Ex Parte Townsend

Board of Patent Appeals and Interferences

Jun 27, 2002

09060012 (B.P.A.I. Jun. 27, 2002)

The opinion in support of the decision being entered today was not
written for publication and is not binding precedent of the Board.

Paper No. 20

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte RAY T. TOWNSEND
__________

Appeal No. 2000-1052
Application No. 09/060,012
___________

ON BRIEF
___________

Before PAK, DELMENDO, and JEFFREY T. SMITH, Administrative
Patent Judges.

DELMENDO, 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 22 and 24 in the above-
identified application. Claims 20, 21, and 26, which are the
only other pending claims, have been withdrawn from further
consideration pursuant to a restriction requirement. 37 CFR
§ 1.142(b) (1959).
The subject matter on appeal relates to a method of
injecting fluid (pickle) into a meat product. (Appeal brief
Appeal No. 2000-1052
Application No. 09/060,012

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filed Aug. 26, 1999, paper 16, pages 4-6.) Further details of
this appealed subject matter are recited in appealed claims 22
and 24 reproduced below:
22. A method of injecting fluid into a meat
product, comprising,
continually and longitudinally moving a meat
product having an upper surface through a meat
injection station, and injecting a fluid at spaced
points over said upper surface into said meat product
while said meat product is on and moving through said
meat injection station,
moving a battery of fluid injection needles
connected to a source of fluid into and out of a meat
product on said injection station at a variable speed,
coordinating the volume of fluid injected through
said needles with the variable velocity of said
needles so that fluid is uniformly discharged from
said needles into a meat product on said meat
injection station in spite of the varying speed of
said needles.

24. The method of claim 22 wherein said needles
are raised and lowered towards and away from said meat
injection station in a circular path.

The examiner relies on the following prior art references
as evidence of unpatentability:
Rejsa et al. 3,675,567 Jul. 11, 1972
(Rejsa)

Townsend 3,863,556 Feb. 4, 1975

In addition, the examiner cites the following prior art
references "to rebut appellant's arguments...related to the
structure and function of the nozzles disclosed in the patent to
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Application No. 09/060,012

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Rejsa..." (examiner's answer of Sep. 20, 1999, paper 17, page
4):
Sholl 3,649,299 Mar. 14, 1972
Sholl 3,769,037 Oct. 30, 1973
Appealed claims 22 and 24 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over Townsend in view of Rejsa. (Id.
at pages 4-5.)
We reverse this rejection.
Before discussing the merits of the examiner's proposed
combination of prior art references, we consider the
significance of the last recited step (i.e., the
"coordinating..." step) of appealed claim 22. The appellant
explains that conventional fluid injection machines have a
vertically reciprocating crosshead, which is typically driven by
a crank, and multiple needles. (Specification, page 1, first
paragraph.) The appellant further discloses that the prior art
processes using these conventional fluid injection machines
suffer from several drawbacks. (Id. at pages 1-2.)
Specifically, one of the problems is identified in the
specification as follows (id.):
Such fluid injection machines for meat products
have been used for many years, but they have several
negative factors, one of which is very detrimental.
The distribution of pickle throughout the [pork] belly
should be as uniform as possible. That means that
Appeal No. 2000-1052
Application No. 09/060,012

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every cubic centimeter should have the same amount of
pickle throughout the entire belly. When the
crosshead and needles are moved up and down by a crank
mechanism, the velocity of the needles is constantly
changing from zero to maximum and back to zero, etc.
as the needles move up and down in the belly. With a
constant flow pump, the bellies get more or less
pickle per cubic centimeter, depending on the velocity
of the needles in moving into and out of the meat.
Stated differently pickle is generally supplied
into the injector head by a positive displacement pump
with constant flow rate. The needles driven by a
rotational crank travel at a variable speed through
the thickness. When needles are near either top or
bottom position, the needle traveling speed is close
to zero, while at the middle stroke needles travel at
highest speed. More pickle is injected per unit
length of travel when needles are moving at slow speed
and less pickle is injected at high speed. It is
highly desirable to inject equal amount of pickle per
unit length of thickness to achieve the best quality
of injection.

