Ex Parte Anderson et al

Patent Trials and Appeals Board

Jan 4, 2019

12875521 - (D) (P.T.A.B. Jan. 4, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/875,521 09/03/2010
48940 7590 01/07/2019
FITCH EVEN TABIN & FLANNERY, LLP
120 SOUTH LASALLE STREET
SUITE 2100
CHICAGO, IL 60603-3406
FIRST NAMED INVENTOR
Jennifer J. Anderson
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
1410-98398-US 9374
EXAMINER
STIJLII, VERA
ART UNIT PAPER NUMBER
1791
MAIL DATE DELIVERY MODE
01/07/2019 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 JENNIFER J. ANDERSON, JOSE C. ROJO, DAVID L. MOEN,
TIMOTHY D. SCHNELL, WILLIAM T. PAULOS, and
MARKE. MALENKE
Appeal2018-004212
Application 12/875,521 1
Technology Center 1700
Before MICHAEL P. COLAIANNI, JEFFREY B. ROBERTSON, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
1 According to Appellants, the real party in interest is Kraft Foods Group
Brands LLC (App. Br. 3).
Appeal2018-004212
Application 12/875,521
STATEMENT OF THE CASE
Appellants appeal under 35 U.S.C. § 134(a) the final rejection of
claims 1, 5-27, 31, 33, 34, 36-38, 40-44, 46, 47, 51, 52, and 55-73. We
have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellants' invention is directed to the processing of meat protein
and, in particular, to processing whole muscle meat into a processed meat
product. (Claim 1; Spec. ,r 1 ).
Claims 1 and 20 are illustrative:
1. A method for preparing a raw base material for use in a
processed meat product,
the method comprising:
at a meat packing plant, deboning whole muscle meat to
thereby create boneless whole muscle meat having a surface
area;
increasing the surface area of the whole muscle meat at
the meat packing plant while retaining whole muscle meat
structure of the whole muscle meat, the surface area being
increased by least one of crushing, stretching, and puncturing
the whole muscle meat using a macerator;
mixing a dry cure mix with the whole muscle meat at the
meat packing plant; packing the mixture of whole muscle meat
and dry cure mix into a container at the meat packing plant; and
shipping the container with the mixture of whole muscle
meat and dry cure mix to a meat processing plant in a separate
location from the meat packing plant such that the dry cure mix
is in contact with the whole muscle meat over a time period of
at least 2 hours such that the whole muscle meat is at least
partially cured during shipping,
wherein at least one of the crushing, stretching, and
puncturing of the whole muscle meat results in at least some
individual cell walls of the whole muscle meat rupturing,
thereby facilitating diffusion of the dry cure mix into the whole
muscle meat.
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20. A method of processing whole muscle meat, the method
comprising: deboning whole muscle meat to thereby create boneless
whole muscle meat;
macerating the whole muscle meat to increase surface area and
rupture at least some individual muscle cell walls of the whole muscle
meat while retaining whole muscle meat structure of the whole muscle
meat, the macerating comprising at least one
of crushing, stretching, and puncturing the whole muscle meat with a
macerator;
mixing a first mixture comprising a wet mixture with the whole
muscle meat;
packing the whole muscle meat and the first mixture into a
container;
transporting the container with the whole muscle meat and the
first mixture to a meat processing plant thereby delivering a base meat
mixture to the meat processing plant for further processing;
mixing the base meat mixture with a second mixture; and
thermally processing the base meat mixture and the second
mixture, wherein the whole muscle meat is not reduced to
pieces after the deboning step
and wherein the rupturing of muscle cell walls facilitates
diffusion of the first mixture into the whole muscle meat.
Appellants appeal the following rejections:
1. Claims 1, 5-13, 15-19, 26, 27, 31,33 2, 34, 36-38, 41-44, and 68-71
are rejected under 35 U.S.C. § 103 as unpatentable over Whelan (GB
2 The Examiner lists claim 3 3, which depends from independent claim 2 7, as
rejected on the Office Action Summary form attached to the Final Action.
