PRINCE CASTLE LLC

Patent Trials and Appeals Board

Oct 28, 2020

14974926 - (D) (P.T.A.B. Oct. 28, 2020)

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.
14/974,926 12/18/2015 Loren Veltrop 5998-00362 1293
26753 7590 10/28/2020
ANDRUS INTELLECTUAL PROPERTY LAW, LLP
790 NORTH WATER STREET
SUITE 2200
MILWAUKEE, WI 53202
EXAMINER
AXTELL, ASHLEY
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
10/28/2020 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):
patentdocketing@andruslaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte LOREN VELTROP, PHILLIP GRISHAM, BROOK GRISHAM,
MICHAEL RAINONE, CLINT THOMPSON, and TALBOT PRESLEY
Appeal 2020-000210
Application 14/974,926
Technology Center 1700

Before ROMULO H. DELMENDO, LINDA M. GAUDETTE, and
N. WHITNEY WILSON, Administrative Patent Judges.

GAUDETTE, Administrative Patent Judge.

DECISION ON APPEAL1
The Appellant2 appeals under 35 U.S.C. § 134(a), from the
Examiner’s decision finally rejecting claims 22 and 24–27.3

1 This Decision includes citations to the following documents: Specification
filed Dec. 18, 2015 (“Spec.”); Final Office Action dated July 12, 2018
(“Final Act.”); Appeal Brief (“Appeal Br.”) and Appendix A (“Claims
App.”) filed Apr. 15, 2019; Examiner’s Answer dated Aug. 8, 2019
(“Ans.”); and Reply Brief filed Oct. 8, 2019 (“Reply Br.”).
2 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 PRINCE
CASTLE, INC. Appeal Br. 1.
3 We have jurisdiction under 35 U.S.C. § 6(b).

Appeal 2020-000210
Application 14/974,926

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For the reasons explained below, we AFFIRM the rejections of claims
22 and 24–27, but denominate the affirmed rejections as NEW GROUNDS
OF REJECTION pursuant to 37 C.F.R. § 41.50(b).
CLAIMED SUBJECT MATTER
The invention relates to a method of preserving cooked food
palatability. Claim 22, the sole independent claim on appeal, is illustrative of
the claimed subject matter:
22. A method of preserving the palatability of a cooked food
product, the method comprising:
cooking a food product comprising a hamburger patty,
the food product displacing a first volume;
placing the food product into an encapsulated
environment device, the encapsulated environment device
comprising one of a plastic, a high-impact polystyrene, a
polyetherimide, or a glass, the encapsulated environment device
enclosing the cooked food product within a predetermined
volume, the predetermined volume creating a headspace around
the food product, the headspace volume being greater than one
hundred percent of the first volume but less than one-thousand
percent of the first volume;
maintaining the food product at an elevated temperature
of at least 140°F within the encapsulated environment device;
and
venting some, but not all, compositions released from the
food product out of the encapsulated environment device.
Claims App. (emphasis added).
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Application 14/974,926

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REJECTIONS4
1. Claims 22, 25, 26, and 27 are rejected under 35 U.S.C. § 103(a)
as unpatentable over Shei 322 (US 2001/0007322 A1, pub. July 12, 2001) in
view of Lamberti (Manuela Lamberti & Felix Escher, Aluminium Foil as a
Food Packaging Material in Comparison with Other Materials, 23 Food
Rev. Int’l 407–433 (2007)) and Ewald (US 5,724,886, iss. Mar. 10, 1998).
Final Act. 3–7.
2. Claim 24 is rejected under 35 U.S.C. § 103(a) as unpatentable
over Shei 322 in view of Lamberti, Ewald, and Shei 527 (US 2006/0185527
A1, pub. Aug. 24, 2006). Final Act. 7.
ISSUE
The Appellant’s and the Examiner’s respective positions raise the
following issue on appeal: Has the Appellant identified reversible error in
the Examiner’s finding that, at the time of the invention, the ordinary artisan
would have modified Shei 322’s method to include a step of venting an
encapsulated environment device to remove some, but not all, compositions
released from a food product contained in the device, as recited in claim 22?
OPINION
The Examiner found that Shei 322 discloses the claim 22 method
except for (1) enclosing a cooked food product in an encapsulated
environment device such that a headspace volume around the food product is
within the recited range, and (2) “venting some, but not all, compositions
released from the food product out of the encapsulated environment device.”

