Ex Parte Van De Nieuwelaar et alDownload PDFPatent Trial and Appeal BoardJan 22, 201812991099 (P.T.A.B. Jan. 22, 2018) Copy Citation 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. 12/991,099 01/28/2011 Adrianus Josephes Van De Nieuwelaar P07391US0-VAN DE NIEUWELA 6292 34082 7590 01/24/2018 7ART FY T AW FTRM PT .f EXAMINER CAPITAL SQUARE 400 LOCUST, SUITE 200 STULII, VERA DES MOINES, IA 50309-2350 ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 01/24/2018 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): kconrad@zarleylaw.com crasmu ssen @ zarley law .com emarty @ zarleylaw. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ADRIANUS JOSEPHES VAN DE NIEUWELAAR, MARCUS BERNHARD HUBERT BONTJER, MARTINUS WILHELMUS JOHANNUS KUIJPERS, and FREDERIK FRANCISCUS LEONARDUS ANKERSMIT Appeal 2017-002740 Application 12/991,099 Technology Center 1700 Before ROMULO H. DELMENDO, CHRISTOPHER C. KENNEDY, and SHELDON M. McGEE, Administrative Patent Judges. DELMENDO, Administrative Patent Judge. DECISION ON APPEAL The Applicants (hereinafter “Appellants”)1 appeal under 35 U.S.C. § 134(a) from the Primary Examiner’s non-final decision to reject claims 1, 4—12, 14—21, and 23.2 We have jurisdiction under 35 U.S.C. § 6(b). 1 The Appeal Brief filed July 15, 2016 (hereinafter “Appeal Br.”) does not include a section that identifies a real party in interest for this application. Therefore, pursuant to 37 C.F.R. § 41.37(c)(l)(i), the named inventors are presumed to be the real parties in interest. 2 Appeal Br. 3—9; Reply Brief filed December 7, 2016, hereinafter “Reply Br.,” 2—8; Non-Final Office Action entered December 24, 2015, hereinafter “Non-Final Act.,” 2—18; Examiner’s Answer entered October 7, 2016, hereinafter “Ans.,” 2—21. Appeal 2017-002740 Application 12/991,099 We affirm. I. BACKGROUND As required by 37 C.F.R. § 41.37(c)(l)(ii), the Appellants direct our attention to Application 14/513,434 (’434 Application), which relates to “similar subject matter” (Appeal Br. ii, “RELATED APPEALS”). An appeal in the ’434 Application is currently pending (2017-003215).3 The subject matter on appeal relates to a method for manufacturing sausage products (Specification filed November 4, 2010, hereinafter “Spec.,” 1,11. 3—8). The Appellants’ Figure 1, reproduced below, is illustrative: 3 The claims of the ’434 Application are provisionally rejected under the doctrine of obviousness-type double patenting over claims 7—12 and 14—20 of the current application (Examiner’s Answer entered October 7, 2016 at 2— 3). Although the claims in the current appeal appear to be patentably indistinct from the claims in the ’434 Application, a double patenting rejection has not been entered in the current application. In the event of further prosecution, the Examiner should consider whether a double patenting rejection over the claims in the ’434 Application—either alone or in combination with prior art—is appropriate. 2 Appeal 2017-002740 Application 12/991,099 Figure 1 above depicts a method according to claim 1, wherein the method includes, inter alia: transporting food dough at 1 and a paste that is to be formed as a casing at 2 into a co-extrusion head at co-extrusion process 3, into which is fed a structure improver 2A; co-extruding the food dough and paste; subjecting the co-extruded sausage to a fixing bath at 4; cutting and dividing the sausage strand at 5; cooking the sausage with heat in a moist environment at 6; performing optional process 7; and packaging the sausages at 8 (Spec. 8,1. 16—9,1. 11). Representative claim 1 is reproduced from the Claims Appendix to the Appeal Brief (Appeal Br. 11), with key limitations emphasized, as follows: 1. Method for manufacturing sausage products by means of co-extrusion, wherein the method comprises the following steps of: A) providing a food dough; B) providing a viscous paste; C) producing by means of co-extrusion a sausage strand with a core of food dough enclosed by a casing of the paste; D) subdividing the sausage strand into sausage products; and E) guiding the sausage through a fixing bath, whereby the cohesion of the sausage increases; characterized in that a structure improver is added to the viscous paste during[4] the co-extrusion -, 4 Although claim 1 recites that the structure improver is added to the viscous paste “during” co-extrusion, Figure 1 above shows that it is actually added before co-extrusion process 3. In the event of further prosecution, the Examiner and the Appellants should consider whether a clarifying amendment is required. 3 Appeal 2017-002740 Application 12/991,099 wherein the structure improver comprises a mechanically acting structure improver, characterized in that the maximum period of time during which the structure improver is added to the viscous paste during co-extrusion is such that the cohesion of the casing amounts at the moment of co-extrusion to less than 50% of the cohesion of the casing of the finished sausage product and the maximum period of time during which the structure improver is added to the viscous paste is a maximum 20 seconds before the sausage strand leaves the co-extrusion head; wherein the mechanically acting structure improver is selected from an additional fiber material, cellulose, pectin, collagen, and combinations thereof II. REJECTIONS ON APPEAL On appeal, the Examiner maintains four rejections under pre-AIA 35 U.S.C. § 103(a), as follows: A. Claims 1, 4—6, 21, and 23 as unpatentable over Shulman et al.5 (hereinafter “Shulman”) in view of Winkler et al.6 (hereinafter “Winkler”) and Van den Dungen et al.7 (hereinafter “Van den Dungen”); B. Claims 1, 4—6, 21, and 23 as unpatentable over Bontjer et al.8 (hereinafter “Bontjer”) in view of Winkler and Van den Dungen; 5 EP 1 834 525 Al, published September 19, 2007. 