Ex Parte Drouillard

Patent Trial and Appeal Board

Oct 9, 2012

11056953 (P.T.A.B. Oct. 9, 2012)

UNITED STATES PATENT AND TRADEMARKOFFICE
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.
11/056,953 02/11/2005 James S. Drouillard 35114 2165
23589 7590 10/10/2012
Hovey Williams LLP
10801 Mastin Blvd., Suite 1000
Overland Park, KS 66210
EXAMINER
FRAZIER, BARBARA S
ART UNIT PAPER NUMBER
1611
MAIL DATE DELIVERY MODE
10/10/2012 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 JAMES S. DROUILLARD
__________

Appeal 2011-010480
Application 11/056,953
Technology Center 1600
__________

Before DEMETRA J. MILLS, ERIC GRIIMES, and MELANIE L.
McCOLLUM, Administrative Patent Judges.

McCOLLUM, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a feed
product and a feed product preparation method. The Examiner has rejected
the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We
reverse.
STATEMENT OF THE CASE
Claims 1-4, 6, 8-16, 31-34, 36, 38-47, 49-51, and 55-57 are pending
and on appeal (App. Br. 8). We will focus on claims 1 and 31, the only
independent claims on appeal, which read as follows:
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1. A feed product designed for consumption by an animal selected
from the group consisting of bovine, ovine, and caprine animals, said feed
product comprising a mixture including flax oil, flax seed, and a non-flax
carbohydrate, said flax oil and non-flax carbohydrate having been mixed
together and simultaneously subjected to an elevated temperature of at least
about 120° F through use of a heater to supply heat to the mixture and
subsequently cooled, the flax oil content of said feed or food product derived
from said flax oil and said flax seed being at a level of at least about 10% by
weight, said product also including protein, fiber, and fat different from said
flax oil, said feed product operable to elevate the plasma EPA concentration
of said animal by at least about 10%, as compared with the plasma EPA
concentration of the animal prior to feeding of the feed product.
31. A method of preparing a feed product designed for feeding to an
animal selected from the group consisting of bovine, ovine, and caprine
animals, said method comprising the steps of:
preparing a mixture comprising flax oil, flax seed, a fat different from
said flax oil, and non-flax carbohydrate;
subjecting said mixture to an elevated temperature of at least about
120° F through use of a heater to supply heat to the mixture; and
cooling said supplemented mixture and forming said feed product,
said feed having a flax oil content derived from said flax oil and flax seed of
at least about 10% by weight,
said feed product operable to elevate the plasma EPA concentration of
said animal by at least about 10%, as compared with the plasma EPA
concentration of the animal prior to feeding of the feed product.
Claims 1-4, 6, 8-16, 31-34, 36, 38-47, 49-51, and 55-57 stand rejected
under 35 U.S.C. § 103(a) as obvious over Westberg (US 2004/0018288 A1,
Jan. 29, 2004) in view of Findley (US 4,731,249, Mar. 15, 1988), Stitt
(US 5,110,592, May 5, 1992), and Schroeder et al. (US 4,431,675, Feb. 14,
1984) (Ans. 4).
Claims 15 and 45 stand rejected under 35 U.S.C. § 103(a) as obvious
over Westberg in view of Findley, Stitt, Schroeder, and McKenzie
(US 6,143,335, Nov. 7, 2000) (Ans. 10-11).
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The Examiner relies on Westberg for teaching “a process for
manufacturing animal feed supplements comprising preparation of a
preblend including molasses and vegetable fat, followed by continuous
cooking, treatment for removal of moisture, and partial cooling thereof,
followed by addition of dry ingredients and continuous cooling and
packaging” (id. at 5). The Examiner finds that the “preblend typically
contains from about 5-10% by weight of vegetable fat, such as corn or soy
oil,” and “is heated to a temperature between 240-320 F” (id.).
The Examiner relies on Findley for teaching “an animal feed
comprising a sugar solution such as molasses,” wherein the “feed block may
also comprise vegetable oils and fats such as linseed oil (i.e., flax oil) and
soy oil” (id. at 6). The Examiner relies on Stitt for teaching “a ground
flaxseed composition, which can be admixed with a suitable animal feed,”
and “is useful for increasing the number of live births to a female animal, as
well as improving the immune system of an animal” (id.). The Examiner
relies on Schroeder for teaching “molasses-based animal feed supplements”
to which “[f]iber (in the form of cellulose) may be added at low
concentrations to reinforce the feed block and prevent its cracking during
normal storage and handling” (id.). In view of the disclosures of Findley,
Stitt, and Schroeder, the Examiner concludes that it would have been
obvious to “add flax oil, flax seed, and fiber to the product of Westberg; thus
arriving at the claimed invention” (id.).
With regard to dependent claims 15 and 45, the Examiner additionally
relies on McKenzie for teaching the density of a food bar or cube (id. at 11).
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ANALYSIS
We conclude that the Examiner has set forth a prima facie case of
obviousness. However, Appellant has presented evidence of “a direct
comparative study of the preferred block products of the invention, with the
same ingredients of the block products fed in an unprocessed condition”
(Dec.1 ¶ 8). According to Appellant’s Declaration, “quite unexpectedly, the
EPA content of the block-fed positive control group was higher on a
statistically significant basis, as compared with the other positive control
group fed the unprocessed ingredients” (id. at ¶ 10). We agree with
Appellant that the Examiner has not adequately explained why this evidence
is insufficient, on balance, to overcome the prima facie case of obviousness.
In particular, the Examiner finds:
Appellant’s evidence, in both the specification as filed as well
as the Declaration, is not directed to comparing EPA plasma
concentrations in groups fed the processed product vs. EPA
concentrations of the animals prior to feeding of the feeding
product, as currently claimed; rather, the evidence is directed to
comparing EPA concentrations of animals fed the processed
product vs. EPA concentrations of animals fed the ingredients
in unprocessed form. Therefore, the claims, as currently
written, do not possess the functional limitation upon which
Applicants rely.
(Ans. 19-20.) However, to rely on evidence of unexpectedly superior
results, it is not necessary that the claims recite the result, as long as the
claims and the evidence of unexpected results are commensurate in scope.
In the present case, the Examiner has not adequately explained why the

1 Declaration of James S. Drouillard dated April 30, 2010.
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evidence is not commensurate in scope with the claims, or is not otherwise
persuasive. We therefore reverse the obviousness rejections.

REVERSED

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