Ex Parte Roth

Patent Trial and Appeal Board

Jan 27, 2016

11502841 (P.T.A.B. Jan. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111502,841 08/1112006
35236 7590 01/29/2016
The Culbertson Group, P.C.
1524 S. IH-35
Suite 209
Austin, TX 78704
FIRST NAMED INVENTOR
Eldon Roth
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.
317 .1053006 1004
EXAMINER
CHAWLA, JYOTI
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
01129/2016 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):
rculbertson@tcg-ipl.com
rculbertson@sbcglobal.net
docket@tcg-ipl.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ELDON ROTH
Appeal2013-007937
Application 11/502,841 1
Technology Center 1700
Before PETER F. KRATZ, JEFFREY T. SMITH, and
N. WHITNEY WILSON, Administrative Patent Judges.
KRATZ, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on an appeal under 35 U.S.C. § 134 from the
Examiner's final rejection of claims 1-15 and 17-20. We have jurisdiction
pursuant to 35 U.S.C. § 6.
Appellant's claimed invention is directed to a method for treating
meat products with carbon monoxide and an injection fluid mixture wherein
pH modifying material is injected as part of a fluid into the meat product as a
pre-treatment fluid and/or post-treatment fluid, or simultaneously with the
injection of the CO-containing injection fluid, and wherein the carbon
1 According to Appellant, the real party in interest is Freezing Machines, Inc.
App. Br. 3.
Appeal2013-007937
Application 11/502,841
monoxide in the CO-containing injection treatment mixture includes no
gaseous phase CO.
Claims 1, 8, and 15 are illustrative and reproduced below:
1. A method including:
(a) injecting a treatment mixture into an interior volume
of a meat product at an injection location, the treatment mixture
including carbon monoxide and an injection fluid and being
injected into the volume of the meat product through an
injection conduit inserted into the volume of the meat product,
wherein the meat product comprises an uncooked cut of meat,
and wherein the carbon monoxide in the treatment mixture is in
solution such that the treatment mixture includes no gaseous
phase carbon monoxide; and
(b) injecting a pre-treatment fluid into the volume of the
meat product prior to injecting the treatment mixture, the pre-
treatment fluid including a pH modifying material and being
injected into the volume of the meat product through the
injection conduit or an additional injection conduit inserted into
the volume of the meat product.
8. A method including:
(a) injecting a treatment mixture into an interior volume
of a meat product at an injection location, the treatment mixture
containing carbon monoxide and an injection fluid and being
injected into the volume of the meat product through an
injection conduit inserted into the volume of the meat product,
wherein the meat product comprises an uncooked cut of meat,
and wherein the carbon monoxide in the treatment mixture is in
solution such that the treatment mixture includes no gaseous
phase carbon monoxide; and
(b) injecting a post-treatment fluid into the volume of the
meat product after injecting the treatment mixture, the post-
treatment fluid including a pH modifying material and being
injected into the volume of the meat product through the
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Appeal2013-007937
Application 11/502,841
injection conduit or an additional injection conduit inserted into
the volume of the meat product.
15. A method including:
(a) injecting carbon monoxide into an interior volume of
a meat product at an injection location, the carbon monoxide
being injected into the volume of the meat product through an
injection conduit inserted into the volume of the meat product,
wherein the meat product comprises an uncooked cut of meat,
and wherein the injected carbon monoxide is in solution in a
carrier liquid with no gaseous phase carbon monoxide in the
carrier liquid; and
(b) injecting a pH modifying material into the volume of
the meat product simultaneously with injecting the carbon
monoxide, the pH modifying material comprising an ammonia-
based pH increasing material and being injected into the
volume of the meat product through the injection conduit or an
additional injection conduit inserted into the volume of the meat
product.
The Examiner relies on the follo\x1ing prior art references as evidence
in rejecting the appealed claims:
Hood
Townsend
Woodruff et al.
Roth ("Roth '142")
Roth ("Roth '777")
Kowalski
us 4,001,446
us 4,220,669
us 4,522,835
us 5,433,142
US 2002/0015777 Al
US 2003/0044497 Al
Jan.4, 1977
Sept. 2, 1980
June 11, 1985
July 18, 1995
Feb. 7,2002
Mar. 6, 2003
Mallinckrodt Baker, Inc., Environmental Health & Safety, Material
Safety Data Sheet-Ammonium Hydroxide (10-35% NH3) (Aug. 15,
2004), http://wwwjtbaker.com/msds/englishhtml/A5916
("Ammonium Hydroxide").
Ammonia, Chemical and Physical Information (Oct. 21, 2004),
http://www.atsdr.cdc.gov/toxnrofiles/tpl26-c4.ndf ("Ammonia").
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Appeal2013-007937
Application 11/502,841
The Examiner maintains the following grounds of rejection:
Claims 1-15 and 17-20 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Roth '777 in view of Roth '142, Townsend, Hood,
Kowalski, and evidentiary references for ammonium hydroxide, a Material
Safety Data Sheet from Mallinckrodt Baker, Inc. (Ammonium Hydroxide)
and for ammonia, chemical and physical information for ammonia from
cdc.gov (Ammonia). 2
We reverse the stated rejection.
It is well settled that the burden of establishing a prima facie case of
non-patentability resides with the Examiner. See In re Piasecki, 7 45 F .2d
1468, 1472 (Fed. Cir. 1984).
Here, the Examiner's reliance on a combination of Roth '777, Roth
'142, Townsend, Hood, Kowalski, and the cited evidentiary references to
underpin the stated obviousness rejections is not well-founded. In this
regard and as recognized by the Examiner, Roth'777 fails to teach several of
the required limitations respecting the rejected claims, including the step of
injecting a treatment mixture including carbon monoxide and an injection
fluid into an uncooked cut of meat wherein the carbon monoxide in the