6 US 3,961,085, issued June 1, 1976. 7 WO 00/44233, published August 3, 2000. 8 WO 2006/135238 A2, published December 21, 2006. 4 Appeal 2017-002740 Application 12/991,099 C. Claims 7—12 and 14—20 as unpatentable over Shulman in view of Van den Dungen; and D. Claims 7—12 and 14—20 as unpatentable over Bontjer in view of Van den Dungen. (Ans. 2—15; Non-Final Act. 2—15.) III. DISCUSSION The rejections based on Shulman as a principal reference and the rejections based on Bontjer as a principal reference appear to be cumulative (Ans. 2—21). Consistent with that observation, the Appellants do not argue against Rejections A through D individually, but instead provide separate arguments under a heading that identifies claims 1 and 21 and another heading that identifies claim 7, respectively (Appeal Br. 3—9). In addition, the Appellants do not argue claims 1 and 21 separately from one another. Therefore, consistent with 37 C.F.R. § 41.37(c)(l)(iv), we confine our discussion to claims 1 and claim 7, with all other claims subject to Rejections A through D standing or falling with either claim 1 or claim 7.9 1. Rejections A and B (Claim 1) The Examiner finds that Shulman describes a method for manufacturing co-extruded sausage products including most of the limitations recited in claim 1 (Ans. 2-4). Specifically, regarding the 9 In our opinion below, we address the Appellants’ arguments only to the extent that they comply with the requirements set forth in 37 C.F.R. § 41.37(c)(l)(iv). Merely pointing out what a claim recites and/or providing a skeletal argument that the prior art references do not disclose or suggest a claim limitation (e.g., Appeal Br. 4,11. 4—12) are not arguments that require our consideration. Cf. In reLovin, 652 F.3d 1349, 1356—57 (Fed. Cir. 2011). 5 Appeal 2017-002740 Application 12/991,099 disputed “mechanically acting structure improver” (e.g., “collagen”) limitations, the Examiner finds that Shulman discloses a co-extrusion process in which a meat product is coated with a collagen gel that includes a cross-linking agent, the collagen gel including protein (collagen), and is then passed through a coagulation solution or fixing bath (id. at 2—3, 6 (relying on, e.g., Shulman || 7, 9, 19)). The Examiner also finds that Winkler teaches substances such as collagen act as cross-linkers to fix dyestuff to edible food casings (id. at 4). The Examiner concludes that “to employ structure improvers as disclosed by Winkler ... for the same function and purpose in the process as disclosed by Shulman . . . would have been obvious” (id. at 5 (relying on, e.g., Winkler col. 2,1. 67—col. 3,1. 37)). Similarly, the Examiner finds that Bontjer describes a method for manufacturing co-extruded sausage products in which a food dough is co extruded with a casing of viscous paste comprising, inter alia, collagen and then the co-extruded product is guided through a fixing bath (id. at 7 (citing Bontjer 4—6)). The Examiner also relies on Winkler’s teachings and reaches the same obviousness conclusion as in the rejection based primarily on Shulman (id. at 7—8). The Appellants contend that the prior art references do not teach the specified “the mechanically acting structure improver . . . selected from an additional fiber material, cellulose, pectin, collagen, and combinations thereof’ (Appeal Br. 3). The Appellants also argue that “upon reading Winkler, [a person having ordinary skill in the art] would only be taught to add fiber material, cellulose, pectin, collagen, and combinations therefore [sic] for the sole purpose of fixing dyes in the casings and thus reducing the elution of dyes out of the casing materials”—not as structure improvers (id. ). 6 Appeal 2017-002740 Application 12/991,099 The Appellants’ arguments fail to identify any reversible error in the Examiner’s rejections. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011). The Appellants’ contention that the prior art references do not teach a “mechanically acting structure improver” is based on an incorrect understanding of the prior art’s scope and content. As the Examiner finds (Ans. 2—3, 16—17), Shulman explicitly describes forming a collagen gel including collagen and then co-extruding it with a meat emulsion to form a coating on the meat emulsion (Shulman || 6, 9, 17, 19-20, 37). Bontjer, the other principal reference, includes a similar disclosure (Bontjer, Abstract; 2, 11. 