Ex Parte Krueger et al

Patent Trial and Appeal Board

Jun 13, 2013

11235285 (P.T.A.B. Jun. 13, 2013)

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.
11/235,285 09/26/2005 Nina Leigh Krueger 115808 4041
7590 06/14/2013
Robert M. Barrett
Bell, Boyd & Lloyd LLC
P.O. Box 1135
Chicago, IL 60690-1135
EXAMINER
PARSLEY, DAVID J
ART UNIT PAPER NUMBER
3643
MAIL DATE DELIVERY MODE
06/14/2013 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 NINA LEIGH KRUEGER, JEAN LUZ RAYNER,
HAROLD H. BENNETT, YUKIHIRO URUSHIDANI, and
GARY W. ETHERIDGE
________________

Appeal 2012-002293
Application 11/235,285
Technology Center 3600
________________

Before BRADLEY R. GARRIS, TERRY J. OWENS, and
CHRISTOPHER L. CRUMBLEY, Administrative Patent Judges.

OWENS, Administrative Patent Judge.

DECISION ON APPEAL

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STATEMENT OF THE CASE
The Appellants appeal under 35 U.S.C. § 134(a) from the Examiner’s
rejection of claims 1, 9, 10, 12-16, 24, 25, and 27-30. Claims 11, 26, 45,
and 46, which are all of the other pending claims, stand withdrawn from
consideration by the Examiner. We have jurisdiction under
35 U.S.C. § 6(b).
The Invention
The Appellants claim a pet food and a method for making it.
Claim 16 is illustrative:
16. A pet food composition having increased consumer appeal
comprising: a gravy, a meat mixture, at least one ingredient selected from
the group of ingredients consisting of soy, vegetables, grains, pasta and
combinations thereof in the form of human delicatessen food, and a
spice selected from the group consisting of parsley, sage, basil, thyme,
chives and combinations thereof, wherein the meat mixture comprises a
meat, from about 20% to about 30% by weight of wheat gluten and choline
chloride in an amount up to about 0.07% by weight and wherein the meat is
provided in a form selected from the group consisting of carved, sliced and
combinations thereof.

The References
Kaplow US 3,769,042 Oct. 30, 1973
Horrocks US 3,898,345 Aug. 5, 1975
Christensen US 5,468,510 Nov. 21, 1995
Hayward US 5,500,239 Mar. 19, 1996
Nadeau US 6,280,779 B1 Aug. 28, 2001
May US 6,692,787 B2 Feb. 17, 2004

