Ex Parte La CroixDownload PDFBoard of Patent Appeals and InterferencesAug 2, 201212470176 (B.P.A.I. Aug. 2, 2012) Copy Citation 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 Appeal 2011-010009 Application 12/470,176 2 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. Appeal 2011-010009 Application 12/470,176 3 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 Appeal 2011-010009 Application 12/470,176 4 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 Appeal 2011-010009 Application 12/470,176 5 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. Appeal 2011-010009 Application 12/470,176 6 SUMMARY We reverse the rejection of claims 1-6, 19-24, and 30-34 under 35 U.S.C. § 103(a). REVERSED cdc Copy with citationCopy as parenthetical citation