BOARD OF REGENTS, THE UNIVERSITY OF TEXAS SYSTEM (PATENT OWNER) et al.

Patent Trials and Appeals Board

Jun 30, 2021

2021003463 (P.T.A.B. Jun. 30, 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.
90/014,460 02/21/2020 8298589 UTSHP0288USRE2/1001118084 5347
26271 7590 06/30/2021
NORTON ROSE FULBRIGHT US LLP
1301 MCKINNEY
SUITE 5100
HOUSTON, TX 77010-3095
EXAMINER
DIAMOND, ALAN D
ART UNIT PAPER NUMBER
3991
MAIL DATE DELIVERY MODE
06/30/2021 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)
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte BOARD OF REGENTS, THE UNIVERSITY OF TEXAS
SYSTEM
Patent Owner and Appellant
____________
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
Technology Center 3900
____________
Before RICHARD M. LEBOVITZ, JEFFREY B. ROBERTSON, and
JANE E. INGLESE, Administrative Patent Judges.
INGLESE, Administrative Patent Judge.
DECISION ON APPEAL
ThermoLife International, LLC filed a third-party request for ex
parte reexamination of U.S. patent 8,298,589 B1 (“the ’589 patent”)
on February 21, 2020. The Board of Regents, the University of
Texas System, the owner of the ‘589 patent, requests our review of
the Examiner’s final rejection of claims 1–6, 8, and 10–16 in the
reexamination proceeding., We have jurisdiction over the appeal
under 35 U.S.C. §§ 134(b) and 306.
We AFFIRM.
CLAIMED SUBJECT MATTER
The invention described in the ’589 patent relates to a
composition comprising a nitrite salt, a nitrate salt, and ascorbic acid.
Col. 1, ll. 21–23. The ‘589 patent indicates that the composition may
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
2
be provided to a mammal as a dietary supplement to enhance
cardiovascular performance or to treat an adverse cardiovascular
event. Col. 1, ll. 60–66.
The independent claims on appeal (claims 1, 8, and 10) read as
follows, with underlining included to show language added relative to
the originally issued claims:
1.A composition, comprising:
a nitrite salt wherein said nitrite salt is provided in an
amount ranging from about 10 mg to about 100
mg;
a nitrate salt, wherein said nitrate salt is provided in
an amount ranging from about 50 mg to about
500 mg; and
ascorbic acid, wherein said ascorbic acid is
provided in an amount ranging from about 100
mg to about 2000 mg;
wherein said composition is a dry solid and is
provided in a single oral dose.
8.A composition, comprising:
a nitrite salt wherein said nitrite salt is provided in an
amount ranging from about 10 mg to about 100
mg;
a nitrate salt, wherein said nitrate salt is provided in
an amount ranging from about 50 mg to about
500 mg; and
ascorbic acid, wherein said ascorbic acid is
provided in amount ranging from about 100 mg
to about 2000 mg;
wherein said composition is a dry solid, is provided
in a single oral dose, and is formulated to be
exposed to commensal bacteria in the mouth.
10. A composition, comprising:
a nitrite salt wherein said nitrite salt is provided in an
amount ranging from about 10 mg to about 100
mg;
a nitrate salt, wherein said nitrate salt is provided in
an amount ranging from about 50 mg to about
500 mg; and
ascorbic acid, wherein said ascorbic acid is
provided in an amount ranging from about 100
mg to about 2000 mg;
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
3
wherein said composition is a dry solid and is
provided in a single dose and is formulated to
be exposed to commensal bacteria in the
mouth.
Appeal Br. 14–15 (Claims Appendix, underlining added).
THE REJECTIONS
The Examiner maintains the following rejections in the
Examiner’s Answer entered March 5, 2021 (“Ans.”):
I. Claims 1–5, 8, and 10–16 under 35 U.S.C. § 103(a)
as unpatentable over Lundberg in view of Dietary Reference, and
optionally further in view of Walker; and
I. Claim 6 under 35 U.S.C. § 103(a) as unpatentable
over Lundberg in view of Dietary Reference and Cooke, and
optionally further in view of Walker.
