Ex Parte Hale

Patent Trial and Appeal Board

Oct 10, 2017

13526753 (P.T.A.B. Oct. 10, 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.
13/526,753 06/19/2012 Edward Carroll Hale III P02200-US-05 1571
(32413.0031)
22446 7590
ICE MILLER LLP
ONE AMERICAN SQUARE, SUITE 2900
INDIANAPOLIS, IN 46282-0200
EXAMINER
SAYALA, CHHAYA D
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
10/12/2017 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):
IPDOCKET@ICEMILLER.COM
CHIIPDOCKET@ICEMILLER.COM
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte EDWARD CARROLL HALE III
Appeal 2017-000782
Application 13/526,7531
Technology Center 1700
Before ADRIENE LEPIANE HANLON, CHUNG K. PAK, and
BRIAN D. RANGE, Administrative Patent Judges.
RANGE, Administrative Patent Judge.
DECISION ON APPEAL
SUMMARY
Appellant appeals under 35 U.S.C. § 134(a) from the Examiner’s
decision rejecting claims 1, 2, 4, 5, 7, 15—17, 20, 27, 29, and 35. We have
jurisdiction. 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the real parties in interest is Rose Acre Farms, Inc.
and Edward Carroll Hale III. Appeal Br. 3.
Appeal 2017-000782
Application 13/526,753
STATEMENT OF THE CASE2
Appellant describes the invention as relating to methods of feeding
animals to produce more environmentally benign waste products with less
odor. Spec. 1—5. In particular, the invention relates to animal feed that
seeks to reduce the level of volatile ammonia in the animal’s manure. Id. at
5. Claim 1, reproduced below with formatting added for readability, is
illustrative of the claimed subject matter:
1. A method of reducing the level of ammonia aerosol from
manure comprising the steps of:
providing an animal feed including,
a cation exchanger capable of binding ammonium
cations wherein said cation exchanger comprises zeolite
present in an amount between about 1.25 and about 2.0
weight percent of said animal feed, and
an acidogenic compound comprising a fermentable
fiber, wherein said acidogenic compound reduces the pH
of a manure, said manure including ammonia, produced
by a monogastric animal fed said animal feed such that at
least a portion of the ammonia in said manure is
protonated to produce said ammonium cations;
and
feeding said animal feed to said monogastric animal.
Appeal Br. 26 (Claims App’x).
REFERENCES
The Examiner relied upon the prior art below when rejecting the
claims on appeal:
2 In this opinion, we refer to the Final Office Action dated August 14, 2015
(“Final Act.”), the Appeal Brief filed May 18, 2016 (“Appeal Br.”), the
Examiner’s Answer dated August 9, 2016 (“Ans.”), and the Reply Brief
filed October 10, 2016 (“Reply Br.”).
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Application 13/526,753
Hu et al., U.S. Patent No. 5,252,345, issued Oct. 12, 1993 (hereinafter
“Hu”)
Klatte, U.S. Patent No. 5,314,852, issued May 24, 1994 (hereinafter
“Klatte”)
Goa et al., Manipulation of Hindgut Fermentation to Reduce the
Excretion of Selected Odor-Causing Compounds in Pigs, Symposium of the
Hog Environmental Management Strategy (HEMS),
http ://agrienvarchive. ca/bioenergy/hems/hems2/h2-
_reduc_gas_emissionsl.html#Manipulation (Dec. 1999) (hereinafter “Goa”)
BRZ™ FOR HOGS, Bear River Zeolite Co., Inc. (2001) (hereinafter
“Bear River Zeolite”)
S. K. Baidoo, Feeding Strategies for Manipulating Manure Content,
http://www.gove.mb.ca/agriculture/livestock/pork/swine/bab 1 OsO 1 .html
(2001) (hereinafter “Baidoo”)
Albert Heber, et al., Methods and Practices to Reduct Odor from
Swine Facilities, http://ces.purdue.edu/extmedia/AE/AQ-2/AQ-2.html (Feb.
2001) (hereinafter “Heber”)
Winhandoyo, et al., The Effect of Utilization Bentonite and Zeolite in
the Broiler Diets on Performance and Fecal Characteristics, Animal
Production 3, No. 1 (2001) (hereinafter “Wihandoyo”)
Theo van Kempen and Eric van Heugten, Livestock and Poultry
Environmental Stewardship (LPES) Curriculum,
http://webarchive.Org/web/20020314161801/http://www.lpes.org/les_plans.h
tml (March 2002) (hereinafter “Kempen”)
Poultry Voice, Vol. 2, fss. 3, Extension Service West Virginia
University (Oct. 2002) (hereinafter “Poultry Voice”)
Martin Nyachoti, et al., Dietary Manipulation Strategies to Reduce
Swine Odours: Part 2, Animal Industry Manitoba Swine Update, Vol. 15,
No. 2 (May 2003) (hereinafter “Nyachoti”)
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Appeal 2017-000782
Application 13/526,753
S. Roberts, et al., Including Fiber in the Diet of Laying Hens Lowers
Ammonia Emission, A.S. Leaflet R2209, 2006 Iowa State University and
USDA Poultry Science Day Report (2006) (hereinafter “Roberts”)
Kristjan Bregendahl and Stacey Roberts, Nutritional Strategies to
Reduce Ammonia Emissions from Laying Hens, Midwest Poultry
Federation Convention, St. Paul, Minnesota (March 21—23, 2006)
(hereinafter “Bregendahl”)
REJECTIONS
The Examiner maintains the following rejections on appeal:
Rejection 1. Claims 1, 2, 4, 7, 17, 20, 29, and 35 under 35 U.S.C.
