Ex Parte Gross et alDownload PDFPatent Trial and Appeal BoardMay 9, 201611917109 (P.T.A.B. May. 9, 2016) Copy Citation 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 Copy with citationCopy as parenthetical citation