Ex Parte Parker et al

Patent Trial and Appeal Board

May 25, 2016

13497876 (P.T.A.B. May. 25, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
13/497,876 03/23/2012 Jay David Parker
38550 7590 05/26/2016
CARGILL, IN CORPORA TED
P.O. Box 5624
MINNEAPOLIS, MN 55440-5624
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.
N00046US01 7104
EXAMINER
STIJLII, VERA
ART UNIT PAPER NUMBER
1791
MAILDATE DELIVERY MODE
05/26/2016 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
Ex parte JAY DAVID PARKER and BROCK AARON ZENTZ
Appeal2014-008071
Application 13/497,876
Technology Center 1700
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
decision finally rejecting claims 1-3, 6-19, 21, and 22 under 35 U.S.C.
§ 103(a). We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We AFFIRM.
Claim 1 is illustrative of the appealed subject matter (emphasis
added):
1. A process for preserving frozen ground meat comprising
the steps of:
1 The Real Party in Interest is stated to be Cargill Incorporated (App. Br. 3).
Appeal2014-008071
Application 13/497,876
a) providing fresh ground meat that has been frozen in a
sealed package;
b) placing the packaged frozen ground meat in a
pressurization vessel and closing the vessel;
c) pressurizing the pressurization vessel containing the
packaged frozen ground meat to an elevated pressure of at least
about 5 0, 000 psi pressure so that the packaged frozen ground
meat is placed under the elevated pressure;
d) maintaining the elevated pressure on the packaged frozen
ground meat for a time of from about 1 to about 300 seconds;
e) then reducing the pressure on the packaged frozen ground
meat to ambient pressure; and
t) removing the packaged frozen ground meat from the
pressurization vessel.
(App. Br. 14, Claims Appendix.)
The Examiner maintains, and Appellants appeal, the following
rejections under 35 U.S.C. § 103(a):
(a) Claims 1--'3, 7, 8, and 12-19 as being unpatentable over Meyer
(WO 2009/003040 Al, published Dec. 31, 2008); and
(b) Claims 6, 9-11, 21, and 22 as being unpatentable over Meyer in
view of Yuan et al. (US 2003/0170356 Al, published Sept. 11, 2003)
(hereinafter "Yuan").
The Examiner also provisionally rejected claims 1-3, 6-19, 21, and
22 for obviousness type double patenting over: (i) claims 1, 2, and 5-19 of
copending Application No. 13/497,843 and (ii) claims 1-11 of copending
Application No. 13/700,579.
At the outset, we do not reach the merits of the Examiner's
provisional double patenting rejections. Ex parte Jerg, 2012 WL 1375142 at
*3 (BP AI 2012) (informative) ("Panels have the flexibility to reach or not
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reach provisional obviousness-type double-patenting rejections.") (citing Ex
parte Monda, 95 USPQ2d 1884 (BPAI 2010) (precedential)).
With the exception of claims 6, 16-18, and 22, Appellants do not
make separate substantive arguments in support of patentability of any of the
claims (see generally, Appeal Br. 5-11; Reply Br. 2--4). Accordingly, our
discussion will focus on the obviousness rejection of independent claim 1.
Claims 6, 16-18, and 22 will be addressed separately.
ANALYSIS
Upon consideration of the evidence on this record and each of
Appellants' contentions, we find that the preponderance of evidence of
record supports the Examiner's conclusion that independent claim 1 and all
of its dependent claims are unpatentable over the applied prior art.
Appellants have failed to show that the Examiner erred reversibly. We
sustain the Examiner's§ 103 rejections, as listed in (a) and (b) above, of all
the appealed claims for essentially the reasons set out by the Examiner in the
Final Office Action and the Answer.
We add the following primarily for emphasis.
The Examiner finds Meyer teaches pressurizing packaged frozen
ground meat within 325-350 MPa, i.e., 47,137-50,763 psi (Ans. 7 (citing
Meyer, 22 (claim 14))). The Examiner further finds Meyer teaches
pressurizing frozen temperature sensitive material to at least 250 MPa for at
least 3 minutes, i.e., 180 seconds (Ans. 7 (citing Meyer, Abstract)). Thus,
the relied upon reference, Meyer, discloses a process for preserving frozen
ground meat by applying pressure within a range for a minimum amount of
time that overlaps with the instant claimed process having pressure ("at least
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about 50,000 psi pressure" (claim 1)) and time ("about 1 to about 300
seconds" (claiml)) requirements (see, e.g., Ans. 7 (citing Meyer, claim 14;
Abstract)).
It is well established that where the claimed ranges overlap or lie
inside ranges disclosed by the prior art, a prima facie case of obviousness
exists. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); In re
Geisler, 116 F.3d 1465, 1469 (Fed. Cir. 1997); In re Woodruff, 919 F.2d
1575, 1578 (Fed. Cir. 1990); In re Wertheim, 541F.2d257, 267 (CCPA
1976).
Appellants do not specifically address the Examiner's findings
regarding overlapping ranges (see generally App. Br. 7-11; Reply Br. 2--4).
Rather, Appellants argue that, "upon consideration of the complete teaching
[of] Meyer by the skilled artisan, one would recognize that the presently
claimed ranges are different from that described in Meyer" (Reply Br. 2).
Appellants further assert that application of high pressure, which causes the
temperature of the material to rise during sterilization, runs counter to
Meyer's "fundamental requirement ... that the material to be treated must
critically be maintained in the frozen state" (id. at 3; see also App. Br. 8).
Appellants assert that application of high pressure is cost prohibitive (Reply
Br. 3), yet this argument ignores Yuan's teaching of a pressure range
deemed high by the Specification (Spec. i-f 28). Appellants' arguments are
not persuasive because it is well established that a reference may be relied
