Ex Parte Dierking et al

Patent Trial and Appeal Board

Dec 28, 2016

11813275 (P.T.A.B. Dec. 28, 2016)

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.
11/813,275 05/30/2008 Mark Lee Dierking 7119-00-US-01-HL 1014
23909 7590 12/30/2016
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
LONG, LUANA ZHANG
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
12/30/2016 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):
Paten t_Mail @ colpal. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARK LEE DIERKING,
WAI LUN CHEUK, and NAINA KIRAN SHAH
Appeal 2016-000037
Application 11/813,275
Technology Center 1700
Before KAREN M. HASTINGS, GEORGE C. BEST, and
N. WHITNEY WILSON, Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Appellants1 appeal under 35 U.S.C. § 134(a) from the Examiner’s
May 16, 2014 decision finally rejecting claims 1, 3—5, 7—10, and 13—18 as
unpatentable under 35 U.S.C. § 103(a). We have jurisdiction over the
appeal under 35 U.S.C. § 6(b).
We affirm.
1 Appellants identify the real party in interest as Hill’s Pet Nutrition, Inc.
(Br. 2).
Appeal 2016-000037
Application 11/813,275
CLAIMED SUBJECT MATTER
Appellants’ invention is directed to processes for preparing meat and
carbohydrate based compositions for consumption by felines (Spec. 12).
Claim 1 is representative and is reproduced below from the Claims
Appendix of the Brief (paragraphing added; emphasis in italics)'.
1. A process for preparing a meat and carbohydrate based
composition for consumption by a feline comprising:
preparing a meat mixture comprising one or more meat sources
wherein the meat mixture is prepared at a temperature of less
than 40°C;
preparing a grain mixture comprising one or more grains;
heating a mixture of water and one or more thickening agents to
prepare a slurry',
and contacting the meat mixture, the grain mixture, and the
slurry for a time and at a temperature sufficient to prepare an
essentially homogenous mass, wherein the meat mixture, the
grain mixture, and the slurry are contacted at a temperature of
from about 25°C to about 45°C, and the one or more thickening
agents is selected from the group consisting of corn starch, guar
gum, glucose, sucrose, high fructose corn syrup, and mixtures
thereof
Br. 3 (Claims App., filed April 7, 2015).
REJECTIONS
Appellants appeal the rejection of claims 1, 3—5, 7—10, and 13—18 as
unpatentable under 35 U.S.C. § 103(a) over Ogilvie2 in view of Cheuk.3
2 Ogilvie et al., U.S. Patent No. 5,776,913, published July 7, 1998
(“Ogilvie”).
3 Cheuk et al., U.S. Patent No. 6,436,463 Bl, published August 20, 2002
(“Cheuk”).
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Application 11/813,275
Appellants make substantive arguments in support of the patentability
of all claims based on limitations present in independent claim 1 (see
generally, Br. 4—6). Accordingly, our discussion will focus on the
obviousness rejection of claim l.4
DISCUSSION
The Examiner finds that Ogilvie teaches a process for preparing a
meat and carbohydrate based composition for pet animal consumption. Ans.
2—3. Ogilvie’s processing steps include preparing a meat mixture, preparing
a grain mixture, contacting the meat mixture with the grain mixture, then
heating the combined mixture with water to prepare a hot slurry having a
temperature from 21 °C to about 60°C (Ans. 2—3, citing Ogilvie 4:4—7; 4:18—
22).
Ogilvie discloses that heat is applied during slurry preparation via
direct steam or a heating element within a vessel (Ans. 4, citing Ogilvie 4:4—
18). According to the Examiner, Ogilvie’s slurry preparation temperature
range suggests that the preliminary preparation of the meat and grain
mixtures is conducted at a temperature lower than 21 °C (Ans. 4).
Although Ogilvie is silent with respect to: (i) adding one or more
thickening agents and (ii) making a slurry or a heated gravy component by
mixing and heating the one or more thickening agents with water, the
Examiner relies on Cheuk for disclosing these steps in a process for making
4 The Examiner also rejected the claims on the grounds of nonstatutory
obviousness-type double patenting based on claims 1, 2, 4—6, 8, 10-13, 15—
22, 24, and 32—36 of Application 11/813,274, which was abandoned on
August 8, 2016. Accordingly, this rejection is moot and will not be
addressed further.
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Application 11/813,275
canned pet foods {id. at 3). According to the Examiner, Ogilvie teaches
separately making a meat component, a grain component, and a gravy
component, and then mixing these components together prior to canning {id.,
citing Cheuk Fig. 3, 1:61—2:31). The Examiner further finds that Ogilvie
discloses producing gravy by mixing water with thickening agents, such as
com starch, guar gum, glucose, etc. (Ans. 3, citing Cheuk 4:20—31).
The Examiner determines, inter alia, that because
Ogilvie and Cheuk are both directed to making canned pet food
products with a meat component, a grain component, and a
liquid component, it would have been obvious to one having
ordinary skill in the art at the time of the invention to add
[Cheuk’s] thickening agents ... to [Ogilvie’s] pet food mixture
... to increase the cohesiveness of the meat and grain
components so as to maintain an essentially homogenous mass
during the filling process into the cans, and with the motivation
of making a pet food composition having shelf life stability,
good process control, desirable texture and mouthfeel, heat,
