Ex Parte Logan

Board of Patent Appeals and Interferences

Oct 31, 2007

11088512 (B.P.A.I. Oct. 31, 2007)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte JAMES P. LOGAN, JR.
____________

Appeal 2007-3394
Application 11/088,512
Technology Center 1700
____________

Decided: October 31, 2007
____________

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

DECISION ON APPEAL
This is a decision on an appeal from the Examiner’s final rejection of
claims 1-5, the only claims that remain pending in this application. We have
jurisdiction pursuant to 35 U.S.C. §§ 6 and 134. Oral arguments were
presented on October 23, 2007.

Appeal 2007-3394
Application 11/088,512

Appellants’ invention is directed to a boneless sliced meat product
having a continuous spiral cut about an axis thereof wherein the depth of the
cut is such that a core of meat is not sliced. The ends of the spiral cut come
within a distance of from one eighth inch to one inch of first and second
ends of the meat. Claim 1 is illustrative and reproduced below:
1. A boneless sliced meat product having its meat arranged in the
form of a continuous spiral cut having two ends about an axis of the meat,
the axis being created by the temporary insertion of a support member in the
meat, wherein the depth of said cut is limited to leave an uncut core of meat,
said core being of sufficient cross-section to cause the boneless sliced meat
to retain its shape when the support member is removed, wherein the point
of entry of the support member into the meat product defines a first end and
the point of exit of the support member from the meat product defines a
second end and wherein the ends of the continuous spiral cut of the meat
product reside within a range of 1/8 inch to 1 inch from said first and second
ends, respectively.

The Examiner relies on the following prior art reference as evidence
in rejecting the appealed claims:
Logan US 5,030,472 July 9, 1991

Claims 1-5 stand rejected under 35 U.S.C. § 102(b) as being
anticipated by or, in the alternative under 35 U.S.C. § 103(a) as being
obvious over Logan. We agree with the Examiner’s conclusion that the
claimed subject matter would have been obvious to one of ordinary skill in
the art given the teachings of Logan. Accordingly, we affirm the
Examiner’s decision to reject claims 1-5 on the asserted obviousness
grounds of rejection over Logan. We reverse as to the anticipation
alternative. Our reasoning follows.

2
Appeal 2007-3394
Application 11/088,512

We focus on independent claim 1 in deciding this appeal because
Appellant presents the rejected claims together as a group in arguing for the
patentability of the claimed subject matter in the Brief.
There is no dispute that Logan discloses a spirally cut meat product
corresponding to the claimed meat product but for furnishing an explicit
description of the claimed distance of the ends of the spiral cut from the ends
of the meat product (Abstract, Fig. 5). The Examiner hinges the
anticipation prong of the stated rejection on the assertion that the claimed
distance of the ends of the spiral cut from the ends of the meat product is not
entitled to any patentable weight. However, the Examiner acknowledges
that Logan discloses thicker uncut meat ends than the claimed product
(Ans. 3). As such, the Examiner’s anticipation position is untenable. After
all, it is well settled that anticipation requires a prior art description that
meets all of the requirements of the claimed subject matter.
The propriety of the Examiner’s obviousness conclusion is another
matter. “Section 103 forbids issuance of a patent when ‘the differences
between the subject matter sought to be patented and the prior art are such
that the subject matter as a whole would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains.’” KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727,
1734 (2007).
In this regard, it would have been obvious to one of ordinary skill in
the art to form the boneless meat product of Logan with spiral cuts extending
as close to each end of the meat product as possible so as to maximize the
availability of easily served spirally precut meat in the product. Thus, one of

3
Appeal 2007-3394
Application 11/088,512

ordinary skill in the art would have been led to produce meat products with
thin uncut end portions corresponding to the claimed product.
Appellant basically contends that the steel prongs (30 and 44, Fig. 1)
employed by Logan in cutting the meat would prevent spiral cutting of the
meat product of Logan any closer than 2-3 inches from the meat product
ends (Reply Br. 2). However, Appellant has not substantiated this argument
with any persuasive evidence. See In re Pearson, 494 F.2d 1399, 1405
(CCPA 1974).
Moreover, one of ordinary skill in the art would have recognized that
the length of the prongs of Logan could be optimized to produce a spiral cut
close to the meat ends, as claimed. After all, skill and not the converse
would be expected from an ordinarily skilled artisan. In re Sovish, 769 F.2d
738, 743 (Fed. Cir. 1985). In this regard, the question of obviousness cannot
be approached on the basis that an artisan having ordinary skill would have
known only what was explicitly disclosed in the references, because such
artisan is presumed to know something about the art apart from what the
references disclose. See In re Jacoby, 309 F.2d 513, 516 (CCPA 1962).
In addition, the appealed claims are not drawn to a particular apparatus for
producing a spiral cut in a meat product or a particular method of cutting
meat. Rather the appealed claims (see representative claim 1), are drawn to
a spirally cut meat product. Thus, one of ordinary skill in the art would have
recognized that even where a spiral cut meat product with thicker ends than
that called for in representative claim 1 may be initially obtained, it would
have been obvious for one of ordinary skill in the art at the time of the
invention to extend the spiral cut by hand carving so as to obtain the serving
advantages associated with a resultant meat product having a spiral cut that
4
Appeal 2007-3394
Application 11/088,512

extends closer to the respective ends of the meat product. Alternatively,
slicing through the previously uncut meat product ends and separating the
sliced portions to form new ends for the meat product which are located
closer to the ends of the spiral cut so as to obtain the serving advantages
associated with a resultant meat product having a spiral cut that extends
closer to the respective ends thereof would have been an obvious option to
one of ordinary skill in the art. In this regard, the claimed product is
attended by predictable and expected results.
On this record, it follows that we shall affirm the Examiner’s
obviousness rejection.

ORDER
The decision of the Examiner to reject claims 1-5 under 35 U.S.C.
§ 102(b) as being anticipated by Logan is reversed. The decision of the
Examiner to reject claims 1-5 under 35 U.S.C. § 103(a) as being obvious
over Logan is affirmed.

5
Appeal 2007-3394
Application 11/088,512

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 CFR § 1.136(a)(1)(iv) (2006).

AFFIRMED

tc

THE MATTHEWS FIRM
2000 BERING DRIVE
SUITE 700
HOUSTON, TX 77057

6