Ex Parte Obert et al

Patent Trial and Appeal Board

Mar 31, 2017

13613499 (P.T.A.B. Mar. 31, 2017)

United States Patent and Trademark Office
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
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
13/613,499 09/13/2012 Ralph C. Obert P12A010 5753
20411 7590 04/03/2017
The Linde Group
200 Somerset Corporate Blvd.
Suite 7000
Bridgewater, NJ 08807
EXAMINER
COX, ALEXIS K
ART UNIT PAPER NUMBER
3744
MAIL DATE DELIVERY MODE
04/03/2017 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 RALPH C. OBERT, JOHN CHRISTOPHER KLINE,
and SIMON SHAMOUN
Appeal 2015-007030
Application 13/613,499
Technology Center 3700
Before CHARLES N. GREENHUT, MICHAEL L. HOELTER, and
ANNETTE R. REIMERS, Administrative Patent Judges.
HOELTER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134 from a rejection of claims 8—
14. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
THE CLAIMED SUBJECT MATTER
The claims are directed to a food product stabilizer apparatus and
method. Sole independent claim 8, reproduced below, is illustrative of the
claimed subject matter:
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Application 13/613,499
8. A method for processing a food product,
comprising in sequence:
providing into the food product ingredients
selected from the group consisting of marinades,
antibiotics, antimicrobials, bacteria inhibitors, fluids,
flavor ingredients, preservatives and combinations
thereof;
reducing a temperature of a surface of the food
product after the providing the ingredients into the
food product, wherein said reducing a temperature
crusts said surface for retaining the ingredients within
the food product and adapting the food product for
retaining deformation to a select shape; and
pressing the food product to the select shape,
wherein the pressing excludes cutting and the shaped
food product and the ingredients in the food product
are retained for subsequent processing.
Andersson
Kortschot
Razaa
Hanskens
REFERENCES
US 5,199,269
US 5,356,648
US 2003/0087013 A1
WO 96/29883
Apr. 6, 1993
Oct. 18, 1994
May 8, 2003
Oct. 3, 1996
Martha Stewart, Baked Alaska, Martha Stewart Living, Dec./Jan.
1996/1997 (“Baked Alaska”)
REJECTIONS
Claims 8, 13, and 14 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Hanskens. Final Act. 2.1
1 In the Final Action, the Examiner identifies claim 9 as subject to this
rejection as well, but does not specifically explain why claim 9 is anticipated
by Hanskens. Final Act. 2—3. Therefore, we assume that this rejection
applies only to claims 8, 13, and 14.
2
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Claims 8, 10, 13, and 14 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Baked Alaska. Id. at 3.
Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Hanskens and Kortschot. Id. at 5.
Claim 9 stands rejected under 35 U.S.C. § 103(a) as unpatentable over
Baked Alaska and Kortschot. Id. at 5—6.
Claim 10 stands rejected under 35 U.S.C. § 103(a) as unpatentable
over Hanskens and Razaa. Id. at 6.
Claims 11 and 12 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Hanskens and Andersson. Id. at 6—7.
ANALYSIS
Claims 8, 13, and 14—Anticipation—Hanskens
Claim 8 is drawn to a method of processing a food product comprising
the steps of providing an ingredient into the food product, reducing the
temperature of the surface of the food product to form a crust, and pressing
the food product into a select shape. Br. 20 (claims appx.). The Examiner
finds that Hanskens teaches these steps. Final Act. 3. Appellants respond
that claim 8 recites a method for processing a “finished product,” whereas
Hanskens teaches processing “the ingredients that go into the product.”
Br. 11. In so arguing, Appellants ask us to interpret “food product” as
“finished food product.” We decline to do so. First, claim 8 is broadly
drawn to a “food product,” which, on its own terms, can include food
products that may not be “finished” (whatever that may mean). Second, the
Specification states that a food product may undergo “subsequent
processing.” Spec. 13. Appellants do not explain how a food product that
needs “subsequent processing” can reasonably be described as “finished.”
