Ex Parte Aylor et al

Patent Trial and Appeal Board

May 11, 2015

12287070 (P.T.A.B. May. 11, 2015)

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.
12/287,070 10/06/2008 Robert Benson Aylor AYLOR-US2CIP 7552
7590 05/11/2015
ROBERT B. AYLOR
9502 BLUEWING TERRACE
CINCINNATI, OH 45241
EXAMINER
GEMBEH, SHIRLEY V
ART UNIT PAPER NUMBER
1628
MAIL DATE DELIVERY MODE
05/11/2015 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 PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ROBERT BENSON AYLOR,
LEIGH HEATHER MAKOVER, and ROBYN AYLOR HAINES
____________

Appeal 2012-010949
Application 12/287,070
Technology Center 1600
____________

Before DONALD E. ADAMS, MELANIE L. McCOLLUM, and
JEFFREY N. FREDMAN, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL1
This appeal2 under 35 U.S.C. § 134(a) involves claims 7–26 (App. Br.
1). Examiner entered rejections under 35 U.S.C. § 102(b), 35 U.S.C.
§ 103(a), and obviousness-type double patenting. We have jurisdiction
under 35 U.S.C. § 6(b).
We AFFIRM.

1 Appellants’ identify the Real Party in Interest as Robert B. Aylor, L.
Heather Makover, and Robyn A. Haines (see App. Br. 1).
2 This Appeal is related to Appeal 2011-004789 (Application 11/526,410),
decision affirming-in-part entered Nov. 2, 2012 (see also Decision entered
Nov. 1, 2011).
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STATEMENT OF THE CASE
Appellants’ “invention relates to improvements in minimizing the
chances of the occurrence of malignant tumors (cancers) and/or the
reduction in the severity of harm from existing malignant tumors, including
methods, articles, etc. for providing treatments; and to methods for
improving acceptance of such treatments” (Spec. 1: 12–15). Independent
claims 7 and 20 are representative and reproduced in the Claims Appendix
of Appellants’ Brief.
Claims 7–9, 11, and 20–24 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Kosbab.3
Claims 7–11 and 20–23 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Kosbab and Kun.4
Claims 7–11, 13–17, and 20–26 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over the combination of Kosbab, Clayton,5 and
Yoshida.6
Claims 7 and 12 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over the combination of Kosbab, Carol,7 and Aylward.8
Claims 7–20 stand rejected under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over Aylor.9

3 Kosbab, WO 00/07607, published Feb. 17, 2000.
4 Kun et al., US 7,405,227 B2, issued July 29, 2008.
5 Clayton et al., WO 02/05827 A2, published Jan. 24, 2002.
6 Yoshida, JP 64-0388027, published Feb. 8, 1989.
7 Carol, Dog Cancer: Canine Lymphoma & Canine Lymphosarcoma, 1–3,
http://www.drcarol.com/Dog-Lymphoma-Cancer-Canine-Lymphosarcoma/,
accessed June 14, 2011.
8 Aylward, US 6,432,452 B1, issued Aug. 13, 2002.
9 Aylor et al., US 8,557,863 B2, issued Oct. 15, 2013.
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Withdrawn Rejections:
Examiner withdrew the rejection of claims 7–17 and 21–26 under the
enablement provision of 35 U.S.C. § 112, first paragraph (Ans. 4; February
9, 2012 Office Action 1; Cf. October 5, 2011 Office Action 3–7).
Examiner’s Answer, however, failed to address the rejection of claims
18 and 19 under 35 U.S.C. § 102(b) as anticipated by Sledge10 (see Ans. 1–
21; Cf. October 5, 2011 Office Action 2–3; February 9, 2012 Office Action
1–2). Therefore, we find that Examiner withdrew this rejection. See
Paperless Accounting, Inc. v. Bay Area Rapid Transit Sys., 804 F.2d 659,
663 (Fed. Cir. 1986).

Obviousness-type Double Patenting:
Appellants do not contest the merits of the obviousness-type double
patenting rejection.11 Instead, Appellants contend that they “remain ready to
file an appropriate terminal disclaimer prior to allowance of any claims”
(App. Br. 14). Therefore, we summarily affirm the obviousness-type double
patenting rejection and will not discuss it further.