DISCUSSION
We review appealed rejections for reversible error based on the
arguments and evidence the Patent Owner provides for each issue
the Patent Owner identifies. 37 C.F.R. § 41.37(c)(1)(iv); Ex parte
Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential) (cited with
approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
(explaining that even if the Examiner had failed to make a prima facie
case, “it has long been the Board’s practice to require an applicant to
identify the alleged error in the examiner’s rejections”)).
Upon consideration of the evidence relied upon in this appeal
and each of the Patent Owners’ timely contentions, we affirm the
Examiner’s rejections of claims 1–6, 8, and 10–16 under 35 U.S.C. §
103(a), for reasons set forth in the Final Action, the Answer, and
below.
Rejection I
We turn first to the Examiner’s rejection of claims 1–5, 8, and
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
4
10–16 under 35 U.S.C. § 103(a) as unpatentable over Lundberg in
view of Dietary Reference, and optionally further in view of Walker.
To address this rejection, the Patent Owner presents arguments for
independent claims 1, 8, and 10, which the Patent Owner argues
together, and the Patent Owner separately argues dependent claims
14–16, which the Patent Owner also argues together. Appeal Br.
2–12. We, therefore, select claim 1 as representative of claims 1–5,
8, and 10–13, and we separately address claims 14–16, selecting
claim 14 as representative of this group of claims. 37 C.F.R. §
41.37(c)(1)(iv).
Claims 1–5, 8, and 10–13
Lundberg discloses a composition containing a nitrate salt and
a nitrite salt (“the nitrate/nitrite salt composition”), which Lundberg
indicates may be used as a dietary supplement to enhance
performance during physical exercise. Lundberg ¶¶ 24, 25, 50, 51.
Lundberg discloses that the nitrate/nitrite salt composition may be
formed into a liquid, powder, granulate, tablet, capsule, or
effervescent tablet, among others. Lundberg ¶¶ 35, 41, 58.
Lundberg discloses that the nitrate/nitrite salt composition may be
marketed as a functional food, and Lundberg explains that “functional
foods” include vitamin-enriched products. Lundberg ¶¶ 23, 40, 59.
Lundberg discloses that contamination of nitrate and nitrite-
containing “food or drink” with bacteria may lead to potentially serious
adverse health effects if the contaminated food or drink is ingested.
Lundberg ¶ 45. To prevent such adverse effects, Lundberg discloses
including an acidifying agent, such as ascorbic acid, in Lundberg’s
nitrate/nitrite salt composition to lower its pH, which Lundberg
indicates “will inhibit and/or abolish bacterial growth.” Id.
Lundberg describes an experimental study in which volunteer
trained cyclists or triathletes ingested 0.1 mmol sodium nitrate/kg
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
5
trained cyclists or triathletes ingested 0.1 mmol sodium nitrate/kg
body weight/day. Lundberg ¶¶ 79, 80. Lundberg discloses that the
sodium nitrate was dissolved in water, and the “daily dose was
divided and ingested three times daily” during two three-day periods,
which were separated by a ten day “washout interval.” Lundberg ¶
80.
Dietary Reference discloses that vitamin C or ascorbic acid is a
water soluble vitamin that functions in humans in vivo as an
antioxidant. Dietary Reference p. 95. Dietary Reference mentions a
first survey in which approximately 31 percent of adults reported
taking a vitamin C supplement, and a second survey in which 35
percent of elderly males, and 44 percent of elderly females, reported
taking some form of vitamin C supplements. Dietary Reference p.
155.
The claimed composition comprises a nitrite salt, nitrate salt,
and ascorbic acid in dry solid form. In view of Lundberg’s disclosure
that its nitrate/nitrite salt composition may be formed into a liquid,
powder, granulate, tablet, capsule, or effervescent tablet, and
disclosure that “its composition can be vitamin-enriched,” the
Examiner concludes that it would have been obvious to one of
ordinary skill in the art to form Lundberg’s nitrite/nitrite salt
composition into a tablet or capsule that includes vitamin C (ascorbic
acid), to impart beneficial antioxidant properties to the composition,
as taught by Dietary Reference. Final Act. 8; Ans. 10. The Examiner
concludes that it also would have been obvious to form Lundberg’s
nitrite/nitrite salt composition into a dry solid powder, granulate, or
effervescent tablet that includes vitamin C (ascorbic acid), so that
when dissolved in a liquid before ingestion as suggested by
Lundberg’s experimental examples, the vitamin C would lower the pH
of the solution, thereby inhibiting and/or abolishing bacterial growth.
