Ex Parte MacQuarrieDownload PDFPatent Trial and Appeal BoardJun 14, 201612149768 (P.T.A.B. Jun. 14, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 12/149,768 05/07/2008 39196 7590 06/15/2016 SHLESINGER, ARKWRIGHT & GARVEY LLP 5845 Richmond Highway, Suite 415 ALEXANDRIA, VA 22303 Reg MACQUARRIE 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. 7661 1772 EXAMINER YAGER, JAMES C ART UNIT PAPER NUMBER 1782 MAILDATE DELIVERY MODE 06/15/2016 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 Exparte REG MACQUARRIE1 Appeal2015-000236 Application 12/149,768 Technology Center 1700 Before BEYERL YA. FRANKLIN, GEORGE C. BEST, and CHRISTOPHER L. OGDEN, Administrative Patent Judges. OGDEN, Administrative Patent Judge. DECISION ON APPEAL Appellant appeals under 35 U.S.C. § 134(a) from the Examiner's final decision rejecting claims 2, 4, 5, and 11-14 in the above-identified application. We have jurisdiction pursuant to 35 U.S.C. § 6(b). We AFFIRM. BACKGROUND Appellant's invention relates to "novel vegetable based edible films which can be used in the processing of meat products, particularly as 1 According to Appellant, the real party in interest is Living Cell Research Inc. Appeal Br. 2. Appeal2015-000236 Application 12/149,768 sausage casings." Spec. i-f 1. Claim 2, the sole independent claim, is representative: 2. A tubular casing material comprising a vegetable based edible casing film and an edible glue for sealing the folded film into a tubular shape sausage casing, wherein said casing film is composed of edible vegetable-based polymeric materials comprising starch and rice flour, water, glycerin and/or propylene glycol, wherein said edible glue comprises a combination of konjac with carrageenan, said combination comprising 60- 90% konjac, and wherein said edible glue further comprises water. Appeal Br. 23 (emphasis added). The Examiner maintains the following grounds of rejection: I. Claims 2, 4, 5, and 11-13 under 35 U.S.C. § 103(a) as being unpatentable over U.S. Patent No. 5,620,757 [hereinafter Ninomiya] (issued Apr. 15, 1997) in view of Chinese Patent Pub. No. CN 1232642 A [hereinafter Wu] (published Oct. 27, 1999) and Chinese Patent Pub. No. CN 1676024 A [hereinafter Huang] (published Oct. 5, 2005).2 Final Action 3---6; Answer 2-5. II. Claim 14 under 35 U.S.C. § 103(a) as being unpatentable over Ninomiya, Wu, and Huang, in view of U.S. Patent No. 4,562,101 [hereinafter Andra] (issued Dec. 31, 1985). Final Action 6-7; Answer 5-7. 2 The Examiner relies on machine translations from Chinese into English for both Wu and Huang. See Final Action 3. While Appellant questions the clarity and reliability of the translation, see, e.g., Reply Br. 7, Appellant does not direct our attention to any alternative translations in the '768 Application's record. 2 Appeal2015-000236 Application 12/149,768 III. Claims 2, 4, 5, 12, and 13 under 35 U.S.C. § 103(a) as being unpatentable over U.S. Patent No. 4,478,670 [hereinafter Heyse] (issued Oct. 23, 1984) in view of Wu and Huang. Final Action 8-10; Answer 7-10. IV. Claim 14 under 35 U.S.C. § 103(a) as being unpatentable over Heyse, Wu, and Huang, in view of Andra. Final Action 10-12; Answer IO- 11. Appellant argues claims 2, 4, 5, and 11-13 as a group with respect to rejection I, see Appeal Br. 15-20, and argues for reversal of rejections II-IV for "essentially the same reasons" as rejection I, see id. at 20-22. Therefore, consistent with the provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013), we limit our discussion to independent claim 2, and all claims stand or fall together. DISCUSSION The Examiner finds that Ninomiya discloses all the limitations of claim 2, except for disclosing "that the casing film is composed of rice flour," and "that the edible glue comprises conjac and carrageenan and compris[es] 60 to 90% konjac and further compris[es] water." Final Action 3--4. However, the Examiner finds that Wu teaches "a sausage casing comprising rice flour." Id. at 4 (citing Wu, abstract). The Examiner further finds that Huang teaches "a glue composition for use in foods comprising konjac, carrageenan and water," id. (citing Huang 5:10-6:30), and that the 60-90%3 range in konjac content is a matter of routine optimization, see id. at 4--5. According to the Examiner, it would have been obvious "to 3 The Examiner does not address the issue of whether the 60-90% range is measured by weight (wet or dry), volume, or otherwise; however, that question is not material to either the Examiner's rejections or Appellant's arguments. 3 Appeal2015-000236 Application 12/149,768 incorporate the rice flour as taught by Wu into the sausage casing of Ninomiya in order to provide a sausage casing having the advantage of easy eating, easy carrying, rich nutrients, good taste and is suitable for eating by tourists and field workers." Id. at 4 (referring to advantages expressed in Wu, abstract). The Examiner also determines that it would have been obvious Id. to replace the subfilm layer (i.e. edible glue) ofNinomiya with the glue of Huang in order to provide a sausage casing having a glue that is edible and because doing so would amount to nothing more than using a known material for its intended use in a known environment to accomplish an entirely expected result. Appellant first argues that it would not have been obvious to combine the