10 Sledge et al., Phase III trial of Doxorubicin, Paclitaxel, and the
Combination of Doxorubicin and Paclitaxel as Front-Line Chemotherapy
for Metastatic Breast Cancer: An Intergroup Trial (E1193), 21(4) Journal of
Clinical Oncology 588–92 (2003).
11 Because Aylor is an issued patent this rejection is no longer provisional
(see Ans. 12).
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Anticipation:
ISSUE
Does the preponderance of evidence on this record support
Examiner’s finding that Kosbab teaches the administration at least 10 mg/kg
of body weight per day each of vitamin C and of betaine, or a betaine
homolog in which one or more the methyl groups attached to the nitrogen
atom are replaced by ethyl or isopropyl groups, as required by Appellants’
claimed invention?
FACTUAL FINDINGS (FF)
FF 1. Kosbab teaches the daily administration of a composition that
comprises 10–5,000 mg of vitamin C and 1–10,000 mg of betaine HCl to an
average adult (Kosbab 32–35 (Table 2); Ans. 5).
ANALYSIS
Examiner finds that Kosbab “anticipates . . . [Appellants’] claims 7-9,
11 and 20-24” (Ans. 6). In support of this finding, Examiner asserts that
“the weight of a human is 70 [k]g and [when] at least 10 mg of vitamin C
and betaine is administered it totals to 700 [mg] which” falls within the
concentration range disclosed in Kosbab (id.). We are not persuaded.
The genus disclosed by Kosbab does not anticipate the species, or
sub-genus, required by Appellants’ claimed invention. See Atofina v. Great
Lakes Chem. Corp., 441 F.3d 991, 999 (Fed. Cir. 2006) (“a species can
anticipate a genus, not the reverse”).
CONCLUSION OF LAW
The preponderance of evidence on this record fails to support
Examiner’s finding that that Kosbab teaches the administration at least 10
mg/kg of body weight per day each of vitamin C and of betaine, or a betaine
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homolog in which one or more the methyl groups attached to the nitrogen
atom are replaced by ethyl or isopropyl groups, as required by Appellants’
claimed invention.
The rejection of claims 7–9, 11, and 20–24 under 35 U.S.C. § 102(b)
as anticipated by Kosbab is reversed.

