Ex Parte Mengel et al

Patent Trial and Appeal Board

Oct 25, 2012

11523953 (P.T.A.B. Oct. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE
THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte MATTHEW LEROY MENGEL, DOUGLAS MARK
LATREILLE, and DAN G. SIEGEL
____________

Appeal 2011-002657
Application 11/523,953
Technology Center 1700
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Before CHUNG K. PAK, TERRY J. OWENS, and JEFFREY T. SMITH,
Administrative Patent Judges.

PAK, Administrative Patent Judge.

DECISION ON APPEAL
Appellants appeal under 35 U.S.C. § 134 from the Examiner's final
rejection of claims 29 through 77 and 123 through 148, all of the claims
pending in the above-identified application.1 We have jurisdiction over the
appealed subject matter pursuant to 35 U.S.C. § 6.

1 See Appeal Brief (“App. Br.”) filed May 10, 2010, 5; and Examiner’s
Answer (“Ans.”) filed August 19, 2010, 2.
Appeal 2011-002657
Application 11/523,953

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STATEMENT OF THE CASE
The subject matter on appeal is directed to a packaged meat product
comprising a packaging material made of polymeric web having an oxygen
barrier polymeric layer, an uncooked meat product, and a packaging insert
comprising a myoglobin blooming agent. (See, e.g., claims 29 and 123.)
Page 29, paragraph 0095, of the Specification defines the term “packaging
insert” as follows:
A packaging insert is an article that is incorporated in a
packaged food product which is not an integral part of the
packaging film that forms the outer wrapper. A packaging
insert, when incorporated in a packaged food, is in contact with
the food product. Packaging inserts can serve any of a variety
of purposes including absorbing liquids, cushioning sharp or
rough surfaces such as bones, protecting a surface on the food
product, modifying the atmosphere within the package, or
containing all or a portion of the food product such as the
giblets inside of poultry. Examples of packaging inserts
include absorbent and non-absorbent pads, soaker pads, purge
control pads, puncture resistant inserts, packets, pouches,
sachets and trays. [(Emphasis added.)]

Page 8, paragraph 0026, of the Specification also defines the term
“myoglobin blooming agent” as follows:
A “myoglobin blooming agent” refers to any agent (or
precursor thereof) that binds to or interacts with any
undenatured myoglobin-containing structure (including but not
limited to deoxymyoglobin, oxymyoglobin, metmyoglobin,
carboxymyoglobin, and nitroxymyoglobin) present in a fresh
meat product to produce or preserve a desired color, such as red
color indicative of fresh meat.… Thus, the myoglobin blooming
agent is not a color additive, but it acts as a color fixative.

Appeal 2011-002657
Application 11/523,953

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The type of myoglobin blooming agent employed is limited to nitric oxide
donating compounds or nitrogen heterocycles. (See claims 29 and 23.)
Details of the appealed subject matter are recited in representative
claims 29 and 123 reproduced below:
29. A packaged meat product comprising:

a package comprising a polymeric web having an oxygen
barrier polymeric layer;

an uncooked meat product; and

a packaging insert comprising a first layer comprising a
myoglobin blooming agent selected from the group consisting
of nitric oxide donating compounds and nitrogen
heterocycles;

wherein the packaging insert is sized smaller than the
package to which it is to be inserted and at least a portion of
the insert is in contact with the meat product.

123. A meat packaging kit comprising:

a packaging article comprising a polymeric web having
an oxygen barrier polymeric layer; and

a packaging insert;

wherein the packaging insert comprises a first layer
comprising a myoglobin blooming agent selected from the
group consisting of nitric oxide donating compounds and
nitrogen heterocycles; and

wherein the packaging insert is sized smaller than the
packaging article to which it is to be inserted and at least a
portion of the insert is in contact with the meat product.
[(Emphasis added.)]
Appeal 2011-002657
Application 11/523,953