§ 103 as unpatentable over Heber, Baidoo, Nyachoti, and Goa in view of
Poultry Voice and Winhandoyo and further in view of Bregendahl taken
with Roberts. Ans. 3^4.
Rejection 2. Claim 5 under 35 U.S.C. § 103 as unpatentable over
Heber, Baidoo, Nyachoti, and Goa in view of Poultry Voice and
Winhandoyo and further in view of Bregendahl taken with Roberts and in
view of Klatte and Hu taken with Bear River Zeolite. Id. at 9.
Rejection 3. Claims 15, 16, and 27 as unpatentable over Heber,
Baidoo, Nyachoti, and Goa in view of Poultry Voice and Winhandoyo and
further in view of Bregendahl taken with Roberts and further in view of
Kempen. Id. at 11.
ANALYSIS
We review the appealed rejections for error based upon the issues
identified by the Appellant and in light of the arguments and evidence
produced thereon. Cf. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010)
(precedential) (cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed.
Cir. 2011) (“it has long been the Board’s practice to require an applicant to
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Application 13/526,753
identify the alleged error in the examiner’s rejections”)). After considering
the evidence presented in this Appeal and each of Appellant’s arguments, we
are not persuaded that Appellant identifies reversible error. Thus, we affirm
the Examiner’s rejections for the reasons expressed in the Final Office
Action and the Answer. We add the following primarily for emphasis.
Appellant does not present any substantively separate arguments for
the three rejections. See Appeal Br. 18. Also, the arguments presented for
independent claims 17 and 35 substantively overlap with the arguments
presented for claim 1. See id. at 18—24. Therefore, consistent with the
provisions of 37 C.F.R. § 41.37(c)(l)(iv) (2013), we limit our discussion to
claim 1, and all other claims on appeal stand or fall together with claim 1,3
The Examiner presents extensive findings regarding the cited
references which are not repeated here. Ans. 4—12. In summary, the
Examiner finds that the references teach that claim 1 ’s recited zeolite and
fermentable fiber each reduce ammonia emissions and do so “with
mechanisms which are far different from each other.” Id. at 6—7. The
Examiner thus concludes that it would have been obvious to a person having
ordinary skill in the art to use this combination for this same purpose. Id.
The Examiner’s findings are supported by a preponderance of the evidence,
and we adopt these findings.
3 Appellant raises arguments concerning claims 2 and 17 in the Reply Brief.
Reply Br. 3^4. Appellant did not, however, include substantively distinct
arguments regarding these claims in the Appeal Brief. See Appeal Br. 18—
21 (raising arguments as to claim 17 substantively overlapping with
arguments raised with respect to claim 1). Consistent with 37 C.F.R. §
41.41(b)(2), we therefore do not separately consider claims 2 or 17 here.
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Application 13/526,753
Appellant first argues that the Examiner cites too many cumulative
references. AppealBr.il. The Examiner correctly states, however, that
reliance on a large number of references does not, without more, weigh
against obviousness. See In re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991).
As another threshold issue, Appellant argues that the Baidoo reference
cannot be fairly considered because Baidoo’s Figure 2 is not a part of the
record on appeal. Reply Br. 4—5. The Examiner, however, properly relies
on the portion of Baidoo that is available, and Appellant has not explained
why Figure 2 would be expected to undermine Baidoo’s more general
teachings.
Appellant also argues that “none of the references disclose an animal
feed that includes both a cation exchanger and an acidogenic compound.”
Appeal Br. 11. The rejection at hand, however, is based on obviousness not
anticipation. The Examiner concludes that it would have been obvious to
employ both a zeolite and an acidogenic compound (i.e., a fermentable fiber)
because both achieve the same purpose (reducing ammonia emissions) and
do so via different mechanisms so that the combined use would be more
efficient than use of just zeolite or the acidogenic compound alone. See,
e.g., Ans. 6—7, 18—20. Appellant’s arguments against individual references
do not persuasively rebut this conclusion. “Non-obviousness cannot be
established by attacking references individually where the rejection is based
upon the teachings of a combination of references.” In re Merck & Co., 800
F.2d 1091, 1097 (Fed. Cir. 1986).
We also disagree with the factual premise underlying Appellant’s
argument that the references do not disclose a feed with both a zeolite and an
acidogenic compound. See, e.g., Reply Br. 6 (noting “the absence of any
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single prior art refence even suggesting such a combination”). Rather, the
prior art suggests using all various odor reducing solutions in combination.
For example, Heber states that producers should decide “which individual
measures to use to reduce odors” and lists “fiber sources” and “[o]dor
absorbers such as . . . zeolite” as possible measures that can be employed.
