Ex Parte Gross et al

Patent Trial and Appeal Board

May 9, 2016

11917109 (P.T.A.B. May. 9, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
111917, 109 07/08/2008
23909 7590 05/11/2016
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
Kathy Gross
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
7707-00-HL 2331
EXAMINER
PARK, HAEJIN S
ART UNIT PAPER NUMBER
1615
NOTIFICATION DATE DELIVERY MODE
05/11/2016 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):
Patent_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte KATHY GROSS and CHRISTINA KH00 1
Appeal2014-005796
Application 11/917,109
Technology Center 1600
Before FRANCISCO C. PRATS, JEFFREY N. FRED MAN, and
RACHEL H. TOWNSEND, Administrative Patent Judges.
TOWNSEND, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to a
retortable cooked food composition that in addition to having a nutritive
base includes a peptide source of glutamine. The Examiner rejected all of
the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
STATEMENT OF THE CASE
Glutamine is a conditionally essential amino acid whose demand in
certain circumstances exceeds the amount available in the body or that can
be provided by de nova synthesis. (Spec. i-f 3.) As a consequence,
1 Appellants identify the Real Party in Interest as Colgate-Palmolive Co.
(Br. 2.)
Appeal2014-005796
Application 11/917, 109
supplementation with foodstuffs containing glutamine may be desired, for
example, during exercise or other times of metabolic stress, e.g., severe
illness. (Id.) The invention relates to "nutritional food compositions
comprising supplemental glutamine" that are retortable. (Spec. i-fi-12, 6.)
The Specification defines a "retortable food composition" as "one that is
ready for placement in a sealed container or already in such a container, the
composition being suitable for sterilization .... " (Spec. i-f 13.)
Free glutamine is unstable at high temperatures and/or high pressure,
such as is used during sterilization of food. (Spec. i1 5.) The claimed
invention includes "a peptide source of glutamine." (Br. 9 (claim 1 ). ) The
Specification further defines a "cooked composition" as one in which
"cooking occurs after addition of the peptide source of glutamine to the
nutritive base." (Spec. i-f 15.)
Claims 1, 3, 4, 6-13, and 3 6 are on appeal. Claim 1 is the only
independent claim on appeal and reads as follows:
1. A retortable cooked food composition having a pH of from about 2 to
about 8, wherein the food composition comprises (a) water in an
amount of from about 60% to about 85% by weight, (b) a nutritive
base that predominantly comprises meat and carbohydrate, and ( c) a
peptide source of glutamine, wherein the glutamine content
contributed by the peptide source is from about 0.5% to about 5% by·
weight of the composition on a dry matter basis.
(Br. 9.)
2
Appeal2014-005796
Application 11/917, 109
There is a single rejection before us for review (Ans. 2), namely that
claims 1, 3, 4, 6-13, and 36 are unpatentable under 35 U.S.C. § 103(a) for
obviousness over Butterwick2 in view of Zuurendonk3 (Final Action 3---6).
OBVIOUSNESS
In rejecting claims 1, 3, 4, 6-13, and 36 for obviousness over
Butterwick and Zuurendonk, the Examiner finds that the limitations of claim
1 are met by Butterwick except for not specifically disclosing the pH of the
cooked food composition or expressly indicating that the peptide source of
glutamine is "retortable." (Final Action 4.) The Examiner finds, however,
that Butterwick teaches "packaging the foodstuff in tin or metal foil" and
that "one of ordinary skill in the art at the time of the invention would have
recognized [such containers] are retortable containers." (Id.) The Examiner
further finds that Zuurendonk discloses that peptide-bound glutamine in
general is "resistant to the conventional pasteurization or sterilization
temperatures in food," (emphasis in the original), that protein hydrolysis of
wheat protein gives a high yield of peptide-bound glutamine, and teaches a
sports beverage with supplemental peptide-bound glutamine that has been
subjected to heating up to 95 °C and has a pH of 3.8. (Id. at 5, 7.)