4 The rejection of claims 22 and 24–27 under 35 U.S.C. § 112, written
description requirement (see Final Act. 2–3), has been withdrawn. Advisory
Action dated Mar. 1, 2019; see also Ans. 3.
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Application 14/974,926

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See Final Act. 4–6. The Appellant does not dispute that Lamberti supports
the Examiner’s finding that adjusting the headspace volume to values within
the claimed range would have been a matter of routine optimization (Final
Act. 4–5). See generally Appeal Br. 3–6. Rather, the Appellant’s sole
argument in the Appeal Brief is that the Examiner reversibly erred in finding
that the ordinary artisan would have modified Shei 322’s method to
include Ewald’s step of “venting some but not all of the compositions
released from the food product in order to maintain a desired appearance,
taste and texture of the hamburger patty held within the device over
extended storage periods” (Final Act. 6). See generally Appeal Br. 3–6.
The Examiner found that the claimed “encapsulated environment
device” reads on Shei 322’s “tray B with modified cover 100.” Final Act. 4.
Cross wall 84 of modified cover 100 contains openings 102, and carries slide
104 that likewise contains openings 106. Shei 322 ¶ 38.
In one position, the slide completely covers the openings 102 in
the wall 84, and in this position the tray B is sealed. In other
positions the slide 104 exposes the openings 102 in the wall 84
through its own openings 106, with the amount of exposure
being dependent [on] the position of the slide 104. In these
positions the tray B is vented.
Shei 322 ¶ 38. The Examiner acknowledged that Shei 322 teaches that
“[s]ome cooked foods, such as hamburger patties, should be held at elevated
temperatures only in a moist environment, since these foods, when depleted
of their moisture content have poor taste and texture” (Shei 322 ¶ 4). Final
Act. 5. However, the Examiner found, and the Appellant does not dispute,
that “organoleptic properties such as taste and texture are variable based on
preference and opinion of an individual.” Id.; see Spec. ¶ 2 (“[T]aste or
palatability is subjective.”); see generally Appeal Br. 3–6.
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Application 14/974,926

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The Examiner found that “Ewald discloses limiting and controlling
the evaporation of liquid from cooked food such as a hamburger patty stored
within a tray . . . thereby minimizing fluid loss of the cooked food, in order
to maintain the appearance, taste and texture of the cooked food/hamburger
patty.” Final Act. 5–6. The Examiner found that Ewald’s disclosure of
minimizing evaporation is a teaching of “venting some, but not all of the
compositions released from a hamburger patty out of a food storage device
in order to maintain the appearance, taste and texture of the cooked food
held within the device over extended storage periods.” Final Act. 6. The
Appellant does not dispute these findings as to Ewald’s disclosure. See
generally Appeal Br. 3–6. Based on the above findings, the Examiner
determined that the ordinary artisan would have modified Shei’s method “to
include venting some but not all of the compositions released from the food
product in order to maintain a desired appearance, taste and texture of the
hamburger patty held within the device over extended storage periods.”
Final Act. 6.
The Appellant argues that “Shei [322] teaches away from venting
compositions from a cooked hamburger patty in a tray with a cover.” Appeal
Br. 4. The Appellant directs us to Shei 322 paragraphs 32–335 in support of
its argument. Id. at 5. In paragraph 32, Shei 322 discloses that

5 Paragraphs 32–33 describe an embodiment in which tray B is fitted with
cover 80. The Examiner relies on a different embodiment that uses modified
cover 100. Modified cover 100 is described as having “side legs 82 and
a cross wall 84 of essentially the same configuration as their counterparts in
the cover 80. However, the cross wall 84 contains openings 102 arranged in
a row between the legs 82. It also carries a slide 104 which likewise contains
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[s]ome . . . foods, such as hamburger patties, [lose] their taste
and texture with loss of moisture. Others, such as fried chicken
fillets, biscuits, and eggs become soggy if stored in an
abundance of moisture. The trays B which contain foods that
must remain moist are placed in heat sinks 44 having their
covers 80 in the closing position.
Shei 322 discloses that in the closing position, “[m]oisture remains trapped
within the tray B, even though the heat which is supplied by the heat sink 46
has the capacity to drive moisture from the food.” Shei 322 ¶ 33. Shei 322
discloses that if tray B contains a food that must remain crisp, cover 80
should be in the venting position (id. ¶ 32) such that moisture can escape
through openings in cover 80 (id. ¶ 34).
“A reference may be said to teach away when a person of ordinary
skill, upon reading the reference, would be discouraged from following the
path set out in the reference, or would be led in a direction divergent from
the path that was taken by the applicant.” In re Gurley 27 F.3d 551, 553
(Fed. Cir. 1994). For the reasons explained below, the Appellant has not
persuaded us that Shei 322 teaches away from the claimed invention or that
the Examiner reversibly erred in determining that the claimed invention
would have been obvious over the applied prior art.
Claim 22 recites “cooking a food product comprising a hamburger
patty” and “placing the food product into an encapsulated environment
device.” Claims App. (emphasis added). The term “comprising” means that
the food product is not limited to a single hamburger patty. Thus, as claimed,
the same encapsulated environment device containing the hamburger patty