Obviousness:
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
PRINCIPLES OF LAW
“[W]here there is a range disclosed in the prior art, and the claimed
invention falls within that range, there is a presumption of obviousness.”
Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322, 73 USPQ2d
1225, 1228 (Fed. Cir. 2004). In re Malagari, 499 F.2d 1297, 1303 (CCPA
1974) (claimed invention is rendered prima facie obvious by the teachings of
a prior art reference that discloses a range that touches the range recited in
the claim).
Selecting a narrow range from within a somewhat broader
range disclosed in a prior art reference is no less obvious than
identifying a range that simply overlaps a disclosed range. In
fact, when, as here, the claimed ranges are completely
encompassed by the prior art, the conclusion is even more
compelling than in cases of mere overlap.
In re Peterson, 315 F.3d 1325, 1329–30 (Fed. Cir. 2003):
FACTUAL FINDINGS (FF)
FF 2. Examiner relies on Kosbab to suggest the daily administration of a
“cancer protective and therapeutic” composition comprising an amount of
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vitamin C and betaine that falls within the scope of Appellants’ claimed
invention (Ans. 7; Kosbab 2: 4–6 and 25; see FF 1; see also Kosbab 38: 30 –
39: 2 (“Dosages can be readily adapted by those of ordinary skill in the art
for use of alternate forms or sources of the components listed or for use of
functional equivalents,” “desired dosing schedules and to match individual
needs or problems of a given patient”)).
FF 3. Kosbab suggests that betaine HCl functions, in Kosbab’s
formulation, to, inter alia, “supplement deficiencies” and contribute to
“digestion/absorption” (Kosbab 32: 7–8 and 35: 4; see also id. at 38: 21–23
(“The proposed function of components listed in the specific formulas of this
invention and stated to be options herein are . . . specified in Table 2 or are
known to those of ordinary skill in the art”)).
FF 4. Examiner finds that Kosbab suggests formulating a composition
“with fruit which reasonably adds flavor to the formulation thus act[ing] as a
flavorant” (Ans. 7; Kosbab 31: 7–8; see also Kun, col. 27, ll. 19–24
(“Aqueous suspensions may contain . . . flavoring agents”)).
FF 5. Kosbab’s “invention can be combined with other compatible known
methods for cancer treatment” (Kosbab 4: 21–22; Ans. 16).
FF 6. Examiner finds that Kosbab suggests “treating female cancers such
as breast cancer” (Ans. 7; Kosbab 4: 1–3).
FF 7. Examiner relies on Kun to suggest the treatment of “breast cancer
. . . with a formulation comprising vitamin C . . . and anastrozole” (Ans. 7;
Kun, col. 8, ll. 48–52 (Kun’s “invention provides methods to treat . . .
cancers or tumors[,] [f]or example, . . . breast cancer”); id. at col. 25, ll. 25–
36 (“Administration . . . [of] chemopreventative agents[, such as vitamin C
and aromatase inhibitors, such as anastrozole,] in combination with one or
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more other anticancer agents . . . can act to both treat and prevent the
recurrence of cancer”); id. at col. 23, ll. 43–47(“Examples of aromatase
inhibitors suitable for use herein . . . include . . . anastrozole”) ).
FF 8. Examiner finds that Kosbab fails to suggest: (1) artemisinin and (2)
the sequential or concurrent administration of (a) a composition comprising
vitamin C and betaine and (b) one or more known anti-cancer treatments,
such as artemisinin (see Ans. 9).
FF 9. Clayton suggests “the treatment of cancer, using natural products”
(Clayton 1: 3).
FF 10. Clayton suggests a composition comprising vitamin C for use in an
“anti-cancer preparation or employed concurrently or sequentially in . . . [an]
anti-cancer therapy” (Clayton 4: 21–23; Cf. Clayton 5: 1–5 (“The
components of this formulation are most conveniently administered together
as a single dose, but they may also be administered concurrently or
sequentially as separate doses”); Ans. 9).
FF 11. Clayton suggests a composition that “[b]etaine is . . . a desirable
component of . . . [Clayton’s] anti-cancer formulation” (Clayton 4: 29–30;
Ans. 9).
FF 12. Clayton suggests the treatment of breast and prostate cancer (Clayton
2: 28–31; Ans. 9).
FF 13. Examiner finds that Yoshida suggest “treating cancer [by]
administering a medicine comprising the juice of mugwort (i.e., artemisinin
as the active ingredient) and vitamin C” (Ans. 9; Yoshida, Abstract).
FF 14. Examiner finds that Kosbab fails to suggest that the “composition
can be administered to felines or canines” (see Ans. 10).
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FF 15. Examiner finds that Carol suggests “that vitamin C levels in dog
nutraceuticals[,] i.e., food[] can lower cancer risk” (Ans. 10; Carol 2).
FF 16. Examiner finds that Aylward suggests the administration of “betaine
. . . to companion pets[,] such as dogs and cats[,] suffering from cancer”
(Ans. 11; see Aylward, col. 8, ll. 22–25 and col. 29, l. 18 – col. 30, l. 17; see
Aylward, col. 29, ll. 44–45 (“[i]t has been suggested that betaines per se are
useful as anti-cancer agents”); Ans. 19).
FF 17. Freidel12,13 discloses that “[a]s demonstrated in Graph 13, fifteen
days post tumor transplant, D-isoascorbic acid plus betaine hydrate inhibited
solid tumor growth of Ehrlich carcinoma twice as much as D-isoascorbic
acid alone” (Freidel 91: 21–24 and 95, Graph 13).
ANALYSIS
While Appellants argue the claims in each separate ground of
rejection as a single group, Appellants’ “SUMMARY OF CLAIMED
SUBJECT MATTER” identifies “Dependent Claims to be considered
separately” (see App. Br. 3; see also Appeal 2011-004789, Decision on
Request for Rehearing 7). Notwithstanding Appellants failure to follow the
requirements of 37 C.F .R. § 41.37 in effect at the time they filed their

12 John Francis Freidel, Dissertation Presented to St. Thomas Institute in
Partial Fulfillment of the Requirements for THE DEGREE OF DOCTOR
OF PHILOSOPHY, Cincinnati, Ohio (1979).
13 We recognize Examiner and Appellants’ dispute as to whether Freidel is
properly of record (see Ans. 18 (“Friedel [sic] is not a reference of record,
therefore[,] it is not clear why it is being discussed”); Cf. Reply Br. 4
(Freidel is a reference of record, having been provide by applicants as art
and having been discussed in the specification”)). Nevertheless, this Panel
addressed the Freidel reference in Appeal 2011-004789 (see Appeal 2011-
004789: Decision on Appeal 12 and 14 and Decision on Request for
Rehearing 6–7). Therefore, we will address Freidel on this record.
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Appeal Brief, we will, in this instance, consider the separate arguments
presented in the Appellants’ summary of the claimed subject matter section
of their Brief.

