Ex Parte Dickhans et alDownload PDFPatent Trial and Appeal BoardDec 27, 201613797087 (P.T.A.B. Dec. 27, 2016) Copy Citation 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. 13/797,087 03/12/2013 Thomas WJ. Dickhans H5000.469.101 3477 25281 7590 12/29/2016 DICKE, BILLIG & CZAJA FIFTH STREET TOWERS 100 SOUTH FIFTH STREET, SUITE 2250 MINNEAPOLIS, MN 55402 EXAMINER SMITH, PRESTON ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 12/29/2016 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): USPTO.PATENTS @dbclaw.com dmorris@dbclaw.com DBCLAW-Docket@dbclaw.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte THOMAS W.J. DICKHANS, CHRISTOPHER C. CANDULLO, VERN J. NOLAND, JOEL D. REIMAN, and HORMEL FOODS CORPORATION Appeal 2015-004722 Application 13/797,087 Technology Center 1700 Before DONNA M. PRAISS, CHRISTOPHER L. OGDEN, and DEBRA L. DENNETT, Administrative Patent Judges. PRAISS, Administrative Patent Judge. DECISION ON APPEAL1 1 In this decision we make reference to the Specification filed Mar. 12, 2013 (“Spec.”), the Final Office Action mailed Apr. 10, 2014 (“Final Act.”), the Appeal Brief filed Sept. 17, 2014 (“App. Br.”), the Examiner’s Answer mailed Jan. 23, 2015 (“Ans.”), and the Reply Brief filed Mar. 20, 2015 (“Reply Br.”). Appeal 2015-004722 Application 13/797,087 STATEMENT OF THE CASE Appellants2 appeal under 35 U.S.C. § 134(a) from the Examiner’s rejection of claims 1—16. We have jurisdiction under 35 U.S.C. § 6(b). The Invention Appellants claim a fire searing process for cooking meat to a depth of 0.25 to 25%. Claim 1 is illustrative (key limitation in dispute italicized): 1. A fire searing process for meat, comprising: cooking meat in an oven having a temperature of at least 1500 °F for approximately 10 seconds to 3 minutes, the meat being cooked to a depth of approximately 0.25 to 25% of the meat extending into an inner surface of the meat from an outer surface of the meat to form a crust-like portion proximate the outer surface of the meat; and crust-freezing the meat to a depth of approximately 0.25 to 25% of the meat extending into an inner surface of the meat from an outer surface of the meat in a freezer having a temperature of approximately -35 to 0 °F for approximately 1 to 6 minutes, the crust-freezing preventing the meat from being further cooked to preserve the crust-like portion proximate the outer surface of the meat and to prevent a deep cook ring from forming. App. Br. 14 (Claims Appx.). Claim 9, the only other independent claim among the appealed claims, recites the same two steps of claim 1 followed by an additional step of “and then slowly cooking the meat in a second oven having a temperature of approximately 140 to 195 °F for approximately 0.25 to 20 hours.” Id. at 15. 2 Appellants identify the real party in interest as Hormel Foods Corporation. App. Br. 3. 2 Appeal 2015-004722 Application 13/797,087 Leu Ruzek The References US 5,415,883 US 5,780,085 May 16, 1995 July 14, 1998 June 19, 2001 June 1,2004 Liberman et al. (“Liberman”) US 6,248,381 B1 Gibson et al. (“Gibson”) US 6,743,454 B1 The Rejections The Examiner maintains, and Appellants appeal, the rejection of claims 1—16 under 35 U.S.C. § 103 as unpatentable over Liberman in view of Gibson, Ruzek, and Leu. Ans. 2; App. Br. 9-12. The rejection of claims 1—16 under 35 U.S.C. § 112 as indefinite stands withdrawn and is not an issue in this appeal. Ans. 7. We reverse. We need to address only the independent claims (1 and Claims 1 and 9 each require “cooking meat in an oven having a temperature of at least 1500 °F for approximately 10 seconds to 3 minutes ... to form a crust-like portion proximate the outer surface of the mean; and crust-freezing the meat... in a freezer having a temperature of approximately -35 to 0 °F for approximately 1 to 6 minutes, the crust freezing preventing the meat from being further cooked to preserve the crust-like portion proximate the outer surface of the meat and to prevent a deep cook ring from forming.” App. Br. 14—15 (Claims Appx.). The Examiner finds that the disclosure in Fiberman teaches “searing meat with charring rings at temperatures of about 1500° F for 2—3.5 seconds or optionally searing for 10 to 60 seconds” and “[ajfter searing, the product is immediately cooled for a period of between 1—5 minutes to a surface OPINION 9). 3 Appeal 2015-004722 Application 13/797,087 temperature between 30—50 F.” Ans. 3. The Examiner also finds that Liberman “does not specify how the product is transported to the cooling stage or how it is cooled” and that “Gibson provides a means which is superior to manually performing these stages.” Id. at 4. The Examiner finds that “[i]t would have been obvious to use one apparatus having a means for searing and freezing to process the product of Liberman since such an apparatus can be automated.” Id. The Examiner further finds that “one of ordinary skill would have known to use much lower temperatures than SO SO F to achieve the desired chilling of Liberman in the specified time (since heat transfers by a heat gradient) and thus, one of ordinary skill would have found it obvious to use freezing temperatures such as ones taught by Gibson since this would result in efficient chilling of the meat product in a reasonable time.” Id. at 4—5. The Examiner also finds that “[i]t would have been obvious to further crust freeze the meat of Liberman to a similar percentage [as Ruzek in view of Leu] to further crust freeze the meat of Liberman to a similar percentage in order to help stabilize the meat product for cutting” as taught by Ruzek. Id. at 5. The Examiner additionally finds “it would have been obvious to cool quickly in order to prevent further cooking which would result in preventing a ‘deep cook ring’” in light of “Liberman desires to cool immediately after heating and the goal of Liberman is not to fully cook the product as mentioned above.” Id. at 5—6. 