Claim 33, however, is not listed in any of the rejections of the Final Action.
Claims 27 and 34 are included in the § 103 rejection over Whelan in view of
Afman (Final Act. 2). Claim 33 is directed to chilling the meat during
transport. Claim 34 is directed to transporting the meat using a truck. The
Examiner finds that claim 34 is directed to using conventional transportation
equipment and determines that the use of such equipment would have been
obvious (Final Act. 7). We understand claim 33 to include standard
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Application 12/875,521
2 369 284 A, pub. May 29, 2002) in view of Afman et al. (US 6,051,
264, dated Apr. 18, 2000).
2. Claim 14 is rejected under 35 U.S.C. § 103 as unpatentable over
Whelan in view of Afman and Cozzini et al. (US 4,960,599, dated
Oct. 2, 1990).
3. Claims 20-25, 51, 52, 55-67, 72, and 73 rejected under 35 U.S.C. §
103 as unpatentable over Horrocks in view Lo Biondo et al. (US
4,270,244, dated June 2, 1981 ).
With regard to rejections (1) and (2), Appellants argue the subject
matter common to independent claims 1, 17, 27, 42, and 68 (App. Br.
19-21). We select claim 1 as representative. Any claim not argued
separately will stand or fall with our analysis of the rejection of claim 1.
With regard to rejection (3), Appellants argue the subject matter
common to independent claims 20 and 51 (App. Br. 22-26). We select claim
20 as representative to the group. Any claim not argued separately will stand
or fall with our analysis of the rejection of claim 20.
FINDINGS OF FACT & ANALYSIS
REJECTIONS (1) AND (2)
The Examiner's findings and conclusions with respect to claim 1 are
located on pages 2 to 5 of the Final Action. The Examiner finds, in relevant
part, that Whelan teaches packing a de boned piece of muscle meat into a
vacuum bag after being rubbed down with dry cure mixture (Final Act. 3).
transportation techniques for perishables such as meat. Therefore, we
understand from the Examiner's listing of claim 33 as under rejection to be
included with the § 103 rejection over Whelan in view of Afman. Appellants
do not raise the rejection of claim 33 as an issue on appeal.
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Application 12/875,521
The Examiner finds that Whelan teaches to let the meat cure in the bag for
up to 5 days (Final Act. 3). The Examiner finds that Whelan teaches further
processing the meat at a meat processing location by cooking the meat (Final
Act. 4 ). Regarding the claim limitation that requires shipping the container
with the mixture of whole muscle meat and dry cure mix to a meat
processing plant in a separate location from the meat packing plant such that
the dry cure mixture is in contact with the whole muscle meat over a time
period of at least 2 hours, the Examiner finds that the meat packing location
and the meat cooking location are in two separate locations (Final Act. 4).
The Examiner finds that to get the meat from the meat packing location to
the meat processing plant (i.e., cooking) location would have required the
meat be transported (Final Act. 4). The Examiner finds that Whelan teaches
curing the meat for up to 5 days thereby allowing the dry cure mixture to
penetrate evenly throughout the meat cut (Final Act. 4). The Examiner finds
that Whelan teaches curing prior to further processing and the time to
transport meat from the meat packing location to the meat processing
location (i.e., cooking) would depend on the distance between the two
locations, speed of transport, and other factors (Final Act. 4). The Examiner
finds that Whelan does not explicitly teach increasing the surface area of the
meat by at least one of crushing, stretching, and puncturing the whole
muscle meat using a macerator (Final Act. 4). The Examiner finds that
Afman teaches using a macerator on pork bellies to increase the penetration
of a dry rub into the pork bellies (Final Act. 5). The Examiner concludes that
it would have been obvious to modify Whelan's device to employ Afman's
macerating equipment in order to enhance penetration of the dry cure
seasoning into the cured meat product (Final Act. 5).