The combination of Kosbab and Kun:
Based on the combination of Kosbab and Kun, Examiner concludes
that, at the time Appellants’ invention was made, it would have been prima
facie obvious to treat breast cancer as suggested by Kosbab and optionally
include an anticancer agent, such as anastrozole, when practicing Kosbab’s
method of treatment in order to more effectively treat breast cancer as
suggested by Kun (Ans. 8).

Claim 7:
We recognize, but are not persuaded by Appellants’ contention that
Kosbab discloses “a specific teaching of betaine HCl for a specific purpose,
regulation of hyperacidity,” which fails to account for Kosbab’s suggestion
that betaine functions, in Kosbab’s formulation, to, inter alia, “supplement
deficiencies” and contribute to “digestion/absorption” (App. Br. 9; see also
Reply Br. 3–4; FF 3).
We recognize, but are not persuaded by Appellants’ contention that
“[t]here is no reason for eliminating Kun et al.’s specific compounds in order
to make the combination” (App. Br. 9). Appellants’ claimed method
comprises the administration of betaine and vitamin C (see Appellants’
claim 7). Therefore, Appellants’ claim 7 is open to include other agents,
such as those suggested by the combination of compositions suggested by
Kosbab and Kun (see FF 2–7). For the foregoing reasons, we are not
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persuaded by Appellants’ contention that Kosbab’s suggestion to combine
various agents, including vitamin C and betaine, into a composition “does
not suggest . . . [a] combination[]” of ingredients (see Reply Br. 4).
Appellants fail to identify an evidentiary basis on this record to
support a conclusion that a composition comprising the combination of
agents suggested by Kosbab and Kun would not be effective. Therefore, we
are not persuaded by Appellants’ unsupported contention that “there is no
indication that Kun et al.’s compounds would be effective in the presence of
the essential compounds of Kosbarb [sic]” (App. Br. 9). Appellants’ citation
of Kun’s definition of “‘pharmaceutically acceptable’ or ‘pharmacologically
acceptable’,” requirements “[f]or oral administration” formulations or
“[a]queous suspension” fails to establish that the composition suggested by
the combination of Kosbab and Kun would not have been prima facie
obvious to a person of ordinary skill in this art at the time of Appellants’
claimed invention.
Friedel suggests that the combination of vitamin C and betaine
“inhibited solid tumor growth of Ehrlich carcinoma twice as much as D-
isoascorbic acid alone” (FF 17). Therefore, we are not persuaded by
Appellants’ contention that Friedel represents a “negative teaching” (App.
Br. 10; see also Appeal 2011-004789, Decision on Appeal 12 and 14 and
Decision on Request for Rehearing 6–7). Further, in light of the
combination of references relied upon by Examiner, we are not persuaded by
Appellants’ contention regarding a “general feeling that vitamin C is not
helpful” (id.). For the foregoing reasons, we are not persuaded that the
weight of the evidence on this record teaches away from the combination of
Kosbab and Kun (Cf. id.).
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Claim 9:
We recognize, but are not persuaded by, Appellants’ contention that
“[c]laim 9 should be considered separately since there is no suggestion in the
art of a need to disguise the taste of the ingredients” (App. Br. 3; Cf. FF 4).

Claims 10 and 20:
We recognize, but are not persuaded by, Appellants’ contention that
“[c]laims 10 and 20 should be considered separately since the combination
treatment has clearly not been suggested for prophylactic use in the absence
of an existing tumor” (App. Br. 3; Cf. FF 2).

Claims 21–23:
Appellants contend that “[e]ach of [c]laims 21-2[3] should be
considered separately in view of the rejections directed to ‘lack of support’
and operability” (App. Br. 3). No rejection for “lack of support” or
“operability” is before this Panel for review. Therefore, we are not
persuaded by Appellants’ contention. In sum, Appellants failed to articulate,
with any degree of particularity, an error in Examiner’s prima facie case
with respect to any one of claims 21–23.

