Wolf Peter. Ludwig

Patent Trials and Appeals Board

Dec 26, 2019

12794332 - (D) (P.T.A.B. Dec. 26, 2019)

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.
12/794,332 06/04/2010 Wolf Peter Ludwig 822322-1020 8582
24504 7590 12/26/2019
THOMAS | HORSTEMEYER, LLP
3200 WINDY HILL ROAD, SE
SUITE 1600E
ATLANTA, GA 30339
EXAMINER
STULII, VERA
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
12/26/2019 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):
docketing@thomashorstemeyer.com
ozzie.liggins@tkhr.com
uspatents@tkhr.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte WOLF PETER LUDWIG
____________

Appeal 2019-002925
Application 12/794,332
Technology Center 1700
____________

Before CATHERINE Q. TIMM, GEORGE C. BEST, and
JANE E. INGLESE, Administrative Patent Judges.

INGLESE, Administrative Patent Judge.

DECISION ON APPEAL
Appellant1 requests our review under 35 U.S.C. § 134(a) of the
Examiner’s decision to finally reject claims 1–14, 17, and 19–21.2 We have
jurisdiction over this appeal under 35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies World Technology Ingredients (WTI),
Incorporated, as the real party in interest. Appeal Brief filed September 10,
2018 (“Appeal Br.”) at 3.
2 Final Office Action entered January 16, 2018 (“Final Act.”) at 1.
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CLAIMED SUBJECT MATTER
Appellant claims a method of processing meat. Appeal Br. 7–10.
Claim 1 illustrates the subject matter on appeal, and is reproduced below
with emphasis added to highlight contested subject matter:
1. A method of processing meat comprising:
(a) providing a body of meat at a first temperature,
wherein the first temperature is about 25°F to about 50°F;
(b) contacting the body of meat of step (a), in at least
one treating vessel, with a brine solution at a second
temperature,
wherein the second temperature is greater than the
first temperature and is about 45°F to about 80°F, and
wherein the brine solution comprises a vinegar-
derived food additive and/or a reddening agent,
wherein the reddening agent comprises nitrite;
(c) agitating the body of meat at the second
temperature for a time sufficient to distribute the solution
throughout the body of meat;
(d) cooling the body of meat in at least one cooling
vessel to a third temperature,
wherein the third temperature is less than the
second temperature;
(e) agitating the body of meat at the third temperature,
wherein the third temperature is about 25°F to
about 50°F;
(f) contacting the body of meat of step (e) with the
brine solution at the third temperature and agitating the body
of meat at the third temperature until the brine solution is
substantially absorbed by the body of meat; and
(g) recovering the body of meat in a dry state at the
third temperature.
Appeal Br. 20 (Claims Appendix) (emphasis and spacing added).
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REJECTIONS
The Examiner maintains the following rejections in the Examiner’s
Answer entered December 28, 2018 (“Ans.”):
I. Claims 1, 7, 8, 17, 19, and 20 under 35 U.S.C. § 103(a) as
unpatentable over Ludwig;3
II. Claims 2–6 under 35 U.S.C. § 103(a) as unpatentable over
Ludwig in view of Gehring;4 and
III. Claims 9–14 and 21 under 35 U.S.C. § 103(a) as unpatentable
over Ludwig in view of Toledo.5
FACTUAL FINDINGS AND ANALYSIS
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s timely contentions,6 we affirm the Examiner’s rejections
of claims 1–14, 17, and 19–21 under 35 U.S.C. § 103(a) for the reasons set
forth in the Final Action, the Answer, and below.
We review appealed rejections for reversible error based on the
arguments and evidence the appellant provides for each issue the appellant
identifies. 37 C.F.R. § 41.37(c)(1)(iv) (2017); Ex parte Frye, 94 USPQ2d

