Ex Parte Mengel et al

Patent Trial and Appeal BoardOct 25, 2012

11523953 (P.T.A.B. Oct. 25, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte MATTHEW LEROY MENGEL, DOUGLAS MARK LATREILLE, and DAN G. SIEGEL ____________ Appeal 2011-002657 Application 11/523,953 Technology Center 1700 ____________ Before CHUNG K. PAK, TERRY J. OWENS, and JEFFREY T. SMITH, Administrative Patent Judges. PAK, Administrative Patent Judge. DECISION ON APPEAL Appellants appeal under 35 U.S.C. § 134 from the Examiner's final rejection of claims 29 through 77 and 123 through 148, all of the claims pending in the above-identified application.1 We have jurisdiction over the appealed subject matter pursuant to 35 U.S.C. § 6. 1 See Appeal Brief (“App. Br.”) filed May 10, 2010, 5; and Examiner’s Answer (“Ans.”) filed August 19, 2010, 2. Appeal 2011-002657 Application 11/523,953 2 STATEMENT OF THE CASE The subject matter on appeal is directed to a packaged meat product comprising a packaging material made of polymeric web having an oxygen barrier polymeric layer, an uncooked meat product, and a packaging insert comprising a myoglobin blooming agent. (See, e.g., claims 29 and 123.) Page 29, paragraph 0095, of the Specification defines the term “packaging insert” as follows: A packaging insert is an article that is incorporated in a packaged food product which is not an integral part of the packaging film that forms the outer wrapper. A packaging insert, when incorporated in a packaged food, is in contact with the food product. Packaging inserts can serve any of a variety of purposes including absorbing liquids, cushioning sharp or rough surfaces such as bones, protecting a surface on the food product, modifying the atmosphere within the package, or containing all or a portion of the food product such as the giblets inside of poultry. Examples of packaging inserts include absorbent and non-absorbent pads, soaker pads, purge control pads, puncture resistant inserts, packets, pouches, sachets and trays. [(Emphasis added.)] Page 8, paragraph 0026, of the Specification also defines the term “myoglobin blooming agent” as follows: A “myoglobin blooming agent” refers to any agent (or precursor thereof) that binds to or interacts with any undenatured myoglobin-containing structure (including but not limited to deoxymyoglobin, oxymyoglobin, metmyoglobin, carboxymyoglobin, and nitroxymyoglobin) present in a fresh meat product to produce or preserve a desired color, such as red color indicative of fresh meat.… Thus, the myoglobin blooming agent is not a color additive, but it acts as a color fixative. Appeal 2011-002657 Application 11/523,953 3 The type of myoglobin blooming agent employed is limited to nitric oxide donating compounds or nitrogen heterocycles. (See claims 29 and 23.) Details of the appealed subject matter are recited in representative claims 29 and 123 reproduced below: 29. A packaged meat product comprising: a package comprising a polymeric web having an oxygen barrier polymeric layer; an uncooked meat product; and a packaging insert comprising a first layer comprising a myoglobin blooming agent selected from the group consisting of nitric oxide donating compounds and nitrogen heterocycles; wherein the packaging insert is sized smaller than the package to which it is to be inserted and at least a portion of the insert is in contact with the meat product. 123. A meat packaging kit comprising: a packaging article comprising a polymeric web having an oxygen barrier polymeric layer; and a packaging insert; wherein the packaging insert comprises a first layer comprising a myoglobin blooming agent selected from the group consisting of nitric oxide donating compounds and nitrogen heterocycles; and wherein the packaging insert is sized smaller than the packaging article to which it is to be inserted and at least a portion of the insert is in contact with the meat product. [(Emphasis added.)] Appeal 2011-002657 Application 11/523,953 4 As evidence of unpatentability of the subject matter claimed, the Examiner relies upon the following evidence (Ans. 3 and 5): Cheng US 4,683,139 Jul. 28, 1987 Chung US 4,877,846 Oct. 31, 1989 Meier et al. (“Meier”) US 6,623,773 B2 Sep. 23, 2003 Whitman et al. (“Whitman”) US 2004/0097630 A1 May 20, 2004 Appellants seek review of the following grounds of rejection maintained by the Examiner in the Answer: (1) Claims 29 through 34, 66 through 77, and 123 through 126 under 35 U.S.C. § 103(a) as unpatentable over the disclosure of Meier; (2) Claims 35 through 60, 63 through 65, and 127 through 148 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Meier and Chung; (3) Claim 61 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Meier and Whitman; and (4) Claim 62 under 35 U.S.C. § 103(a) as unpatentable over the combined disclosures of Meier and Cheng. (See App. Br. 8.) DISCUSSION The § 103(a) rejections maintained in the Answer are premised upon correctness of the Examiner’s finding that Meier teaches the packaging insert recited in claims 29 and 123. Claim 29, for example, recites a packaging insert comprising a first layer comprising a myoglobin blooming agent selected from the group consisting of nitric oxide donating compounds and nitrogen heterocycles; wherein the packaging insert is sized smaller than the package to which it is to be inserted and at least a portion of the inert is in contact with the meat product Appeal 2011-002657 Application 11/523,953 5 Claim 123 also recites wherein the packaging insert comprises a first layer comprising a myoglobin blooming agent selected from the group consisting of nitric oxide donating compounds and nitrogen heterocycles; and wherein the packaging insert is sized smaller than the packaging article to which it is to be inserted and at least a portion of the insert is in contact with the meat product. [(Emphasis added.)] On the other hand, Appellants contend that Meier does not teach, inter alia, the packaging insert recited in claims 29 and 123. (Compare Ans. 3-8 with App. Br. 9-20 and Reply Brief (“Reply Br.”) filed September 15, 2010, 2-3.) Thus, the dispositive question is: Has the Examiner demonstrated that Meier teaches the packaging insert recited in claims 29 and 123? On this record, we answer this question in the negative. As correctly argued by Appellants at pages 9 through 20 of the Appeal Brief and pages 2 and 3 of the Reply Brief, Meier does not teach a packaging insert having a particular myoglobin blooming agent independent of and not integral with a packaging material or packaging article made of polymeric web having an oxygen barrier polymeric layer as required by claims 29 and 123. The disclosures of Meier relied upon by the Examiner only describe a packaging material comprising a substrate made of a polymeric film or laminate having an oxygen barrier function attached to or integrated with a curing/marinating food treatment agent (which according to page 4 of the Answer includes curing salts comprising nitrates and nitrites) via an edible adhesive. (Compare Ans. 3-5 with Meier, col. 2, l. to col. 3, l. 38, col. 5, ll. 22-25, col. 6, ll. 1-19.) Nowhere do the disclosures of Appeal 2011-002657 Application 11/523,953 6 Meier relied upon by the Examiner discuss an insert which is independent of and not integral with its packaging material. (See Meier, col. 2, l. to col. 3, l. 38, col. 5, ll. 22-25, col. 6, ll. 1-19.) Thus, on this record, the Examiner has not shown that Meier teaches the packaging insert recited in claims 29 and 123. Nor has the Examiner provided any reason or suggesting in the Answer as to why one of ordinary skill in the art would have been led to employ the packaging insert having the particular myoglobin blooming agent recited in claims 29 and 123 from the relied upon disclosures of Meier. (See Ans. 3- 8.) Accordingly, on this record, we are constrained to reverse the Examiner’s § 103(a) rejections set forth in the Answer. ORDER Upon consideration of the record, and for the reasons given above, it is: ORDERED that the decision of the Examiner to reject the claims on appeal under 35 U.S.C. § 103(a) is REVERSED. REVERSED kmm