teachings of Wu with Ninomiya, because a person of ordinary skill in the art "would not expect that incorporation of the rice flour of Wu into the edible film ofNinomiya would lead to a useful, heat sealable, edible film product." Appeal Br. 16. In particular, Appellant argues that heat sealability was known as a difficult problem, and that Wu does not describe a film, but a sausage case that "appears to be a relatively thick, glutinous flour-based coating," such as a dumpling. Id.; see also id. at 10-12; Reply Br. 2-8, 11. Appellant also disputes the Examiner's finding of motivation for combining Wu with Ninomiya, arguing that the recited motivations are inapplicable to, or already possessed by, Ninomiya. See Appeal Br. 16-17; Reply Br. 11-14. We have carefully considered Appellant's arguments regarding the teachings of Wu and their combination with Ninomiya. However, we find no evidence sufficient to rebut the Examiner's finding that Wu describes a 4 Appeal2015-000236 Application 12/149,768 sausage casing film. As the Examiner correctly notes, Wu clearly refers to a sausage "casing." See Answer 12-13 (citing Wu, Abstract). Moreover, Wu refers to the use of "bowel." Wu, Detailed Description. Although the Wu translation refers to something being a "main food," and to "glutinous rice flour," Appellant does not provide evidence, beyond speculative attorney argument, that Wu refers to a thick, dumpling style coating rather than a film. See, e.g., Reply Br. 6 ("A thick coating, as one would find on a dumpling, is one possible interpretation" of the term casing.). Thus, the preponderance of the evidence supports the Examiner's finding that Wu's disclosure relates to a sausage casing film. We have also carefully considered Appellant's arguments regarding the motivations recited by the Examiner for combining Wu with Ninomiya, but do not find them persuasive. In particular, Appellant presents no evidence sufficient to support the contention that one of ordinary skill in the art would not have regarded the addition of rice flour to a sausage casing as a means to improve nutrition and/or taste, contrary to the apparent teaching of Wu. Second, Appellant argues that it would not have been obvious to combine the teachings of Huang with Ninomiya, because "[t]he subfilm layer ofNinomiya is not an 'edible glue' as alleged by the Examiner," and "Huang does not teach an edible glue comprising a combination of konjac with carrageenan." Appeal Br. 18-19; Reply Br. 8-11, 14--17. Furthermore, Appellant argues that the combination ofNinomiya, Wu, and Huang "would not provide a tubular sausage casing as presently claimed," because Huang teaches the production of a "dried gel product which is used as a food thickener or additive." Appeal Br. 19; Reply Br. 9-10. Upon careful consideration of Appellant's arguments, we find them unpersuasive. We give the term glue its broadest reasonable interpretation 5 Appeal2015-000236 Application 12/149,768 consistent with the Specification. In re Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007). The Examiner interprets the subfilm of Ninomiya as a glue, because it "is used to seal the casing, holding it together." Answer 16. We agree that this represents the broadest reasonable interpretation. See, e.g., Glue, n, OED Online, sense 3a, http://www.oed.com/view/Entry/79262?result=l&rskey=pKvKNF& (March 2016) ("Used loosely for any substance that serves as a cement."). This interpretation is also consistent with the Specification, which indicates that the edible glue is "a means to stick and hold the film edges together to form a tube having the desired uniform shape and size." Spec. i-f 11. In light of this interpretation, we find no reversible error in the Examiner's determination that the subfilm ofNinomiya is a glue. See, e.g., Ninomiya 7: 19-21 ("[T]he main purpose [of the subfilm] is to impart heat sealability and blocking resistance to the edible film of the present invention."). Furthermore, Appellant presents no evidence sufficient to rebut the Examiner's finding that Huang teaches an edible glue. Although Huang teaches that the end product is a gel, see Huang Abstract, the machine translation of Huang refers to the production of a "gum," id. Abstract, and refers to the end product having an "[a]dhesive strength," id. Embodiment 5, which according to the Examiner "clearly shows that the final product has adhesive qualities," Answer 14. Appellant argues that these translations are unclear, see, e.g., Reply Br. 8-9, but Appellant has presented no certified translation or other similar evidence sufficient to support an alternative interpretation of Huang. In the absence of such rebuttal evidence, we find no reversible error in the Examiner's findings regarding Huang, or in the Examiner's determination that the combination ofNinomiya, Wu, and Huang teaches a tubular sausage according to claim 2. 6 Appeal2015-000236 Application 12/149,768 Therefore, by a preponderance of the evidence presented to us on this appeal record, we find no reversible error in the Examiner's decision to reject independent claim 2. For the same reasons, we find no reversible error in the Examiner's decision to reject dependent claims 4, 5, and 11-14. 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)(l )(iv). AFFIRMED 7 Copy with citationCopy as parenthetical citation