Heber 1, 7, 8 (emphasis added). Similarly, Baidoo presents “nutritional
management strategies as tools to help control the content of manure, which
contributes to mal-odours” and identifies acidogenic compounds and zeolites
as available tools. Baidoo 1, 3 (emphasis added). Bregendahl likewise
explains that the ammonia reducing strategies fall into “not mutually
exclusive categories based on the method of action.” Bregendahl 2
(emphasis added). A person of ordinary skill in the art thus would have
understood the references as contemplating the use of multiple options to
reduce odors.
Appellant also argues that the Nyachoti references teaches away from
using a zeolite. Appeal Br. 13—14. Nyachoti, however, teaches that zeolytes
“have been shown to be effective in the adsorption and binding of
ammonium (NH4++ ions).” Nyachoti 2. Moreover, as explained by the
Examiner, numerous other references cite the benefit of zeolytes. The
preponderance of the evidence does not support that any negative teaching
of Nyachoti would have discouraged a person of ordinary skill from use of
zeolytes. Cf. Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir.
2006) (“a given course of action often has simultaneous advantages and
disadvantages, and this does not necessarily obviate motivation to
combine”).
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Application 13/526,753
Appellant also argues non-obviousness based on unexpected results.
Appellant relies on named inventor Mr. Edward Carroll Hale Ill’s June 8,
2015, declaration (“the Original Hale Declaration”) and also Mr. Hale Ill’s
December 18, 2015 (“the Updated Hale Declaration”). Appeal Br. 15—18.
As a threshold matter, the Examiner has not entered the Updated Hale
Declaration. Ans. 13. Appellant urges that we nonetheless consider the
Updated Hale Declaration. Reply Br. 2—3. Pursuant to 37 C.F.R. §
41.37(c)(2), the appeal brief “shall not include any new or non-admitted
affidavit.” The Examiner’s decision not to admit the Updated Hale
Declaration is not subject to our review but is instead reviewable by petition
under 37 CFR § 1.181 to the Director. See MPEP § 1002.02(c); see also In
re Berger, 279 F.3d 975, 984 (Fed. Cir. 2002) (“There are a host of various
kinds of decisions an examiner makes in the examination proceeding-mostly
matters of a discretionary, procedural or nonsubstantive nature-which have
not been and are not now appealable to the board or to this court when they
are not directly connected with the merits of issues involving rejections of
claims, but traditionally have been settled by petition to the
Commissioner.”). We therefore do not consider the Updated Hale
Declaration. Below, however, we carefully consider Appellant’s unexpected
results argument based on the Original Hale Declaration.
A party asserting unexpected results as evidence of nonobviousness
has the burden of proving that the results are unexpected. In re Geisler, 116
F.3d 1465, 1469—70 (Fed. Cir. 1997). Such burden requires Appellant to
proffer factual evidence that actually shows unexpected results relative to
the closest prior art. See In re Baxter Travenol Labs., 952 F.2d 388, 392
(Fed. Cir. 1991). Evidence of unexpected results must also be reasonably
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Application 13/526,753
commensurate with the scope of the claim on appeal. In re Grasselli, 713
F.2d 731, 743 (Fed. Cir. 1983).
Here, the Examiner finds that the prior art teaches both use of an
acidogen (fermentable fiber) and a cation exchanger (zeolite) to curtail
ammonia emissions. Ans. 19—20. The Examiner determines that because
these two methods of curtailing ammonia emission use different routes to
achieve this goal, a person of skill in the art would have expected the use of
the two (acidogen and cation exchanger) to produce an effect greater than
the sum of their separate effects. Id\ see also Ans. 23—24. The Examiner
thus determines that Appellant’s preferred unexpected results are not
unexpected. Id.
The Original Hale Declaration does not compare the claimed method
to any of the closest prior art now cited by the Examiner. See also Appeal
Br. 17 (explaining that Roberts reports 50% reduction in ammonia
emissions). Moreover, Appellant’s evidence of unexpected results is not
reasonably commensurate with the scope of the claims on appeal. In
particular, the Original Hale Declaration shows a 48% reduction in ammonia
based on a “manure derived from feed containing 10% acidogenic
compound and 1.0% cation exchanger zeolite.” Orignal Hale Declaration |
17. Claim 1, however, recites 1.25 to 2.0 weight percent zeolite and is open
ended with respect to amount of acidogenic compound. Appellant has
provided no evidence regarding results of embodiments within the scope of
claim 1 and has not provided an adequate basis to support that embodiments
within the claim will behave in the same manner as the evidence presented.
See In re Huai-Hung Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) (“If an
applicant demonstrates that an embodiment has an unexpected result and
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Application 13/526,753
provides an adequate basis to support the conclusion that other embodiments
falling within the claim will behave in the same manner, this will generally
establish that the evidence is commensurate with scope of the claims.”).
On balance, the weight of the evidence supports the Examiner’s
conclusion of obviousness. Therefore, we sustain the Examiner’s rejections.
DECISION
For the above reasons, we affirm the Examiner’s rejection of claims 1,
2, 4, 5, 7, 15-17, 20, 27, 29, and 35.
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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