In light of those teachings, the Examiner concludes that it would have
been obvious to modify the teachings of Butterwick, i.e., glutamine-
supplemented food product packaged in tin or metal foil, with those of
Zuurendonk, i.e., using peptide-bound glutamine in a glutamine
2 US 2005/0107303 Al, published May 19, 2005.
3 EP 0 672 352 Bl, published Sept. 15, 2002.
3
Appeal2014-005796
Application 11/917, 109
supplemented food product that Zuurendonk teaches can resist heating to
sterilization temperatures. (Id.) The Examiner further concludes that one of
ordinary skill in the art would have appreciated that the pH is an optimizable
variable that could be adjusted to match an animal's natural stomach pH to
avoid discomfort of the animal ingesting the foodstuff that may have "sub
optimal health." (Id. at 6.)
We agree with the Examiner's fact-findings and conclusion that claim
1 would have been obvious based on the cited references.
Appellants contest the Examiner's rejection of claim 1, providing
three reasons that rejection is improper. First, Appellants contend that one
of ordinary skill in the art would not have combined Butterwick with
Zuurendonk because Butterwick is concerned with a food composition for
non-human animals, whereas Zuurendonk is concerned with compositions
for humans. (Br. 6.) According to Appellants, the Examiner's "combination
could only have been the result of impermissible hindsight." (Id.)
Second, Appellants contend that combining Zuurendonk with
Butterwick would change the principle of Butterwick which "teaches that
free glutamine is preferable and that glutamine concentration of its
composition should not exceed 10%." (Id.) According to Appellants, the
change is the result of Zuurendonk "teach[ing] that free amino acids are
'undesirable' and that its composition is 'at least 20% glutamine."' (Id.)
Third, Appellants contend that because one of ordinary skill in the art
would not have combined Butterwick with Zuurendonk, the person of
ordinary skill would not have arrived at a pH within the range recited in
claim 1. (Id. at 7.)
4
Appeal2014-005796
Application 11/917, 109
We do not find any of Appellants' arguments persuasive.
In particular, both Butterwick and Zuurendonk are concerned with
glutamine supplemented foodstuffs to promote or maintain health of the
subject who is to ingest the foodstuff. (Butterwick i-f 8; Zuurendonk
i-f 1.) In addition, both prior art references disclose the use of peptide bound
glutamine in glutamine supplemented foodstuffs. (Butterwick i-f 19
("Alternatively, the glutamine is provided either as an extract or peptide
mixture from or by wheat gluten .. .. " (emphasis added)), Butterwick i-f 20
("Preferably the glutamine is provided as free glutamine or a source thereof
having an equivalent amount of bioavailable glutamine." (emphasis
added)); Zuurendonk i-fi-129--30 (describing a sports beverage including
"peptide-bound glutamine preparation obtained according to Example 1,"
which describes enzymatic hydrolysis of soluble wheat protein).) Thus,
contrary to Appellants contention, Butterwick and Zuurendonk are not in
fields so disparate that one of ordinary skill in the art would not have
combined their teachings. The teachings of these references are directed to
the same purpose, i.e., creating foodstuffs with supplemental glutamine,
which glutamine will be available for use in biological functions for which
glutamine is necessary in the subject animals (non-human or human) who
ingested it. Thus, one of ordinary skill in the art would have considered
Butterwick and Zuurendonk to be analogous to one another and the
Examiner appropriately relied on them as a basis for rejection. See e.g., In
re Oetiker, 977 F.2d 1443, 1447 (Fed. Cir. 1992) ("In order to rely on a
reference as a basis for rejection of the applicant's invention, the reference
must either be in the field of the applicant's endeavor or, if not, then be
5
Appeal2014-005796
Application 11/917, 109
reasonably pertinent to the particular problem with which the inventor was
concerned."); In re Bigio, 381F.3d1320, 1325-27 (Fed. Cir. 2004)
(affirming PTO finding toothbrush art analogous to the applicant's hair
brush invention); Scientific Plastic Prods., Inc. v. Biotage AB, 766 F.3d
1355, 1360-61 (Fed. Cir. 2014) (affirming PTO finding references directed
to resealable closures for beverage containers that provide fluid tight seals to
be reasonably pertinent to the problem of providing fluid tight seals of a low
pressure liquid chromatographic cartridge while preserving access to the
contents of that cartridge).
Furthermore, a reference is available for all that it teaches to a person
of ordinary skill in the art. In re Inland Steel Co., 265 F.3d 1354, 1356 (Fed.
