Ex Parte Öckerman

Patent Trials and Appeals Board

Feb 19, 2019

14104940 - (D) (P.T.A.B. Feb. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
14/104,940 12/12/2013 Per-Arne Ockerman
21186 7590 02/21/2019
SCHWEGMAN LUNDBERG & WOESSNER, P.A.
P.O. BOX 2938
MINNEAPOLIS, MN 55402
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.
3941.00lUSl 3021
EXAMINER
THAKOR, DEV ANG K
ART UNIT PAPER NUMBER
1619
NOTIFICATION DATE DELIVERY MODE
02/21/2019 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):
uspto@slwip.com
SLW@blackhillsip.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte PER-ARNE OCKERMAN
Appeal2017-006288
Application 14/104,940
Technology Center 1600
Before ULRIKE W. JENKS, J. JOHN LEE, and KRISTI L. R. SA WERT,
Administrative Patent Judges.
JENKS, Administrative Patent Judge.
DECISION ON APPEAL
Appellant1 submits this appeal2 under 35 U.S.C. § 134(a) involving
claims directed to a nutritional supplement. Examiner rejected the claims as
obvious. We have jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
1 Appellant is the Applicant, Sweet Wellness AB, which, according to the
Brief, is the real party in interest. Appeal Br. 2.
2 We have considered, and herein refer to, the Specification of December 12,
2013 ("Spec."); Final Office Action of April 27, 2016 ("Final Act."); Appeal
Brief of August 29, 2016 ("Appeal Br."); Examiner's Answer of January 10,
2017 ("Answer"); and Reply Brief of March 10, 2017 ("Reply Br.").
Appeal2017-006288
Application 14/104,940
STATEMENT OF THE CASE
Free radicals have been implicated as being important in
the pathogenesis in a wide range of diseases and pathological
processes, including various forms of cancer, type-2 diabetes
mellitus, atherosclerosis, chronic inflammatory conditions,
ischemia/reperfusion injury, sepsis, and some neurodegenerative
diseases .... Oxidative stress is also thought to be involved in
the development of many diseases including Parkinson's disease,
Alzheimer's disease, heart failure, myocardial infarction,
schizophrenia, bipolar disorder, fragile X syndrome, sickle cell
disease, lichen planus, vitiligo, autism, and chronic fatigue
syndrome. ROS [Reactive Oxygen Species] can also be
beneficial, however, as they are used by the immune system as a
way to attack and kill pathogens.
Spec. ,r 14. Vitamins, minerals and trace elements, antioxidants, amino
acids, probiotics, and other components, including biotin, inositol, and
choline, are all compositions "that have been shown to treat or prevent
diseases associated with oxidative stress." Id. ,r 18.
Claims 13-18 and 20-29 are on appeal, and can be found in the
Claims Appendix of the Appeal Brief. Claim 13 is representative of the
claims on appeal, and reads as follows:
13. A composition comprising:
(i) vitamin A, vitamin B1, vitamin B2, vitamin B3, vitamin Bs,
vitamin B6, vitamin B12, vitamin C, vitamin D, vitamin E,
vitamin K, folic acid, calcium source, potassium source,
magnesium source, phosphate source, iodine, copper
source, chromium source, manganese source, molybdenum
source, selenium source, zinc source, lycopene, one or more
carotenoids, one or more flavonoids, biotin, inositol,
choline, one or more amino acids,
(ii) a probiotic composition comprising the powder of one or
more dried fruits and pollen extract or Terminalia arjuna or
an extract thereof,
(iii) fish oil, and
(iv) one or more pharmaceutically acceptable excipients;
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Appeal2017-006288
Application 14/104,940
wherein the composition effects a decrease in at least one of
pulse wave velocity (PWV) values; and endothelial function
(AIX) values in a patient.
Appeal Br. (Claims Appendix).
Appellant requests review of following rejections made by Examiner:
I. Claims 13-18, 20, 23-25, and 27-29 under 35 U.S.C. § I03(a) as
unpatentable over Riley3 in view of Cooper, 4 Sultenfuss, 5
Kris-Etherton, 6 ProJoba,7 Lourens-Hattingh, 8 and Daikeler, 9 as
evidenced by NIHI, 10 and NIH2, 11 and ProJoba2. 12 Final Act. 3--4.