treatment mixture is in solution such that the treatment mixture includes no
gaseous phase carbon monoxide as required in all of the independent claims
(claims 1, 8, and 15) subject to the stated rejection (Ans. 5, 7). For the use
2 Appellant does not dispute that the evidentiary information on ammonia
and/or ammonium hydroxide that the Examiner relies upon in the stated
rejection and which information is found in the Ammonium Hydroxide
and/or Ammonia evidentiary references is information that was available as
prior art to the claimed subject matter.
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Appeal2013-007937
Application 11/502,841
of carbon monoxide in treating a meat product, the Examiner turns to the
applied Roth '142, Hood, and Kowalski references (Ans. 5-11, 16-29). 3
Roth '142 discloses the use of gaseous carbon monoxide as one of
several enumerated gases that may be selected as a working gas for the food
processing process of Roth '142 wherein a pressurization and pressure
release cycle is implemented for contacting foodstuff with the working gas
to reduce the microbe content of the foodstuff through the pressure cycling
technique (col. 2, 11. 4--41, col. 6, 11. 9-38). Thus, as argued by Appellant,
Roth '142 is not particularly suggestive or instructive as to the proposed
modification of Roth '777 so as to include a step of injecting a treatment
mixture including carbon monoxide and an injection fluid into an uncooked
cut of meat wherein the carbon monoxide in the treatment mixture is in
solution such that the treatment mixture includes no gaseous phase carbon
monoxide as required by independent claims 1, 8, and 15 (App. Br. 10).
Hood is directed to forming a food product containing color stabilized
animal protein, such as a pet food, wherein carbon monoxide gas is used to
treat animal protein slurry, which slurry can include blood, to complex with
hemoglobin or myoglobin so as to from a stable red colored product (col. 1,
11. 5-20, col. 2, 11. 29- col. 4, 1. 20; col. 6, 11. 19-44). As argued by
Appellant, the teachings of Hood are directed to treating the animal protein
3 The Examiner further refers to Woodruff (U.S. Patent No. 4,522,835) and
Shaklai (U.S. Patent No. 6,270,829) as admitted prior art to the extent the
contents of these documents are described in the Background of Invention
section of Appellant's Specification (Ans. 5; Spec. 1-2). However, the
Examiner does not list these documents as references relied upon in the
statement of the rejection. Thus, the latter documents themselves are not
before us in considering the Examiner's rejection.
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Appeal2013-007937
Application 11/502,841
slurry with gaseous CO and the Examiner has not established the applied
prior art, particularly given the teachings of Hood, would have led one of
ordinary skill in the art to modify Roth '777 by including a step of injecting
a treatment mixture including carbon monoxide and an injection fluid into an
uncooked cut of meat wherein the carbon monoxide in the treatment mixture
is in solution such that the treatment mixture includes no gaseous phase
carbon monoxide as part of the process of Roth '777, as required by
independent claims 1, 8, and 15 (App. Br. 6-11; Reply Br. 2---6).
Kowalski is principally directed to treating fish for harvesting with
tasteless smoke or CO via introduction through the respiratory and
circulatory system such as by introducing the smoke and/ or carbon
monoxide in water in which the fish are swimming to preserve the freshness,
color, texture, and flavor of the edible muscle tissue (i-fi-f l-13, 90, 92, 94;
Figs. 5-8). Kowalski further teaches that fish that have recently expired
may have CO that is dissolved or entrained in blood plasma delivered
through the circulatory system of the expired fish via a mechanical pump (id.
i-f 131 ). Kowalski discloses that other animals may be treated with gaseous
CO and other techniques may be employed while bypassing the heart and
circulatory system (id. i-fi-f l 7 5-177).
Appellant argues that (1) the applied prior art, including Kowalski,
fails to teach or suggest a CO-treatment mixture comprises CO in solution
such that the mixture includes no gaseous phase CO as required by all of the
appealed claims and (2) there is no apparent reason that would prompt one
of ordinary skill in the art to modify Roth '777 to inject a treatment material
including CO held in solution without gaseous phase CO being present into
a cut of meat as required by the present claims based on the proposed
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Appeal2013-007937
Application 11/502,841
combination of references, including Kowalski, to reach the claimed subject
matter (App. Br. 5-12; Reply Br. 2-7). We concur.
Even though Kowalski teaches dissolving or entraining CO in blood
plasma or water (via bubbling) for treating live or recently expired fish (or
other animals), the Examiner has not reasonably articulated how those
teachings would have suggested that the carrier fluid for the CO of Kowalski
was free of gaseous phase CO, much less that such a technique should be
employed for forming a treating fluid for injecting into a volume of cut meat
for modifying the process of Roth '777 in a manner to arrive at the claimed
subject matter including the additional pH modification injection treatment
of the cut meat as provided for in the rejected claims. See KSR Int 'l Co. v.
Teleflex Inc., 550 U.S. 398, 418 (2007) (establishing a prima facie case of
obviousness requires an apparent reason to modify the prior art as proposed
by the Examiner).
Thus, the record indicates that the rejections are based upon
impermissible hindsight in view of the Appellant's disclosure. See In re
Warner, 379 F.2d 1011, 1017 (CCPA 1967) ("A rejection based on section
103 clearly must rest on a factual basis, and these facts must be interpreted
without hindsight reconstruction of the invention from the prior art").
Accordingly, we reverse the rejection.
CONCLUSION
The Examiner's decision to reject the appealed claims is reversed.
REVERSED
bar
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