13057212 (P.T.A.B. Feb. 3, 2017)

Ex Parte Funda et al

Patent Trial and Appeal BoardFeb 3, 2017

13057212 (P.T.A.B. Feb. 3, 2017)

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. 13/057,212 09/16/2011 Eiger Funda BHD-4662-1815 1749 23117 7590 02/07/2017 NIXON & VANDERHYE, PC 901 NORTH GLEBE ROAD, 11TH FLOOR ARLINGTON, VA 22203 EXAMINER PRAKASH, SUBBALAKSHMI ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 02/07/2017 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): PTOMAIL@nixonvan.com pair_nixon @ firsttofile. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ELGER FUND A, and KARIN LEUTHARDT1 Appeal 2016-003228 Application 13/057,212 Technology Center 1700 Before BEVERLY A. FRANKLIN, KAREN M. HASTINGS, and SHELDON M. McGEE, Administrative Patent Judges. McGEE, Administrative Patent Judge. DECISION ON APPEAL Pursuant to 35 U.S.C. § 134, Appellants appeal from the Examiner’s rejections under 35 U.S.C. § 103(a) of claims 1—6, 9 and 10 as unpatentable over Sanguansri (US 2007/0122397 Al; pub. May 31, 2007), in view of Yano ((JP 02-086766; pub. Mar. 27, 1990) (Abstract only as translated)), Runge (US 7,037,708 Bl; iss. May 2, 2006), and further in view of Schaffher (WO 2004/062382 Al; pub. July 29, 2004), and remaining claims 7, 11, and 12 as unpatentable over these references in combination with Trophardy (WO 2007/135583 A2; pub. Nov. 29, 2007). We have jurisdiction under 35 U.S.C. § 6. We AFFIRM. 1 DSM IP Assets B.V. is identified as the real party in interest. Br. 2. Appeal 2016-003228 Application 13/057,212 Appellants present arguments specifically directed to the common limitations recited in independent claim 1. Br. 6—10. In considering these arguments, we need focus only on representative claim 1. We sustain the § 103 rejections advanced in this appeal based on the findings of fact, conclusions of law, and rebuttals to arguments well expressed by the Examiner in the Final Action and in the Answer. The following comments are added for emphasis. Appellants contend that Sanguansri “does not disclose or suggest particles or beadlets containing a high content (i.e., 40 wt.% — 85 wt.%, based on the total weight of the beadlets) of a probiotic,” and further does not “disclose the specific powder catch process” as recited in claim 1. Br. 6. This argument is not persuasive of error, however, because the Examiner does not rely on the Sanguansri reference for either of these limitations. Indeed, the Examiner acknowledges that “Sanguansri does not specifically disclose a load of 40 wt. % to 85 wt. % of probiotic loaded on beadlets . . . [but] Yano discloses the successful preparation of a spray dried powder comprising over 70% active probiotics and one or more starch derivatives.” Ans. 2. The Examiner further acknowledges that Sanguansri does not specifically disclose the claimed spray drying process outlined in step (b) of claim 1, and then addresses how the disclosures of Runge and Schaffner suggest the claimed spray drying process. Id. at 3^4. Appellants’ arguments have not addressed the cited art as relied upon by the Examiner and are thus unpersuasive. Appellants further contend that “[t]here is clearly no suggestion or contemplation in Yano [] that beadlets containing a high content of the Lactobacillus.plantarum are obtained.” Br. 7. This argument is not 2 Appeal 2016-003228 Application 13/057,212 persuasive because it does not address the combination of references relied on by the Examiner to formulate the obviousness conclusion. It is well- settled that “[n]on-obviousness cannot be established by attacking references individually where the rejection is based upon the teachings of a combination of references. . . . [The reference] must be read, not in isolation, but for what it fairly teaches in combination with the prior art as a whole.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986). We are likewise not persuaded by Appellants’ contention that Runge and Schaffher would not be combined by the ordinary skilled artisan. Br. 7. Rather, we agree with the Examiner that these references teach overlapping conditions for drying temperature-sensitive materials, and, thus, would reasonably be combined by the person of ordinary skill. Ans. 7—8. We further note that Appellants have not addressed the Examiner’s well- reasoned response, i.e., no Reply Brief has been filed. Furthermore, we discern no persuasive merit in Appellants’ contention regarding the temperature range disclosed in Trophardy. Br. 9— 10. As correctly noted by the Examiner, “Trophardy was specifically cited as prior art disclosing powder coatings on spray dried beadlets of active ingredients [] to prevent them from clumping together.” Ans. 9. Appellants’ argument does not address, and thus does not reveal error in, the Examiner’s obviousness conclusion. Thus, for the reasons given by the Examiner and emphasized above, Appellants fail to show that the Examiner erred in rejecting the claims on appeal. The decision of the Examiner is affirmed. 3 Appeal 2016-003228 Application 13/057,212 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 4