Brian Michael. Zanghi et al.

Patent Trials and Appeals Board

Nov 29, 2019

14797766 - (D) (P.T.A.B. Nov. 29, 2019)

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.
14/797,766 07/13/2015 Brian Michael Zanghi 8447-US-CNT 1023
69099 7590 11/29/2019
Nestle Purina Petcare Global Resources, Inc
Checkerboard Square
Intellectual Property Patents
ST. LOUIS, MO 63164
EXAMINER
CHANNAVAJJALA, LAKSHMI SARADA
ART UNIT PAPER NUMBER
1611
NOTIFICATION DATE DELIVERY MODE
11/29/2019 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
purinapatentmail@purina.nestle.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte BRIAN MICHAEL ZANGHI, ARLEIGH JAMES REYNOLDS,
and RONDO PAUL MIDDLETON1
Appeal 2018-002787
Application 14/797,766
Technology Center 1600
Before ERIC B. GRIMES, JEFFREY N. FREDMAN, and
JOHN G. NEW, Administrative Patent Judges.
GRIMES, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims to a
composition for recovery from physical activity, which have been rejected as
obvious. We have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM-IN-PART.
STATEMENT OF THE CASE
[T]he invention provides compositions suitable for influencing
recovery from strenuous physical activity in animals. The

1 Appellant identifies the real party in interest as Nestec, S.A. Appeal Br. 3.
We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42(a).
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compositions generally comprise one or more sources of
carbohydrate, one or more sources of protein, and optionally
one or more antioxidants. More particularly, the compositions
comprise about 4% to 6% readily-absorbable carbohydrate,
about 10% to 30% maltodextrins, and about 20% to 50% starch,
for a total of about 40% to 80% carbohydrate.
Spec. ¶ 43. “The maltodextrins of the composition comprise one or more
maltodextrins with a dextrose equivalent (DE) from about 5 to 20. . . . The
lower the DE, the more complex the carbohydrate.” Id. ¶ 45.
Claims 80–92 are on appeal. Claims 80 and 86, reproduced below, are
illustrative:
80. A composition suitable for influencing recovery
from strenuous physical activity in an animal comprising:
about 4% to 6% readily-absorbable carbohydrate, the
readily absorbable carbohydrate comprising dextrose;
about 10% to 30% maltodextrins, the maltodextrins
comprising a maltodextrin with a DE of about 5, a maltodextrin
with a DE of about 10, and a maltodextrin with a DE of about
20;
about 20% to 50% pre-cooked starch, the starch
comprising rice flour, wheat flour, modified starch, or a
combination thereof; and
about 20% to about 40% protein;
wherein the readily-absorbable carbohydrate,
matlodextrins [sic], and starch account for a total of about 40%
to 80% carbohydrate of the composition.

86. A composition suitable for influencing recovery
from strenuous physical activity in an animal comprising:
about 4% to 6% of a first carbohydrate component
having a dextrose equivalent (DE) of greater than about 85 to
100;
about 10% to 30% of a second carbohydrate component
having a DE between about 5 and 20;
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about 20% to 50% of a third carbohydrate component
having a DE of less than about 5, wherein the third
carbohydrate component is a pre-cooked starch and wherein the
composition comprises about 40% to 80% of said first, second,
and third carbohydrates combined;
one or more sources of amino acids, wherein glutamine,
glutamic acid, leucine, isoleucine, valine, and arginine,
collectively comprise about 40% to 55% of the total amino
acids provided by said sources, wherein the composition
comprises about 10% to 20% glutamine, glutamic acid, leucine,
isoleucine, valine, and arginine combined; and
an antioxidant component comprising one or more
carotenoids.
The claims stand rejected as follows:
Claims 80–85 under 35 U.S.C. § 103(a) as obvious based on
Sidebottom,2 Zhao,3 Malnoe,4 Benjamin,5 and Boice6 (Ans. 4);
Claims 86 and 88–92 under 35 U.S.C. § 103(a) as obvious based on
Sidebottom, Zhao, Malnoe, Benjamin, Boice, and Sparkman7 (Ans. 10); and
Claim 87 under 35 U.S.C. § 103(a) as obvious based on Sidebottom,
Zhao, Malnoe, Benjamin, Boice, Sparkman, and Chew8 (Ans. 20).