II. Claim 21 under 35 U.S.C. § I03(a) as unpatentable over Riley in view
of Cooper, Sultenfuss, Kris-Etherton, ProJ oba, Lourens-Hattingh, and
3 Riley et al., US 5,948,443, issued Sept. 7, 1999 ("Riley").
4 Cooper et al., US 6,299,896 Bl, issued Oct. 9, 2001 ("Cooper").
5 Sultenfuss, US 5,514,382, issued May 7, 1996.
6 Penny M. Kris-Etherton et al., Fish Consumption, Fish Oil, Omega-3 Fatty
Acids, and Cardiovascular Disease, 106 CIRCULATION 2747-57 (2002)
("Kris-Etherton").
7 Dr Wallach's Youngevity: PROJOBA SHE'S COMPLETE-PACK,
http://www.youngevity.net/product/PJ520.html (accessed Oct. 17, 2012).
8 Analie Lourens-Hattingh & Bennie C. Viljoen, Yogurt as Probiotic Carrier
Food, 11 INT'LDAIRY J. 1-17 (2001) ("Lourens-Hattingh").
9 Daikeler et al., US 2010/0291050 Al, published Nov. 18, 2010
("Daikeler").
10 National Institutes of Health, Vitamin D Fact Sheet for Health
Professionals, http://ods.od.nih.gov/pdf/factsheets/VitaminD-
HealthProfessional.pdf (accessed Nov. 7, 2014) ("NIHI").
11 National Institutes of Health, Dietary Supplement Ingredient Database
Frequently Asked Questions (FAQ),
http:// dietarysupplementdatabase. usda.nih. gov /faq .html ( accessed Nov. 7,
2014) ("NIH2").
12 ProJoba Polbax, https://www.youngevity.net/images/pdf/ProJoba/PN7.pdf
(accessed Nov. 8, 2014) ("ProJoba2").
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Appeal2017-006288
Application 14/104,940
Daikeler, and further in view of Ruys, 13 Verdenelli, 14 or Kimoto. 15
Final Act. 11.
III. Claims 22 and 26 under 35 U.S.C. § I03(a) as unpatentable over Riley
in view of Cooper, Sultenfuss, Kris-Etherton, ProJoba,
Lourens-Rattingh, and Daikeler, and further in view of Giampapa, 16
Kesselman, 17 and Wolfrom, 18 as evidenced by Sloan. 19 Final Act. 12.
Obviousness over Riley, Cooper, Sultenfuss, Kris-Etherton, ProJoba,
Lourens-Hattingh, and Daikeler
Each of the rejections 1.-111. rely on the combination of Riley, Cooper,
Sultenfuss, Kris-Etherton, ProJoba, Lourens-Rattingh, and Daikeler.
Because the same issue is dispositive for each of these rejections we will
consider the rejections together. Appellant also does not argue the claims
separately, therefore, we focus our analysis on claim 13, and claims 14--18
and 20-29 stand or fall with that claim. 37 C.F.R. § 4I.37(c)(l)(iv).
13 Geert Ruys et al., Accuracy of Species Identity of Commercial Bacterial
Cultures Intended for Pro Biotic or Nutritional Use, 157 RESEARCH IN
MICROBIOLOGY 803-10 (2006) ("Ruys").
14 Maria Cristina Verdenelli et al., Probiotic Properties of Lactobacillus
rhamnosus and Lactobacillus paracasei Isolated from Human Faeces,
48 EUR. J. NUTR. 355-63 (2009) ("Verdenelli").
15 R. Kimoto et al., Lactococci as Probiotic Strains: Adhesion to Human
Enterocyte-Like Caco-2 Cells and Tolerance to Low pH and Bile, 29
LETTERS IN APPLIED MICROBIOLOGY 313-16 (1999) ("Kimoto").
16 Giampapa, US 2004/0001817 Al, published Jan. 1, 2004.
17 Kesselman et al., US 4,740,373, issued Apr. 26, 1988 ("Kesselman").
18 Wolfrom et al., US 4,326,523, issued Apr. 27, 1982 ("Wolfrom").
19 Memorial Sloan Kettering Cancer Center, Quercetin,
http://www.mskcc.org/cancer-care/herb/quercetin (accessed Nov. 7, 2014)
(''Sloan").
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Application 14/104,940
Examiner relies on the teachings of Riley, Cooper, Sultenfuss,
Kris-Etherton, ProJoba, Lourens-Hattingh, and Daikeler to arrive at the
claimed formulation that is taught in the art for purpose of improving
"cardiovascular health." Final Act. 9. Examiner interprets that the last
"wherein" clause of the claim is directed to an intended use and, as such,
does "not differentiate the structure of the composition from that in the prior
art and are thus not given patentable weight." Id. Examiner concludes that
compositions taught in the art to improve cardiovascular health would have
been expected by one of ordinary skill in the art at the time of invention to
also result in "an improvement of cardiovascular parameters ... on
administration to a patient." Id.
