KRAFT FOODS GROUP BRANDS LLC

Patent Trials and Appeals BoardAug 31, 2021

2020004923 (P.T.A.B. Aug. 31, 2021)

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. 15/527,199 05/16/2017 Andrew A. Palmer 1410-136825-US 1028 48940 7590 08/31/2021 FITCH EVEN TABIN & FLANNERY, LLP 120 SOUTH LASALLE STREET SUITE 2100 CHICAGO, IL 60603-3406 EXAMINER MUKHOPADHYAY, BHASKAR ART UNIT PAPER NUMBER 1792 MAIL DATE DELIVERY MODE 08/31/2021 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 ANDREW A. PALMER, DANIEL B. WILKE, TIMOTHY D. SCHNELL, and RANDALL J. GLYNN Appeal 2020-004923 Application 15/527,199 Technology Center 1700 Before MICHAEL P. COLAIANNI, N. WHITNEY WILSON, and DEBRA L. DENNETT, Administrative Patent Judges. WILSON, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s July 3, 2019 decision to finally reject claims 1–4, 7, 11, 12, 14, 17, and 21 (“Final Act.”). 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 Kraft Foods Global Brands LLC (Appeal Br. 3). Appeal 2020-004923 Application 15/527,199 2 CLAIMED SUBJECT MATTER Appellant’s disclosure is directed to bacon analogue-products and methods of producing such products (Abstract). The bacon-analogue product includes a first component and a second component (id.). The first component includes pork fat trim having about 42% lean pork muscle by weight and about 58% fat by weight (id.). The second component includes lean trim having about 85% or higher lean pork muscle by weight (id.). Claim 1, reproduced below from the Claims Appendix, is illustrative of the claimed subject matter and includes further details of the claimed invention: 1. A bacon-analogue product comprising: a first component including pork fat trim having about 42% lean pork muscle by weight and about 58% fat by weight; a second component including a lean trim having about 85% lean pork muscle by weight or higher; wherein the first component has a first meat piece size of between about 0.125-inch to about 0.5-inch and the second component has a second meat piece size of between about 0.125-inch to about 0.5-inch; and wherein a ratio of the first component to the second component in the bacon-analogue product is between about 35:65 by weight to about 65:35 by weight and wherein the product comprises a plurality of slices, each of which has an appearance similar to that of a slice of bacon. Appeal 2020-004923 Application 15/527,199 3 REFERENCES The prior art relied upon by the Examiner is: Name Reference Date Cheney US 4,305,965 December 15, 1981 Cozzini et al. US 5,830,525 November 3, 1998 Eilert et al. US 6,228,404 B1 May 8, 2001 Schulz et al. US 2009/0226578 A1 September 10, 2009 Dan S. Hale et al. USDA Beef Quality and Yield Grades, https://meat.tamu.edu/beefgrading/ (last accessed on 1/2/2019) (“Marbled Slab”) Millimeters to Inches Formula https://metric- conversions.org/length/millimeters- to-inches.htm (last accessed on 1/2/2019) (“mm v. inch”) REJECTIONS 1. Claims 1–4, 7, 11, 12, and 21 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Cheney in view of Cozzini and Schultz, and further in view of Eilert, in view of evidence given by “mm vs inch.” 2. Claims 14 and 17 are rejected under 35 U.S.C. § 103(a) as being unpatentable over Cheney in view of Cozzini and Schultz, and further in view of Eilert, in view of evidence given by “mm vs inch,” and further in view of evidence provided by Marbled Slab. Appeal 2020-004923 Application 15/527,199 4 OPINION Appellant argues all independent claims 1 and 14 together, and does not argue any of the dependent claims separately (see, e.g., Appeal Br. 9). Accordingly, we will focus our discussion on the rejection of claim 1. The remaining claims will stand or fall with claim 1. The Examiner’s findings are set forth generally at pages 3–6 of the Final Action. The Examiner finds that Cheney discloses the steps of forming a bacon analogue by combining a comminuted fat appearing mixture with a lean appearing mixture to simulate the orientation of fat and lean components of a natural bacon slab and processing the resulting slab (Final Act. 3, citing Cheney 2:31–46). The Examiner further finds that Cheney’s fat appearing mixture corresponds with the claimed first component, and the lean appearing