2 US 8,034,372 B2, issued Oct. 11, 2011.
3 US 2004/0258831 A1, published Dec. 23, 2004.
4 US 2004/0047896 A1, published Mar. 11, 2004.
5 US 2,991,181, issued July 4, 1961.
6 US 2005/0226960 A1, published Oct. 13, 2005.
7 US 2008/0317886 A1, published Dec. 25, 2008.
8 US 2004/0151761 A1, published Aug. 5, 2004.
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OPINION
Obviousness, claims 80–85
With regard to claims 80–85, the Examiner states that the “[i]nstant
claims are interpreted to comprise just maltodextrin in component b)
because of the wording a maltodextrin.” Ans. 4. The Examiner finds that
“Sidebottom teaches a dietary supplement for athletic pets to help them
recover from strenuous physical activity comprising a source of
carbohydrates,” id., but “fails to teach the claimed dextrose equivalents.” Id.
at 7.
The Examiner finds that “Boice teaches food bars with increased shelf
life wherein the bars comprise proteins, carbohydrates, and a softener such
as a highly branched maltodextrin.” Id. The Examiner finds that “Boice
teaches that replacement of even small amounts of maltodextrin with []
inulin, a maltodextrin 10 [D]E, provides bar of desired softness.” Id. The
Examiner concludes that it would have been obvious “to include
maltodextrin having DE 10 in the teachings of Sidebottom with an
expectation to provide softness to the composition.” Id. at 8.
The Examiner cites Zhao and Benjamin with respect to the pre-cooked
starch required by claim 80, and cites Malnoe with respect to the protein
sources and carotenoids recited in claims 81–84, but does not cite any of
these references with respect to maltodextrins, or specifically maltodextrins
with a DE of about 5 or a DE of about 20. See id. at 8–10.
Appellant argues, among other things, that “the present combination
of references does not disclose such a formulation [as claimed], [and] that
there is no rationale for combining the presently cited references to arrive at
Appellants’ composition.” Appeal Br. 14.
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We conclude that the Examiner has not adequately shown that a
composition meeting the limitations of claim 80 would have been obvious to
a skilled artisan based on the cited references. In particular, the Examiner
has not shown that the cited references would have made obvious a
composition comprising the maltodextrins required by claim 80.
The Examiner finds that Boice’s disclosure of a maltodextrin with a
DE of 10 meets the claim limitation, based on interpreting the claim
language “to comprise just maltodextrin.” Ans. 4. However, claim 80
expressly recites plural maltodextrins: “the maltodextrins comprising a
maltodextrin with a DE of about 5, a maltodextrin with a DE of about 10,
and a maltodextrin with a DE of about 20” (emphasis added).
The plain meaning of this limitation is that the claimed composition
comprises three maltodextrins: one with a DE of about 5, one with a DE of
about 10, and one with a DE of about 20. The Specification states that
maltodextrins with different DEs are structurally different: “The lower the
DE, the more complex the carbohydrate.” Spec. ¶ 45. Thus, a single
maltodextrin of DE 10 does not meet the requirement for a mixture of three
maltodextrins of varying complexity.
In short, the rejection of claim 80 is based on an unreasonably broad
interpretation of the claim language, and the Examiner has not shown that
the claimed composition, under the broadest reasonable interpretation,
would have been obvious based on the cited references. We therefore
reverse the rejection of claim 80, and dependent claims 81–85, under 35
U.S.C. § 103(a) based on Sidebottom, Zhao, Malnoe, Benjamin, and Boice.
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Obviousness, claims 86 and 88–92
Claims 869 and 88–92 stand rejected as obvious based on Sidebottom,
Zhao, Malnoe, Benjamin, Boice, and Sparkman. The Examiner finds that
“Sidebottom teaches a dietary supplement for athletic pets to help them
recover from strenuous physical activity.” Ans. 11. The Examiner finds that
Sidebottom’s composition comprises up to 10% dextrose (a carbohydrate
component with a DE of 85–100) and up to 60% maltodextrin (a
carbohydrate component with a DE between 5 and 20). Id. at 12. The
Examiner also finds that Boice teaches that a maltodextrin having a DE of
10 provides softness to a food bar, and concludes that it would have been
obvious “to include maltodextrin having DE 10 in the teachings of
Sidebottom with an expectation to provide softness to the composition.” Id.
at 13–14.