openings 106.” Shei 322 ¶ 38. Like cover 80, modified cover 100 can seal
tray B (when slide 104 completely covers openings 102) or vent tray B
(when slide 104 exposes openings 102). Id.
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may contain other foods, such as a bun. See Spec. ¶¶ 12–13 (“[T]he term
‘encapsulated environment’ refers to a device having an enclosed volume
sufficient to enclose at least a single portion or single serving of a cooked
protein-containing food product that a restaurant or food service would
serve as a distinct menu item or as a constituent of a distinct menu item . . . .
A single hamburger is an example of a menu item. . . . A double hamburger,
i.e., two hamburger patties provided with a single bun, is another example of
a menu item . . . .” (emphasis added)).
In the above quote from Shei 322 paragraph 32, Shei 322 teaches that
hamburger patties should be kept in a closed tray where moisture remains
trapped, whereas biscuits and breaded foods should be kept in a vented tray
so that moisture can escape. See supra p. 6. Shei 322 does not explicitly
discuss situations in which the food product contains both a food that should
remain moist (e.g., a hamburger patty) and a food that should not be stored
in an abundance of moisture (e.g., a bread-type food product such as a
hamburger bun). Therefore, the Appellant’s argument that Shei 322 teaches
away from venting compositions from a cooked hamburger patty contained
in an encapsulated environment device is insufficient to establish that Shei
322 actually teaches away from the claimed invention, which is not limited
to a hamburger patty.
Ewald discloses that typical food products in quick service restaurants
“include sandwiches that are composed of a bun or other bakery cooked
bread product and a sandwich filling that is cooked at the quick service
restaurant,” such as “hamburger patties.” Ewald 1:26–30. According to
Ewald,
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[t]o meet the competing factors of quick service and consistent
high quality, it is advantageous for quick service restaurants to
frequently cook a number of individual food sandwich filling
portions which are then almost immediately incorporated into
individual sandwiches and then wrapped and held ready in
advance of actual customer orders in an open storage bin for a
relatively short predetermined period of time.
Id. at 1:37–44 (emphasis added). Ewald explains that a drawback of this
system is that the sandwiches must be destroyed prior to the expiration of a
relatively short time period to ensure constant high quality. Id. at 1:44–46.
Ewald is said to have discovered a method of extending the storage life of a
cooked food product. See id. at 1:63–2:9. Ewald utilizes a staging device in
which cooked sandwich fillings, e.g., hamburger patties are stored in trays
and then placed in a bun or roll at a later time. Id. at 8:19–29. Ewald
discloses that vapor transfer out of a tray containing a sandwich filling such
as a hamburger patty should be minimized, thereby also minimizing fluid
loss of the hamburger patty, but that it is desirable to increase vapor loss for
breaded food products to prevent sogginess. Ewald 6:59–63, 7:15–19, 8:3–4.
Given the above disclosures in Shei 322 and Ewald, we are not
persuaded of error in the Examiner’s determination that the ordinary artisan,
seeking to increase the holding time of a pre-cooked food product such as a
hamburger patty and bun in a warming tray while maintaining its palatability
(see Spec. ¶ 2), would have modified Shei 322’s method by including a step
of venting Shei 322’s encapsulated environment device to remove some, but
not all, compositions released from the food product. The ordinary artisan
would have made this modification to limit moisture loss from the
hamburger patty but prevent the bun from becoming soggy as occurs in a
completely enclosed environment. As noted above (see supra p. 4 (quoting
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Application 14/974,926

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Shei ¶ 38)), the size of openings 102 in Shei’s cross wall 84 are adjustable,
thereby allowing the user to vary the venting level from fully closed
(complete moisture retention) to fully open and positions in-between.
CONCLUSION
In sum, for the reasons discussed above, we determine that the
Appellant has not identified reversible error in the Examiner’s conclusion of
obviousness as to independent claim 22. As the Appellant has not separately
argued the patentability of the dependent claims, we sustain the rejections of
claims 22 and 24–27.
Because we recognize that our Decision relies on facts and reasons
not expressly stated by the Examiner, we denominate the affirmed rejections
as NEW GROUNDS OF REJECTION pursuant to 37 C.F.R. § 41.50(b).
DECISION SUMMARY
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed New
Ground
22, 25,
26, 27
103(a) Shei 322,
Lamberti, Ewald
22, 25,
26, 27
24 103(a) Shei 322,
Lamberti, Ewald,
Shei 527
24
Overall
Outcome
22, 24–
27

TIME PERIOD FOR RESPONSE
37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection
pursuant to this paragraph shall not be considered final for judicial review.”
37 C.F.R. § 41.50(b) further states that the Appellant, WITHIN TWO
MONTHS FROM THE DATE OF THE DECISION, must exercise one of
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the following two options with respect to the new ground of rejection to
avoid termination of the appeal as to the rejected claims:
(1) Reopen prosecution. Submit an
appropriate amendment of the claims so rejected or
new Evidence relating to the claims so rejected, or
both, and have the matter reconsidered by the
examiner, in which event the prosecution will be
remanded to the examiner. . . .
(2) Request rehearing. Request that the
proceeding be reheard under § 41.52 by the Board
upon the same Record.

AFFIRMED;
37 C.F.R. § 41.50(b)