Appellant contends that the Office has cobbled together numerous
references without providing a sufficiently articulated reason to do so (see
Appeal Br. 6; Reply Br. 2); that the Office is relying on impermissible
hindsight (see Appeal Br. 6; Reply Br. 2); and that the results presented in
the Specification should rebut a prima facie case of obviousness (Appeal
Br. 8).
The issue is whether the preponderance of evidence of record supports
Examiner's conclusion that the combination of references renders the
nutritional supplement as claimed obvious.
Findings of Fact
We agree with and adopt the findings concerning the scope and
content of the prior art as well as the conclusion as set forth in the
Examiner's Answer and the Final Office Action. The findings of fact
reproduced below are referenced to highlight certain pertinent evidence.
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Application 14/104,940
FF 1. Riley teaches multivitamin and mineral supplements that contain
antioxidants and are used for the "prevention and treatment of
coronary heart disease." Riley, Abstract. The complete modular
formulation with all add-ons is listed in the table below:
Vitcrmin H,.1
Vlt.m:::~in B2.
V'.t;,m(n B6
Ni¥>i:.~in
Folatc,.
VJ:imfo EL'
Tfa:,tin
(~:3k{(3t~)
.:\lsli;ne'<'ium
lE>tl
ZitK~
\·h(~.g~~n~s.f·
Sd1mium
C:hrcJ.n1i;.~:rn
Cnppe:r
Cl•,llr.ymc· Q,1J
Vitaxnin /\
Dew, C\lix.,,s::nc
{Vil. /\. ~,quiv:i konq
Alph& C:irotc,,c
Z-enx:1.nth ;~1
\/,t,,mil'l C:
V),m.in D
\',t,,min E
Gr.iipc s~~.,h,;;l ii.O tn nbcm( 1GD mg
&b.:.)i}l S{J.G ~··J :'JbO\.lt gno rru::g
:xb~~-3L 4.0 t1) nbnu:: S(J; mg
t)b\_)~H- 05 tti r1.bou~ 40 m~g
;sbout 5.fJ tr) abr,[1~ :_7~.fJ{J ~U!...~g
;sbo~H 'H)~U} t,·) nhnut .l/OU tng
~bo~~t. .2.5.iJ to abo\J~ 500 m.g
.:~b.:J~~t 1.0 L\) tl~.1011~ 20 Ing_
t~bo~~t 5.0 tr, ab ... Yu~ :1n n'::g
~ho~::t- ·~ J.1 lr:1 ~;1.bou~ lU ~T~g
;~bouE JDJ} tc, afio\Jt ~.IJG n1cg
t~b-::..,nt 1D.O to abo"Ut 3.f.10 meg
~b-=~uf 1}_() Lt"l ~1hou~ 4 ~ng
.:~b,;:..,t~t 5 ,0 t0 abou~ 300 ~ug
,:b,mi '.:OG.1) tc, ab(Jm J:,,ilOG H..'
,,b,,,,i 5iJGJ1 to ab(,LH 1s,ooo m
&b.;-.. ut SO.D to ;1bout 2}X.1IJ :11c_g
::~b.i~33L SO . .G ~j) ~1hcttt lt\t"!UL'i mc·_g
rXh:xH. 5{)J} to tJ.bt~nt .5JJOO ~x~~:g
~bom 5.0 tn abuu\ SUO mq?
~b.;':o~Sl :S:u} t.::, fl~:H.=nt ] .n()!) ~·ng
i~h~)iH. (;J) tn $.b(.'t.H 4f}0 re
~bo~H. 5.0 trJ nbcng 1/JDO n1g
;ibo~~t CUJ t~J s.bom. 3UO st~g
r'.)'.bo~~t OJ) tn ~:i.bom. 5f}0 ff~~}
;:~b\R~t 0.0 to about 700 n1g
.:~bt.•t~t O ,0 t0 sib,:.rnt 7 5D ff::g
~b-~,~>i .1 S.O to ,1bo~1t ·J :-{'.if)() :11r;
&.b,~·tst 1}0 to ahout 50D .mg
.:~b\.•i_.:l (LO Lu ahou~ SOD a::g
~~bn~~t 1}0 \_{) aMQ1-1~ 500 tng
tir its h),:)eq~~{v;ikmt.~ -...,lhicb. n~;;y· indBJ,;tit'flit· ~t"'.id
hiotm
~n;m,g .. :me.s~.