The Examiner finds that “Sidebottom teaches several sources of starch
in the composition i.e., 0–15% wheat, 0–15% wheat flour, 0–30% oatmeal,
0–20% barley and 0–20% rice.” Id. at 13. “Sidebottom fails to teach the
claimed pre-cooked starch of instant claims.” Id. at 14. However, the
Examiner finds that “Zhao teaches a food thickener . . . which is a
combination of one or more pregelatinized starches and a specific water
soluble food ingredient.” Id. The Examiner also finds that “Benjamin
teaches preparation of foods such as cereal . . . , which yields a desired
creamy appearance and excellent texture.” Id.

9 The Examiner states that the “claims are interpreted to comprise just
maltodextrin in component b) because of the wording a maltodextrin.” Ans.
11. However, claim 86 does not recite “a maltodextrin” or “maltodextrins.”
Therefore, the Examiner’s claim interpretation error, discussed above with
respect to claim 80, is harmless with regard to claim 86.
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The Examiner concludes that it would have been obvious “to include
the starches of Sidebottom in the form of pre-gelatinized, or precooked
starches because both Zhao and Benjamin teaches precooked starches
provide excellent texture without lumping or thickening.” Id.
With regard to the amino acid source(s) required by claim 86, the
Examiner finds that Sidebottom teaches incorporating various protein
sources into its composition, “such as meat, nuts, soybean meal, and
yogurt.” Id. at 15. The Examiner also find that “Malnoe teaches food
compositions such as pet foods,” comprising protein from sources such as
eggs, whey protein, or corn gluten. Id.
The Examiner concludes that it would have been obvious “to choose
an appropriate protein sources such as corn or whey, cheese or other milk
proteins in the composition of Sidebottom, because Malnoe teaches an
equivalence of different proteins as a suitable source in pet food.” Id.
Finally, the Examiner finds that “Sidebottom fails to teach
carotenoids.” Id. at 19. But “Sparkman teaches compositions that enhance
post-exercise recovery process in animals.” Id. at 16. “The composition of
Sparkman comprises high glycemic carbohydrates such as sucrose, glucose
and maltodextrin; amino acids[,] anti-inflammatory agents, antioxidants
including carotenoids etc.” Id. The Examiner concludes that it would have
been obvious “to employ carotenoids of Sparkman as an antioxidant in the
composition of Sidebottom because the teachings of Sparkman are
analogous to those of Sidebottom.” Id. at 19.
We agree with the Examiner that the cited references support a prima
facie case of obviousness with respect to claim 86. Sidebottom discloses “a
food composition . . . that is formulated to prepare a pet for strenuous
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activity and replenish nutrients in a pet after strenuous activities.”
Sidebottom 1:37–39. Sidebottom’s composition comprises dextrose (0–
10%), maltodextrin (0–60%), and several sources of starch (rice (0–20%),
rice flour (0–60%), wheat (0–15%), and wheat flour (0–15%)). Id., Fig. 1.
Dextrose is a carbohydrate component with a DE of 85–100. See
dependent claim 89. Maltodextrin is a carbohydrate component with a DE of
5–20. See dependent claim 90. In addition, Boice discloses a maltodextrin
with a DE of 10 that is suitable for use in food products. Boice ¶ 50. Thus, it
would have been obvious to use a maltodextrin with a DE in the range of 5–
20 as the maltodextrin component of Sidebottom’s composition.
Sidebottom’s composition also comprises several sources of amino
acids: brewer’s yeast (0–10%), cheese (0–10%), corn gluten meal (0–20%),
fish (0–30%), meat (0–30%), nuts (0–15%), poultry (0–30%), soybean meal
(0–20%), and yogurt (0–10%). Sidebottom, Fig. 1. The Examiner concludes,
and we agree, that “it would have been obvious . . . to choose an appropriate
protein source[]” and “choosing the appropriate amount of protein with an
expectation to provide the optimum protein replenishment would have been
within the scope of a skilled artisan.” Ans. 15. Appellant does not contend
that the amino acid make-up of the claimed composition patentably
distinguishes it over the prior art. See Appeal Br. 13–18.