Cir. 2001); Merck & Co., Inc. v. Biocraft Labs., Inc., 874 F.2d 804, 807
(Fed. Cir. 1989) ("the fact that a specific [embodiment] is taught to be
preferred is not controlling, since all disclosures of the prior art, including
unpreferred embodiments, must be considered") (quoting In re Lamberti,
545 F.2d 747, 750 (CCPA 1976)). It might be true, as Appellants note, that
Butterwick indicates free glutamine is preferable. Nevertheless, Butterwick
also teaches that a peptide mixture that would have an equivalent amount of
bioavailable glutamine is an alternative to free glutamine. (Butterwick i-fi-1
19-20.)
Moreover, Zuurendonk does not require that the supplemental peptide
bound glutamine be 20% or greater in a foodstuff to be heat stable.
Zuurendonk discloses a process that is capable of making a heat and acid
stable peptide that has a content of glutamine that is greater than 20%.
(Zuurendonk i121.) Zuurendonk teaches that glutamine bound in peptides as
6
Appeal2014-005796
Application 11/917, 109
compared to free glutamine is "resistant to the conventional pasteurization or
sterilization temperatures in food" without regard to the amount of such
peptide-bound glutamine provided in the foodstuff. (Zuurendonk i-f 10.)
Accordingly, while Zuurendonk claims a food preparation that includes a
glutamine rich peptide preparation "comprising at least 20% glutamine,"
(Zuurendonk, claim 1 ), it nevertheless teaches the use of lesser amounts of
glutamine bound in peptides would be heat stable. Thus we are not
persuaded that there is any teaching in Butterwick or Zuurendonk that
renders their combination improper.
For the reasons discussed, Appellants do not persuade us that the
Examiner erred in concluding the composition recited in claim 1 would have
been obvious in view of Butterwick and Zuurendonk. Accordingly, we
affirm the Examiner's obviousness rejection of claim 1 over Butterwick and
Zuurendonk. Claims 3, 4, 8-13, and 36 have not been argued separately and
therefore fall with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
Regarding Appellants' argument that the Examiner's rejection of
claims 6 and 7 is conclusory because there is nothing in Butterwick to
support the Examiner's contention that the pH claimed is an optimizable
variable that can be adjusted to account for diseased animals with "sub
optimal health" (Br. 7), as the Supreme Court remarked, "[t]he obviousness
analysis cannot be confined by ... overemphasis on the importance of
published articles and the explicit content of issued patents." KSR Int'! Co.
v. Teleflex Inc., 550 U.S. 398, 419 (2007). Examiners are permitted to rely
on logic, judgment, and common sense available to the person of ordinary
skill, which are matters that do not necessarily require exposition in any
7
Appeal2014-005796
Application 11/917, 109
reference. Peifect Web Techs., Inc. v. InfoUSA, Inc., 587 F.3d 1324, 1329
(Fed. Cir. 2009). Thus, that the Examiner did not rely on the cited
references to show the obviousness of the claimed pH range is not
dispositive.
In applying the Zuurendonk teaching with respect to pH to the
Butterwick food composition, which is to support the health of non-human
animals, the Examiner resorted to the logic, judgment, and common sense
available to the person of ordinary skill. (Final Action 6.) In particular, the
Examiner found, and Appellants do not dispute, that "it is well known that
stomachs of dogs and cats are acidic, and thus for animals with weakened
health the skilled person would have not prepared highly alkaline foods that
upset the animal's natural stomach pH." (Id.) We agree with the
Examiner's implicit finding that the skilled person would have been
motivated by common sense and judgment "to prepare food compositions at
suitable pH levels that have been adjusted for the conditions of the intended
consuming population" in Butterwick. (Ans. 4.)
Accordingly, we also affirm the Examiner's obviousness rejection of
claim 6 and 7 over Butterwick and Zuurendonk.
SUMMARY
For the reasons discussed, we affirm the Examiner's rejection of
claims 1, 3, 4, 6-13, and 36 under 35 U.S.C. § 103(a) for obviousness over
Butterwick and Zuurendonk.
8
Appeal2014-005796
Application 11/917, 109
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
9