The combination of Kosbab, Clayton, and Yoshida:
Based on the combination of Kosbab, Clayton, and Yoshida,
Examiner concludes that, at the time Appellants’ invention was made, it
would have been prima facie obvious to include artemisinin, as suggested by
Yoshida, in Kosbab’s composition for the treatment of cancer “because both
Kosbarb [sic] and Clayton specifically teach that their formulation may be
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combined with other anticancer agents for the treatment of cancer wherein
the cancers are breast. . ., prostate and lung” cancers (Ans. 10). In addition,
Examiner finds that “[b]ecause Clayton . . . [suggests] that the
administration of betaine and vitamin C can be carried out sequentially with
other anticancer agents it would have been obvious to one of ordinary skill
in the art to administer vitamin C, betaine and artemisinin sequentially” (id.).

Claim 7:
For the foregoing reasons, we recognize, but are not persuaded by
Appellants’ contention that Kosbab fails to suggest “using betaine as part of
his formulas” (App. Br. 10; see FF 2). For the foregoing reasons, we
recognize, but are not persuaded by Appellants’ contention regarding Friedel
(App. Br. 10; see Reply Br. 4; see FF 17; see also Appeal 2011-004789,
Decision on Appeal 12 and 14 and Decision on Request for Rehearing 6–7).
Appellants recognize that Kosbab suggests that ingredients in
Kosbab’s composition “may be dosed separately,” but contend that this
disclosure in Kosbab “requires that they are all taken at essentially the same
time, not as separate treatments” (App. Br. 12). We are not persuaded.
Appellants’ claimed method requires only that vitamin C and betaine be
administered separately or together (see Appellants’ Claim 7). Appellants’
claim 7 does not exclude the administration of one or more ingredients,
suggested by the combination of Kosbab, Clayton, and Yoshida, one after
the other at essentially the same time. For the same reasons, we are not
persuaded by Appellants’ contentions regarding Clayton’s suggestion of
“sequential dosing” (App. Br. 12).
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Notwithstanding Appellants’ contention to the contrary, Appellants
fail to identify an evidentiary basis on this record to support a conclusion
that any of the ingredients in a composition suggested by the combination of
Kosbab, Clayton, and Yoshida would be recognized by those of ordinary
skill in this art to be incompatible (see App. Br. 12). Therefore, we are not
persuaded by Appellants’ unsupported contention.
We are not persuaded by Appellants’ contention regarding Examiner’s
reliance on Yoshida’s abstract, instead of a full translation of the Yoshida
document (App. Br. 12). Appellants, however, fail to identify an error in
Examiner’s reliance on Yoshida’s abstract.

Claim 9:
We recognize, but are not persuaded by, Appellants’ contention that
“[c]laim 9 should be considered separately since there is no suggestion in the
art of a need to disguise the taste of the ingredients” (App. Br. 3; Cf. FF 4).

Claims 10 and 20:
We recognize, but are not persuaded by, Appellants’ contention that
“[c]laims 10 and 20 should be considered separately since the combination
treatment has clearly not been suggested for prophylactic use in the absence
of an existing tumor” (App. Br. 3; Cf. FF 2).

Claims 13–17:
In contrast to Appellants’ claim 7, which comprises the administration
of betaine and vitamin C separately or together, Appellants’ claims 13–17
require the combination of the betaine and vitamin C treatment with one or
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more known anti-cancer treatments, wherein the treatments are either
concurrent or sequential (see Appellants’ Claim 7; Cf. Appellants’ Claims
13–17). Examiner asserts that “Clayton teaches administering . . . their
treatment . . . by administering the drugs together, concurrently or
sequentially” (Ans. 18). Examiner’s assertion addresses the requirements of
Appellants’ claim 7, and the “concurrent” limitation of claims 13, 15, and 16
(see Appellants’ claims 7, 13, 15, and 16). Examiner’s assertion, however,
fails to address the requirement for sequential treatments, as required by
Appellants’ claims 14 and 17, e.g., wherein a known anti-cancer treatment is
followed by, i.e., separate from, treatment with a composition comprising
vitamin C and betaine (see Appellants’ claims 14 and 17; see also Reply Br.
4–5).
For the reasons set forth above, we find that the combination of
Kosbab, Clayton, and Yoshida suggests concurrent treatment with a known
anti-cancer treatment, which may be artemisinin, and a composition
comprising vitamin C and betaine as required by Appellants’ claims 13, 15,
and 16. Examiner, however, failed to establish that the combination of
Kosbab, Clayton, and Yoshida suggests the sequential treatment with a
known anti-cancer treatment followed by a treatment with a composition
comprising vitamin C and betaine as required by Appellants’ claims 14 and
17.

