Ex Parte La Croix

Board of Patent Appeals and Interferences

Aug 2, 2012

12470176 (B.P.A.I. Aug. 2, 2012)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte CINDI MICHELLE LA CROIX
__________

Appeal 2011-010009
Application 12/470,176
Technology Center 3600
__________

Before DEMETRA J. MILLS, ERIC GRIMES, and ERICA A. FRANKLIN,
Administrative Patent Judges.

GRIMES, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to an system
for delivering medicine to a horse’s hoof. The Examiner has rejected the
claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We
reverse.
STATEMENT OF THE CASE
The Specification states that thrush and white line disease are
conditions that affect a horse’s hoof and are “caused by bacteria and/or
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fungal development in the affected areas” (Spec. 1, ¶ 0003). The
Specification discloses “an equine medicinal delivery system, comprising a
dental roll impregnated with a medicinal solution for placement in an equine
hoof” (id. at 2, ¶ 0008).
Claims 1-6, 19-24, and 30-34 are on appeal. Claim 1 is representative
and reads as follows:
1. An equine medicinal delivery system, comprising:
a dental roll impregnated with a copper sulfate solution for placement
in an equine hoof.

The Examiner has rejected claims 1, 2, 5, 6, 30, and 31 under 35
U.S.C. § 103(a) as obvious in view of Kelly,
1
Blank,
2
and O’Brien.
3
The
Examiner has also rejected claims 3, 4, 19-24, and 32-34 under 35 U.S.C.
§ 103(a) as obvious in view of Kelly, Blank, O’Brien, and Nier.
4
The same
issue is dispositive for both of these rejections.
The Examiner finds that “Kelly discloses an equine medicinal
delivery system, comprising: an applicator device impregnated with a copper
sulfate powder for placement in an equine hoof” (Answer 4). The Examiner
finds that “O’Brien teach[es] that it is well known to use copper sulfate
solution to prevent and/or treat diseases in livestock” (id.), and Blank
discloses a dental roll as an “applicator for liquid medicine” (id.). The
Examiner concludes that it “would have been an obvious substitution of
functional equivalent[s] to substitute the cotton ball of Kelly with a dental

1
Kelly, US 2005/0121205 A1, published June 9, 2005.
2
Blank et al., US 5,079,004, issued Jan. 7, 1992.
3
O’Brien, US 7,097,861 B1, issued Aug. 29, 2006.
4
Nier et al., US 2001/0036904 A1, published Nov. 1, 2001.
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roll as taught by Blank,” and “to substitute the copper sulfate powder of
Kelly with a copper sulfate solution as taught by O’Brien,” in both cases
because “a simple substitution of one known element for another would
obtain predictable results” (id.).
Appellant argues that Kelly “never describes the cotton ball being
impregnated with a copper sulfate solution - the cotton ball simply holds the
copper sulfate powder in place” (Appeal Br. 8). Appellant argues the
combination of Kelly’s disclosure, Blank’s disclosure of a dental roll, and
O’Brien’s disclosure of walking livestock through a copper sulfate footbath
would not have made obvious a dental roll impregnated with a copper
sulfate solution as a medicinal delivery system (id. at 9-10).
We agree with Appellant that the Examiner has not adequately shown
that the cited references would have made obvious a dental roll impregnated
with a copper sulfate solution for placement in an equine hoof, as recited in
claim 1. Kelly discloses a “shock absorbent hoof packing material … for
improved protection and comfort for the feet of hoofed animals” (Kelly 2,
¶ 0034). Kelly discloses that, for “feet with active thrush in the medial or
lateral sulcus, the area should be thoroughly cleaned … [with] alcohol and or
any other quickly evaporating solvent. Then a strong liquid antibacterial
thrush medicine should be applied topically to dry the area” (id. at 3,
¶ 0036). Kelly discloses that, for “feet with active thrush deep in the central
sulcus, the sulcus may be packed with copper sulfate powder, covered with a
cotton ball and then the liquid packing materials may be applied normally”
(id.). Kelly discloses that the liquid packing material has the consistency of
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syrup, sets in approximately 25 to 30 seconds, and provides the firmness of a
pencil eraser when cured (id. at 2, ¶ 0035)
Blank discloses “an antimicrobial superabsorbent composition of a
cross-linked hydrophilic sodium salt form of a partially neutralized acrylic
acid-based polymer gel” (Blank, col. 2, l. 66 to col. 3, l. 1). Blank discloses
that the composition can be used for dental rolls (id. at col. 7, ll. 61-64).
Although the Examiner finds that Blank is in the field of “applicator for
liquid medicine” (Answer 4), he has not pointed to any disclosure by Blank
of using its superabsorbent composition, in the form of a dental roll or
otherwise, as a carrier for a liquid medicine. To the contrary, Blank
describes its superabsorbent composition as having inherent antibacterial
properties (see id. at col. 2, ll. 66-67).
O’Brien discloses that “[b]acterial diseases of the hoof … are
common in livestock” (O’Brien, col. 1, ll. 16-17). O’Brien discloses that
“[o]ne method to address the disease problem is by the use of a livestock
footbath. The footbath holds a solution containing an antibiotic or other
material such as copper sulfate or zinc sulfate. The animal is led to walk
through the footbath to immerse the hooves.” (Id. at col. 1, ll. 25-30.)
The Examiner has not pointed to any disclosure of applying an
antibacterial solution in general, or a copper sulfate solution specifically, to a
hoof by applying an absorbent pad, such as a dental roll, to the hoof. We
agree with Appellant that Kelly describes using a cotton ball to keep a
medicinal powder in place, not as a carrier or applicator of the medicine.
The Examiner reasons that “although Kelly teaches the copper sulfate
powder with cotton ball being placed first and then the liquid packing, the
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liquid packing when mixed with the powder will create [a] copper sulfate
solution” (Answer 8). The evidence, however, does not support this
conclusion. Kelly discloses that its packing material has the consistency of
syrup and sets in 25-30 seconds (Kelly 2, ¶ 0035). The Examiner has not
adequately explained how Kelly’s disclosure supports his factual finding that
the liquid packing material would soak through the cotton and dissolve the
copper sulfate powder to create a copper sulfate solution.
Although we agree with the Examiner (Answer 8) that the cited
references disclose that copper sulfate can be used either as a powder or as a
solution to treat disease of the hoof, we do not agree that the references show
that the two forms of copper sulfate are interchangeable. Kelly discloses
treating a hoof with copper sulfate powder that is left on the hoof sealed
under layers of cotton and a shock absorbent material. O’Brien discloses
treating hooves by walking animals through a copper sulfate solution, but
does not disclose maintaining the solution on the hooves for an extended
period of time. Thus, in view of the fact that Kelly explicitly discloses a dry
powder for long-term treatment, the Examiner has not explained why one of
skill in the art would have been led to substitute a copper sulfate solution for
the copper sulfate powder in Kelly’s delivery system.
We reverse the rejection of independent claim 1 and dependent claims
2, 5, 6, 30, and 31 as being obvious in view of Kelly, Blank, and O’Brien.
We also reverse the rejection of claims 3, 4, 19-24, and 32-34 under 35
U.S.C. § 103(a) because the rejection relies on the findings and reasoning
with respect to Kelly, Blank, and O’Brien as discussed above, and relies on
Nier only to show the obviousness of using acidified copper sulfate.
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SUMMARY
We reverse the rejection of claims 1-6, 19-24, and 30-34 under 35
U.S.C. § 103(a).

REVERSED

cdc