3 US 2004/0166229 A1, published August 26, 2004.
4 US 6,689,403 B1, issued February 10, 2004.
5 US 2007/0059423 A1, published March 15, 2007.
6 We do not consider the new arguments Appellant presents in the Reply
Brief, including the arguments directed to claims 9 and 10 (Reply Br. 10–
11), because Appellant could have raised these arguments in the Appeal
Brief, and Appellant does not show good cause for raising the arguments for
the first time in the Reply Brief. 37 C.F.R. § 41.37(c)(1)(iv); 37 C.F.R.
§ 41.41(b)(2) (arguments raised for the first time in the Reply Brief that
could have been raised in the Appeal Brief will not be considered by the
Board unless good cause is shown).
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1072, 1075 (BPAI 2010) (precedential) (cited with approval in In re Jung,
637 F.3d 1356, 1365 (Fed. Cir. 2011) (explaining that even if the Examiner
had failed to make a prima facie case, “it has long been the Board’s practice
to require an applicant to identify the alleged error in the examiner’s
rejections”)).
Rejection I
We first address the Examiner’s rejection of claims 1, 7, 8, 17, 19, and
20 under 35 U.S.C. § 103(a) as unpatentable over Ludwig. Appellant
presents arguments for claim 1, and asserts that “claims 7, 8, 17, and 19–20
are likewise non-obvious . . . as they include each and every feature of claim
1.” Appeal Br. 12–16. We, accordingly, select claim 1 as representative,
and decide the appeal as to claims 1, 7, 8, 17, 19, and 20 based on claim 1
alone. 37 C.F.R. § 41.37(c)(1)(iv).
The method of claim 1 requires, in part, (c) agitating a body of meat at
a second temperature for a time sufficient to distribute a brine solution
throughout the body of the meat, (d) cooling the body of meat to a third
temperature, which is less than the second temperature, (e) agitating the
body of meat at the third temperature, (f) contacting the body of meat with
the brine solution at the third temperature and agitating the body of meat at
the third temperature until the brine solution is substantially absorbed by the
body of meat, and (g) recovering the body of meat in a dry state at the third
temperature.
The Examiner finds that Ludwig discloses a method for processing
meat that includes (a) contacting bodies of meat with a treating solution;
(b) heating the bodies of meat in contact with the treating solution in an
agitator to a predetermined elevated temperature and maintaining the
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temperature substantially constant while agitating the meat for a period of
time sufficient to distribute the treating solution in the meat; (c) thereafter
cooling the bodies of meat in the agitator while continuing to agitate the
meat; and (d) recovering the bodies of meat in a substantially dry state from
the agitator. Final Act. 2 (citing Ludwig ¶¶ 12–17 (“SUMMARY OF THE
INVENTION”)). The Examiner finds that the steps disclosed in Ludwig of
(c) cooling the bodies of meat in the agitator while continuing to agitate the
meat, and (d) recovering the bodies of meat in a substantially dry state from
the agitator, correspond to steps (d), (e), (f), and (g) recited in claim 1. Final
Act. 3.
Appellant argues that the Examiner’s finding that steps (c) and (d) of
Ludwig’s method correspond to steps (d), (e), (f), and (g) of claim 1 reads
steps (e) and (f) out of claim 1 “as if they do not exist,” and fails “to give
any meaning to step (f) as a step that is separate from steps (e) and (g).”
Appeal Br. 13–14. Appellant argues that the Examiner also “fails to provide
evidence of where and how step (f) of claim 1 is actually taught in Ludwig.”
Appeal Br. 14. Appellant argues that Ludwig does not teach “that after the
bodies of meat are heated at the substantially constant elevated temperature
to a substantially dry state that they are subsequently cooled to a third
temperature that is less than the second temperature and then contacted and
agitated at the lower third temperature with the brine solution before being
recovered.” Appeal Br. 15.
Appellant’s arguments do not identify reversible error in the
Examiner’s rejection, for reasons that follow.
The “Summary of the Invention” section of Ludwig cited by the
Examiner describes the method of Ludwig’s invention in general terms, and
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indicates, as the Examiner finds, that the method comprises (a) contacting
bodies of meat with a treating solution; (b) heating the bodies of meat to a
predetermined elevated temperature while agitating the meat; (c) cooling the
bodies of meat while continuing to agitate the meat; and (d) recovering the
bodies of meat in a substantially dry state. Ludwig ¶¶ 12–17.
Ludwig’s disclosures are not limited to the general description of
Ludwig’s method provided in the “Summary of the Invention” section of the
reference, however. Ludwig goes on to describe the method of Ludwig’s