acid and shear stability as well as freeze thaw stability.
Ans. 3-A; see Cheuk 4:31—34.
Appellants make the following arguments urging reversal of the
Examiner’s § 103(a) rejection: (1) “[t]he addition of [Cheuk’s] gravy
component. . . would increase the carbohydrate content of Ogilvie’s animal
food[, thereby] rendering it unsuitable for its intended purpose” (Br. 4); and
(2) the Examiner has failed to make out a prima facie case of obviousness
because neither Ogilvie nor Cheuk teach or suggest the claimed limitation
that the meat mixture is prepared at a temperature of less than 40°C {id. at 5—
6).
With regard to argument (1), Appellants argue that “one skilled in the
art must disregard [Ogilvie’s] criticality of the low carbohydrate content. . .
when adding [Cheuk’s] carbohydrate-containing gravy component. . . and
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Application 11/813,275
doing so would render [Ogilvie’s] therapeutic animal food . . . unsuitable for
its intended purpose” (id.).
We are unpersuaded because, inter alia, not all of Cheuk’s thickening
agents are carbohydrates (see Cheuk 4:20—21 (“[t]he gravy type components
of. . . the invention include gums such as guar gum(s). . . Furthermore,
Cheuk’s thickening agents do not contribute significantly to the
carbohydrate content of the final pet food composition. As the Examiner
finds “the thickening agents (modified com starch + guar gum) are only
present in an amount of 0.9 wt.% of the final pet food composition, which
would amount to even a smaller percentage of carbohydrate content, since
guar gum has very little carbohydrate content” (Ans. 9; see also Cheuk
Example 1; 7:54—65).
Moreover, the Supreme Court has made clear that an obviousness
analysis “need not seek out precise teachings directed to the specific subject
matter of the challenged claim, for a court can take account of the inferences
and creative steps that a person of ordinary skill in the art would employ.”
KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). That is because
“[a] person of ordinary skill is also a person of ordinary creativity, not an
automaton.” Id. at 421. It is also well established that a reference is good
for all it fairly teaches a person having ordinary skill in the art, even when
the teaching is a cursory mention. E.g., In re Mills, 470 F.2d 649, 651
(CCPA 1972).
As pointed out by the Examiner, because Ogilvie discloses a pet food
with a carbohydrate content of about 15% to about 27% on a dry matter
basis, one having ordinary skill in the art at the time of the invention would
have recognized that any formulation of the pet food, including any
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Application 11/813,275
thickening agents added, would have to meet the total fat and carbohydrate
requirements (Ans. 11, citing Ogilvie 2:50-58). In the instance the added
gravy amount is marginal, the subsequent carbohydrate content would not
necessarily exceed Ogilvie’s disclosed upper endpoint of about 27% on a dry
matter basis.
Thus, a preponderance of the evidence supports the Examiner’s
position that it would have been prima facie obvious to add Cheuk’s
thickening agents to Ogilvie’s pet food mixture, particularly because claim 1
does not recite any requisite range for the amount of gravy added to the
composition.
Appellants contend, in connection with argument (2), that the
Examiner reversibly erred in concluding that it would have been obvious to
the ordinary skilled artisan “to first prepare the meat and grain mixtures at
less than 40°C prior to mixing with the other ingredients and heating,
especially considering that meat and grain products are perishable heat-
sensitive food items that would benefit from low temperature storage and
preparation” (Br. 6). According to Appellants, the Examiner’s
determination is “without support in the prior art” (id.).
A reference stands for all of the specific teachings thereof as well as
the inferences one of ordinary skill in the art would have reasonably been
expected to draw therefrom. In reFritch, 972 F.2d 1260, 1264—65 (Fed. Cir.
1992). Appellants’ arguments are not persuasive because they fail to
adequately address the Examiner’s position. As the Examiner found, Cheuk
specifically teaches the benefit of bringing out the best characteristics in pet
food compositions by processing of each component separately (Ans. 4,
citing Cheuk 3:18—23). Absent factual evidence showing otherwise, we
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Application 11/813,275
discern no reversible error in the Examiner’s determination that one of
ordinary skill in the art would have reasonably inferred that the separate
preparation of meats and grains may preferably be done at ambient or
refrigerated temperatures to prevent food spoilage or overcooking.
Therefore, Appellants have not persuasively argued that the facts and
reasons relied on by the Examiner are insufficient to establish a prima facie
case of obviousness as to independent claims 1 and 13. Dependent claims
3—5, 7—10, and 14—18 will fall with each of their respective independent
claims. 37 C.F.R. § 41.37(c)(l)(iv).
Accordingly, we affirm the rejection of claims 1, 3—5, 7—10, and 13—
18 for the reasons set forth above and explained in the Examiner’s Answer.
CONCLUSION
We AFFIRM the rejection of claims 1, 3—5, 7—10, and 13—18 under 35
U.S.C. § 103(a) as obvious over Ogilvie in view of Cheuk.
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
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