Ex Parte Ludvigsen

Patent Trials and Appeals BoardFeb 21, 2019

13702530 - (D) (P.T.A.B. Feb. 21, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/702,530 12/27/2012 2292 7590 02/25/2019 BIRCH STEW ART KOLASCH & BIRCH, LLP 8110 Gatehouse Road Suite 100 East FALLS CHURCH, VA 22042-1248 FIRST NAMED INVENTOR Bent Ludvigsen 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. 15877-000029/US/NP 1015 EXAMINER STIJLII, VERA ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 02/25/2019 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): mailroom@bskb.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte BENT LUDVIGSEN Appeal2018-003527 Application 13/702,530 Technology Center 1700 Before LINDA M. GAUDETTE, MICHELLE N. ANKENBRAND, and LILAN REN, Administrative Patent Judges. REN, Administrative Patent Judge. DECISION ON APPEAL Appeal2018-003527 Application 13/702,530 STATEMENT OF THE CASE Appellant1 appeals under 35 U.S.C. Â§ 134(a) from a rejection2 of claims 16-29. We have jurisdiction under 35 U.S.C. Â§ 6(b). 3 We affirm. CLAIMED SUBJECT MATTER The claims are directed to a recovery of non-coagulated product in red meat fat reduction processes. Abst. Claim 16, reproduced below, is illustrative of the claimed subject matter: 16. A method for producing a defatted, non-coagulated meat product comprising the steps of: - heating ground fatty meat tissue to a temperature below the coagulation temperature of the fatty meat tissue, - adding water or steam to the fatty meat tissue, - separating the fatty meat tissue into a liquefied fat- containing portion and a defatted meat portion, - recovering an aqueous phase from the liquefied fat- containing portion, wherein blood proteins and cytoplasm proteins are dissolved in the aqueous phase, - concentrating the aqueous phase at a temperature of 50Â°C or less by removing water to generate a concentrated aqueous phase, wherein the blood proteins and the cytoplasm proteins dissolved in the aqueous phase do not coagulate; and - adding and mixing the concentrated aqueous phase to the defatted meat portion, wherein the concentrated aqueous phase maintains the temperature of 50Â°C or less during the adding and m1xmg. Claims Appendix. 1 The real party in interest is identified as "ALF A LAV AL CORPORA TE AB." Appeal Brief of August 29, 2017 ("Br."), 1. 2 Non-Final Office Action of April 4, 2016 ("Act."). In this opinion, we also refer to the Examiner's Answer of November 30, 2017 ("Ans."). No Reply Brief was filed. 3 The record shows that the Examiner previously issued Non-Final Rejections on April 24, 2015 and April 22, 2016 as well as Final Rejections on December 3, 2015 and October 25, 2016. 2 Appeal2018-003527 Application 13/702,530 REFERENCES The prior art references relied upon by the Examiner in rejecting the claims on appeal are: Ciantar Holst-Pedersen US 2004/0265470 Al Dec. 30, 2004 GB 2,106,367 A Sept. 27, 1982 The Production of Fish Meal and Oil, 3. The Process, www.fao.org/ docrep/003/X6899E/X6899E04.htm (April 3, 2013) ("the Production"). REJECTIONS Claims 16-29 are rejected under 35 U.S.C. 103 as being unpatentable over Ciantar, Holst-Pedersen, and the Production. Act. 2. OPINION Appellant first argues that the Examiner reversibly erred in rejecting claim 164 because Holst-Pedersen "requires the product to be subjected to drying and sterilization at least at 110Â°C for at least 10 minutes" which would cause "the product of Holst-Pedersen [to be] coagulated." Br. 7, 8 ( emphasis removed). From the outset, open-ended claim 16 does not recite a drying step and/or a sterilization step. Whether the prior art final product, upon drying and sterilization as described in Holst-Pedersen, may be coagulated, does not patentably distinguish the method claim at issue5 Appellant's argument, 4 Appellant does not present separate arguments for claims 17-29 and they stand or fall with claim 16. Br. 6-14; see also 37 C.F.R. Â§ 41.37(c)(1)(iv)(20I3). 5 Although the preamble of the claim recites a "method for producing a defatted, non-coagulated meat product," we decline to limit the process steps by the product described in the preamble. See Kropa v. Robie, 88 USPQ 3 Appeal2018-003527 Application 13/702,530 based on unclaimed features, cannot impart patentability to the claim. In re Hiniker Co., 150 F.3d 1362, 1369 (Fed. Cir. 1998). Furthermore, Appellant does not dispute the Examiner's finding that Ciantar teaches or suggests the method step of "heating ground fatty meat tissue to a temperature below the coagulation temperature of the fatty meat tissue." Compare Act. 2-3 (citing Ciantar ,r,r 48, 89, & 100 for various recited steps including the one at issue here), with Br. 7-8 ( arguing without addressing the cited portions of Ciantar). Appellant does not dispute