Sparkman suggests including carotenoids in compositions that
enhance post-exercise recovery in humans and animals. Sparkman ¶¶ 53, 70.
Sidebottom suggests including “the antioxidant astaxanthin” in its
composition. Sidebottom 4:33–34. Astaxanthin is a carotenoid, as recited in
claim 86. See dependent claim 87.
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Thus, Sidebottom discloses or suggests all of the limitations of claim
86, except that it does not suggest that the starch in its composition is pre-
cooked. Zhao discloses a food thickener that is a combination of
pregelatinized starch and a water-soluble food ingredient such as gum
arabic. Zhao ¶ 30. Zhao discloses that products made with its composition
“are characterized by smooth texture and appearance.” Id. ¶ 39.
Benjamin also discloses a food product comprising pre-cooked starch.
Specifically, Benjamin discloses a “process for making a more palatable and
nutritious food by using a combination of cereal grains and other elements”;
specifically, “a pre-cooked, dry cereal food product.” Benjamin 1:15–29.
Benjamin’s process of making its product includes heating flour(s) in the
presence of amylase enzyme, thereby converting some of the starch in the
flour(s) “into sugar[s], dextrins and polysaccharides.” Id. at 2:60 to 3:7.
Benjamin states that making its product without the amylase present does
not affect the texture of the resulting cereal. Id. at 3:19–23.
We agree with the Examiner that it would have been obvious to pre-
cook the starch source(s) used in Sidebottom’s composition, because Zhao
discloses that products made with its food thickener are characterized by
smooth texture and Benjamin teaches that pre-cooking flour breaks down
some of its starch into smaller polysaccharides and sugars, and produces a
palatable and nutritious food.
In summary, the cited references disclose all of the components of
claim 86, and provide reasons to combine them in the manner claimed. The
cited references therefore support a prima facie case of obviousness with
respect to claim 86.
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Appellant argues that the Examiner’s position—that Sidebottom’s
composition is for the same purpose of the claimed composition, even
though it does not include the same proportions of carbohydrates—supports
nonobviousness, because
if Sidebottom discloses a different composition that purports to
provide the same purpose as that currently claimed, one skilled
in the art would have no reason to change Sidebottom’s
composition to that currently claimed. As such, Appellants note
that Sidebottom teaches away from the presently claimed
composition.
Appeal Br. 14–15.
This argument is not persuasive. First, “[a] reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.” In re Gurley, 27 F.3d 551, 553 (Fed. Cir. 1994). Appellant has
not pointed to anything in Sidebottom suggesting that including a mixture of
carbohydrates encompassed by claim 86 would harm its composition in
some way. Sidebottom therefore does not teach away from the modification
proposed by the Examiner.
Second, the fact that Sidebottom’s composition is for the same
purpose as the claimed composition does not mean that a skilled artisan
would not have a reason to try to improve it by, for example, altering the
proportions of carbohydrates of low complexity (e.g., dextrose), medium
complexity (e.g., maltodextrin), and high complexity (e.g., starch). “[T]he
desire to enhance commercial opportunities by improving a product or
process is universal—and even common-sensical.” Dystar Textilfarben
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Gmbh & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1368
(Fed. Cir. 2006).
Appellant also argues that the Zanghi Declaration10 presents evidence
of unexpected results. Appeal Br. 15. Specifically, Appellant argues that
the present use of pre-cooked starch has provided unexpected
results in that supplement bars containing pre-cooked starch
provided significantly higher increases of blood glucose as
compared to comparable bars having raw starch. As shown in
Table 1, pre-cooked starch supplement bars provided up to
twice the increase in blood glucose as compared to comparable
bars having raw starch. Such results were unexpected and rebut
any prima facie case of obviousness presented by the
combination of cited references.
Id.
We have considered the evidence provided in the Zanghi Declaration
but do not agree that it demonstrates nonobviousness. First, as the Examiner
noted, “it is generally known that cooked starches are easily digestible and
hence provide higher glucose levels than the uncooked starch.” Ans. 24.