invention in greater detail in subsequent portions of the reference, indicating
that the method involves contacting bodies of meat with an aqueous
treatment solution at a “lower temperature” (first temperature), raising the
temperature of the bodies of meat to a “relatively high” temperature of
between 45°F and 60°F (second temperature), maintaining the temperature
of the bodies of meat contacted with the aqueous treatment solution at the
relatively high temperature (45°F to 60°F) while massaging the aqueous
solution into the bodies of meat, cooling the bodies of meat to a temperature
15°F to 45°F below the relatively high temperature (third temperature) while
continuing to massage the aqueous solution into meat, and maintaining the
bodies of meat at the temperature below the relatively high temperature
(third temperature) for a certain time period while continuing to massage the
aqueous solution into the meat. Ludwig ¶¶ 18, 19, 31, 35–39.
Ludwig explains that:
the increased temperature of massaging at the initial stage
tends to promote the breakdown of ingredients or additives such
as polyphosphates and nitrate by enzymes in the meat and
hence a greater effectiveness of these components of the
treating solution with a more uniform product especially a
deeper and more uniform coloration. . . . Massaging is
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completed more efficiently, even when the temperature is
reduced in the subsequent stage massaging . . . The product is
obtained in a practically dry stage.
Ludwig ¶ 40 (emphasis added).
Thus, supporting the Examiner’s position that Ludwig discloses
method steps corresponding to each of steps (c), (d), (e), (f), and (g) recited
in claim 1, Ludwig explicitly discloses massaging an aqueous solution into
meat while maintaining the temperature of the meat at a relatively high
temperature (corresponding to step (c) of claim 1), cooling the meat to a
temperature below the relatively high temperature (corresponding to step (d)
of claim 1) while massaging the aqueous solution into the meat
(corresponding to step (e) of claim 1), continuing to massage the aqueous
solution into the meat while maintaining the meat at the temperature below
the relatively high temperature (corresponding to step (f) of claim 1), and
recovering the meat in a substantially dry state (corresponding to step (g) of
claim 1).
Appellant also argues that Ludwig “teaches away from the sequence
of steps (e)–(g), in particular step (f), of claim 1,” by teaching “to skip steps
(e) and (f)” of claim 1 by disclosing “heating the body of meat at the
substantially constant elevated second temperature to a substantially dry
state and recovering the substantially dry meat after cooling.” Appeal Br.
15–16.
As discussed above, however, although paragraph 12 of Ludwig may
disclose “contacting bodies of meat with a treating solution; agitating the
bodies of meat in contact with the treatment solution at an elevated
temperature until the bodies of meat are substantially dry; and recovering the
bodies of meat in a substantially dry state,” Ludwig includes additional
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disclosures—beyond those in paragraph 12—that explicitly teach method
steps corresponding to each of steps (e), (f), and (g) recited in claim 1.
Ludwig ¶¶ 18, 19, 31, 35–39. Thus, contrary to Appellant’s arguments,
rather than teaching away from steps (e), (f), and (g) of claim 1, Ludwig
discloses a method that includes such steps. Id.
We, accordingly, sustain the Examiner’s rejection of claims 1, 7, 8,
17, 19, and 20 under 35 U.S.C. § 103(a).
Rejection II
We next address the Examiner’s rejection of claims 2–6 under
35 U.S.C. § 103(a) as unpatentable over Ludwig in view of Gehring.
Appellant presents arguments for claim 2, and asserts that claims 3–6 “are,
likewise, non-obvious . . . as they include each and every feature of claim 2.”
Appeal Br. 16–18. We, accordingly, select claim 2 as representative, and
decide the appeal as to claims 2–6 based on claim 2 alone. 37 C.F.R.
§ 41.37(c)(1)(iv).
Independent claim 2 differs from claim 1 by (1) reciting in step (b)
that the brine solution comprises a reddening agent, and (2) reciting in the
final clause of the claim that “the reddening agent comprises nitrite derived
from plant material comprising nitrate.”
The Examiner finds that “Ludwig is silent as to . . . nitrite derived
from . . . plant material comprising nitrate,” and the Examiner relies on
Gehring’s disclosure of reddening meat by treating the meat with a mixture
comprising a plant product containing “natural nitrate.” Final Act. 6–7
(citing Gehring Abstr.). The Examiner finds that both Gehring and Ludwig
disclose treating meat with nitrite/nitrate, and Gehring “further discloses that
it is desirable to employ natural sources of nitrite due to the greater
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consumer trust than traditional additives.” Final Act. 7 (citing Gehring col.
