Ex Parte Nakayama et al

Patent Trial and Appeal Board

Aug 30, 2018

14131763 (P.T.A.B. Aug. 30, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/131,763 04/09/2014
7055 7590 09/04/2018
GREENBLUM & BERNSTEIN, P.L.C.
1950 ROLAND CLARKE PLACE
RESTON, VA 20191
FIRST NAMED INVENTOR
Takateru Nakayama
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.
P44197 4456
EXAMINER
MOORE, WALTER A
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
09/04/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
gbpatent@gbpatent.com
greenblum.bernsteinplc@gmail.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TAKA TERU NAKAYAMA,
KAZUKI YOSHIDA, SEIKO TAMURA,
and MITSURU TANAKA
Appeal2017-009887
Application 14/131, 7 63
Technology Center 1700
Before GEORGE C. BEST, N. WHITNEY WILSON, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
July 12, 2016 decision finally rejecting claims 1, 3, 7, 9, 11, and 13. We
have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We reverse.
1 Appellants identify the real party in interest as Nissin Foods Holdings Co.,
LTD. (Br. 3.).
Appeal2017-009887
Application 14/131, 7 63
CLAIMED SUBJECT MATTER
Appellants' disclosure is directed to a method for producing meat-
based dried food that is to be reconstituted by pouring hot or cold water onto
it (Abstract). The method includes a step of processing the meat with
superheated steam (id.). Details of the claimed invention are set forth in
independent claim 1, which is reproduced below from the Claims Appendix
of the Appeal Brief:
1. A method for producing meat-based dried food that is to
be reconstituted by pouring hot or cold water thereto before
eating, comprising;
processing a meat with superheated steam;
adding additional moisture to the meat processed with
superheated steam;
freezing the moisture-added meat; and
drying the frozen meat under reduced pressure.
REJECTIONS
1. Claims 1, 7, and 11 are rejected under 35 U.S.C. § I03(a) as
unpatentable over McBean2 in view of Joly3 and Eisner. 4
2 McBean, US 2,365,890, issued December 26, 1944.
3 Joly et al., US 2010/0316777 Al, published December 16, 2010.
4 Eisner et al., WO 2010/111983 Al, published October 7, 2010. The
Examiner and Appellants refer to this reference as Gebhart (the surname of
the last named inventor). Also, references to Eisner are made to Eisner et
al., US 2012/0027906 Al, published February 2, 2012.
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Appeal2017-009887
Application 14/131, 7 63
2. Claims 3, 9, and 13 are rejected under 35 U.S.C. § 103(a) as
unpatentable over McBean in view of Joly and Eisner, and further in view of
Hamilton. 5
DISCUSSION
Appellants do not argue the claims separately (see, Appeal Br. 7-10).
Accordingly, we focus our discussion on the obviousness rejection of
claim 1 over McBean in view of Joly and Eisner. The remaining claims
stand or fall with claim 1.
The Examiner finds that McBean discloses a method for producing
meat-based dried food comprising processing a raw meat material or meat-
based food with superheated steam (Final Act. 4, citing McBean, 1: 1-2, 15,
2:46). The Examiner further finds that McBean discloses that case
hardening during drying should be avoided and that case hardening occurs
when the product surface becomes too dry (Final Act. 4, citing McBean,
2:49-54). The Examiner also finds that McBean does not disclose adding
moisture to the meat raw material or meat-based food processed with
superheated steam (Final Act. 4).
The Examiner finds that Joly is drawn to processing food products,
including meat, and also discloses that wetting the product with water can
decrease case hardening of the product (Final Act. 4, ,r,r 3, 44). The
Examiner determines that it would have been obvious to add moisture, as
taught by Joly, to the superheated steam processed meat as taught by
McBean to decrease case hardening of the product to obtain a process of
5 Hamilton, US 3,233,334, issued February 8, 1966.
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Appeal2017-009887
Application 14/131, 7 63
producing a dried food comprising a step of adding moisture to the
superheated steam processed meat (Final Act. 4 ). 6
Appellants argue, inter alia, that a person of skill in the art would not
have combined McBean and Joly because "they are directed to completely
different processes for reaching completely different goals" (Appeal Br. 7-
10).
Appellants' argument is persuasive. As argued by Appellants (Appeal
Br. 8-9), McBean discloses that case hardening occurs when the surface of
the food product dries faster than the transfer of moisture from the interior of
the food product to its surface (McBean 2:48---64). McBean specifically
teaches that "case hardening occurs when the surface moisture is removed
[ from the food item] too rapidly or becomes too dry and results in preventing
or decreasing the flow of moisture from the interior of the product) (id.).
McBean teaches avoiding the problem of case-hardening while drying the
food by controlling the drying conditions to avoid drying the surface of the
food faster than the interior of the food (McBean 3: 12-17).
The Examiner determines that a person of skill in the art would have
combined Joly's surface wetting step with McBean's process to address a
case hardening problem described by McBean. However, McBean provides
an internal solution to the case hardening problem it describes ( controlling
the drying conditions to avoid drying the surface of the food faster than the
interior of the food). As noted by Appellants, McBean is directed to "a
method for food dehydration" (McBean 1: 1-2). Thus, adding moisture by
6 The Examiner relies on Eisner as teaching the claimed steps of freezing the
processed meat and drying the frozen meat under reduced pressure (Final
Act. 4--5). Appellants do not challenge any of the findings regarding Eisner,
or the propriety of its combination with McBean (Appeal Br. 7).
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Appeal2017-009887
Application 14/131, 7 63
misting or spraying water onto the surface of the dehydrating product would
be directly contrary to McBean's purpose. Accordingly, as argued by
Appellants, a person of skill in the art would not have sought to combine
Joly and McBean in the manner set forth in the rejection. This is particularly
true in this case because McBean provides for an alternative solution to the
problem of case hardening, which is the problem the Examiner relies on as
suggesting a combination with Joly.
"In rejecting claims under 35 U.S.C. § 103, the examiner bears the
initial burden of presenting a prim a facie case of obviousness." In re
Rijckaert, 9 F.3d 1531, 1532 (Fed. Cir. 1993) (citing In re Oetiker, 977 F.2d
1443, 1445 (Fed. Cir. 1992)). "Aprimafacie case of obviousness is
established when the teachings from the prior art itself would appear to have
suggested the claimed subject matter to a person of ordinary skill in the art."
In re Bell, 991 F.2d 781,783 (Fed. Cir. 1993) (quoting In re Rinehart, 531
F.2d 1048, 1051 (CCPA 1976)). As discussed above, the Examiner has not
set forth an adequate reason to combine McBean and Joly.
Accordingly, Appellants have demonstrated reversible error in the
rejections.
CONCLUSION
We REVERSE the rejection of claims 1, 7, and 11 under 35 U.S.C. § 103(a)
as unpatentable over McBean in view of Joly and Eisner.
We REVERSE the rejection of claims 3, 9, and 13 under 35 U.S.C. § 103(a)
as unpatentable over McBean in view of Joly and Eisner, and further in view of
Hamilton.
REVERSED
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