KRAFT FOODS GROUP BRANDS LLC

Patent Trials and Appeals Board

Aug 31, 2021

2020004923 (P.T.A.B. Aug. 31, 2021)

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.
15/527,199 05/16/2017 Andrew A. Palmer 1410-136825-US 1028
48940 7590 08/31/2021
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 2100
CHICAGO, IL 60603-3406
EXAMINER
MUKHOPADHYAY, BHASKAR
ART UNIT PAPER NUMBER
1792
MAIL DATE DELIVERY MODE
08/31/2021 PAPER
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.
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ANDREW A. PALMER, DANIEL B. WILKE,
TIMOTHY D. SCHNELL, and RANDALL J. GLYNN
Appeal 2020-004923
Application 15/527,199
Technology Center 1700
Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON, and
DEBRA L. DENNETT, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s July 3, 2019 decision to finally reject claims 1–4, 7, 11, 12, 14,
17, and 21 (“Final Act.”). We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word Appellant to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Kraft
Foods Global Brands LLC (Appeal Br. 3).
Appeal 2020-004923
Application 15/527,199

2
CLAIMED SUBJECT MATTER
Appellant’s disclosure is directed to bacon analogue-products and
methods of producing such products (Abstract). The bacon-analogue
product includes a first component and a second component (id.). The first
component includes pork fat trim having about 42% lean pork muscle by
weight and about 58% fat by weight (id.). The second component includes
lean trim having about 85% or higher lean pork muscle by weight (id.).
Claim 1, reproduced below from the Claims Appendix, is illustrative of the
claimed subject matter and includes further details of the claimed invention:
1. A bacon-analogue product comprising:
a first component including pork fat trim having about
42% lean pork muscle by weight and about 58% fat by weight;
a second component including a lean trim having about
85% lean pork muscle by weight or higher;
wherein the first component has a first meat piece size of
between about 0.125-inch to about 0.5-inch and the second
component has a second meat piece size of between about
0.125-inch to about 0.5-inch; and
wherein a ratio of the first component to the second
component in the bacon-analogue product is between about
35:65 by weight to about 65:35 by weight and wherein the
product comprises a plurality of slices, each of which has an
appearance similar to that of a slice of bacon.

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Application 15/527,199

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Cheney US 4,305,965 December 15,
1981
Cozzini et al. US 5,830,525 November 3,
1998
Eilert et al. US 6,228,404 B1 May 8, 2001
Schulz et al. US 2009/0226578 A1 September 10,
2009
Dan S. Hale et
al.
USDA Beef Quality and Yield
Grades,
https://meat.tamu.edu/beefgrading/
(last accessed on 1/2/2019)
(“Marbled Slab”)

Millimeters to
Inches Formula
https://metric-
conversions.org/length/millimeters-
to-inches.htm (last accessed on
1/2/2019) (“mm v. inch”)