1, ll. 19–25). The Examiner concludes that “one of ordinary skill in the art
would have been motivated to modify Ludwig in view of Gehring et al and
to substitute traditional source of nitrite with natural sources of nitrite due to
the greater consumer trust than traditional additives as suggested by
Gehring.” Final Act. 7.
Appellant argues that Gehring discloses using a reddening agent in a
process that involves cooking meat in water, whereas Ludwig discloses a
meat treatment process for enhancing the water holding capacity of meat that
involves agitating and contacting the meat with a treatment solution at an
elevated substantially constant temperature until the meat is substantially
dry. Appeal Br. 17. Appellant argues that “[t]here is no suggestion in
Gehring that his reddening agent could be used in a process that does not
involve the cooking of meat in water.” Id. Appellant argues that Gehring
discloses adding the reddening agent to a meat product at a temperature of
2°C to 20°C (35.6°F–68°F), and then cooking the meat product to a core
temperature of greater than 62°C (143.6°F), whereas Ludwig discloses
treating meat at much lower temperatures. Id. Appellant argues that the
Examiner “fails to present any evidence that the reddening agent of Gehring
would be effective at a significantly lower temperature of Ludwig.” Id.
Appellant’s arguments do not identify reversible error in the
Examiner’s rejection, for reasons that follow.
Ludwig’s process is directed to treating fresh (raw) meat with a
solution that includes sodium nitrite, and involves first massaging the nitrite
solution into the fresh meat at a temperature of 45ºF to 60ºF, and cooling the
meat by 15ºF to 45ºF while continuing to massage the nitrite solution into
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the meat (as discussed above). Ludwig ¶¶ 19, 36–39, 57, 58. One of
ordinary skill in the art would have understood that fresh or raw meat treated
according to this process would require cooking (or heating) before the meat
could be consumed, and would have understood that the cooking
temperature would need to be sufficiently high to allow the meat to be
consumed safely.
Gehring discloses a process for reddening meat that involves adding a
mixture comprising a plant product containing “natural nitrate” to fresh
(raw) meat, allowing the meat to “rest/ripen” at a temperature of 2ºC to 20ºC
(35.6ºF to 68ºF), and then heating the meat to a core temperature of greater
than 62ºC (143.6ºF). Gehring col. 2, l. 37–45; col. 3, ll. 4–8; col. 4, ll. 32–
36. As the Examiner finds (Final Act. 7), in view of Gehring’s disclosure of
“greater consumer trust” of “food additives of natural origin,” one of
ordinary skill in the art would have been led to substitute a plant product
containing “natural nitrate” as disclosed in Gehring for the sodium nitrite
included in Ludwig’s treatment solution.
One of ordinary skill in the art reasonably would have expected that a
plant product containing “natural nitrate” as disclosed in Gehring would
successfully redden meat when used in Ludwig’s treatment solution, because
Ludwig’s process involves massaging fresh meat with the treatment solution
at a temperature (45°F to 60°F) similar to Gehring’s rest/ripening
temperature of 35.6°F–68°F, and because fresh meat treated with the
treatment solution containing a plant product including natural nitrate
according to Ludwig’s process as modified by Gehring would require
subsequent cooking (or heating) before consumption to a temperature
sufficiently high to allow the meat to be consumed safely, such as a
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temperature of greater than 143.6°F as disclosed in Gehring. KSR Int’l Co.
v. Teleflex Inc., 550 U.S. 398, 417 (2007) (quoting Sakraida v. Ag Pro, Inc.,
425 U.S. 273, 282 (1976) (“[W]hen a patent ‘simply arranges old elements
with each performing the same function it had been known to perform’ and
yields no more than one would expect from such an arrangement, the
combination is obvious.”); In re O’Farrell, 853 F.2d 894, 903–04 (Fed. Cir.
1988) (“Obviousness does not require absolute predictability of success. . . .
[A]ll that is required is a reasonable expectation of success.”).
We find no evidence on the record before us demonstrating that a
plant product including natural nitrate as disclosed in Gehring would not
successfully function for its intended purpose as a source of nitrite in
Ludwig’s treatment solution to redden meat treated according to Ludwig’s
process, and Appellant’s unsupported arguments do not constitute such
evidence. In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (“An
assertion of what seems to follow from common experience is just attorney
argument and not the kind of factual evidence that is required to rebut a
prima facie case of obviousness.”); Icon Health & Fitness, Inc. v. Strava,
Inc., 849 F.3d 1034, 1043 (Fed. Cir. 2017) (“Attorney argument is not