seletlirn.n
::..:hr.c~rfi:m.n~
cop}-,·'er ...
l'.CS:OllZ}'lh'e Q-10
,:-S~·nrin}\
'i:.itar~'lir~ C· ....
vit~D
...... -tti:1:H1iH E
green. f=ea e-xtr.~.t
R-1:;~.tthtJrne bt-!~f' e-A't.!.";.~c:r
L-camitine
qr~en:ih1"1
alpha l~pt)ii:. 3(:id
i;:lti!ill.e~·
g.arht::.:
~spi.rin>:-
vim·mif:;B2:
vi.tasfilil B6
vit.1rrm~~ B3
fohc acid
.~delliurn.
chr~:Jinfun1
rooner
C\..1-elli.~~ (~-1 (}
:o..:it;1:.nall1A.
li:&~3llihi.L.'e
"'it.;unin C
virai.illll D
vitinlli1 E
pot:1.:s;aiffi
choline
ifiill1:~l~Se
sdf'nium
cfil-:..minn~
vit:rrnin C
vit:.::rllif~D
iodme
tt~i:rnrin
riOOfi;:;~~1
pyri-dt1x1ne
:lli'DlVbde'.!l:Uffi
bi<,tl;,,:<;.,lK>id
~Exemplified. Modul:c 3 cif Ril.:cy doe5 m.>i contain '11e,-e ,:um1-mnents. St0e Riley Tabl-es
Il.. and IlL
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Appeal2017-006288
Application 14/104,940
Examiner concludes that it would have "been obvious to one of
ordinary skill in the art to include the micronutrients disclosed by Cooper
not found in Riley ... to provide [a] more complete supplementation of
micronutrients." Final Act. 5. For the same reason, Examiner concludes that
it would have been "obvious to one of ordinary skill in the art at the time of
invention to [also] include molybdenum and inositol as taught by Sultenfuss
in the composition of Riley and Cooper." Final Act. 6.
The combination of Riley, Cooper, and Sultenfuss does not
encompass fish oil. See Final Act. 6. Examiner finds that just like Riley
teaches improving cardiovascular health, Kris-Etherton also teaches
improving cardiovascular health, in this case with fish oil supplementation.
Final Act. 6; FF6. Examiner concludes that "[i]t would have therefore been
obvious to one of ordinary skill in the art at the time of invention to include
0.3-300 mg of fish oil as taught by Kris-Etherton in the composition of
Riley, Cooper, and Sultenfuss to provide cardiovascular benefits." Final Act.
6; see Ans. 11-12 ("to provide cardiovascular effect" and "that the
compositions are independently recognized in the art as having the same
purpose and the same effect (improved cardiovascular health) and thus it
would have been obvious to combine them in the same composition").
The combination of Riley, Cooper, Sultenfuss, and Kris-Etherton does
not encompass a probiotic in conjunction with a dried fruit powder or pollen
extract. See Final Act. 6-7. Examiner finds that ProJoba teaches
supplementation with probiotics and flower pollen extract in order "to
provide energy and micronutrient supplementation together with healthy gut
bacteria." Final Act. 7; FF7. Examiner further finds that one of ordinary skill
in the art at the time the invention was filed would have known that
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Application 14/104,940
"probiotics increase the bioavailability of the antioxidants contained in the
superfoods and thus increase the antioxidant effect in the body" and,
therefore, further motivating the inclusion of ProJoba's formulation with the
combination taught by Riley, Cooper, Sultenfuss, and Kris-Etherton. Final
Act. 8 (citing Daikeler ,r,r 22-24); FF8. Lourens-Hattingh suggests using
yogurt as a vehicle for food. FF9. Examiner concludes that "[i]t would have
therefore been obvious to one of ordinary skill in the art to use a yogurt
carrier to deliver the composition of Projoba, i.e., the pro biotic and the
pollen extract, within the overall composition of Riley, Cooper, Sultenfuss,
Kris-Etherton, and Projoba." Final Act. 7.
After considering the evidence and the arguments, we conclude the
weight of the evidence favors the Examiner's conclusion of obviousness.
Accordingly, we adopt the Examiner's reasoning (see Final Act. 3-18), and
agree that the Examiner properly found Appellant's arguments unpersuasive
(see Response to Argument, Ans. 3-20). We address Appellant's
contentions below:
Number of References
Appellant contends that the Office has cobbled together numerous
references without providing a sufficiently articulated reason to do so. See
Appeal Br. 6; see Reply Br. 2.
