Ex parte LAJOIE et al.

Board of Patent Appeals and Interferences

Oct 20, 1997

08040911 (B.P.A.I. Oct. 20, 1997)

Application for patent filed March 30, 1993. According1
to appellants, this application is a continuation of Application
07/853,965, filed March 20, 1992, now abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
Paper No. 14
UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________
Ex parte M. STEPHEN LAJOIE and KENNETH R. CUMMINGS
________________
Appeal No. 95-0124
Application 08/040,9111
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ON BRIEF
________________
Before RONALD H. SMITH, WINTERS and GRON, Administrative Patent
Judges.
WINTERS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal was taken from the examiner’s decision rejecting
claims 1, 4, 5, 8, 9, 12 through 14, 18, 21 through 29 and 33,
which are all of the claims remaining in the application.
REPRESENTATIVE CLAIM
Claim 1, which is illustrative of the subject matter on
appeal, reads as follows:
Appeal No. 95-0124
Application 08/040,911
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1. A dietary fatty acid salt product for ruminants
consisting of encapsulated granules which comprise:
(A) a core matrix comprising at least one C -C fatty14 22
acid salt of calcium or magnesium alkaline earth
metal; and
(B) a polysaccharide, polyvinyl or polypeptide
polymeric coating in the form of a continuous film
which is an impermeable barrier to volatile
organic compounds contained in the core matrix;
wherein the encapsulated granules have an average particle size
between about 100-5000 microns, and a polymeric coating thickness
between about 5-50 microns.
THE REFERENCES
The references relied on by the examiner are:
Palmquist et al. (Palmquist) 4,642,317 Feb. 10, 1987
Ardaillon et al. (Ardaillon) 4,877,621 Oct. 31, 1989
THE ISSUE
The issue presented for review is whether the examiner erred
in rejecting all of the appealed claims under 35 U.S.C. § 103 as
unpatentable over the combined disclosures of Palmquist and
Ardaillon.
DELIBERATIONS
Our deliberations in this matter have included evaluation
and review of the following materials: (1) the instant
specification, including all of the claims on appeal; (2)
appellants’ main Brief and Reply Brief before the Board; (3) the
Examiner’s Answer and the communication mailed by the examiner
Appeal No. 95-0124
Application 08/040,911
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September 13, 1994 (Paper No. 13); and (4) the above-cited
references relied on by the examiner.
On consideration of the record, including the above-listed
materials, we reverse the examiner’s rejection under 35 U.S.C.
§ 103.
DISCUSSION
In rejecting all of the appealed claims under 35 U.S.C.
§ 103, the examiner argues that it would have been obvious to
encapsulate the fatty acid calcium salts of Palmquist with the
polymer coating of Ardaillon. See the Examiner’s Answer, page 4.
We have no doubt that the prior art could be modified in the
manner proposed, which is apparent on reviewing the instant
specification and claims. The mere fact that the prior art could
be so modified, however, would not have made the modification
obvious unless the prior art suggested the desirability of the
modification. In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125,
1127 (Fed. Cir. 1984).
Here, the examiner does not provide a cogent reason or
motivation stemming from the references which would have led a
person having ordinary skill to modify the fatty acid calcium
salts of Palmquist, per the teachings of Ardaillon, in the manner
proposed. On the contrary, we agree with appellants that the
Appeal No. 95-0124
Application 08/040,911
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hypothetical person having ordinary skill in the art would have
found it redundant to encapsulate Palmquist’s fatty acid calcium
salt granules with Ardaillon’s polymeric coating. This follows
because fatty acid calcium salts bypass the rumen and,
accordingly, do not require a polymeric coating for safe passage
therethrough. See Palmquist, column 3, lines 28-41, and see
appellants’ main Brief, page 6, first and second paragraphs; page
11, third paragraph; and page 13, first paragraph.
In their specification, appellants describe a disadvantage
associated with using fatty acid salt products such as those
disclosed by Palmquist. According to appellants,
[a] disadvantage associated with the use of fatty acid
salt products as feed additives is a characteristic
unpleasant odor, which derives from a content of one or
more volatile organic oxygenates in the feed additives.
[Specification, page 2, lines 22-26.]
The present invention provides a solution to the malodor problem
characteristic of Palmquist’s fatty acid calcium salts.
According to the present invention, a fatty acid salt of calcium
or magnesium is encapsulated with a polymeric coating as set
forth in the claims. The encapsulated fatty acid salt product
functions as an odor-free rumen bypass dietary supplement in
ruminant feed. It can be seen that appellants provide a reason
for encapsulating a core matrix comprising at least one C -C14 22
Appeal No. 95-0124
Application 08/040,911
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fatty acid salt of calcium or magnesium with a polymeric coating,
whereas the cited prior art references do not.
According to the examiner,
[i]t would have been obvious to combine the polymer
coating of Ardaillon with the tallow fatty acid calcium
salts of Palmquist since Palmquist recognizes that an
improved encapsulation technique for coating fatty
acids could be useful as a ruminant feed stuff (column
1, lines 52 through 62). [Emphasis added.]
See the Examiner’s Answer, page 4, lines 5 through 9. This
amounts to a non-sequitur, and constitutes reversible error.
The examiner’s decision is reversed.
REVERSED
RONALD H. SMITH )
Administrative Patent Judge )
)
)
)
SHERMAN D. WINTERS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
TEDDY S. GRON )
Administrative Patent Judge )
Appeal No. 95-0124
Application 08/040,911
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Charles B. Barris
Church and Dwight Co., Inc.
469 North Harrison St.
Princeton, NJ 08543