Backus, Alan

Patent Trials and Appeals Board

Jun 11, 2020

2019004829 (P.T.A.B. Jun. 11, 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.
14/723,758 05/28/2015 Alan Backus 41586-0005 2402
37873 7590 06/11/2020
ULMER & BERNE LLP
ATTN: DIANE BELL
600 VINE STREET
SUITE 2800
CINCINNATI, OH 45202
EXAMINER
LACHICA, ERICSON M
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
06/11/2020 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):
dgordon@ulmer.com
ipdocketing@ulmer.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ALAN BACKUS

Appeal 2019-004829
Application 14/723,758
Technology Center 1700
Before LINDA M. GAUDETTE, BRIAN D. RANGE, and
JANE E. INGLESE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1–4 and 11–17. 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 Alan Backus.
Appeal Br. 4.
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CLAIMED SUBJECT MATTER2
Appellant describes the invention as relating to immersion cooking of
foods in liquid. Spec. ¶ 1. In particular, the Specification describes that the
known sous vide cooking method (placing food in a heat sealed bag under
vacuum and then heating the bag with boiling water) suffers from high cost
of equipment and cost of bags. Id. ¶¶ 2–8. To address these short comings
while achieving a result similar to sous vide cooking, the Specification
describes wrapping food in pliable outer skins (such as with aluminum foil)
and making use of heated oil rather than boiling water. Id. at 21–25. Claims
1, 3, and 4 are the three independent claims on appeal. Claim 1 is illustrative
and is reproduced below with emphases added to certain key recitations:
1. A food preparation method, comprising the steps of:
wrapping food within a pocket formed from a pliable,
liquid tight, formable metallic sheet;
at any time prior to cooking of the food, forming the
pliable, liquid tight, formable sheet to conform to outer food
surfaces;
at any time after wrapping of the food, placing the
conformed sheet and its contained food into cooking
temperature oil, which is below an associated water boiling
point, such that the contained food is disposed in the pocket and
below a surface of the oil;
placing the conformed sheet and contained food in the
oil for a first cooking session which is long enough for an
initial, souse vide style cooking of the food to occur;
raising a temperature of the oil to above the water
boiling point;
placing the conformed sheet and its contained food, in
the above water boiling point oil for a second cooking session,

2 In this Decision, we refer to the Final Office Action dated May 23, 2018
(“Final Act.”), the Appeal Brief filed Dec. 18, 2018 (“Appeal Br.”), and the
Examiner’s Answer dated Feb. 5, 2019 (“Ans.”).
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after the initial cooking, which is long enough for secondary
cooking of the food to occur by contact with an inner surface of
the conformed sheet such; and
removing the food from the oil.

Appeal Br. 19 (Claims App.). Claims 3 and 4 similarly require wrapping
food in a liquid tight metallic sheet, placing the sheet and contained food in
oil, and raising the temperature of the oil to an above water boiling point
temperature. Id. at 20.
REFERENCES
The Examiner relies upon the prior art below in rejecting the claims
on appeal:
Name
Taylor et al.
(“Taylor”)
Tucker
Storek et al.
(“Storek”)
Reference
US 2008/0066624 A1

US 2010/0195939 A1
WO 2013/026051 A2
Date
Mar. 20, 2008

Aug. 5, 2010
Feb. 21, 2013
The Butcher’s Info Blog, http://butcherinfoblog.blogspot.com/2010/01/
todays-wordplasticized.html (dated January 2010) (“Butcher’s Info”).

REJECTIONS
The Examiner maintains (Ans. 3) the following rejections on appeal:
A. Claims 1 and 2 under 35 U.S.C. § 103 as obvious over Taylor in view
of Storek and Butcher’s Info. Ans. 3–4.
B. Claims 3, 14, and 15 under 35 U.S.C. § 103 as obvious over Storek,
Tucker, and Butcher’s Info. Id. at 7.
C. Claims 4, 11–13, 16, and 17 under 35 U.S.C. § 103 as obvious Taylor
in view of Storek, Butcher’s Info, and Tucker. Id. at 9.

