Ex Parte Roth et al

Patent Trial and Appeal Board

Jan 27, 2016

11405058 (P.T.A.B. Jan. 27, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111405,058 04/17/2006 Eldon Roth
35236 7590 01/29/2016
The Culbertson Group, P.C.
1524 S. IH-35
Suite 209
Austin, TX 78704
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 .1053004 2139
EXAMINER
TARAZANO, DONALD LAWRENCE
ART UNIT PAPER NUMBER
1791
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, MICHAEL N. RUCKS, and RYAN A. DIAL
Appeal2014-005646
Application 11/405,058 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 1-5, 7-18, 20-22, and 24. We have
jurisdiction pursuant to 35 U.S.C. § 6.
Appellants' claimed invention is directed to a method for treating an
uncooked cut of meat with a treatment material comprising carbon
monoxide in solution in a carrier liquid wherein the CO content of the
treatment material is at or below the solubility level of CO in the carrier
liquid at the temperature of the carrier liquid with substantially all of the CO
1 According to Appellants, the real party in interest is Freezing Machines,
Inc. App. Br. 3.
Appeal2014-005646
Application 11/405,058
being held in solution in the carrier liquid and by applying the treatment
material to a surface of the uncooked cut of meat while the CO is held in
solution. The method can further include the step of injecting treatment
material into the interior of the cut of meat. According to Appellants, the
disclosed invention provides for obtaining the microbe inhibiting benefits
associated with CO treatment while mitigating problems pertaining to an
unnatural coloration of meats disclosed as accompanying prior art methods
of treating meat with CO (Spec. 2-4).
Claims 1 and 16 are illustrative and reproduced below:
1. A method for treating an uncooked cut of meat, the
method including:
(a) providing a treatment material containing carbon
monoxide and a carrier liquid, the carbon monoxide content in
the treatment material being at or below the solubility level of
carbon monoxide in the carrier liquid at the temperature of the
carrier liquid with substantially all of the carbon monoxide
being held in solution in the carrier liquid; and
(b) applying the treatment material to a surface of the
uncooked cut of meat while substantially all of the carbon
monoxide in the treatment material applied to the uncooked cut
of meat is held in solution in the carrier liquid of the applied
treatment material.
16. A method for treating an uncooked cut of meat, the
method including:
(a) injecting an interior treatment material into an interior
volume of the uncooked cut of meat, the interior treatment
material including a first carbon monoxide concentration;
(b) applying a surface treatment material to a surface of
the uncooked cut of meat, the surface treatment material
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Appeal2014-005646
Application 11/405,058
including a second carbon monoxide concentration greater than
the first carbon monoxide concentration; and
( c) wherein the carbon monoxide content in the interior
treatment material is at or below the solubility level of carbon
monoxide in a carrier liquid of the interior treatment material
such that substantially all of the carbon monoxide in the interior
treatment material is held in solution in the interior treatment
material, and wherein the carbon monoxide content in the
surface treatment material is at or below the solubility level of
carbon monoxide in a carrier liquid of the surface treatment
material such that substantially all of the carbon monoxide in
the surface treatment material is held in solution in the surface
treatment material.
The Examiner relies on the following prior art references as evidence
in rejecting the appealed claims:
Hergert
Lagares-Corominas
Roth ("Roth '795")
Roth ("Roth '067")
Roth ("Roth '728")
Roth ("Roth '426")
Roth ("Roth '314")
Roth ("Roth '700")
us 2,145,393
us 5,507,221
us 5,871,795
us 6, 142,067
US 6,379,728 Bl
US 6,387,426 Bl
US 2002/0127314 Al
US 6,564,700 B2
Jan.31, 1939
Apr. 16, 1996
Feb. 16, 1999
Nov. 7, 2000
Apr. 30, 2002
May 14, 2002
Sept. 12, 2002
May 20, 2003
The Examiner maintains the following grounds of rejection:
Claims 1, 2, 8, 21, and 22 stand rejected under 35 U.S.C.
§ § 102(b )/103 (a) as being anticipated/unpatentable over Hergert. 2
2 In the Final Office Action, the rejection was tendered under 35 U.S.C.
§ 103(a) (FOA 2-5). The record does not reflect that Appellants filed a
petition requesting that the rejection be designated a new ground of
rejection. In this regard, Appellants presented argument against the
Examiner's obviousness rejection over Hergert as set forth in the Final
Office Action, including observing that the obviousness rejection was
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Appeal2014-005646
Application 11/405,058
Claims 3-5, 7, 9-18, 20, and 24 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Hergert in view of Roth '728, Roth
'426, Roth '795, Roth '067, Roth '700, Roth '314, and Lagares-Corominas.
We reverse the stated rejections.
Concerning the Examiner's anticipation/obviousness rejection over
Hergert, we concur with Appellants that the Examiner errs in asserting that
the subject Specification provides a definition for the claim term
"substantially all of the carbon monoxide is held in solution in the carrier
liquid" that embraces carbon monoxide being in the form of a gas suspended
in the carrier liquid and utilizing such an interpretation of the rejected claims
in applying Hergert in the tendered anticipation/obviousness rejection
(Reply Br. 2-6; App. Br. 6-10).
In light of the Specification definition asserted by the Examiner, the
Examiner maintains, in essence, that the cold gas pressurized charged water
material that is atomized and then applied for treating the surface of frozen
fish to form a glaze covering in Hergert falls within the scope of the
application of a treatment material to the surface of a cut of meat as claimed
by Appellants. This is principally because it is the Examiner's view that
some gas remains dissolved in the solvent water/ice of Hergert and the
claimed treatment material encompasses treatment material comprising CO
gas charged water (with at least some CO in solution) that releases gas as it
is applied as treatment material to a frozen fish surface as
described/suggested by Hergert (Ans. 2-5, 11-2).
presented as if it was premised on an anticipation standard (App. Br. 8-9).
The Examiner apparently agrees with Appellants' assessment (Ans. 11).
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Appeal2014-005646
Application 11/405,058
The Examiner's anticipation/obviousness position is not sustainable
because Appellants do not provide a definition for the claim term discussed
above at the cited portion of page 10 of the Specification, on the basis of
which supposed definition Hergert is applied to the claimed subject matter.
Rather, and as argued by Appellants, the cited Specification passage
differentiates certain preferred disclosed embodiments wherein the CO
treatment material includes substantially all of its carbon monoxide held in
solution in a carrier liquid with other disclosed embodiments wherein some
CO may also be in the form of a gas suspended in the carrier liquid (Reply
Br. 2-3; Spec. 10, 11. 13-16; Hergert 2, col. 1, 1. 52-4, col. 1, 1. 4).
Given that the Examiner has applied the prior art utilizing an incorrect
interpretation of the rejected claims, we do not sustain the Examiner's
anticipation/obviousness rejection on this record.
The above noted error set forth in the Examiner's tendering of the
base rejection carries forward to the separate obviousness rejection of certain
claims over Hergert in view of several additional references. In particular,
the Examiner's application of the additional references to independent claim
16 and certain dependent claims in the second obviousness rejection does
not cure the aforementioned deficiency in the base rejection. For the reasons
outlined above and for the additional reasons as set forth by Appellants with
regard to claim 16, we reverse the Examiner's second stated rejection.
CONCLUSION
The Examiner's decision to reject the appealed claims is reversed.
REVERSED
bar
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