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Third, the Specification describes as a specific example of a food product
“boneless chicken breasts . . .for use in retail sandwiches.” Id. 111
(emphasis added). Appellants also do not explain how a food product that is
used as an ingredient in a sandwich can be described as “finished.”
Appellants’ remaining arguments in support of the patentability of
claim 8 are likewise unpersuasive. Appellants assert that “[wjhereas in
Hanskens a liquid is poured into a mold and then pressed, no mold is called
for in [the pressing step of] claim 8.” Br. 11. However, there is also nothing
in claim 8 that excludes using a mold as part of the “pressing” step.
Appellants next argue that whereas in Hanskens the product that is pressed is
thereafter inserted into an “envelope,” such as a cream filling inserted into a
puff pastry, in claim 8 there is “no ‘envelope’ for the product to be
introduced into.” Id. But, again, claim 8 also does not exclude the
possibility that the claimed food product would be subsequently inserted into
some sort of “envelope.” Indeed, as noted above, the Specification describes
as a “food product” a marinated boneless chicken breast that will, after
processing, be inserted inside a roll or between slices of bread to make a
sandwich. Spec. 111. Finally, Appellants argue that claim 8 expressly
recites that the pressing step “excludes cutting” and “no such disclosure is
provided in Hanskens.” Br. 11. However, as there is no teaching in
Hanskens that cutting is part of its pressing step, it is reasonable to interpret
Hanskens as teaching pressing without cutting. See Ans. 3. Accordingly,
we sustain the Examiner’s rejection of claim 8 as anticipated by Hanskens.
Claim 13 depends from claim 8 and additionally recites:
[A]fter the pressing at least one of: coating the food product with
a composition selected from batter, breading and combinations
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thereof; heating the food product; freezing the food product; and
packaging the food product.”
Br. 21 (claims appx.). The Examiner finds that “Hanskens further discloses
after the pressing packaging the food product, preparing food for packaging
and sale is the purpose of Hanskens.” Final Act. 3. Appellants respond,
“Hanskens does not disclose, after a pressing step, coating the food product
with a composition selected from batter, breading and combinations thereof,
or otherwise heating the food product, as called for in claim 13.” Br. 12.
Claim 13 is not limited to the coating and heating steps, but can also be
satisfied with freezing or packaging the food product after pressing.
Appellants do not dispute the Examiner’s finding that Hanskens discloses
packaging after pressing. Therefore, we sustain the Examiner’s rejection of
claim 13 as anticipated by Hanskens.
Claim 14 depends from claim 13 and additionally recites, “wherein
the heating is selected from at least one of cooking and frying the food
product.” Br. 21 (claims appx.). The Examiner finds that Hanskens
“discloses heating the frozen food product by cooking it, as Hanskens
explicitly discloses the food product to be heated thoroughly at the time of
use.” Final Act. 3. Appellants respond that claim 14 requires cooking or
frying the “food product,” not a “filling” to a food product. Br. 13.
However, as discussed above, the term “food product” does not exclude a
product that may be used as filling after processing. Therefore, this
argument is unpersuasive, and we sustain the rejection of claim 14.
Claims 8, 10, 13, and 14—Anticipation—Baked Alaska
Baked Alaska is a recipe for a dessert comprising an ice cream cake
covered in meringue and then baked to brown the meringue. Baked Alaska,
1, 4—5. The ice cream cake is made by packing layers of different flavored
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ice creams—e.g., pistachio ice cream topped with cherry ice cream—into a
metal bowl, and then placing the bowl into a freezer until the ice cream is
“very hard.” Id. at 4. The Examiner finds that Baked Alaska discloses the
steps of claim 8, including providing the ingredients to make the ice cream,
initially freezing the ice cream (which “inherently crusts” the surface of the
ice cream), and packing the ice cream into the metal bowl (corresponding to
the “pressing” step). Final Act. 3^4.