4—6). Because collagen disclosed in Shulman and Bontjer is one of the species recited in claim 1 as a “mechanically acting structure improver,” it would reasonably appear that the collagen used in the prior art references would inherently or necessarily function as a “mechanically acting structure improver.” The Appellants do not direct us to any contrary evidence. Cf. In re Spada, 911 F.2d 705, 708 (Fed. Cir. 1990) (“Products of identical chemical composition can not have mutually exclusive properties.”). We also find no persuasive merit in the Appellants’ argument that “upon reading Winkler, [a person having ordinary skill in the art] would only be taught to add fiber material, cellulose, pectin, collagen, and combinations therefore for the sole purpose of fixing dyes in the casings” to reduce dye elution—not as a mechanically acting structure improver (Appeal Br. 3). As we found above, Shulman and Bontjer disclose collagen in the casing material prior to fixing. Moreover, although Winkler teaches using substances such as collagen for the purpose of fixing dyestuff to food casing, a person having ordinary skill in the art would have understood that—in addition to fixing the dyes—cross-linking as disclosed in the prior art would 7 Appeal 2017-002740 Application 12/991,099 act to improve the structural integrity by increasing chemical bonding. In any event, the motivation or reason to combine the references need not be the same as that of the Appellants. In re Kemps, 97 F.3d 1427, 1430 (Fed. Cir. 1996). For these reasons, we sustain Rejections A and B. 2. Rejections C and D (Claim 7) Claim 7 recites (Appeal Br. 12; disputed limitations emphasized): 7. Method for manufacturing sausage products by means of co-extrusion, wherein the method comprises the following steps of: A) providing a food dough; B) providing a viscous paste; C) producing by means of co-extrusion a sausage strand with a core of the food dough enclosed by a casing of the paste; D) subdividing the sausage strand into sausage products; and E) guiding the sausage through a fixing bath, whereby the cohesion of the sausage increases; characterized in that within 50 seconds following co-extrusion as according to processing step C) at least the outer side of the sausage is heated with a liquid-containing medium to at least 48° C. The Appellants contend that the prior art references do not teach or suggest the disputed limitations highlighted in claim 7 above, adding that “no mention of. . . timing is made by any of the prior art references” (Appeal Br. 7). In addition, with respect to Bontjer, the Appellants argue that “temperatures above the range of Bontjer are critical to [the] Applicants’] invention and provide a result that cannot be obtained within the range set forth by Bontjer” (id.). According to the Appellants, “heating of the outer side of the sausage as claimed by [the Appellants] is not 8 Appeal 2017-002740 Application 12/991,099 intended to cook the sausage but rather to preserve the shelf life of the sausage” (id.). We discern no reversible error in the Examiner’s rejections based on the Appellants’ arguments. As the Examiner finds (Ans. 11), Shulman teaches subjecting the co-extruded sausage to a brine coagulation solution heated to 90°F (32.2°C) for typically 35 seconds (Shulman 138). Shulman further teaches that the product is subjected to further processing such as fermentation, smoking, and/or cooking (id. 139). Bontjer contains a similar disclosure, where the optimal temperature may be as high as 40°C (Bontjer 6,11. 3—5). Although Shulman and Bontjer teach exemplary or optimal brine temperatures that are somewhat lower than 48°C, the references are not limited to specific temperatures and, therefore, we agree with the Examiner (Ans. 12, 21) that “where the general conditions of a claim are disclosed in the prior art, it is not inventive to discover the optimum or workable ranges by routine experimentation.” In re Alter, 220 F.2d 454, 456 (CCPA 1955). Furthermore, although Shulman does not explicitly disclose a time from co-extrusion to heating, we agree with the Examiner that Shulman would have suggested “contacting the collagen gel coated meat emulsion with a [heated] coagulation solution right after the step of coextrusion” (Ans. 11). We reach a similar conclusion based on Bontjer’s teachings. A person of ordinary skill in the art would have determined suitable configurations and spacings between apparatuses as well as processing speeds—and thus optimum or workable transport times between the apparatuses—to carry out the immersion immediately after the co-extrusion as taught by Bontjer. That is, as the Examiner explains, any delay would depend on the apparatuses involved and the means for transporting the product from one processing 9 Appeal 2017-002740 Application 12/991,099 station to another. The determination of acceptable delays, taking account of suitable processing speeds, would have been within the level of ordinary skill in the art {id. at 11—12, 21). Alter, 220 F.2d at 456. The Appellants fail to direct us to objective evidence (e.g., sworn declaration evidence including comparative experimental data) establishing any unexpected criticality for the temperature and/or time limitations. Therefore, the preponderance of the evidence supports the Examiner’s rejections. IV. SUMMARY Rejections A through D are sustained. Therefore, the Examiner’s decision to reject claims 1, 4—12, 14—21, and 23 is affirmed. 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 10 Copy with citationCopy as parenthetical citation