REJECTIONS
1. Claims 1–4, 7, 11, 12, and 21 are rejected under
35 U.S.C. § 103(a) as being unpatentable over Cheney in view of Cozzini
and Schultz, and further in view of Eilert, in view of evidence given by “mm
vs inch.”
2. Claims 14 and 17 are rejected under 35 U.S.C. § 103(a) as
being unpatentable over Cheney in view of Cozzini and Schultz, and further
in view of Eilert, in view of evidence given by “mm vs inch,” and further in
view of evidence provided by Marbled Slab.
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OPINION
Appellant argues all independent claims 1 and 14 together, and does
not argue any of the dependent claims separately (see, e.g., Appeal Br. 9).
Accordingly, we will focus our discussion on the rejection of claim 1. The
remaining claims will stand or fall with claim 1.
The Examiner’s findings are set forth generally at pages 3–6 of the
Final Action. The Examiner finds that Cheney discloses the steps of
forming a bacon analogue by combining a comminuted fat appearing
mixture with a lean appearing mixture to simulate the orientation of fat and
lean components of a natural bacon slab and processing the resulting slab
(Final Act. 3, citing Cheney 2:31–46). The Examiner further finds that
Cheney’s fat appearing mixture corresponds with the claimed first
component, and the lean appearing mixture corresponds to the claimed
second component (Final Act. 4).
The Examiner further finds that Cheney does not disclose (1) the
percent amounts of fat and lean muscle present in the first component and
second component, and (2) the ratio of the first component to second
component (Final Act. 4).
The Examiner finds that Cozzini discloses that particulate meat
material used for the preparation of bacon can be fat or lean (Final Act. 4–5).
The Examiner also finds that its meat product includes fat and lean tissue
and ranges from 40–90% lean and 60–10% fat (Final Act. 5, citing Cozzini
3:60–67). Based on the disclosures of Eilert, the Examiner finds that
Cozzini’s ranges meet the claimed amounts of fat and lean tissue in the
claimed first and second components (Final Act. 5).
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Appellant argues, inter alia, that Cheney discloses that its fatty
component “is richer by about 20–30% in fat content in proportion to the
lean mixture” (Appeal Br. 9, citing Cheney 4:64–66). As noted by
Appellant, this difference is smaller than the claimed difference, which is at
least about 43% (58% fat amount in component 1 and no more than 15% fat
amount in component 2). However, the Examiner finds, that this is only a
preferred embodiment (Ans. 12, see, Cheney 5:15–28). This finding is not
disputed by Appellant. Therefore, Cheney’s teachings are reasonably
construed to cover wider differences in fat content between the first and
second components.
However, Appellant also argues that neither Cozzini nor Cheney
teaches the claimed amounts of fat and lean material in each of the two
components (Appeal Br. 9–10). With respect to Cozzini, Appellant
accurately contends that its description of the lean to fat ratio refers to the
entire meat product, not individual first and second components (Appeal Br.
10, citing Cozzini 1:55–2:17). Appellant argues that Cozzini, therefore,
would only suggest fat-to-lean ratios for the entire meat product, not for each
of the first component and the second component (id.).
The Examiner’s position is that (1) Cheney discloses that the
proportion of lean meat to fat can be controlled as desired, (2) Cheney
discloses a product made of a fat component and a lean component, (3)
Cheney’s fat component can have a wide range of fat, from 23% to 50%,
and (4) Cheney states that its bacon product resembles pork belly (Ans. 12).
Therefore, according to the Examiner, a person of skill in the art would have
been motivated to modify Cheney’s high fat component to have the
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composition described by Cozzini “in order to have more fat as [a]
nutritional ingredient and fat provides as [a] binding agent” (id. at 13).
Appellant’s arguments in this regard are persuasive of reversible error
in the rejection. In particular, as argued by Appellant, the Examiner has not
provided an adequate explanation for why a person of skill in the art would
have modified the two components of Cheney so that each has the fat/lean
compositions recited in the claims. Cheney controls the overall fat/lean
composition of its product by using greater or lesser amounts of the fat and
lean components, not by varying the composition of each individual
component (Cheney 7:26–29). Moreover, Cozzini’s fat/lean ratio is based
on its overall composition, not any individual component. Thus, there
would have been no reason for a person of skill in the art to modify the
composition of Cheney’s different components. The rationale provided by
the Examiner for making the necessary modification to Cheney is deficient.
Thus, we conclude that the rejection is based on impermissible
hindsight and, therefore, must be reversed. In re Warner, 379 F.2d 1011,
1017 (CCPA 1967); Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1570
(Fed. Cir. 1996).
Accordingly, we reverse the rejections.
DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1–4, 7, 11,
12, 21
103(a) Cheney, Cozzini,
Schultz, Eilert,
“mm v. inch”
1–4, 7, 11,
12, 21
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14, 17 103(a) Cheney, Cozzini,
Schultz, Eilert,
“mm v. inch,”
Marbled Slab
14, 17
Overall
Outcome
1–4, 7, 11,
12, 14, 17,
21

REVERSED