The appellant's solution to this problem is as follows (id.
at page 5):
The constant change in velocity of the needles means
that the time that a needle is passing through each
vertical centimeter will constantly be changing from
fast to slow to fast to slow. Thus, the flow of
pickle should also change accordingly. This invention
accomplishes this goal by using a double action piston
type pump where the piston is controlled or
synchronized by the same drive as the needles. That
piston pump is timed exactly with the needle crank, so
that the action of the piston pump corresponds with
the timing of the crank action that drives the
needles. This assures that the flow of pickle from
the pump at any instant of time will correspond with
the velocity of the needles at that same instant of
time. Therefore, the amount of pickle injected into
every portion of the belly will be constant and
uniform throughout the bellies in spite of the
variation in velocity of the needles due to the crank
Appeal No. 2000-1052
Application No. 09/060,012

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action. This is a very important principle because it
allows for the use of an efficient crank action to
reciprocate the needles and still gives a flow of
pickle that corresponds to the velocity of the needles
at all times.

We now turn to the examiner's rejection. The examiner
states that Townsend "teaches the use of a machine for injecting
fluids into meat products, wherein the meat (38) is placed on a
conveyor belt (12) and transported to a [sic] injection station
(20) where the meat is injected with a fluid by using moving a
battery of fluid injection needles (36) connected to a source of
fluid into and out of the meat product..." (Answer, page 4.)
According to the examiner (id.), Townsend does not disclose
"continuous longitudinal movement of the meat product while
being injected with fluid."
The examiner next relies on Rejsa for "the concept of
continuous longitudinal movement of a meat product while being
injected with fluid in a meat injecting apparatus." (Id.)
Based on these factual findings, the examiner concludes (id. at
page 5):
Therefore, it would have been obvious to one of
ordinary skill in the art at the time the invention
was made to have provided Townsend with the continuous
longitudinal movement of the meat product while being
injected as taught by Rejsa et al. in order to rapidly
and efficiently inject a high throughput of meat
product an hour with liquid flavoring or tenderizing
materials or both, simultaneously injecting different
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Application No. 09/060,012

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cuts of meat, and the ability to inject different
quantities of liquid into the meat product.

The appellant, on the other hand, argues that neither
Townsend nor Rejsa teaches or suggests the "coordinating" step
recited in appealed claim 22. (Appeal brief, page 11.)
We must agree with the appellant. The examiner does not
point to any portion of either Townsend or Rejsa establishing
that the applied prior art expressly teaches, or would have
suggested to one ordinary skill in the art, the "coordinating"
step recited in appealed claim 22. Because the proposed
combination of references does not satisfy all of the claim
limitations, the examiner's rejection fails.
The two Sholl patents, which are not listed in the
statement of the rejection,1 are said to "illustrate that...the
nozzle contacts and penetrates the meat product at the time the
fluid is injected into the meat product." (Answer, page 7.) In
addition to our determination that these references do not
remedy the fundamental deficiency in the examiner's combination
of Townsend and Rejsa, we also note that the examiner has
misinterpreted the teachings of these references. Contrary to

1 In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407
n.3 (CCPA 1970)("Where a reference is relied on to support a
rejection, whether or not in a 'minor capacity,' there would
appear to be no excuse for not positively including the
reference in the statement of rejection.").
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Application No. 09/060,012

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the examiner's statement, these references do not teach that the
"nozzle contacts and penetrates the meat product." The Sholl
patents merely teach that the focal point of the jet streams,
not the nozzles, can be located at the surface or beneath the
surface of the meat product. (Column 2, lines 44-48 of the '299
patent; column 3, lines 31-39 of the '037 patent.)
For these reasons, we reverse the examiner’s rejection
under 35 U.S.C. § 103(a) of appealed claims 22 and 24 as
unpatentable over Townsend in view of Rejsa.

Appeal No. 2000-1052
Application No. 09/060,012

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The decision of the examiner is reversed.
REVERSED

Chung K. Pak )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
Romulo H. Delmendo )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
)
Jeffrey T. Smith )
Administrative Patent Judge )

RHD/kis
Appeal No. 2000-1052
Application No. 09/060,012

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