evidence” and cannot rebut other admitted evidence.).
We, accordingly, sustain the Examiner’s rejection of claims 2–6 under
35 U.S.C. § 103(a).
Rejection III
We turn next to the Examiner’s rejection of claims 9–14 and 21 under
35 U.S.C. § 103(a) as unpatentable over Ludwig in view of Toledo.
Appellant presents arguments for independent claim 21 only, to which we
accordingly limit our discussion. Appeal Br. 18; 37 C.F.R.
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§ 41.37(c)(1)(iv).
Independent claim 21 differs from claim 1 by reciting in step (b) that
the brine solution comprises a vinegar-derived food additive.
The Examiner finds that Ludwig does not disclose including a
vinegar-derived ingredient in the aqueous treatment solution described in the
reference, and the Examiner relies on Toledo’s disclosure of a meat
treatment composition including a vinegar-derived ingredient that “improves
the flavor and juiciness of marinated meats,” inhibits the growth of
pathogenic microorganisms, and enhances water binding in meats. Final
Act. 10 (citing Toledo Abstr., ¶ 20). In view of these disclosures in Toledo,
the Examiner concludes that one of ordinary skill in the art would have
modified Ludwig’s treatment solution to include a vinegar-derived food
additive as disclosed in Toledo to improve the flavor and juiciness of meat
treated with the solution, inhibit the growth of microorganisms in the meat,
and improve water retention in the meat. Final Act. 10.
Appellant argues that “neither Ludwig nor Toledo, taken alone or in
combination, teach the processing of a meat with a vinegar-derived food
additive using the three temperature process recited in claim 21.” Appeal
Br. 18. Appellant argues that the Examiner “fails to present any evidence
that the vinegar mix of Toledo would be effective in the three temperature
process recited in claim 21.” Id.
As discussed above, however, Ludwig discloses a “three temperature”
process for treating meat that involves, in part, contacting meat with an
aqueous treatment solution at a “lower temperature” (first temperature),
raising the temperature of the meat to a “relatively high” temperature of
between 45°F to 60°F (second temperature), massaging the aqueous solution
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into the meat at the relatively high temperature, cooling the meat to a
temperature that is 15°F to 45°F below the relatively high temperature (third
temperature), and maintaining the meat at the temperature below the
relatively high temperature (third temperature) while continuing to massage
the aqueous solution into the meat. Ludwig ¶¶ 18, 19, 31, 35–39.
Toledo discloses a marinade for raw meat that contains partially
neutralized, concentrated distilled vinegar and has high water binding
potential, antimicrobial properties, and improves the flavor and juiciness of
meat treated with the marinade. Toledo Abstr., ¶¶ 18–20, 22.
One of ordinary skill in the art would have been led by these
disclosures in Toledo to include the partially neutralized, concentrated
distilled vinegar disclosed in Toledo in Ludwig’s treatment solution, to
impart the benefits of the vinegar to meat treated according to Ludwig’s
process. Contrary to Appellant’s arguments, the combined disclosures of
Ludwig and Toledo, therefore, would have suggested a “three temperature”
process for treating raw meat with a treatment solution that includes a
vinegar-derived food additive.
The record before us is bereft of any evidence demonstrating that the
advantageous effects imparted by the partially neutralized, concentrated
distilled vinegar disclosed in Toledo are temperature-dependent. And we
find no evidence on the record before us demonstrating that the partially
neutralized, concentrated distilled vinegar disclosed in Toledo, when
included in Ludwig’s treatment solution, would not function successfully to
inhibit growth of microorganisms, enhance water retention, and improve the
flavor and juiciness, of meat treated with the solution according to Ludwig’s
“three temperature” process—to at least some extent. One of ordinary skill
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in the art, therefore, reasonably would have expected that including the
partially neutralized, concentrated distilled vinegar disclosed in Toledo in
Ludwig’s aqueous treatment solution would inhibit the growth of
microorganisms in meat treated with the solution, enhance water retention in
the meat, and improve the meat’s flavor and juiciness. O’Farrell, 853 F.2d
at 903–04.
We, accordingly, sustain the Examiner’s rejection of claims 9–14 and
21 under 35 U.S.C. § 103(a).
CONCLUSION
Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 7, 8, 17, 19,
20 103(a) Ludwig
1, 7, 8, 17, 19,
20
2–6 103(a) Ludwig, Gehring 2–6
9–14, 21 103(a) Ludwig, Toledo 9–14, 21
Overall Outcome 1–14, 17,19–21

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).
AFFIRMED