upon for all that it would have reasonably suggested to one having ordinary
skill in the art, including non-preferred embodiments. In re Applied
Materials, Inc. 692 F.3d 1289, 1298 (Fed. Cir. 2012) ("A reference must be
considered for everything that it teaches, not simply the described invention .
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Application 13/497,876
.. . ");see also, e.g., J\lferck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807
(Fed. Cir. 1989).
The law is replete with cases in which the difference between the
claimed invention and the prior art is some range or other variable within the
claims. These cases have consistently held that the Appellants must show
that the particular range is critical, generally by showing that the claimed
range achieves unexpected results relative to the prior art range. See, e.g.,
Peterson, 315 F.3d at 1329; Woodruff, 919 F.2d at 1578. The burden rests
with Appellants to establish ( 1) that the alleged unexpected results presented
as being associated with the claimed invention are, in fact, unexpected, (2)
that the comparisons are to the disclosure of the closest prior art, and (3) that
the supplied evidentiary showing is commensurate in scope with the claimed
subject matter. See In re Klosak, 455 F .2d 1077, 1080 (CCP A 1972).
Appellants do not rely on any evidence in the Briefs demonstrating
that the particular claimed ranges are critical. There has been no persuasive
showing on this record that the claimed ranges achieve unexpected results
relative to the ranges taught by Meyer (with or without Yuan).
Thus, a preponderance of the evidence supports the Examiner's
reasoned position that it would have been prima facie obvious to preserve
frozen ground meat under an elevated pressure and for a duration that
overlaps the claimed ranges.
Separately argued claims 16-18 of rejection (a)
Claims 16-18 are drawn to additional food inclusions, a group of food
inclusions, and seasoning inclusions, respectively. The Examiner finds that
Meyer discloses a list of representative meat products that are well
understood by the ordinary skilled artisan as including the flavorings and
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seasonings recited in these claims (Ans. 8). The Examiner determines that
"one of ordinary skill in the art would have been motivated to include
additional flavoring depending on the personal preferences of the consumer
and the further intended use or nature of the ground meat product" (id.).
Appellants argue that "the presently claimed process requires that the
frozen ground meat is fresh ground meat that has been frozen, and therefore
is not cooked" (App. Br. 10). According to Appellants, the present
invention is distinguished from the prior art because Meyer's disclosed food
products contain meat combined with inclusions that are both cooked prior
to freezing (id.).
Appellants' arguments are not persuasive because it is well settled that
a reference stands for all of the specific teachings thereof as well as the
inferences one of ordinary skill in this art would have reasonably been
expected to draw therefrom. See In re Fritch, 972 F.2d 1260, 1264---65 (Fed.
Cir. 1992). In this case, the ordinary skilled artisan could reasonably infer
whether a food inclusion should be cooked or not, depending on the cooked
or uncooked nature of the ground meat product.
Separately argued claims 6 and 22 of rejection (b)
Claim 6 and 22 require pressures of about 60,000 psi to about 115,000
psi and about 85,000 psi to about 100,000 psi, respectively. The Examiner
finds that Meyer is silent as to the pressures recited in these claims (Final
Act. 4). The Examiner, however, relies on Yuan for teaching pressure
ranges between 50-10,000 MPa (id.). The Examiner determines that "the
[Appellants'] applied pressure is seen to have been a result-effective variable
which is routinely determinable" (id. at 7).
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Appellants argue that "Yuan does not provide a teaching that
identifies this aspect of the process parameter as a result-effective variable"
App. Br. 11. Appellants further argue that "[i]t is manifestly improper to
conclude that a given process parameter is a result-effective variable without
guidance from the prior art" (id.). According to Appellants, claims 6 and 22
are "particularly patentable, because they require that the material be treated
at a significantly different pressure from that of the prior art" (id. at 9).
A "recognition in the prior art that a property is affected by the
variable is sufficient to find the variable result-effective." Applied
Materials, 692 F.3d at 1297. Meyer discloses that time of pressure
application is dependent on the type of meat, the temperature, and pressure
(see Meyer Example 1 O; see also id. at Example 11 ). Thus, the prior art
teaches that the property of pressure application duration is affected by the
pressure variable. Moreover, it is well settled that it would have been
obvious for an artisan with ordinary skill to develop workable or even
optimum ranges for result-effective parameters. In re Boesch, 617 F.2d 272,
276 (CCPA 1980); Woodruff, 919 F.2d at 1578 (where the difference
between the claimed invention and the prior art is some range, the applicant
must show that the particular range is critical, generally by showing that the
claimed range achieves unexpected results relative to the prior art range).
On this record, Appellants do not rely upon any evidence of
unexpected results.
We affirm rejections (a) and (b).
DECISION
The Examiner's§ 103 rejections are affirmed.
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THvIE PERIOD
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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