Ex Parte VAN DE NIEUWELAAR et al

Patent Trial and Appeal Board

Jan 23, 2018

14513434 (P.T.A.B. Jan. 23, 2018)

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.
14/513,434 10/14/2014 Adrianus Josephes VAN DE NTEIJWET.AAR P07391US1 4590
34082 7590 01/25/2018
ZARLEY LAW FIRM P.L.C.
CAPITAL SQUARE
400 LOCUST, SUITE 200
DES MOINES, IA 50309-2350
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
01/25/2018 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 LEONDARDUS ANKERSMIT
Appeal 2017-003215
Application 14/513,434
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 Appellant1 appeals under 35 U.S.C. § 134(a) from the Primary
Examiner’s final decision to reject claims 1—19.2 We have jurisdiction under
35 U.S.C. § 6(b).
We affirm.
1 The Appellant is the Applicant, “STORK TOWNSEND B.V.”
(Application Data Sheet filed October 14, 2014). The Appeal Brief filed
July 22, 2016 (hereinafter “Appeal Br.”) does not identify a real party
interest (Appeal Br. i). 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—5; Reply Brief filed December 7, 2016, hereinafter “Reply
Br.,” 2-A; Final Office Action entered February 24, 2016, hereinafter “Final
Act.,” 2—8; Examiner’s Answer entered October 7, 2016, hereinafter “Ans.,”
2-9.
Appeal 2017-003215
Application 14/513,434
I. BACKGROUND
As required by 37 C.F.R. § 41.37(c)(l)(ii), the Appellant directs our
attention to Application 12/991,099 (hereinafter “’099 Application”), which
relates to “similar subject matter” (Appeal Br. 1). The ’099 Application is
also on appeal (Appeal 2017-002740).
The subject matter on appeal relates to a method for manufacturing
sausage products (Specification filed October 14, 2014, hereinafter “Spec.,”
1,11. 3—8 ). Figure 1, reproduced below, is illustrative:
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. 11—9,1. 12).
2
Appeal 2017-003215
Application 14/513,434
Representative claim 1 is reproduced from Claims Appendix to the
Appeal Brief (Appeal Br. 7), with key limitations italicized, 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 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 the initial temperature (TcJ) of the coagulation
range [Tcl — TC2] of the paste or the food dough, wherein
the coagulation range is the range of temperatures range
the paste or the food dough coagulates.
II. REJECTIONS ON APPEAL
On appeal, the Examiner maintains two rejections, as follows:
A. Provisionally, claims 1—19 under the judicially-created doctrine
of obviousness-type double patenting as unpatentable over
claims 7—12 and 14—20 of the ’099 Application; and
B. Claims 1—19 under pre-AIA 35 U.S.C. § 103(a) as unpatentable
over Bontjer et al.3 (hereinafter “Bontjer”) in view of Van den
Dungen et al.4 (hereinafter “Van den Dungen”).
3 WO 2006/135238 A2, published December 21, 2006.
4 WO 00/44233, published August 3, 2000.
3
Appeal 2017-003215
Application 14/513,434
(Ans. 3—9; Final Act. 2—8.)
III. DISCUSSION
Rejection A. Contemporaneously with a Pre-Appeal Brief Request
for Review filed May 24, 2016, the Appellant filed a Terminal Disclaimer to
obviate the obviousness-type double patenting rejection. On the same day,
the PTO approved the Terminal Disclaimer. In addition, the Examiner did
not object to the Terminal Disclaimer in the Notice of Panel Decision from
Pre-Appeal Brief Review entered June 15, 2016. Therefore, absent an
explanation in the Answer as to why the Terminal Disclaimer is ineffective,
we agree with the Appellant (Reply Br. 2) that the rejection should have
been withdrawn.
For these reasons, we do not sustain Rejection A.
Rejection B. The Appellant’s arguments focus only on claim 1
(Appeal Br. 3—5). Therefore, pursuant to 37 C.F.R. § 41.37(c)(l)(iv), we
confine our discussion to claim 1, which we select as representative. As
provided by this rule, claims 2—19 stand or fall with claim 1.
The Examiner finds that Bontjer describes most of the limitations
recited in claim 1, but acknowledges that it “is silent as to the subdivision of
the sausage strand into sausage products as recited in step (D)” (Ans. 3—5).
The Examiner concludes, however, that a person of ordinary skill in the art
would have found it obvious to subdivide the sausage strand into sausage
products in view of Van den Dungen’s teachings {id. at 5—6). Regarding the
disputed limitations highlighted above in reproduced claim 1, the Examiner
finds that Bontjer would have suggested immersing the sausage into the
liquid fixing bath, which is at a temperature between 0°C and 40°C for
4
Appeal 2017-003215
Application 14/513,434
optimal results, immediately after co-extrusion (id. at 5). The Examiner
further states that the discovery of an optimum or workable range of
temperatures would have been within the ordinary skill in the art (id.).
The Appellant contends that the Examiner’s reliance on Bontjer for
the disputed limitations is not sufficiently supported by facts (Appeal Br. 3).
Specifically, the Appellant argues that Bontjer’s disclosure of 0.1—40
seconds relates to the contact time of the sausage with the liquid bath—“not
the time between co-extrusion and heating to the initial temperature as
required by claim 1” (id.). Furthermore, the Appellant argues that “the mere
fact that food product is brought into contact with a salt solution . . . fails to
disclose anything regarding temperature and more importantly a timeframe
in which the food product must come into contact with the salt solution” (id.
at 4). Finally, the Appellant argues that “claim 1 must be given patentable
weight because it is directed at a critical range [of time after co-extrusion]”
(id. at 5).
The Appellant’s arguments fail to identify any reversible error in the
Examiner’s rejection. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011).
As the Examiner finds (Ans. 4), Bontjer teaches immersing the
sausage product into a liquid (salt solution), which may be heated to an
optimal temperature of 40°C, after co-extrusion in order to increase the
strength of the skin—i.e., gelate or precipitate the skin (Bontjer 5,11. 20—23,
6,11. 1—3, 9,11. 31—32 (claim 16)). Although Bontjer does not specify a time
between co-extrusion and immersion in the heated liquid (salt solution), 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
5
Appeal 2017-003215
Application 14/513,434
apparatuses—to carry out the immersion immediately after the co-extrusion
as taught by Bontjer. That is, any delay would depend on the apparatuses
involved and the means for transporting the product from one processing
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. In reAller, 220 F.2d 454, 456 (CCPA 1955) (“[Wjhere 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.”).
We discern no merit in the Appellant’s argument concerning the
liquid bath temperature (Appeal Br. 4), because claim 1 fails to specify any
particular temperature. As written, claim 1 reads on a temperature of 40°C,
as taught by Bontjer.
Finally, the Appellant’s argument based on an alleged criticality for
the claimed range of time after co-extrusion is also ineffective. In this case,
the Appellant does not direct us to any factual, objective evidence (e.g.,
sworn declaration evidence including comparative experimental data).
Therefore, it constitutes mere attorney argument entitled to little or no
probative weight. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997).
For these reasons, we uphold Rejection B.
IV. SUMMARY
In sum, we do not sustain Rejection A, but we sustain Rejection B.
Therefore, the Examiner’s final decision to reject claims 1—19 is affirmed.
6
Appeal 2017-003215
Application 14/513,434
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
7