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Application 12/875,521
Appellants argue that Whelan does not teach or suggest curing whole
muscle meat during transportation between facilities (App. Br. 19).
Appellants argue that the Examiner has not established that the packing
location and the cooking location are in separate locations (App. Br. 19).
Appellants argue that the Whelan does not disclose that any curing happens
during shipping from the meat packing plant to the meat processing plant as
recited in the claims (App. Br. 20).
Claim 1 recites:
shipping the container with the mixture of whole muscle meat and dry
cure mix to a meat processing plant in a separate location from the
meat packing plant such that the dry cure mix is in contact with the
whole muscle meat over a time period of at least 2 hours such that the
whole muscle meat is at least partially cured during shipping.
Claim 1 puts no limitations on the distance or time between the meat
processing plant and the meat packing plant. The claim merely requires that
the dry cure mix is in contact with the whole muscle meat for a period of at
least 2 hours. Contrary to Appellants' arguments, the Examiner reasonably
finds that Whelan teaches curing the meat for up to 5 days in a vacuum
package and subsequently cooking the meat in two stages (Whelan
5: 10-17). As found by the Examiner, expressing the distance from the meat
packing plant to the meat processing plant in terms of time is not meaningful
because the many factors can affect how long it take to go from one location
to another (Ans. 13).
Appellants contend that the Examiner has not shown that the meat
packing plant and meat processing plant are in two different locations.
However, the Examiner's finding that the curing and cooking of the meat
take place in separate areas is not unreasonable. The curing step requires
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refrigeration to maintain a temperature between 2 and 5°C for up to 5 days
(Whelan 5: 10-11 ). Cooking the meat a temperature of 60 to 70°C for period
of 5 to 10 hours would require an oven or other heating equipment (Whelan
5: 13-17). Transportation would be required to move the meat from a
refrigeration area to an oven or heated cooking area. The 2 hour time period
for curing during shipping does not exclude the time that a meat packaged
with the dry cure is sitting on a trolley or in storage during the transport to
the cooking area of the facility. Appellants do not direct us to any portion of
the Specification that defines shipping to exclude movement between a meat
packing portion and meat processing portion of a plant.
Appellants argue that Whelan does not teach rupturing cell walls
during the crushing, stretching or puncturing of the muscle meat (i.e.,
maceration) (App. Br. 20). Appellants contend that Whelan already has its
own method of ensuring curing agent penetration into the meat such that it
would not have added maceration (App. Br. 21 ). Appellants contend that
Whalen teaches away from maceration because Whalen teaches that the
process does not require excessive use of machinery (App. Br. 22).
Whalen teaches to tenderize the meat using conventional means to
improve the texture of the meat and to ensure that the meat will more easily
absorb a dry cure mixture (Whalen 4:5-7). The Examiner relies on Afman to
teach that maceration is known to increase the surface area of meat and
enhance penetration of the dry cure seasoning ( col. 4, 11. 7-12; Ans. 14 ). In
other words, Afman teaches a conventional method to aid in curing agent
penetration into meat, which Whalen teaches is desirable for the meat
product (Ans. 14). The Examiner correctly finds that Whalen's teaching that
the process avoids the use of excessive equipment does not discourage the
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use of macerating equipment. To the contrary, the combined teachings of
Whalen and Afman would have suggested using the macerating equipment
during Whalen's tenderizing step to aid in permitting the curing agent to
penetrate the meat. We do not find that Whalen teaches away from
maceration as argued by Appellants. The Examiner finds that maceration
would inherently rupture the cell walls (Ans. 14). The Examiner's finding
comports with Appellants' disclosure that the macerator ruptures muscle
cells (Spec. ,r 25).
On this record, we affirm the Examiner's§ 103 rejections (1) and (2)
noted above.
REJECTION (3): § 103
The Examiner's findings and conclusions regarding claim 20 are
located on pages 8-11 of the Final Action.
Appellants argue that Horrocks does not describe or suggest
transporting meat that is in contact with a curing mix (App. Br. 22).
