IN RE McKEE.

• Decision Date: 04 March 1935
• Docket Number: Patent Appeal No. 3396.
• Citation: 75 F.2d 636
• Parties: In re McKEE.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

75 F.2d 636 (1935)

In re McKEE.

Patent Appeal No. 3396.

Court of Customs and Patent Appeals.

March 4, 1935.

Roy W. Johns, of Chicago, Ill., for appellant.

T. A. Hostetler, of Washington, D. C. (Howard S. Miller, of Washington, D. C., of counsel), for the Commissioner of Patents.

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, GARRETT, and LENROOT, Associate Judges.

GRAHAM, Presiding Judge.

The appellant has filed a divisional application in the United States Patent Office for a patent on certain claimed improvements in meat packages. The parent application includes the method claims, and is decided concurrently herewith. In re McKee, 22 C. C. P. A. (Patents) ___, 75 F.(2d) 635. In connection with his application he has filed twenty product claims, all of which were rejected by the examiner, and, on appeal, by the Board of Appeals. These were rejected on reference to the following patents:

Habrie, 1,110,773, September 15, 1914.

Linkiewicz, 1,079,778, November 25, 1913.

Vaughan, 1,747,461, February 18, 1930.

Bird, 1,359,569, November 23, 1920.

Birdseye, 1,773,079, August 12, 1930.

Both tribunals also agreed in the view, as expressed by the examiner, that the case "is devoid of invention irrespective of the references, since the production, assembly and packaging of slices of frozen meat presents no inventive concept, nor is anything more than mechanical skill involved in carrying out the concept."

Appellant's claimed invention is fairly well described in his claims, representative of which are claims 1, 2, and 4, which are as follows:

"1. An edible carcass part containing bone and comprising component slices in their natural relation to each other and free from bone dust, the bone being sliced accordingly with the meat, the cut surfaces of said slices possessing the physical characteristics resulting from cutting such slices from a carcass part while in substantially rigid, frozen condition.

"2. An edible meat product consisting of a carcass part comprising component slices arranged in their natural positions relative to one another, in combination with enclosure means to hold the slices in their said position, the cut surfaces of said slices possessing the physical characteristics resulting from cutting such slices from a carcass part while in substantially rigid, frozen condition."

"4. As an industrial product, a bone-in ham sliced through bone and tissue and the assembled slices bound together in substantially air-tight relation to each other, the cut surfaces of said slices possessing the physical characteristics resulting from cutting such slices from a carcass part while in substantially rigid, frozen condition."

The appellant's disclosure is of a meat product in which meat, including bone, is cut into slices, which slices are left in their natural position relative to each other, and afterwards packaged by means of wires and wooden end disks so that they will remain together in their natural position relative to each other until such time as it is desired to remove the individual slices and use the same. Disclosure is also made of slices of the same kind packaged together for display purposes. The meat, before slicing, is chilled sufficiently to substantially rigidify the mass of meat.

It is also disclosed that, if desired, the cutter can be so set that the slices are not entirely severed from each other, but are retained together by a shred or uncut strip along one side of the mass of meat.

It must be borne in mind, as stated by the Patent Office tribunals, that we are here concerned, not with the method of producing the meat product, but with the product after it is produced. It is stated by the examiner correctly, as it seems to us, that the question as to whether the product contains bone or not is immaterial. This might be an element properly to be considered in determining the patentability of the process, but, so far as the product is concerned, it seems to make no inventive difference whether this product...