Ex Parte Alkazemi

Board of Patent Appeals and Interferences

Jul 20, 2010

11304717 (B.P.A.I. Jul. 20, 2010)

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.
11/304,717 12/16/2005 Wafa M.A.R. Alkazemi 3348/20 6043
22429 7590 07/21/2010
LOWE HAUPTMAN HAM & BERNER, LLP
1700 DIAGONAL ROAD
SUITE 300
ALEXANDRIA, VA 22314
EXAMINER
MCMILLIAN, KARA RENITA
ART UNIT PAPER NUMBER
1627
MAIL DATE DELIVERY MODE
07/21/2010 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)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte WAFA M.A.R. ALKAZEMI,
Appellant
____________________

Appeal 2010-003471
Application 11/304,717
Technology Center 1600
____________________

Before CAROL A. SPIEGEL, FRANCISCO C. PRATS, and
JEFFRY N. FREDMAN, Administrative Patent Judges.

SPIEGEL, Administrative Patent Judge.

DECISION ON APPEAL1
Appellant appeals under 35 U.S.C. § 134(a) from an Examiner's final
rejection of claim 4. We have jurisdiction under 35 U.S.C. § 134. We
REVERSE.

1 The two month period for filing an appeal or commencing a civil action, as
recited in 37 C.F.R. § 1304, or for filing a request for rehearing, as recited in
37 C.F.R. § 41.52, begins to run from the "MAIL DATE" (paper delivery
mode) or the "NOTIFICATION DATE" (electronic delivery mode) shown
on the PTOL-90A cover letter attached to this decision.

Appeal 2010-003471
Application 11/304,717

I. Statement of the Case
The subject matter on appeal is directed to a method of treating burns
using a composition comprising natural and herbal ingredients. Claim 4, the
only pending claim, reads (App. Br.2 13):
A method for treating burns on the skin, comprising applying
to burned areas at least three times per day a composition
omprising: c

almond oil (sweet): 85 ml;
almond oil (bitter): after treatment to remove
hydrocyanic acid 70 ml;
lavender oil: 40 ml;
beeswax: 80 grams;
bee Pollen: 30 grams;
purified honey: 500 grams;
propolis: 5 ml; and
w

ater: 90 ml;
and wherein the composition is applied over a period of at least
days. 6

The Examiner rejected claim 4 as obvious under 35 U.S.C. § 103(a)
over Dado3 in view of Deans,4 Carnevali,5 and Frehner6 (Ans. 3-7).7

2 This decision cites to the Brief on Appeal filed 20 May 2009 ("App. Br.")
and Applicant's Reply Brief filed 7 December 2009 ("Reply Br."), as well as
to the Examiner's Answer mailed 5 October 2009 ("Ans.").
3 US Patent 6,482,442 B1, Substance Mixture for Topical Application
Comprising Olive Oil and Honey, issued 19 November 2002, to Sulieman
Dado ("Dado").
4 S. G. Deans and G. Ritchie, "Antibacterial properties of plant essential
oils," 5 INTERNATIONAL JOURNAL OF FOOD MICROBIOLOGY 165-180 (1987)
("Deans").
5 US Patent 6,391,323 B1, Composition for the Treatment of Burns,
Sunburns, Abrasions, Ulcers and Cutaneous Irritation, issued 21 May 2002,
to Andrea Carnevali ("Carnevali").
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Appeal 2010-003471
Application 11/304,717

The Examiner found that Dado discloses a composition suitable for
topical treatment of sun burns comprising honey (known to include pollen),
propolis, beeswax, lavender, and diverse oils, including almond oil (Ans. 4).
According to the Examiner, since Dada generically discloses an almond oil
component "all forms of almond oil, including bitter and sweet almond oil
are contemplated" (id. at 5). The Examiner further found that Deans
discloses that bitter almond oil has antibacterial properties and that
Carnevali describes treating burns with a topical composition comprising
sweet almond oil (id.). Thus, the Examiner concluded that it would have
been obvious to use both sweet and bitter almond oil in the composition of
Dado used to treat burns (id. at 6). Finally, the Examiner found that Frehner
discloses that bitter almonds not only contain essential oils but also cyanide
(id.). Thus, the Examiner further concluded that it would have been obvious
to remove hydrocyanic acid from the bitter almond oil to prevent cyanide
poisoning by the composition (id.).
The Examiner found that Dado discloses using amounts of honey,
beeswax, propolis, and lavender oil that overlap with the amounts recited in
claim 4, although Dado was silent regarding the amount of almond oil used
and the amount of pollen in the honey (id. at 4-5). The Examiner concluded
that the amounts of ingredients in the composition used to treat burns in
claim 4 would have been obvious absent a demonstration of their criticality.
6 Frehner et al., "Pattern of the Cyanide-Potential in Developing Fruits," 94
PLANT PHYSIOLOGY 28-34 (1990) ("Frehner").
7 The Examiner did not rely on US Patent 6,551,607 B1, Method for
Sequestration of Skin Irritants with Substrate Compositions, issued 22 April
2003, to Minerath, III et al. in the rejection of claim 4.
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Appeal 2010-003471
Application 11/304,717

Appellant argues that the cited references fail to teach or suggest
using a composition containing bitter almond oil which has been treated to
remove hydrocyanic acid, alone or in combination with sweet almond oil
and bitter almond oil after treatment to remove hydrocyanic acid to treat
burns as recited in claim 4 (App. Br. 7; Reply Br. 1-2).
Therefore, the dispositive issue in this appeal is whether Dado, Deans,
Carnevali, Frehner, and/or ordinary skill in the art teach or suggest treating
burns with a composition containing a bitter almond oil which has been
treated to remove hydrocyanic acid therefrom.
II. Findings of Fact
The following findings of fact ("FF") are supported by a
preponderance of the evidence of record.
[1] Appellant's Specification ("Spec.") describes a composition for burn
treatment comprising, in % by weight,
9-10% sweet almond oil,
7-8% bitter almond oil,
4-5% lavender oil,
8-9% beeswax,
3-4% bee pollen,
50-60% purified honey,
0.2-1% propolis, and