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OPINION
The Examiner has the initial burden of establishing a prima facie case
of obviousness under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the
prior art or on any other ground, of presenting a prima facie case of
unpatentability.”). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art or the inferences and creative
steps a person of ordinary skill in the art would have employed. KSR Int’l
Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007); In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988).
Here, the Examiner rejects (1) claim 1 as obvious over Taylor in view
of Storek and Butcher’s Info, (2) claim 3 as obvious over Storek in view of
Tucker and Butcher’s Info, and (3) claim 4 as obvious over Taylor in view
of Storek, Butcher’s Info, and Tucker. For each rejection, the Examiner finds
that Storek teaches cooking food in oil raised above the boiling point of
water. Ans. 5, 8, 10. The Examiner determines, for claims 1 and 4, that it
would have been obvious to modify Taylor’s sous vide cooking method to
use oil in order to cook at a higher temperature. Id. at 5, 10–11. For claim 3,
the Examiner finds that it would have been obvious to modify Storek’s
method to include Tucker’s vents to keep pressure from building during the
cooking process. Id. at 8.
The Examiner finds that Taylor and Storek are silent regarding the
food sheet being metallic. Id. at 6. The Examiner finds that Butcher’s Info
blog teaches using metallic foil in sous vide cooking. Id. at 6–7. The
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Examiner determines that it would have been obvious to modify the
combination of Taylor and Storek to use aluminum foil to prevent undesired
reactions and leaching of plastic bags into the food. Id.
Appellant argues that Butcher’s Info does not suggest use of
aluminum foil as part of a sous vide cooking process. Appeal Br. 9–10. The
preponderance of the evidence supports Appellant’s position. Butcher’s Info
explains that the sous vide cooking process can be problematic because,
when cooking with the plastic bags, they may leach undesirable chemicals
into the food. Butcher’s Info 2. In this context, Butcher’s Info elaborates on
the risk of using plastic by stating that “Aluminum foil is a better choice for
covering fatty hot foods.” Id. at 2. We do not, however, read Butcher’s Info
as suggesting that aluminum foil be used to tightly cover the food and then
immerse the food in liquid for cooking (i.e., in a sous vide style). Rather,
Butcher’s Info appears to reference aluminum foil merely as a point of a
comparison in explaining the risks of exposing hot fatty foods to plastic. The
Examiner responds by finding that Butcher’s Info teaches that aluminum foil
is suitable for contacting hot foods. Ans. 17. This explanation, however, falls
short of explaining why a person of skill in the art would use aluminum foil
to cover food as part of a sous vide type cooking method.
The Examiner also determines that a person of skill in the art would
use the foil “in sous vide cooking that requires higher temperatures than
what would normally be suitable in only plastic bags.” Ans. 6–7. Appellant,
however, argues that the references do not teach sous vide cooking in oil
(i.e., with oil having a higher boiling point thus enabling higher temperature
cooking). Appeal Br. 6–8. Again, the preponderance of the evidence
supports the Appellant’s position. The Examiner relies on Storek paragraph
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29 for teaching a sous vide method using oil (thereby enabling cooking
above water’s boiling point). Ans. 13–14. Storek paragraph 29, however,
indicates that in one step the food product is “exposed to a liquid” where the
liquid could be “water, juice, oils, sauces, batters, coatings, among others.”
Storek, thus, at this paragraph does not teach a high temperature sous vide
method using oil. See Appeal Br. 6–7 (explaining how the Examiner is
combining disparate embodiments of Storek). Indeed, the Storek’s reference
to sauces and batters suggests direct contact with food product rather than
use of an intervening liquid barrier such as plastic (or, as the Examiner
suggests, foil). Similarly, Storek’s paragraph 115 also discusses cooking
food in oil but then suggests “sous-vide . . . in a water bath” as an alternative
(using the words “[i]n, addition”). See Storek ¶ 115.
Based upon the record as a whole and as explained above, the
Examiner has not adequately established that a person of skill in the art
would have had reason to reach the independent claims’ recitations
concerning wrapping food in a formable metallic sheet and placing the
wrapped food into heated oil. We, therefore, do not sustain the Examiner’s
rejections.

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DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 2 103 Taylor, Storek,
Butcher’s Info
1, 2
3, 14, 15 103 Storek, Tucker,
Butcher’s Info
3, 14, 15
4, 11–13,
16, 17
103 Taylor, Storek,
Butcher’s Info, Tucker
4, 11–13,
16, 17
Overall
Outcome
1–4, 11–17

REVERSED