4 Appeal 2015-004722 Application 13/797,087 Appellants contend that the Examiner’s rejection is flawed because there is no motivation to combine these references as suggested in the Final Office Action. Liberman et al. discloses a method of reconstituting meat using frozen trims that does not require the frozen trims to be defrosted during the reconstituting process, and Gibson et al. discloses searing a meat, fully cooking the meat in a spiral steam cooker, and cooling or freezing the fully cooked meat to retard the growth of bacteria. Liberman et al. starts with frozen trim, which is not defrosted during the reconstituting process and which may optionally be seared or charmarked to add flavor, to decontaminate the surface, and/or to increase the integrity, however, the frozen trims / reconstituted meat are / is generally kept frozen during the process; and Gibson et al. starts with a meat that is not frozen. In Gibson et al., the meat is not frozen until after it has been fully cooked, and it is cooled or frozen to retard bacterial growth. In other words, Liberman et al. starts with frozen trims that generally stay frozen throughout the process while Gibson et al. does not cool or freeze the meat until after it has been fully cooked. Given these differences, Applicant respectfully submits one skilled in the art would not combine these references as suggested in the Final Office Action and, therefore, the present invention is not obvious in view of these references. App. Br. 10—11. Appellants also argue that neither Liberman nor Gibson teaches or suggests crust-freezing as recited in the claim. Id. at 11. Appellants further contend that Ruzek teaches crust-freezing meat to stabilize the meat for cutting rather than to prevent the meat from being further cooked as recited in the claims. Id. Regarding claim 9, Appellants contend that neither Liberman nor Gibson teach or suggest slowly cooking the meat after the crust-freezing step and Gibson teaches away from freezing prior to cooking because Gibson cools or freezes after the meat has been fully cooked. Id. at 12. 5 Appeal 2015-004722 Application 13/797,087 The Examiner responds that the claims are not limited in a way that would distinguish over the combination of Liberman, Gibson, Ruzek, and Leu, including defrosting trims during a reconstituting process. Ans. 7. The Examiner further responds that “the claims do not require crust freezing cooked meat (but only crust freezing meat). It appears that if the meat of the composite invention is crust frozen in a similar manner as appellant’s meat, substantially the same effects would occur.” Id. at 8. We agree with Appellants that the stated reasons for combining Liberman, Gibson, and Ruzek do not have a rational underpinning to support the Examiner’s combination. Obviousness of a claim cannot be proved “merely by demonstrating that each of its elements was, independently, known in the prior art.” KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 418 (2007). “[TJhere must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness.” Id. (quoting In re Kahn, 441 E.3d 977, 988 (Led. Cir. 2006)). The Examiner’s finding that one of ordinary skill in the art would have modified Liberman’s process by further crust freezing the meat to stabilize the meat product for cutting is conclusory and not reasonable because we are directed to no evidence on this record that Liberman’s seared meat requires stabilizing for cutting. In addition, the Examiner’s interpretation of the claims is not supported by the record. The Examiner finds “that the claims do not require crust freezing cooked meat (but only crust freezing meat).” Ans. 8. The Examiner’s claim construction is inconsistent with the context of claims 1 and 9 which each require “the crust-freezing preventing the meat from being further cooked.” App. Br. 14. 6 Appeal 2015-004722 Application 13/797,087 Therefore the crust-freezing step necessarily follows immediately after the cooking step that results in the meat being cooked to a depth of approximately 0.25 to 25% of the meat extending into an inner surface of the meat to form a crust-like portion. Based on the record before us, one of ordinary skill in the art would not modify the process of Liberman by treating Liberman’s seared meat with the crust-freezing step taught by Ruzek for the purpose of stabilizing the meat for cutting. We therefore reverse the rejection of claims 1 and 9 over the combination of Liberman, Gibson, Ruzek, and Leu for the reasons stated above and in the Appeal Brief. App. Br. 9-11. Because claims 1 and 9 are the only independent claims and the deficiencies of the combination of Liberman, Gibson, Ruzek, and Leu apply equally to the rejections of dependent claims 2—8 and 10-16, we reverse the rejection of claims 2—8 and 10—16 for the same reason. Accordingly, we reverse the rejections of claims 1-16 under 35 U.S.C. § 103. DECISION/ORDER The rejections under 35 U.S.C. § 103 of claims 1—16 are reversed. It is ordered that the Examiner’s decision is reversed. REVERSED 7 Copy with citationCopy as parenthetical citation