Claims 21–26:
Appellants contend that “[e]ach of [c]laims 21-26 should be
considered separately in view of the rejections directed to ‘lack of support’
and operability” (App. Br. 3). No rejection for “lack of support” or
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“operability” is before this Panel for review. Therefore, we are not
persuaded by Appellants’ contention. Appellants failed to articulate, with
any degree of particularity, an error in Examiner’s prima facie case with
respect to any one of claims 21–26. Therefore, claims 21–26 will stand or
fall together.

The combination of Kosbab, Carol, and Aylward:
Based on the combination of Kosbab, Carol, and Aylward, Examiner
concludes that, at the time Appellants’ invention was made, it would have
been prima facie obvious to administer Kosbab’s composition to companion
animals, such as dogs and cats, to treat or prevent cancer (see Ans. 11).

Claim 7:
For the foregoing reasons, we recognize, but are not persuaded by
Appellants’ contention that Kosbab fails to suggest “using betaine as part of
his formulas” (App. Br. 13 and 14; see FF 2). For the foregoing reasons, we
recognize, but are not persuaded by Appellants’ contention regarding Friedel
(App. Br. 10; see FF 17; see also Appeal 2011-004789, Decision on Appeal
12 and 14 and Decision on Request for Rehearing 6–7).
Appellants’ recognize that Aylward suggests “that betaines per se are
useful as anti-cancer agents” and that the reference to betaines refers to
betaines “generically” (Reply Br. 5; Cf. Ans. 19–20). Thus, Aylward
suggests the administration of betaine to dogs and cats (see FF 16).
Therefore, the combination of Kosbab, Carol, and Aylward suggests the
administration of a composition comprising vitamin C and betaine to a dog
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or cat. Accordingly, we recognize, but are not persuaded by, Appellants’
contentions regarding Aylward.
We recognize, but are not persuaded by, Appellants’ contention that
Carol fails to suggest the amount of vitamin C required by Appellants’
claimed invention, which fails to recognize Kosbab’s contribution to the
combination of evidence relied upon by Examiner (see App. Br. 13–14; Cf.
Ans. 20 (“one cannot show nonobviousness by attacking references
individually”)).

Claim 12:
Appellants contend that “[c]laim 12 should . . . be considered
separately since the prophylactic treatment of canines/felines using the
ingredients has never been suggested, especially in the absence of a tumor”
(App. Br. 3). We are not persuaded. Kosbab suggests a prophylactic
treatment of cancer with a “cancer protective” composition comprising
vitamin C and betaine (FF 2). Carol and Aylward suggest the administration
of vitamin C and betaine, respectively, to canines (FF 15 and 16). Taken
together the combination of Kosbab, Carol, and Aylward suggests the
administration of a composition comprising vitamin C and betaine to canines
as a cancer prophylactic. Carol further supports the combination by
suggesting that the prophylactic administration of vitamin C to canines “can
lower cancer risk” (FF 15).
CONCLUSION OF LAW
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness with respect to the rejection of claims 7, 9, 10, 20,
and 21–23 over the combination of Kosbab and Kun. The rejection of
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claims 7, 9, 10, 20, and 21–23 under 35 U.S.C. § 103(a) as unpatentable over
the combination of Kosbab and Kun is affirmed. Because they are not
separately argued claims 8 and 11 fall with claim 7.
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness with respect to the rejection of claims 7, 9, 10, 13,
15, 16, 20, and 20–26 over the combination of Kosbab, Clayton, and
Yoshida. The rejection of claims 7, 9, 10, 13, 15, 16, 20, and 20–26 under
35 U.S.C. § 103(a) as unpatentable over the combination of Kosbab,
Clayton, and Yoshida is affirmed. Because they are not separately argued
claims 8 and 11 fall with claim 7.
The preponderance of evidence relied upon by Examiner supports a
conclusion of obviousness with respect to the rejection of claims 7 and 12
over the combination of Kosbab, Carol, and Aylward. The rejection of
claims 7 and 12 under 35 U.S.C. § 103(a) as unpatentable over the
combination of Kosbab, Carol, and Aylward is affirmed.
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness with respect to the rejection of claims
14 and 17 over the combination of Kosbab, Clayton, and Yoshida. The
rejection of claims 14 and 17 under 35 U.S.C. § 103(a) as unpatentable over
the combination of Kosbab, Clayton, and Yoshida is reversed.

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).

AFFIRMED