Appeal No. 2006-0449
Application 10/232,644
988 F.2d 1181, 1184, 26 USPQ2d 1057, 1059 (Fed. Cir. 1993); Zletz, 893 F.2d at 321-22,
13 USPQ2d at 1322.
Accordingly, on this record, we interpret the phrase “any substantial time for marination”
to have a reasonable, ordinary meaning in context of the subject claim language of claims 1, 3,
13 and 15 of a range of from little or no marination time to less time than required for “meat” to
be “properly” marinated in a “marinade” to “largely but not wholly” “properly” marinated by
any person based on the common dictionary definition in context of the term “substantially.”3
See York Prods., 99 F.3d at 1572-73, 40 USPQ2d at 1622-23.
Considering now the ground of rejection of claims 1, 3, 13 and 15, as we have interpreted
these claims above, over the combined teachings of Katayama, Liberman ‘034 and Liberman
‘352, we agree with the examiner’s position that Katayama would have taught a method for
freezing fish, prepared in reference Example 1, combined with a sake containing marinade in a
vacuum sealed bag without allowing any substantial time for marination before vacuum sealing
the bag and then before freezing the bag, as set forth in reference Example 2 (answer, pages 3-7,
9 and 10). Indeed, Katayama would have taught one of ordinary skill in the culinary arts to
combine the prepared fish and the sake containing marinade for five minutes, cut the marinade
contacted fish into pieces, vacuum package the pieces, and freeze the package, which after a
period is thawed and the fish cooked (e.g., col. 17, l. 44, to col. 18, l. 49). As the examiner finds,
the Liberman references would have reasonably suggested to one of ordinary skill in the culinary
arts that vacuum packaged fish can be frozen in a brine comprising 0.05% and 1.0% by weight of
cruciferous oil at a temperature between –22 and –43.6°F, as specified in claims 1 and 13
(answer, pages 4-5 and 8). Indeed, Liberman ‘352 acknowledges that it was known in the
fisheries industry “that the addition of cruciferous oils to conventional brines” is advantageous in
a range of –22 and –43.6°F, and that different kinds of fish in plastic bags can be frozen in such
3 It is apparent that the scope of the claimed invention intended by appellant is not reflected by
the language of claims 1, 3, 13 and 15 as we have interpreted these claims above. It is well
settled that applicant’s mere intent as to the scope of the claimed invention does not so limit the
scope of a claim which is otherwise definite, when construed in light of the specification as it
would be interpreted by one of ordinary skill in the art. In re Cormany, 476 F.2d 998, 1000-02,
177 USPQ 450, 451-53 (CCPA 1973).
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