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
6
Ans. 11.
The Patent Owner argues that Lundberg “does not disclose or
suggest including ascorbic acid in a dry solid composition of nitrate
and nitrite” as recited in claim 1. Appeal Br. 4. The Patent Owner
argues that Lundberg discloses including ascorbic acid only in liquid
compositions to adjust their pH “and not for any other purpose.” Id.
The Patent Owner argues that the Examiner does not provide an
explanation or evidence for “why [Lundberg’s] suggestion of ‘vitamin-
enriched’ . . . would render obvious a composition that includes
ascorbic acid in a dry solid composition.” Appeal Br. 6–7.
The Patent Owner relies on the Declaration of Andrew Gow
filed August 10, 2020 under 37 C.F.R. § 1.132 to support these
arguments. Appeal Br. 4–5. According to the Gow Declaration, one
of ordinary skill in the art would have understood Lundberg’s
disclosure of including ascorbic acid in its nitrate/nitrite compositions
“as applying exclusively to liquid compositions,” because pH is a
property of liquids rather than solids, and Lundberg’s stated purpose
for using ascorbic acid—preventing or inhibiting bacterial growth—is
not a concern in dry solids. Gow Declaration ¶¶ 6, 7.
The Patent Owner’s arguments do not identify reversible error
in the Examiner’s rejection, for reasons that follow.
As discussed above, Lundberg discloses a nitrate/nitrite salt
composition used as a dietary supplement that may be marketed as a
“functional food,” and Lundberg explains that “functional foods”
include vitamin-enriched products, which reasonably would have
suggested enriching Lundberg’s nitrate/nitrite salt composition with
one or more vitamins. Lundberg ¶¶ 23, 24, 25, 40, 50, 51, 59.
Dietary Reference’s disclosure that vitamin C (ascorbic acid)
beneficially functions in humans as an antioxidant, and disclosure of
the prevalence of vitamin C supplement use in adults (Dietary
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
7
Reference pp. 95, 155), reasonably would have suggested enriching
Lundberg’s nitrate/nitrite salt composition with vitamin C to impart
desirable antioxidant properties to the composition. In re Burckel,
592 F.2d 1175, 1179 (C.C.P.A. 1979) (Under 35 U.S.C. § 103, a prior
art reference “must be considered not only for what it expressly
teaches, but also for what it fairly suggests.);” see also In re Lamberti,
545 F.2d 747, 750 (C.C.P.A. 1976) (“[T]he question under 35 U.S.C.
§ 103 is not merely what the references expressly teach, but what
they would have suggested to one of ordinary skill in the art at the
time the invention was made.”).
And as the Examiner explains in the Answer, only thirteen
vitamins are known to be essential for humans, and enriching
Lundberg’s nitrate/nitrite salt composition with vitamin C would have
been a matter of selecting a known vitamin according to its known
antioxidant function to obtain the predictable result of imparting an
additional beneficial property to Lundberg’s nitrate/nitrite salt
composition. Ans. 15 (citing KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 417 (2007)).
One of ordinary skill in the art would have further understood
from Lundberg’s disclosure of forming Lundberg’s nitrate/nitrite salt
composition into a liquid, powder, granulate, tablet, capsule, or
effervescent tablet, that the composition resulting from enriching
Lundberg’s nitrate/nitrite salt composition with vitamin C likewise
could be formed into a liquid, powder, granulate, tablet, capsule, or
effervescent tablet, several of which are in dry solid form as required
by claim 1. In re Preda, 401 F. 2d 825, 826 (CCPA 1968) (In
assessing the content of the applied prior art, “it is proper to take into
account not only specific teachings of the reference but also the
inferences which one skilled in the art would reasonably be expected
to draw therefrom.” (citation omitted)).