4
As evidence of unpatentability of the subject matter claimed, the
Examiner relies upon the following evidence (Ans. 3 and 5):
Cheng US 4,683,139 Jul. 28, 1987
Chung US 4,877,846 Oct. 31, 1989
Meier et al. (“Meier”) US 6,623,773 B2 Sep. 23, 2003
Whitman et al. (“Whitman”) US 2004/0097630 A1 May 20, 2004

Appellants seek review of the following grounds of rejection
maintained by the Examiner in the Answer:
(1) Claims 29 through 34, 66 through 77, and 123 through 126
under 35 U.S.C. § 103(a) as unpatentable over the disclosure of Meier;
(2) Claims 35 through 60, 63 through 65, and 127 through 148
under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of
Meier and Chung;
(3) Claim 61 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Meier and Whitman; and
(4) Claim 62 under 35 U.S.C. § 103(a) as unpatentable over the
combined disclosures of Meier and Cheng. (See App. Br. 8.)

DISCUSSION
The § 103(a) rejections maintained in the Answer are premised upon
correctness of the Examiner’s finding that Meier teaches the packaging
insert recited in claims 29 and 123. Claim 29, for example, recites
a packaging insert comprising a first layer comprising a
myoglobin blooming agent selected from the group consisting
of nitric oxide donating compounds and nitrogen heterocycles;

wherein the packaging insert is sized smaller than the
package to which it is to be inserted and at least a portion of the
inert is in contact with the meat product
Appeal 2011-002657
Application 11/523,953

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Claim 123 also recites
wherein the packaging insert comprises a first layer
comprising a myoglobin blooming agent selected from the
group consisting of nitric oxide donating compounds and
nitrogen heterocycles; and

wherein the packaging insert is sized smaller than the
packaging article to which it is to be inserted and at least a
portion of the insert is in contact with the meat product.
[(Emphasis added.)]
On the other hand, Appellants contend that Meier does not teach, inter alia,
the packaging insert recited in claims 29 and 123. (Compare Ans. 3-8 with
App. Br. 9-20 and Reply Brief (“Reply Br.”) filed September 15, 2010, 2-3.)
Thus, the dispositive question is: Has the Examiner demonstrated
that Meier teaches the packaging insert recited in claims 29 and 123? On
this record, we answer this question in the negative.
As correctly argued by Appellants at pages 9 through 20 of the
Appeal Brief and pages 2 and 3 of the Reply Brief, Meier does not teach a
packaging insert having a particular myoglobin blooming agent independent
of and not integral with a packaging material or packaging article made of
polymeric web having an oxygen barrier polymeric layer as required by
claims 29 and 123. The disclosures of Meier relied upon by the Examiner
only describe a packaging material comprising a substrate made of a
polymeric film or laminate having an oxygen barrier function attached to or
integrated with a curing/marinating food treatment agent (which according
to page 4 of the Answer includes curing salts comprising nitrates and
nitrites) via an edible adhesive. (Compare Ans. 3-5 with Meier, col. 2, l. to
col. 3, l. 38, col. 5, ll. 22-25, col. 6, ll. 1-19.) Nowhere do the disclosures of
Appeal 2011-002657
Application 11/523,953

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Meier relied upon by the Examiner discuss an insert which is independent of
and not integral with its packaging material. (See Meier, col. 2, l. to col. 3, l.
38, col. 5, ll. 22-25, col. 6, ll. 1-19.) Thus, on this record, the Examiner has
not shown that Meier teaches the packaging insert recited in claims 29 and
123. Nor has the Examiner provided any reason or suggesting in the Answer
as to why one of ordinary skill in the art would have been led to employ the
packaging insert having the particular myoglobin blooming agent recited in
claims 29 and 123 from the relied upon disclosures of Meier. (See Ans. 3-
8.)
Accordingly, on this record, we are constrained to reverse the
Examiner’s § 103(a) rejections set forth in the Answer.

ORDER
Upon consideration of the record, and for the reasons given above, it
is:
ORDERED that the decision of the Examiner to reject the claims on
appeal under 35 U.S.C. § 103(a) is REVERSED.

REVERSED

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