Appellants argue that Horrocks teaches that the meat is cured in a package
but that does not mean that the meat is cured during shipping (App. Br. 23).
Appellants argue that Horrocks does not teach curing while shipping to a
processing facility (App. Br. 23).
The Examiner relies on Horrocks' second embodiment where raw
meat is placed in a plastic pouch and preserved with a solution (Ans. 16).
The raw meat is later removed from the packaging and cooked for
consumption (Horrocks col. 3, 11. 31-41 ). The raw meat in the plastic
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packaging has stabilizing solution that permeates the meat (id.). The
Examiner reasonably finds that while the raw meat and solution are in the
plastic packaging, the raw meat is stabilized (i.e. preserved or cured) during
the shipping and further transport to a desired location for further processing
(i.e. cooking) (Ans. 16).
Appellants argue that Horrocks does not teach that whole muscle meat
is treated by the process (App. Br. 24-25). Appellants contend that Horrocks
reduce the size of the muscle meat to pieces which is contrary to the
language in claims 20 and 51 (App. Br. 25).
The Examiner finds that the desired size of the whole muscle meat
would have been readily determined by a person of ordinary skill in the art
(Ans. 17). Specifically, if a larger cut of meat is desired, then a larger piece
will be retained and treated and if a smaller cut of meat is desired than a
smaller cut will be acquired (Ans. 17). We agree. Appellants contend that
even if the a person of ordinary skill in the art would have motivated to
make the muscle meat pieces different sizes, they still would have reduced
the whole muscle meat size after deboning (Reply Br. 5). Appellants'
arguments fails to appreciate the Examiner's position that if a large piece of
meat is desired, that may include no further reduction in meat size after
deboning. The size of the whole muscle meat is within the skill of the
ordinarily skilled artisan. Appellants argue that Horrocks requires a
reduction in meat size for the solution to penetrate into the meat (App. Br.
25). Appellants do not direct us to where Horrocks discloses that the meat
must be reduced in size. Rather, Horrock teaches that the meat is preferably
lxlxl/2 inch dimensions (col. 3, 11. 42-44). Moreover, claim 20 does not
specify the size of the whole meat muscle when deboned. In other words,
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smaller pieces of whole muscle meat after deboning may still be
encompassed by the claims as found by the Examiner (Ans. 17).
Appellants argue that Horrocks does not debone whole muscle meat
because Horrocks disclose that the meat product may include meat by-
products like blood, skin and bones (App. Br. 25). Contrary to Appellants'
arguments, Horrocks discloses a single embodiment that may include bone
(col. 2, 11. 1-2). Horrocks discloses other embodiments where the preferred
material is "red muscle meat" ( col. 2, 11. 2-3 ). Appellants' argument is not
persuasive.
Appellants argue that Horrocks' wet curing solution is not "wet"
within the meaning of the claims (App. Br. 26). Appellants contend that wet
within the meaning of the claims comports with the paragraph 32 disclosure
in the Specification that the water content of a "wet" solution should
minimize the amount of water (App. Br. 26).
The Examiner finds that Horrocks teaches a wet curing solution (Ans.
18). Appellants' citation to the paragraph 32 of the Specification does not
define the term "wet." Rather, paragraph 32 indicates that it is desirable to
minimize the water content of the curing mixture, but that does not restrict
the meaning of the term "wet" in the claims. In other words, the
Specification disclosure at paragraph 32 does not limit how wet a mixture
must be in order to be encompassed by the claims. Nevertheless, we find
that Horrocks also teaches that the wet solution includes embodiments where
no water is used (Horrocks Examples 2 and 4). In other words, Horrocks'
stabilizing composition minimizes the amount of water.
On this record, we affirm the Examiner's§ 103 rejection (3).
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DECISION
The Examiner's decision is affirmed.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l ). See 37 C.F.R.
§1.136(a)(l)(iv); 37 C.F.R. § 4I.50(f).
ORDER
AFFIRMED
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