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
8
Contrary to the Patent Owner’s arguments and the relied-upon
statements in the Gow Declaration, the combined disclosures of
Lundberg and Dietary Reference, therefore, reasonably would have
suggested enriching Lundberg’s nitrate/nitrite salt composition with
vitamin C, and forming the resulting composition into a powder
granulate, tablet, capsule, or effervescent tablet (dry solids), to
produce a dietary supplement for enhancing performance during
physical exercise having the added benefit of also functioning as an
antioxidant. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 417 (2007)
(quoting Sakraida v. Ag Pro, Inc., 425 U.S. 273, 282 (1976) (“[W]hen
a patent ‘simply arranges old elements with each performing the
same function it had been known to perform’ and yields no more than
one would expect from such an arrangement, the combination is
obvious.”); Velander v. Garner, 348 F.3d 1359, 1371 (Fed. Cir. 2003)
(“In giving more weight to prior publications than to subsequent
conclusory statements by experts, the Board acted well within [its]
discretion.”); Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir. 2010)
(The Board has discretion to give more weight to one item of
evidence over another “unless no reasonable trier of fact could have
done so”).
Moreover, one of ordinary skill in the art would have understood
that an effervescent tablet formed from Lundberg’s nitrate/nitrite salt
composition is designed and intended to be ingested by first
dissolving the tablet in water, and then drinking the resulting solution.
See, e.g., Collins English Dictionary,
https://www.collinsdictionary.com/us/dictionary/ english/ effervescent-
tablet (accessed June 16, 2021). In fact, as discussed above,
Lundberg exemplifies administering sodium nitrate in solution form to
study participants by dissolving the sodium nitrate in water, and
having the participants ingest the resulting solution. As also
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
9
discussed above, Lundberg discloses including an acidifying agent,
such as ascorbic acid, in Lundberg’s composition to inhibit and/or
abolish bacterial growth. One of ordinary skill in the art would have
recognized from this disclosure that adding ascorbic acid to an
effervescent tablet formed from Lundberg’s nitrate/nitrite salt
composition would inhibit bacterial growth in a solution formed when
the tablet is dissolved in water, particularly in view of ascorbic acid’s
known solubility in water, as disclosed in Dietary Reference. KSR,
550 U.S. at 418 ([A]n obviousness analysis “need not seek out
precise teachings directed to the specific subject matter of the
challenged claim, for [an examiner] can take account of the
inferences and creative steps that a person of ordinary skill in the art
would employ.)” Contrary to the Patent Owner’s arguments and
relied-upon statements in the Gow Declaration, Lundberg’s
disclosures as a whole, therefore, would have suggested including
vitamin C in an effervescent tablet (dry solid) to inhibit bacterial
growth in a solution formed after dissolving the tablet.
The Patent Owner argues that the experimental study
described in Lundberg “does not suggest that the dissolved
composition would be stored for any amount of time before
ingestion,” and preventing bacterial growth by including ascorbic acid
in the composition “would not be relevant if the dry solid composition
is dissolved and ingested soon thereafter.” Appeal Br. 6. The Patent
Owner argues that, therefore, “a person of ordinary skill in the art
would not read Lundberg I as suggesting the inclusion of ascorbic
acid in a dry solid composition that is intended to be dissolved before
ingestion.” Id.
The Patent Owner’s arguments do not identify reversible error
in the Examiner’s rejection, for reasons that follow.