the Examiner's finding that Holst-Pedersen teaches or suggests the steps of "adding water or steam to the fatty meat tissue," "separating the fatty meat tissue into a liquefied fat-containing portion and a defatted meat portion," and "recovering an aqueous phase from the liquefied fat-containing portion." Compare Act. 4, with Br. 7-8. Appellant does not dispute the Examiner's finding that Holst-Pedersen describes heating the raw material "to a temperature between 50 and 60 Â°C" in support of the rejection. Compare Act. 3--4 (citing Holst-Pedersen at 1:4--10, 1:53-63), with Br. 7-8 (citing Holst-Pedersen at 1: 128-2:3). Because the record before us supports these findings and Appellant has not challenged them, we accept them as facts. See In re Kunzmann, 326 F.2d 424,425 n.3 (CCPA 1964). Based on the foregoing, we are unpersuaded that Appellant identifies reversible error in the Examiner's findings in this aspect of the obviousness analysis. Appellant next argues that the Examiner reversibly erred in finding that combined prior art teaches or suggests the steps of "concentrating the aqueous phase at a temperature of 50Â°C or less" and "adding and mixing the concentrated aqueous phase to the defatted meat portion, wherein the 478,481 (CCPA 1951) (holding that claim preamble does not further limit claims if it merely states a purpose or intended use of subject matter). 4 Appeal2018-003527 Application 13/702,530 concentrated aqueous phase maintains the temperature of 50Â°C or less during the adding and mixing" (the "concentrating steps"). Br. 9. More specifically, Appellant acknowledges that Ciantar discloses heating the material "to a temperature within the range 40-50Â°C. in order to preserve protein functionality," but argues that because both Holst-Pedersen and the Production disclose sterilization at 100Â°C and because Holst-Pedersen is silent with regard to the concentrating steps, the combined teaching would have led the skilled artisan to "concentrate the aqueous phase at a temperature of at least 110Â°C in order to kill the bacteria." Id. ( citing Ciantar ,r 89). Appellant argues that combining Ciantar with Holst-Pedersen and the Production would impermissibly alter the principles of operation of sterilization at 100Â°C in these references. Id. at 10. As we noted earlier, claim 16 does not preclude a sterilization step to remove bacteria from the product - for example, after the concentrating steps. Appellant's argument is therefore not commensurate in scope with that of the claim. See In re Hiniker Co., 150 F.3d at 1369 (holding that unclaimed features cannot patentably distinguish the prior art). The Examiner's proposed combination is directed to the concentrating steps at issue which do not involve a sterilization step and any purported principle of operation for sterilization would not have been altered as a result. Furthermore, Appellant acknowledges that the Production "discloses that temperatures below 90Â°C should be utilized" for steps such as drying. Br. 13; see also Act. 5 (finding that the Production describes material sensitive to heat should accordingly be heated minimally). "[W]here there is a range disclosed in the prior art, and the claimed invention falls within that range, there is a presumption of obviousness. But the presumption will be rebutted if it can be shown: ( 1) That the prior art taught away from the claimed 5 Appeal2018-003527 Application 13/702,530 invention; or (2) that there are new and unexpected results relative to the prior art." Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004) (internal citations omitted). In this case, the Examiner's finding is undisputed that, based on the combined prior art teaching, a skilled artisan would have had an apparent reason to apply the lower temperature "within the range 40-50Â°C. in order to preserve protein functionality" in various parts throughout the process including the concentrating steps. Compare Act. 6 ( citing Ciantar ,r 89), with Br. 9--14; see also Ans. 12 (explaining that the Production "discloses that degradation of protein, loss of volatile components and loss of important amino acids and vitamins may occur due to the heat exposure during evaporation of the stickwater" and "that significance of these changes should be considered with the special view to the marketing and end use of such products"). Given that Appellant does not identify reversible error in either the Examiner's fact findings or rationale supporting the obviousness rejection and that Appellant does not argue that the prior art teaches away or that there are unexpected results, we sustain the Examiner's obviousness rejection. 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. Â§ 1.136(a). See 37 C.F.R. Â§ 1.136(a)(l )(iv). AFFIRMED 6