8-2% water
(Spec. 4, ¶ 3).
[2] According to the Specification, sweet almond oil is an emollient
(Spec. 5, ¶ 2), bitter almond oil contains the poison hydrocyanic acid
which must be treated and removed (id. at 5, ¶ 3), and the honey is
preferably purified to remove particulate matter and bacteria (id. at 6,
¶ 2).
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Appeal 2010-003471
Application 11/304,717

[3] Dado discloses a topical composition useful for treating a variety of
problems, including hemorrhoids and sun burn, comprising honey
(which contains pollen) and olive oil (Dado col. 2, ll. 1-30 and 59),
and, optionally, beeswax, propolis, lavender, and/or diverse oils (id.
at col. 4, ll. 24-28), including almond oil (id. at col. 6, ll. 7-9).
[4] In one regard, a hemorrhoid treating composition may contain 50-
90% honey, 5-10% olive oil, 1-15% propolis, 1-10% sage, 1-10%
aloe vera, and one or more of beeswax (ranging from 10-30%),
chamomile, thyme, lavender, and diverse oils (Dado claims 1-6, 8,
and 11).
[5] Deans tested fifty plant essential oils for their antibacterial properties
against 25 genera of bacteria and found bitter almond oil to be among
the top ten most inhibitory oils (Deans abstract).
[6] Carnevali discloses a topical composition comprising, as active
ingredients, chlorophyll, cod liver oil, and camphor in a
pharmaceutically acceptable carrier, suitable for treating skin
problems such as burns, scalds, and sunburns (Carnevali col. 1, ll. 7-
15; col. 4, ll. 12-17).
[7] According to Carnevali, exemplary non-active carriers or excipients
include sweet almond oil (Carnevali col. 4, ll. 57-64).
[8] Frehner discloses that cyanogenic glycosides are present in bitter
almond seeds (Frehner 28, col. 1, ¶ 1; sentence bridging 32-33).
III. Discussion
A. Legal principles
The question of obviousness is resolved on the basis of underlying
factual determinations including (1) the scope and content of the prior art,
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Appeal 2010-003471
Application 11/304,717

(2) any differences between the claimed subject matter and the prior art, (3)
the level of skill in the art, and (4) wherein in evidence, so-called secondary
considerations. Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17
(1966). In KSR, the Supreme Court emphasized that "'[r]ejections on
obviousness grounds cannot be sustained by mere conclusory statements;
instead, there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness.'" KSR Int'l Co.
v. Teleflex Inc., 550 U.S. 398, 418 (2007) (citing In re Kahn, 441 F.3d 977,
988 (Fed. Cir. 2006)). Furthermore, "[a] factfinder should be aware, of
course, of the distortion caused by hindsight bias and must be cautious of
arguments reliant upon ex post reasoning." KSR, 550 U.S. at 421. In
particular, a claim directed to a combination of prior art elements "is not
proved obvious merely by demonstrating that each element was,
independently, known in the prior art." Id. at 401. Finally, "[a]ll words in a
claim must be considered in judging the patentability of that claim against
the prior art." In re Wilson, 424 F.2d 1382 1385 (CCPA 1970).
B. Analysis
The claimed invention involves topical administration of a
composition containing a bitter almond oil which has been treated to remove
hydrocyanic acid therefrom in order to treat burns on the skin (claim 4). The
Examiner opines that it would have been obvious to use a composition
containing a bitter almond oil which has been treated to remove hydrocyanic
acid therefrom to prevent a user from being poisoned by the composition
when applied to the skin (Ans. 6). It is true that Frehner discloses that
cyanogenic glycosides are present in bitter almond seeds (FF 8). However,
the Examiner has not explained why one of ordinary skill in the art would
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Appeal 2010-003471
Application 11/304,717

have reasonably expected (a) cyanogenic glycosides present in bitter almond
seeds to be converted to hydrocyanic acid in oil made from bitter almond
seeds or (b) topical administration of a composition containing "untreated"
bitter almond oil to cause cyanide poisoning, e.g., as opposed to ingestion of
bitter almond seeds. That is, in the absence of the disclosure of Appellant’s
Specification, the Examiner has presented no evidence that bitter almond oil
was known to contain a poisonous substance, and none of cited art,
including Dado, Deans or Frehner, identified poison in bitter almond oil as a
concern. Since the Examiner has failed to articulate a sufficient factual basis
to support her conclusion of obviousness, we must reverse.
C. Conclusion
We reverse the rejection of claim 4 under 35 U.S.C. § 103(a) over the
combined teachings of Dado, Deans, Carnevali, and Frehner. The Examiner
has failed to provide a sufficient factual basis establishing that Dado, Deans,
Carnevali, Frehner, and/or ordinary skill in the art teach or suggest treating
burns with a composition containing a bitter almond oil which has been
treated to remove hydrocyanic acid therefrom.
IV. Order
Upon consideration of the record, and for the reasons given, it is
ORDERED that the decision of the Examiner to reject claim 4 under
35 U.S.C. § 103(a) over Dado in view of Deans, Carnevali, and Frehner is
REVERSED.
REVERSED

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Appeal 2010-003471
Application 11/304,717

cdc
LOWE HAUPTMAN HAM & BERNER, LLP
1700 DIAGONAL ROAD
SUITE 300
ALEXANDRIA, VA 22314

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