Appellant does not dispute that cooking makes starches more
digestible, but argues that “the bar formulations [of the Declaration] undergo
known extrusion techniques including temperature and pressure such that the
‘raw’ flour would be cooked during bar formation.” Appeal Br. 15. “[A]s the
final food compositions are cooked, Appellants maintain that it is
unexpected that sourcing pre-cooked starch would provide any benefit
versus sourcing regular starch.” Id. at 16.
Appellant, however, does not cite any evidence to support the position
that forming a food product by extrusion would be expected to have the

10 Declaration under 37 C.F.R. § 1.132 of Brian Zanghi, filed Jan. 7, 2016.
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same effect on a starch component as pre-cooking the starch. “Attorney’s
argument in a brief cannot take the place of evidence.” In re Pearson, 494
F.2d 1399, 1405 (CCPA 1974).
In addition, Appellant presents only weak evidence regarding the
benefits of using pre-cooked starch in the claimed composition. The Zanghi
Declaration presents the results of four trials. Trials A and B involved
exercising dogs and feeding them a supplement bar comprising raw rice
flour. Zanghi Decl. ¶ 2. Trials C and D involved exercising dogs and feeding
them a supplement bar comprising pre-cooked rice flour. Id. The bar in Trial
A contained 4.1% dextrose, while the bars in Trials B through D contained
5% dextrose; the bars in the four trials all contained different amounts of
maltodextrin and different amounts of rice flour. Id.
The trials included different exercise regimens: in Trial A, dogs were
exercised for three days for specified times, in specified ways; in Trial B,
dogs underwent a single bout of specified exercise; in Trial C, dogs were
exercised the same way as in Trial B; and in Trial D, “[d]ogs were exercised
for 3 days for various lengths of time on each day” but the nature and length
of the exercise is not described. Id.
For each of the trials, dogs were fed the specified supplement bar
immediately following exercise and the control dogs were not fed a
supplement bar. Id. None of the trials directly compared dogs exercised the
same way and fed supplement bars differing only by containing raw or pre-
cooked starch. No results for the control (no supplement) dogs are reported.
Appellant points to Trials C and D as showing that “pre-cooked flour
significantly and unexpectedly increased the digestion and/or absorption of
glucose into the dog’s blood within 15 minutes of ingestion.” Zanghi Decl.
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¶ 7. Trial C shows post-exercise blood glucose levels (in mg/dL) of 112.5 at
0 minutes, 125.0 (+12.5) at 15 minutes, and 122.5 (+10) at 30 minutes. Id.
Table 1.
Appellant compares Trial C with Trial B, which is characterized as
showing “only marginal and delayed elevation in blood glucose 30 min after
exercise and ingestion of a supplement bar containing raw rice flour.” Id.
¶ 7. Trial B shows post-exercise blood glucose levels (in mg/dL) of 94.8 at 0
minutes, 101.6 (+6.9) at 15 minutes, 107.5 (+12.8) at 30 minutes, and 100.0
(+5.3) at 60 minutes. Id. Table 1.
Although the data shown in the Zanghi Declaration appear to differ
substantially for the 15 minute post-exercise results of Trials B and C (+6.9
versus +12.5), we find that the evidence is insufficient to show that
including pre-cooked starch in the claimed composition provides
unexpectedly better performance compared to raw starch.
The probative value of the evidence is weak, for several reasons. First,
none of the trials described in the Zanghi Declaration included a side-by-side
comparison of dogs exercised the same way and fed the same supplement,
differing only in pre-cooked versus raw starch. The different trials cannot be
compared directly with each other because the supplements used in each trial
differed in the amounts of different carbohydrates (dextrose, maltodextrin,
and starch), in addition to using raw rice flour in some and pre-cooked rice
flour in others.
In addition, the trials show a high degree of variability in the blood
glucose measurements. Dogs in both Trial A and Trial D of the Zanghi
Declaration were exercised for three days, but at 0 minutes post-exercise,
had glucose concentrations of 124 mg/dL (Trial A) or 58.5 mg/dL (Trial D).
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These similar trials thus show a greater than two-fold difference in glucose
levels following exercise.
