Appeal No. 2006-0449
Application 10/232,644
a product which more closely resembles [sic, a] piece of fresh meat which has been marinated,”
with “the conventionally frozen sample still suffers from cell damage and purge loss” (page 12,
l. 22, to page 13, l. 4).
The use of “snug aluminum cups” instead of vacuum sealed bags notwithstanding, we
determine that the evidence in the two specification Examples does not support appellant’s
position with respect to the interpretation to be made of the subject phrases. Presuming,
arguendo, that 22 to 25 minutes would be the total time generally selected by one of ordinary
skill in the culinary arts to “properly” marinate the particular pieces of salmon with the particular
balsamic vinegar per se marinade used in the tests, there is no showing in the specification
Examples relevant to the phrases “without allowing any substantial time for marination” with
respect to the respective claimed process steps defined with this limitation. Indeed, the sole
evidence of less than the total marination time is two minutes, and this amount of time is
disclosed to represent marination time “substantially eliminated,” and not “without allowing any
substantial time for marination” as claimed.
Thus, the reported results represent a “substantially eliminated” limitation which is not
claimed, and not the claimed “without allowing any substantial time for marination” limitations.
Even if it is held that the reported results in the specification Examples in fact represent the
claimed limitations, we find no evidence in the written description in the specification
establishing that the range of marination time represented by the claimed limitation is in fact
limited to 2 minutes of a marination range of 22 to 25 minutes, that is, 8-9% of the marination
time generally selected by any person based on the “meat” and the “marinade,” none of which is
specified in claims 1, 3, 13 and 15 as we have interpreted these terms above.
On this record, we find no definition for the language “without allowing any substantial
time for marination” in the specification, including the Figures, and there is no basis in the claim
language or the written description in the specification to read the evidence in the specification
Examples into the claims as limitations on “meat,” “marinade” and “any substantial time for
marination.” See Comark Communications, Inc. v. Harris Corp., 156 F.3d 1182, 1186, 48
USPQ2d 1001, 1005 (Fed. Cir. 1998); Morris, 127 F.3d at 1054-55, 44 USPQ2d at 1027; In re
Paulsen, 30 F.3d 1475, 1480, 31 USPQ2d 1671, 1674 (Fed. Cir. 1994); In re Van Geuns,
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