Appeal 2006-2334
Application 09/909,913
(citations omitted)” In re Oelrich, 666 F.2d 578, 581, 212 USPQ 323, 326
(CCPA 1981).
The Examiner’s contention that Peterson’s illustrative embodiment
results in inherently rupturing the meat collagen is, as Appellants contend,
directly contradicted by the direction therein to conduct the method such that
the connective tissue of the meat item does not rupture. Thus, the claim
element “pressure is applied to said food items in said step of pressing using
pliable material in a manner effective for rupturing said collagen protein
layer sufficiently to form an opening therethrough” is not present in the
description of the method set forth in the reference.
Therefore, the Examiner has not established a prima facie case of
anticipation, and accordingly, we reverse the ground of rejection of claims 1
through 3, 6, 7, and 10 under 35 U.S.C. § 102(b).
Turning now to the ground of rejection under § 103(a) based on the
combined teachings of Margolis and Peterson, we agree with Appellants that
one of ordinary skill in this art would not have combined these references in
view of the significant difference in processing conditions. Margolis
processes meat with heat such that fat remains liquefied for exudation during
pressing and Peterson processes meat in frozen state such that meat juice is
not lost during processing. While the Examiner correctly points out that one
of ordinary skill in this art could use Peterson’s apparatus as the pressing
means in Margolis’ method, the mere common meat pressing function does
not suggest using an apparatus taught for processing a frozen meat item to
process a heated meat item. Indeed, for a prima facie case, the Examiner
must adduce evidence or scientific reasoning establishing that one of
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