A comparison of the Declaration’s trials with those in the
Specification also shows variability in the effect on glucose levels from
similar treatments. The Specification’s Trial 3 involved dogs fed “a
‘performance’ biscuit following a single bout of exercise.” Spec. ¶ 105. The
length and type of exercise is not specified. The biscuit comprised the same
types and amounts of carbohydrates as the bar in Trial C of the Zanghi
Declaration. Id. The Specification reports that the dogs’ glucose levels were
113.4 and 122.6 (+9.2) at 0 and 15 minutes post-exercise, respectively. Id.
¶ 108.
The Specification’s Trial 4 also involved dogs fed “a ‘performance’
biscuit following a single bout of exercise.” Spec. ¶ 109. The length and type
of exercise is not specified. The biscuit comprised the same types and
amounts of carbohydrates as the bar in Trial B of the Zanghi Declaration. Id.
The Specification reports that the dogs’ glucose levels were 96 and 104.3
(+8.3) at 0 and 15 minutes post-exercise, respectively. Id. ¶ 108.
The results of the Specification’s Trials 3 and 4 should be similar to
those of the Zanghi Declaration’s Trials C and B, respectively. But the
Specification’s results show a benefit, at 15 minutes post-exercise, of only
0.9 mg/dL (9.2 – 8.3) for pre-cooked versus raw starch, while the
Declaration’s Trials C and B show a benefit of 5.6 mg/dL (12.5 – 6.9) for
the same comparison. The Specification’s data therefore casts doubt on the
reproducibility, and thus the significance, of the Declaration’s results.
The Declaration’s Trials B and C also show that the results for
supplements containing raw or pre-cooked starch vary depending on when
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blood glucose measurements are taken. Appellant focuses on the results at
15 minutes post-exercise, but the results also show that Trial B, with raw
rice flour, provided a difference of +12.8 mg/dL at 30 minutes post-exercise,
compared to only +10.0 mg/dL for the same time point in Trial C, with pre-
cooked rice flour. Thus, if results are compared at 30 minutes post-exercise,
the supplement with raw rice flour appears to provide a greater benefit than
the supplement with pre-cooked rice flour, at least for the exercise applied in
Trials B and C.
Declarant Zanghi states that “[t]he significance of having a rapid
digestion of carbohydrates and absorption of glucose is to optimize recovery
of glycogen stores within the body when muscle cells are maximally primed
to recover during the initial 60 minutes following termination of exercise.”
Zanghi Decl. ¶ 7. However, Appellant has not persuasively explained the
significance of increased blood glucose at 15 minutes, as opposed to 30
minutes, following termination of exercise.
In summary, we have considered Appellant’s evidence of unexpected
results but conclude that a preponderance of the evidence favors the
Examiner’s conclusion that claim 86 would have been obvious to a person of
ordinary skill in the art based on the cited references. We therefore affirm
the rejection of claim 86 under 35 U.S.C. § 103 based on Sidebottom, Zhao,
Malnoe, Benjamin, Boice, and Sparkman. Claims 88–92 were not argued
separately and therefore fall with claim 86. 37 C.F.R. § 41.37(c)(1)(iv).
Obviousness, claim 87
Claim 87 stands rejected as obvious based on Sidebottom, Zhao,
Malnoe, Benjamin, Boice, Sparkman, and Chew. Ans. 20. The Examiner
finds that Chew discloses astaxanthin from H. pluvialis, and concludes that it
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would have been obvious “to employ H. pluvialis as a source of astaxanthin
for the antioxidant in the composition of Sidebottom.” Id. We agree with and
adopt the Examiner’s fact-finding and reasoning.
Appellant “renew[s] the above arguments regarding Sidebottom,
Zhao, Malnoe, Benjamin, Boice, and Sparkman.” Appeal Br. 18. These
arguments have been addressed above with respect to the rejection of claims
86 and 88–92.
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
80–85 103(a) Sidebottom, Zhao,
Malnoe, Benjamin,
Boice
80–85
86, 88–92 103(a) Sidebottom, Zhao,
Malnoe, Benjamin,
Boice, Sparkman,
86, 88–92
87 103(a) Sidebottom, Zhao,
Malnoe, Benjamin,
Boice, Sparkman,
Chew
87
Overall
Outcome
86–92 80–85
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED-IN-PART