mixture corresponds to the claimed second component (Final Act. 4). The Examiner further finds that Cheney does not disclose (1) the percent amounts of fat and lean muscle present in the first component and second component, and (2) the ratio of the first component to second component (Final Act. 4). The Examiner finds that Cozzini discloses that particulate meat material used for the preparation of bacon can be fat or lean (Final Act. 4–5). The Examiner also finds that its meat product includes fat and lean tissue and ranges from 40–90% lean and 60–10% fat (Final Act. 5, citing Cozzini 3:60–67). Based on the disclosures of Eilert, the Examiner finds that Cozzini’s ranges meet the claimed amounts of fat and lean tissue in the claimed first and second components (Final Act. 5). Appeal 2020-004923 Application 15/527,199 5 Appellant argues, inter alia, that Cheney discloses that its fatty component “is richer by about 20–30% in fat content in proportion to the lean mixture” (Appeal Br. 9, citing Cheney 4:64–66). As noted by Appellant, this difference is smaller than the claimed difference, which is at least about 43% (58% fat amount in component 1 and no more than 15% fat amount in component 2). However, the Examiner finds, that this is only a preferred embodiment (Ans. 12, see, Cheney 5:15–28). This finding is not disputed by Appellant. Therefore, Cheney’s teachings are reasonably construed to cover wider differences in fat content between the first and second components. However, Appellant also argues that neither Cozzini nor Cheney teaches the claimed amounts of fat and lean material in each of the two components (Appeal Br. 9–10). With respect to Cozzini, Appellant accurately contends that its description of the lean to fat ratio refers to the entire meat product, not individual first and second components (Appeal Br. 10, citing Cozzini 1:55–2:17). Appellant argues that Cozzini, therefore, would only suggest fat-to-lean ratios for the entire meat product, not for each of the first component and the second component (id.). The Examiner’s position is that (1) Cheney discloses that the proportion of lean meat to fat can be controlled as desired, (2) Cheney discloses a product made of a fat component and a lean component, (3) Cheney’s fat component can have a wide range of fat, from 23% to 50%, and (4) Cheney states that its bacon product resembles pork belly (Ans. 12). Therefore, according to the Examiner, a person of skill in the art would have been motivated to modify Cheney’s high fat component to have the Appeal 2020-004923 Application 15/527,199 6 composition described by Cozzini “in order to have more fat as [a] nutritional ingredient and fat provides as [a] binding agent” (id. at 13). Appellant’s arguments in this regard are persuasive of reversible error in the rejection. In particular, as argued by Appellant, the Examiner has not provided an adequate explanation for why a person of skill in the art would have modified the two components of Cheney so that each has the fat/lean compositions recited in the claims. Cheney controls the overall fat/lean composition of its product by using greater or lesser amounts of the fat and lean components, not by varying the composition of each individual component (Cheney 7:26–29). Moreover, Cozzini’s fat/lean ratio is based on its overall composition, not any individual component. Thus, there would have been no reason for a person of skill in the art to modify the composition of Cheney’s different components. The rationale provided by the Examiner for making the necessary modification to Cheney is deficient. Thus, we conclude that the rejection is based on impermissible hindsight and, therefore, must be reversed. In re Warner, 379 F.2d 1011, 1017 (CCPA 1967); Sensonics, Inc. v. Aerosonic Corp., 81 F.3d 1566, 1570 (Fed. Cir. 1996). Accordingly, we reverse the rejections. DECISION SUMMARY In summary: Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1–4, 7, 11, 12, 21 103(a) Cheney, Cozzini, Schultz, Eilert, “mm v. inch” 1–4, 7, 11, 12, 21 Appeal 2020-004923 Application 15/527,199 7 14, 17 103(a) Cheney, Cozzini, Schultz, Eilert, “mm v. inch,” Marbled Slab 14, 17 Overall Outcome 1–4, 7, 11, 12, 14, 17, 21 REVERSED