As discussed above, Lundberg indicates that during the
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
10
experimental study described in the reference, sodium nitrate was
dissolved in water, and the “daily dose was divided and ingested
three times daily” during two three-day periods, which were separated
by a ten day “washout interval.” Lundberg ¶ 80. These disclosures
reasonably would have indicated to one of ordinary skill in the art
that, at the very least, a single sodium nitrate solution was prepared
and divided into three doses, two of which were ingested later in the
day. Contrary to the Patent Owner’s arguments, one of ordinary skill
in the art, therefore, would have understood Lundberg to implicitly
disclose storing a sodium nitrate solution for later consumption. KSR,
550 U.S. at 418 ([A]n obviousness analysis “need not seek out
precise teachings directed to the specific subject matter of the
challenged claim, for [an examiner] can take account of the
inferences and creative steps that a person of ordinary skill in the art
would employ.”); see also In re Preda, 401 F. 2d 825, 826 (CCPA
1968) (“[I]t is proper to take into account not only specific teachings of
the reference but also the inferences which one skilled in the art
would reasonably be expected to draw therefrom.”).
As discussed above, Lundberg discloses that bacterial
contamination of such solutions can result in adverse health effects,
and Lundberg indicates that lowering the pH of the solution by adding
ascorbic acid prevents bacterial growth. One of ordinary skill in the
art reasonably would have been led from these disclosures to
incorporate ascorbic acid into a nitrate/nitrite salt composition as
disclosed in Lundberg when forming the composition into a powder,
granulate, or effervescent tablet intended for consumption by
dissolving the powder, granulate, or effervescent tablet in a liquid, to
prevent bacterial growth in the resulting solution.
The Patent Owner argues that the Examiner does not explain
why Dietary Reference’s disclosure of the antioxidant benefits of
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
11
ascorbic acid “would motivate a person of ordinary skill in the art to
combine ascorbic acid with nitrate and nitrite in a dry solid
composition.” Appeal Br. 7. The Patent Owner argues that the
Examiner “has not pointed to anything” in Lundberg, or provided “any
other evidence that would give a skilled person any reason to believe
that it would be important to include an antioxidant in a dry solid
composition comprising nitrite and nitrate disclosed in Lundberg.” Id.
As discussed above, however, in view of Lundberg’s disclosure
that Lundberg’s nitrate/nitrite salt composition may be marketed as a
vitamin-enriched functional food, Dietary Reference’s disclosure that
vitamin C (ascorbic acid) beneficially functions in humans as an
antioxidant, and disclosure of the prevalence of vitamin C supplement
use in adults, reasonably would have suggested enriching Lundberg’s
nitrate/nitrite salt composition with vitamin C to impart desirable
antioxidant properties to the composition.
Furthermore, as also discussed above, adding vitamin C to
Lundberg’s nitrate/nitrite salt composition, which Lundberg suggests
enriching with vitamins, would have been a matter of selecting a
known vitamin according to its known antioxidant function to obtain
the predictable result of imparting an additional beneficial property to
the nitrate/nitrite salt composition. KSR, 550 U.S. at 417; Dystar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick, 464 F.3d
1356, 1368 (Fed. Cir. 2006) (“Indeed, we have repeatedly held that
an implicit motivation to combine exists not only when a suggestion
may be gleaned from the prior art as a whole, but when the
‘improvement’ is technology independent and the combination of
references results in a product or process that is more desirable, for
example because it is . . . more efficient. Because the desire to
enhance commercial opportunities by improving a product or process
is universal—and even commonsensical—we have held that there
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
12
exists in these situations a motivation to combine prior art references
even absent any hint of suggestion in the references themselves.”).
The Patent Owner presents additional arguments directed to
Walker. Appeal Br. 8–10. The Examiner, however, relies on Walker
as an optional reference to further support the Examiner’s rejection of
claim 1 over Lundberg in view of Dietary Reference. Final Act. 9.
Due to the optional nature of the Examiner’s reliance on Walker, we
limit our analysis to the relied-upon disclosures of Lundberg and
Dietary Reference only, and, therefore, do not reach Appellant’s
arguments directed to Walker.
Considering the totality of the evidence relied upon in this
appeal, a preponderance of the evidence weighs in favor of the
Examiner’s conclusion of obviousness. We, therefore, affirm the
Examiner’s rejection of claims 1–5, 8, and 10–13 under 35 U.S.C. §
103(a).
Claims 14–16
Claim 14 depends from claim 1 and recites that the
“composition consists of purified or isolated nitrate salt, nitrite salt,
and ascorbic acid.”
