determination that
one of ordinary skill in the art would have found it prima facie obvious,
through the use of no more than ordinary creativity, to have applied Meyer's
sterilization process to either fresh or frozen meat (e.g., Ans. 3, 10). The
evidence of record reflects that one of ordinary skill in the art would have
appreciated that high pressure processing (HPP) to sterilize food products
was well known (e.g., Yuan i-f 6; Spec. i-f i-f5, 7; see also Spec. 10 (discusses
known use of HPP on fresh meat to increase tenderness)).
While Appellants point out that claims 2 and 3 require pressures
outside of those explicitly mentioned in Meyer (App. Br. 14), Appellants
have not shown error in the Examiner's determination that pressure and time
were known result effective variables for HPP, such that one of ordinary
skill would have reasonably discovered the workable ranges of pressure,
including pressure duration, on a food product. A "recognition in the prior
art that a property is affected by the variable is sufficient to find the variable
result-effective." Applied Materials, 692 F.3d at 1297. Meyer discloses that
time of pressure application is dependent on the type of meat, the
temperature, and pressure (see, e.g., Meyer Examples 10, 11; also Yuan i-fi-1
22, 24). Thus, the prior art exemplifies that one of ordinary skill would have
appreciated that the property of pressure application duration is affected by
the pressure variable. Moreover, it is well settled that it would have been
obvious for an artisan with ordinary skill to develop workable or even
optimum ranges for result-effective parameters. See, e.g., In re Boesch, 617
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Application 13/700,579
F.2d 272, 275-76 (CCPA 1980) ("[D]iscovery of an optimmn value of a
result effective variable in a known process is ordinarily within the skill of
the art." (citations omitted)); In re Aller, 220 F.2d 454, 456-58 (CCPA
1955) ("[W]here the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation.").
It is also well established that where the claimed ranges overlap or lie
inside ranges disclosed by the prior art (such as the pressure, temperature,
and time recited in claim 1 ), a prima facie case of obviousness exists. See In
re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); In re Geisler, 116 F.3d
1465, 1469 (Fed. Cir. 1997); In re Woodruff, 919 F.2d 1575, 1578 (Fed. Cir.
1990).
The law is replete with cases in which the difference between the
claimed invention and the prior art is some range or other variable within the
claims. These cases have consistently held that the Appellants must show
that the particular range is critical, generally by showing that the claimed
range achieves unexpected results relative to the prior art range. See, e.g.,
Peterson, 315 F.3d at 1329; Woodruff, 919 F.2d at 1578. The burden rests
with Appellants to establish (1) that the alleged unexpected results presented
as being associated with the claimed invention are, in fact, unexpected,
(2) that the comparisons are to the disclosure of the closest prior art, and
(3) that the supplied evidentiary showing is commensurate in scope with the
claimed subject matter. See In re Klosak, 455 F.2d 1077, 1080 (CCPA
1972).
Appellants do not rely on any evidence in the Briefs demonstrating
that the particular claimed pressure ranges are critical, or that using a fresh
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cut of meat is critical. Appellants have not identified reversible error in the
Examiner's reasoned determination that Meyer's pressurization treatment
would have been expected to have the same effect on the meat product being
either "fresh" or frozen (Ans. 9). There has been no persuasive showing on
this record that the claimed ranges achieve unexpected results relative to the
ranges taught by Meyer (with or without Yuan).
Thus, a preponderance of the evidence supports the Examiner's
reasoned position that it would have been prima facie obvious to
preserve/sterilize, under an elevated pressure, a fresh cut of meat at a
temperature, time, and pressure that overlaps the claimed ranges.
Claim 10 is drawn to a fresh cut of meat that is free of non-
endogenous antimicrobial treatment chemicals. Appellants argue they
would not have thought from the Meyer disclosure that one could
successfully preserve fresh meat with high pressure as presently claimed
(App. Br. 13). Appellants' arguments are not persuasive because it is well
settled that a reference stands for all of the specific teachings thereof as well
as the inferences one of ordinary skill in this art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed.
Cir. 1992). In this case, the ordinary skilled artisan could reasonably infer,
that a high pressure treatment process would have been useful on a meat
product, with or without non-endogenous antimicrobial treatment chemicals.
Separately argued claims 8 and 9 of rejection (b)
Claims 8 recites "wherein the fresh cut of meat is packaged in a sealed
package having an oxygen displaced gas environment"; claim 9 which
depends from claim 8 recites the gas comprises carbon monoxide or others
(Claims Appendix). Appellants argue that Yuan's teachings are so generic
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that one would not have modified ivieyer based on Yuan (App. Br. 14, 15).
Appellants' arguments have not shown error in the Examiner's
determination that one of ordinary skill in the art would have employed a
pressure treatment such as that of Meyer on meat in a controlled
environment of non-oxygen gases such as carbon monoxide, etc. (e.g., Ans.
12).
We affirm rejections (a) and (b).
DECISION
The Examiner's§ 103 rejections are affirmed.
TIME PERIOD
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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