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The Rejections
The claims stand rejected under 35 U.S.C. § 103 as follows: claims 1,
10, 12-14, 16, 25, and 27-29 over Nadeau in view of May, Christensen, and
Hayward, claims 9 and 24 over Nadeau in view of May, Christensen,
Hayward, and Horrocks and claims 15 and 30 over Nadeau in view of May,
Christensen, Hayward, and Kaplow.
OPINION
We affirm the rejections.
The Appellants argue only the independent claims, i.e., claims 1 and
16, and argue those claims together (Br. 11-17). Although additional
references are applied to some of the dependent claims the Appellants do not
provide a substantive argument as to the separate patentability of those
claims (Br. 16-17). We therefore limit our discussion to one claim, i.e.,
claim 16. See 37 C.F.R. § 41.37(c)(1)(vii) (2007).
Nadeau discloses a meat chunk-and-gravy pet food wherein the meat
chunks have been divided or cut to the desired chunk dimensions and
comprise about 60 to about 85 wt% meat or meat byproducts, the remainder
generally comprising grains, fibrous materials, vitamins and the like (col. 1,
ll. 44-45, col. 2, ll. 4-15, col. 3, ll. 2-6, 27-28).
May discloses a canned pet food comprising a base layer and an upper
layer, the base layer comprising solid food pieces in a gravy and having a
substantially conical recess in its upper surface, and the upper layer
comprising a substantially solid foodstuff which fills the substantially
conical recess in the base layer and is capable of supporting the base layer
when the pet food is inverted (col. 2, ll. 3-14). The base layer’s solid food
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pieces preferably comprise about 65 to about 95 wt% meat material which
may be in the form of chunks and about 5 to about 35 wt% proteinaceous
material which can be wheat gluten, soy flour, soy protein concentrates or
soy protein isolates (col. 2, ll. 28-33; col. 3, ll. 42-49; col. 4, ll. 5-11). The
upper layer’s substantially solid foodstuff “is preferably a gelled meat loaf,
cooked rice, cooked noodles, or aspic, or mixtures thereof” (col. 2, ll. 49-
52). Both layers can contain spices (col. 4, ll. 24-26; col. 5, ll. 27-29).
Christensen discloses a human or pet food comprising spices which
can be sage or thyme (col. 1, ll. 15-17; col. 24. ll. 21-22).
Hayward discloses a dog food comprising 0.1 wt% choline chloride
(col. 8, ll. 58 – col. 9, ll. 11).
The Appellants argue that the applied references do not disclose pet
food “in the form of human delicatessen food” as required by the
Appellants’ claim 16 (Br. 12; Reply Br. 5-6).
“‘[D]uring examination proceedings, claims are given their broadest
reasonable interpretation consistent with the specification.’” In re
Translogic Tech. Inc., 504 F.3d 1249, 1256 (Fed. Cir. 2007) (quoting In re
Hyatt, 211 F.3d 1367, 1372 (Fed. Cir. 2000)).
The Appellants’ Specification states that “[t]he term ‘delicatessen
foods’ can be understood to mean, for example, fresh and ready to eat,
prepared foods containing natural products” (Spec. ¶ 0061). As indicated by
the “can be understood” and “for example”, the Appellants’ definition of
“delicatessen foods” does not limit the term to any meaning narrower than
its ordinary meaning, which is “ready-to-eat food products (as cooked meats
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and prepared salads”.1 Thus, Nadeau’s (col. 3, ll. 34-36) and May’s (col. 1,
ll. 12-15) canned pet foods appear to be in the form of human delicatessen
foods because they appear to be consumable by humans (Nadeau, col. 1,
l. 64 – col. 2, l. 63); May, col. 3, l. 42 – col. 5, l. 67) and they are ready to eat
as indicated by May’s disclosure that “[o]ften, after opening a can of pet
food, the consumer shakes the contents out into the pet’s bowl or dish”
(col. 2, ll. 15-16).
The Appellants argue that the applied references do not disclose a pet
food meat mixture containing from about 20 wt% to about 30 wt% wheat
gluten (Br. 12; Reply Br. 2).
May’s base layer preferably contains about 5 wt% to about 35 wt%
proteinaceous material which can be wheat gluten (col. 2, ll. 28-34; col. 4,
ll. 5-12).
The Appellants argue that the applied references do not disclose a pet
food meat mixture containing up to about 0.07 wt% choline chloride (Br. 12;
Reply Br. 2-3).
Generally, “up to” includes zero. See In re Mochel, 470 F.2d 638, 640
(CCPA 1972); In re Egbert, 298 F.2d 947, 948 (CCPA 1962). In the
Appellants’ Specification’s statement that “[d]ry choline chloride can be
added up to a concentration of about 0.07 wt%, up to about 0.02 wt% is
preferred” (Spec. ¶0068), the “can be added” indicates that the choline
chloride is optional. Hence, the broadest reasonable interpretation of the
Appellants’ claim 16 term “an amount up to about 0.07% by weight”
consistent with the Appellants’ Specification includes zero.

1 WEBSTER’S NEW COLLEGIATE DICTIONARY 300 (G. & C. Merriam 1973).
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The Appellants argue that one of ordinary skill in the art would not
have combined Nadeau and May because May’s gravy preferably contains
about 2 wt% to about 8 wt% modified starch (col. 2, ll. 35-37; col. 5, ll. 4-8)
whereas Nadeau’s gravy excludes modified starch because it causes loose
stools and diarrhea (col. 2, ll. 22-29).
May’s gravy contains “[u]p to about 8% by weight of starch” (col. 5,
ll. 4-5) and, therefore, can contain no starch. See Mochel, 470 F.2d at 640;
Egbert, 298 F.2d at 948. Also, May does not state whether the starch is
chemically modified or, like Nadeau’s preferred starch (col. 2, ll. 52-53), is
physically modified. Regardless, in view of Nadeau’s solution to the
problem of loose stools and diarrhea by using chemically unmodified starch
(col. 2, ll. 45-49), one of ordinary skill in the art who used starch would have
used chemically unmodified starch.
Accordingly, we are not persuaded of reversible error in the
Examiner’s rejections.
DECISION/ORDER
The rejections under 35 U.S.C. § 103 of claims 1, 10, 12-14, 16, 25,
and 27-29 over Nadeau in view of May, Christensen, and Hayward, claims 9
and 24 over Nadeau in view of May, Christensen, Hayward, and Horrocks
and claims 15 and 30 over Nadeau in view of May, Christensen, Hayward,
and Kaplow are affirmed.
It is ordered that the Examiner’s decision is affirmed.

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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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