Ex Parte Luberski et al

Patent Trial and Appeal Board

Apr 23, 2018

14088182 (P.T.A.B. Apr. 23, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/088,182 11/22/2013 Timothy E. Luberski
60817 7590 04/25/2018
Frederick W. Gibb, III, Esq.
GIBB & RILEY, LLC
844 West Street
Suite 300
Annapolis, MD 21401
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
HVR.5000CIP 3014
EXAMINER
VALENTI, ANDREA M
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
04/25/2018 ELECTRONIC
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.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
support@gibbiplaw.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte TIMOTHY E. LUBERSKI, NEAL RYE, and
EDWARD E. ANDERSON
Appeal2017-008195
Application 14/088, 182 1
Technology Center 3600
Before MICHAEL C. ASTORINO, KENNETH G. SCHOPPER, and
TARA L. HUTCHINGS, Administrative Patent Judges.
ASTORINO, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), the Appellants appeal from the
Examiner's decision rejecting claims 7-14 and 21-32. See Final Act. 1,
Box 7. We have jurisdiction over the appeal under 35 U.S.C. § 6(b).
We REVERSE.
1 According to the Appellants, "[t]he real party in interest is Luberski, Inc.
(dba, Hidden Villa Ranch)." Br. 3.
Appeal2017-008195
Application 14/088, 182
STATEMENT OF THE CASE
Subject Matter on Appeal
The Appellants' invention "generally relates to optimizing egg-
production characteristics, and more specifically to optimizing such
characteristics by providing chickens with produce and water mineralized
with a seawater fluid." Spec. ,r 2.
Claims 7, 21, and 29 are the independent claims on appeal. Claim 7,
reproduced below, is illustrative of the subject matter on appeal.
7. A method comprising:
identifying an optimized egg production characteristic
of hens;
ascertaining a desired content of a seawater concentrate
that produces the optimized egg production characteristic
when fed to hens in a trial;
deriving the seawater concentrate from a seawater
sample to include the desired content; and
feeding a hen the seawater concentrate of the desired
content to produce an egg having the optimized egg
production characteristic.
Rejections
Claims 7-10, 12, 14, 21-24, 26, and 28-32 stand rejected under (pre-
AIA) 35 U.S.C. § I03(a) as unpatentable over B. L. Damron & L. K.
Flunker, Calcium Supplementation of Hen Drinking Water, Poultry Science
74(5):784--787 (1995), http://ps.oxfordjoumals.org/content/74/4/784.abstract
(retrieved Apr. 20, 2016) ("Damron"), Shibata et al. (US 2005/0281918 Al,
2
Appeal2017-008195
Application 14/088, 182
pub. Dec. 22, 2005) ("Shibata"), and Ogura (JP2010-88311 A, pub. Apr. 22,
2010). 2
Claims 11, 13, 25, and 27 stand rejected under (pre-AIA) 35 U.S.C.
§ I03(a) as unpatentable over Damron, Shibata, Ogura, and Ikegami et al.
(EP 1161886 Al, pub. Dec. 12, 2001) ("Ikegami").
ANALYSIS
Independent claim 7 is directed to a method that includes the steps of
"ascertaining a desired content of a seawater concentrate," "deriving the
seawater concentrate from a seawater sample to include the desired
content" and "feeding a hen the seawater concentrate of the desired
content." Br., Claims App. (emphasis added). Independent claims 21 and
29 have substantially similar steps as claim 7. Br., Claims App.
The Examiner relies on the combined teachings of Damron, Shibata,
and Ogura to reject claim 7. Final Act. 5-6. The Examiner finds Damron
teaches using a calcium supplement for optimized egg production. See id.
The Examiner does not find that Damron's calcium supplement is from a
seawater concentrate. The Examiner turns to Shibata's teachings to remedy
the deficiency of Damron's teaching with regard to the "seawater
concentrate" of independent claims 7, 21, and 29. See, e.g., id. at 6, 7. The
Examiner finds that "Shibata teaches the general knowledge of one of
ordinary skill in the art that it is known to supplement feed and drinks with a
2 The Examiner does not include claim 28 as a claim rejected under this
ground. We understand the failure to include claim 28 as a rejected claim
under this ground as a minor oversight because claims 14 and 28 are
identical (Br., Claims App.) and the Examiner rejects claim 14 under this
ground (Final Act. 5, 7).
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Appeal2017-008195
Application 14/088, 182
seawater concentrate containing a known source of a calcium." Id. at 6
( emphasis added) ( citing Shibata ,r,r 20, 22, 24). The Examiner goes on to
substitute Damron's teaching of calcium supplement with Shibata's
teaching. See id.; Ans. 7.
The Appellants point out correctly that the term "seawater
concentrate" is defined in the Specification as "a fluid having a chemical
composition substantially similar to ocean water." Br. 12 ( citing Spec.
,r 45). The Specification goes on to explain that "ocean water includes a
combination of all/most of the elements in the periodic table" and provides
Table T-1, which "illustrates an exemplary concentration of elements in a
seawater fluid." Id. at 12-13 (citing Spec. ,r 45). The Appellants point out,
using Table T-1 's exemplary concentration of elements in a seawater fluid,
that "the relative proportion of sodium (10,800 PPM) in seawater relative to
that of calcium ( 412 PPM) in seawater is expressed by the ratio of
10,800/412 or about 26.2." Id. at 13-14.
Turning to the Examiner's finding particular to Shibata, the
Appellants point out that Shibata teaches "electrodialysis of seawater, along
with the use of monovalent cationic selective membranes, serves to lower
the sodium content of the electrodialysed seawater, while retaining the
divalent cations of calcium and magnesium, to form 'a low-sodium seawater
mineral component-containing composition from seawater,"' i.e., "a sodium
concentration of 6 mg/L or less." Id. at 15 ( citing Shibata ,r,r 1, 15, 20). The
Appellants argue that Shibata' s low-sodium seawater mineral component-
containing composition does not correspond to the claimed "seawater
concentrate" of claims 7, 21, and 29. See id.
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Application 14/088, 182
The Examiner fails to persuasively explain how one of ordinary skill
in the art would understand Shibata's low-sodium seawater mineral
component-containing composition to correspond to the claimed "seawater
concentrate," i.e., "a fluid having a chemical composition substantially
similar to ocean water." As such, we determine that the Examiner's finding
that "Shibata teaches the general knowledge of one of ordinary skill in the
art that it is known to supplement feed and drinks with a seawater
concentrate containing a known source of a calcium" (Final Act. 6
( emphasis added)) is inadequately supported.
Additionally, the Examiner does not persuasively explain how Ogura
teaches the steps directed to a "seawater concentrate" of independent claims
7, 21, and 29. See also Br. 17-18.
Thus, we do not sustain the Examiner's rejection of independent
claims 7, 21, and 29, and dependent claims 8-10, 12, 14, 22-24, 26, 28, and
30-32, as unpatentable over Damron, Shibata, and Ogura.
The remaining rejection based on Damron, Shibata, and Ogura in
combination with Ikegami relies on the same inadequately supported finding
as discussed above. Additionally, the Examiner does not persuasively
explain how Ikegami teaches the steps directed to a "seawater concentrate"
of independent claims 7, 21, and 29. See also Br. 20-21. As such, we do
not sustain the Examiner's rejection of claims 11, 13, 25, and 27 as
unpatentable over Damron, Shibata, Ogura, and Ikegami.
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Application 14/088, 182
DECISION
We REVERSE the Examiner's decision rejecting claims 7-14 and
21-32.
REVERSED
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