The Patent Owner argues that “[t]he ascorbic acid-containing
compositions disclosed in Lundberg [] are liquids,” and Lundberg,
therefore, “[does not] disclose or suggest a dry solid composition that
consists of the three recited components.” Appeal Br. 11.
Appellant’s arguments do not identify reversible error in the
Examiner’s rejection, for reasons that follow.
Lundberg discloses a composition for enhancing performance
during physical exercise, and Lundberg indicates that to achieve this
effect, the composition need only contain “inorganic nitrate and/or
nitrite,” which may be in salt form. Lundberg ¶¶ 24, 25, 46, 47, 50.
Although Lundberg discloses that additional ingredients may be
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
13
Although Lundberg discloses that additional ingredients may be
included in the composition, Lundberg indicates that such ingredients
are optional, rather than required, components of the composition,
and not necessary for achieving the composition’s intended effect of
enhancing performance during physical exercise. Lundberg ¶¶ 24,
25, 28, 44, 46, 47. One of ordinary skill in the art, therefore, would
have understood Lundberg to disclose a composition for enhancing
performance during physical exercise that requires only a nitrite salt
and a nitrate salt as the active ingredients. Preda, 401 F. 2d at 826.
In view of Dietary Reference’s disclosure that vitamin C
(ascorbic acid) beneficially functions in humans as an antioxidant,
and disclosure of the prevalence of vitamin C supplement use in
adults, the combined disclosures of Lundberg and Dietary Reference
reasonably would have suggested enriching Lundberg’s
composition—containing only a nitrite salt and a nitrate salt—with
vitamin C, and forming the resulting composition into a powder
granulate, tablet, capsule, or effervescent tablet (dry solids), to
produce a dietary supplement for enhancing performance during
physical exercise having the added benefit of also functioning as an
antioxidant. Contrary to Appellant’s arguments, the combined
disclosures of Lundberg and Dietary Reference, therefore, would
have suggested a composition containing only a nitrite salt, a nitrate
salt, and vitamin C, as recited in claim 14.
We, accordingly, sustain the Examiner’s rejection of claims
14–16 under 35 U.S.C. § 103(a).
Rejection II
We turn now to the Examiner’s rejection of claim 6 under 35
U.S.C. § 103(a) as unpatentable over Lundberg in view of Dietary
Reference and Cooke, and optionally further in view of Walker.
Claim 6 depends from claim 1, and the Patent Owner relies on
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
14
the arguments discussed above that the Patent Owner presents for
claim 1, arguing that claim 6 is patentable for the same reasons as
claim 1 because Cooke does not remedy the deficiencies of
Lundberg and Dietary Reference. Appeal Br. 10–11. Because the
Patent Owner’s arguments do not identify reversible error in the
Examiner’s rejection of claim 1 for the reasons discussed above, the
Patent Owner’s arguments also do not identify reversible error in the
Examiner’s rejection of claim 6 under 35 U.S.C. § 103(a) as
unpatentable over Lundberg in view of Dietary Reference and Cooke,
which we accordingly sustain.
DECISION SUMMARY
Claims 35 U.S.C.
§
Reference(s)/
Basis
Affirmed Reverse
d
1–5, 8,
10–16
103(a) Lundberg,
Dietary
Reference,
Walker
1–5, 8,
10–16
6 103(a) Lundberg,
Dietary
Reference,
Cooke, Walker
6
Overall
Outcome
1–6, 8,
10–16
Requests for extensions of time in this ex parte reexamination
proceeding are governed by 37 C.F.R. § 1.550(c). See 37 C.F.R. §
41.50(f).
AFFIRMED
Appeal 2021-003463
Reexamination Control 90/014,460
Patent 8,298,589 B1
15
PATENT OWNER:
BIRCH STEWART KOLASCH & BIRCH, LLP
8110 Gatehouse Road, Suite 100 East
Falls Church, VA 22042-1248
THIRD PARYT REQUESTER:
MAGLEBY, CATAXINOS & GREENWOOD
170 S. Main Street, Suite 1100
Salt Lake City, UT 84101