10504195 (B.P.A.I. Nov. 29, 2010)

Ex Parte Lang

Board of Patent Appeals and InterferencesNov 29, 2010

10504195 (B.P.A.I. Nov. 29, 2010)

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. 10/504,195 08/11/2004 John C Lang 2341 US F 8200 7590 11/29/2010 Teresa J. Schultz Alcon Research, 6201 S. Freeway, Mail Code Q-148 Fort Worth, TX 76134-2099 EXAMINER LEITH, PATRICIA A ART UNIT PAPER NUMBER 1655 MAIL DATE DELIVERY MODE 11/29/2010 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 BOARD OF PATENT APPEALS AND INTERFERENCES __________ Ex parte JOHN C. LANG __________ Appeal 2010-005297 Application 10/504,195 Technology Center 1600 __________ Before ERIC GRIMES, LORA M. GREEN, and MELANIE L. McCOLLUM, Administrative Patent Judges. McCOLLUM, Administrative Patent Judge. DECISION ON APPEAL1 This is an appeal under 35 U.S.C. § 134 involving claims to a cobeadlet. The Examiner has rejected the claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm. 1 The two-month time period for filing an appeal or commencing a civil action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing, as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE” (paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery mode) shown on the PTOL-90A cover letter attached to this decision. Appeal 2010-005297 Application 10/504,195 2 STATEMENT OF THE CASE Claims 4-6 are on appeal (App. Br.2 2).3 The claims have not been argued separately and therefore stand or fall together. 37 C.F.R. § 41.37(c)(1)(vii). We will focus on claim 4, which reads as follows: 4. A cobeadlet comprising docosahexaenoic acid (DHA) and rosemary, and further comprising at least one antioxidant other than rosemary. Claims 4-6 stand rejected under 35 U.S.C. § 103(a) as obvious over Skelbaek et al. (WO 94/01001 A1, Jan. 20, 1994) (Ans. 4). The Examiner finds that Skelbaek “disclosed a microencapsulated oil or fat composition for use in infant formulas and functional foods comprising rosemary extract as an antioxidant for example, and the highly unsaturated fatty acid DHA” (id.). The Examiner also finds that Skelbaek teaches “that the composition contained at least one antioxidant selected from several antioxidants such as tocopherol and rosemary extract” (id. at 6). The Examiner concludes that “[o]ne of ordinary skill in the art would have been motivated to add another antioxidant, such as tocopherol in addition to the rosemary extract in order to better stabilize the DHA-containing composition by scavenging free-radical formation in the composition” (id.). ISSUE Does Skelbaek suggest including DHA, rosemary, and another antioxidant in a cobeadlet? 2 “App. Br.” refers to the Appeal Brief dated October 17, 2008. 3 Claims 7-12 are also pending but have been withdrawn from consideration by the Examiner (App. Br. 2). Appeal 2010-005297 Application 10/504,195 3 FINDINGS OF FACT 1. Skelbaek discloses “a microencapsulated vegetable, animal or marine fat or oil encapsulated in a caseinate based matrix material, wherein the ratio between AA and/or γ-linolenic acid, EPA and DHA is from 0.1:0.1:1 to 3:1:1 which corresponds to the ratio normally found in human milk” (Skelbaek 5: 6-11). 2. Skelbaek also discloses that the microencapsulated product contains “0 to 10, preferably 5-6% by weight of at least one antioxidant selected from” a group that includes rosemary extract (id. at 6: 6-27). 3. In addition, Skelbaek discloses: “When hydrophilic antioxidants are used, such as ascorbic acid, these are preferably added to the solution of the matrix material and when lipophilic antioxidants are used, such as α-tocopherol, these are preferably added together with the fat or oil.” (Id. at 8: 29-34.) ANALYSIS Skelbaek discloses a microencapsulated product comprising DHA (Finding of Fact (FF) 1). Skelbaek also discloses that the product preferably contains at least one antioxidant, such as rosemary extract (FF 2). Based on these disclosures, we agree with the Examiner that Skelbaek suggests a microencapsulated product including DHA, rosemary extract, and another antioxidant. As noted by Appellant (App. Br. 6), Skelbaek discloses including hydrophilic antioxidants in the matrix, rather than in the fat or oil (FF 3). However, Appellant has not adequately explained, nor do we detect any reason, why the Examiner is incorrect in interpreting the claimed Appeal 2010-005297 Application 10/504,195 4 “cobeadlet” to encompass both the fat or oil and the encapsulating matrix of Skelbaek’s microencapsulated product. CONCLUSION Skelbaek suggests including DHA, rosemary, and another antioxidant in a cobeadlet. We therefore affirm the obviousness rejection of claims 4-6. TIME PERIOD FOR RESPONSE 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 cdc TERESA J. SCHULTZ ALCON RESEARCH, 6201 S. FREEWAY, MAIL CODE Q-148 FORT WORTH, TX 76134-2099