Appellants respond that Baked Alaska does not disclose reducing the
temperature of a food product to form a crust. Br. 13. However, Appellants
do not address the Examiner’s finding that the formation of a crust is an
inherent result of the initial freezing of the ice cream. Therefore, this
argument is unpersuasive. Appellants next argue that packing the ice cream
into a metal bowl does not correspond to the pressing step, because
“[rjemoval of the ice cream from the bowl would cause [the] same to alter
its shape unless kept in the freezer.” Br. 14. Nevertheless, claim 8 does not
exclude the possibility that the food product will be subsequently kept in a
freezer, so this argument is unpersuasive as well. Accordingly, we sustain
the Examiner’s rejection of claim 8 as anticipated by Baked Alaska.
Further, because Appellants do not separately address claims 10, 13, and 14
with respect to this rejection, we likewise sustain the rejection of these
claims.
Claim 9—Obviousness—Hanskens or Baked Alaska and Kortschot
Appellants have not presented separate arguments against the
Examiner’s rejections of claim 9 as obvious over Hanskens and Kortschot or
Baked Alaska and Kortschot. Therefore, we sustain these rejections.
Claim 10—Obviousness—Hanskens and Razaa
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Claim 10 depends from claim 8, and further recites, “wherein the
providing the ingredients comprises tumbling the food product in the
ingredients.” Br. 20 (claims appx.). The Examiner finds that “Razaa
explicitly discloses preparing a food product for freezing by tumbling it. . .
to add ingredients in the form of a coating,” and that a person of ordinary
skill would have used Razaa’s tumbling step “to insure that the filling of
Hanskens [is] permeated by the flavor of the ingredient added.” Final
Act. 6. Appellants respond that Razaa’s tumbling step “would be far too
vigorous or aggressive to be used or desired by one of ordinary skill in the
art for the process of Hanskens,” and would “destroy” Hanskens’ food
product, because Hanskens’ product is an “internal food” or “filling.” Br.
16. But, Appellants do not explain why tumbling would destroy food
products simply because they are used as “fillings” for other products. Nor
do Appellants provide evidence in support of that notion. Therefore, we are
not persuaded that the Examiner erred in rejecting claim 10 as obvious over
Hanskens and Razaa.
Claims 11 and 12—Obviousness—Hanskens and Andersson
Claim 11 depends from claim 8 and additionally recites, “wherein the
reducing the temperature comprises providing to the food product a
cryogenic substance selected from the group consisting of nitrogen and
carbon dioxide.” Br. 20 (claims appx.). The Examiner finds that Andersson
teaches this additional step, and that one of skill in the art would have used
Andersson’s flash-freezing method to “avoid damage caused by other
freezing methods.” Final Act. 7 (citing Andersson, 1:20—54). Appellants
respond that claim 11 requires providing a cryogenic substance to “the entire
food product itself,” and not to an “internal food core,” as would be the case
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if Andersson’s method is used with Hanskens’ food product. Br. 17. This
argument is essentially the same as the argument, discussed above, that the
term “food product” in claim 8 should be construed to mean “final” or
“entire” food product. For the reasons discussed above, we find this
argument unpersuasive.
Claim 12 depends from claim 8 and further recites, “wherein the
reducing the temperature comprises providing a crust formed to a depth of
up to one-sixteenth of an inch at the surface of the food product.” Br. 21
(Claims Appx.). The Examiner finds that Andersson teaches this additional
limitation, and that a person of ordinary skill in the art would have combined
Hanskens and Andersson “to retain the shape of the filling of Hanskens prior
to the additional shaping of Hanskens.” Final Act. 7. Appellants respond
that while Andersson does disclose that “molded pellets will have a frozen
crust of a thickness of one or a few millimeters, thus facilitating the removal
of the molded pellets from the molding rolls and insuring that the molded
pellets retain their shape,” the freezing occurs after molding, rather than
before, which is what claim 8 (and therefore claim 12) requires. Br. 18.
This argument, however, is based on attacking an individual reference even
though the rejection is based on a combination of references, which is
unpersuasive. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
For the above reasons, we sustain the Examiner’s rejection of claims
11 and 12 as obvious over Hanskens and Andersson.
DECISION
For the above reasons, the Examiner’s rejection of claims 8—14 is
affirmed.
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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
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