We are not persuaded and agree with Examiner that it has been
recognized that reliance on a large number of references does not, without
more, weigh against the obviousness of the claimed invention. See Ans. 4--5;
see In re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991) ("The criterion,
however, is not the number of references, but what they would have meant
to a person of ordinary skill in the field of the invention."). Here, Examiner's
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Application 14/104,940
reasons for combining the references is to provide a more complete
micronutrient supplementation. See Ans. 9--11.
Hindsight
Appellant contends that "the Patent Office has engaged in
impermissible hindsight by picking and choosing one or more elements
recited in the instant claims from a thicket of journal articles." Appeal Br. 6;
see also id. at 7 ("there is no good reason, except one based in impermissible
hindsight, to supplement Riley's disclosure"); see also Reply Br. 3 ("an
egregious example of reliance impermissible hindsight to arrive at the
claimed invention").
While we are aware that hindsight bias often plagues determinations
of obviousness, Graham v. John Deere Co., 383 U.S. 1, 36 (1966), we are
also mindful that the Supreme Court has clearly stated that the "combination
of familiar elements according to known methods is likely to be obvious
when it does no more than yield predictable results." KSR, 550 U.S. at 416.
Any judgment on obviousness is in a sense necessarily a
reconstruction based upon hindsight reasoning, but so long as it
takes into account only knowledge which was within the level of
ordinary skill at the time the claimed invention was made and
does not include knowledge gleaned only from applicant's
disclosure, such a reconstruction is proper.
In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Appellant has not
directed us to what teaching could only have been gleaned from the
Specification and not from the prior art in order to support the contention
that Examiner has impermissibly relied on hindsight. As such, we are not
persuaded by Appellant's contention that Examiner's combination somehow
required knowledge derived only from Appellant's Specification.
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Application 14/104,940
We recognize that picking and choosing among various disclosures is
inappropriate in an anticipatory rejection, however,
[ s ]uch picking and choosing may be entirely proper in the
making of a 103, obviousness rejection, where the applicant must
be afforded an opportunity to rebut with objective evidence any
inference of obviousness which may arise from the similarity of
the subject matter which he claims to the prior art.
In re Arkley, 455 F.2d 586, 587-88 (CCPA 1972). Appellant has not
explained why picking and choosing in the context of the current
obviousness rejection is not appropriate, and we agree with the Examiner's
rationale for selecting and combining the teachings as set forth in the Final
Action. Accordingly, we are not persuaded by Appellant's contentions.
Here, Examiner relies on the teachings of Riley to disclose a
multivitamin that is administered to patients for the purpose of preventing or
treating coronary heart disease. FFl. Riley's disclosure provides various
modules for this purpose. See FF 1. Riley further teaches that the formulas
disclosed can be combined with other synergistic dietary and nutritional
compounds. FF3. In other words, Riley is not limited to the formulations
presented but instead contemplates formulations that contain additional
elements. Examiner looks to the teachings of Cooper and Sultenfuss to
arrive at a composition that contains all the vitamins and micronutrients
listed in claim 13. Examiner's rationale for combining Cooper and
Sultenfuss with Riley is that it is obvious to combine compositions, each of
which is taught in the prior art to be useful for the same purpose, in this case
reducing coronary artery disease. Ans. 8 ( citing Kerkhoven, 626 F .2d at
850); see FFl, FF4, FF5.
Examiner incorporates fish oil based on the teachings of Kris-Etherton
that establishes that the ingestion of fish oil reduces the incidence of
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Application 14/104,940
cardiovascular disease. FF6. Again, the reason for combining the references
is to arrive at a composition that is used for the same purpose, in this case
treating patients at risk of cardiovascular disease.
The inclusion of ProJoba with the other components is "to provide
energy and micronutrient supplementation together with healthy gut
bacteria." Final Act. 7; Ans. 12-13; FF7. We find no error with Examiner's
reason for combining ProJoba's formulation with the combination of Riley,
Cooper, Sultenfuss, and Kris-Etherton, namely, for incorporating additional
micronutrients to ensure a complete blend in addition to helping boost
overall energy and gut health. See Ans. 12-13. We additionally note that
ProJoba's superoxide dismutase is a powerful antioxidant, and adding
another antioxidant to those already disclosed by Riley, Cooper, Sultenfuss,
and Kris-Etherton would simply boost the ability of the formulation to
further prevent oxidation of low density lipoproteins in coronary arterial
walls, as suggested in Riley. See Riley, Abstract; FFl. Accordingly, we find
no error with Examiner's articulated rationale.
Lacks Articulated Reason
Appellant contends that "the Patent Office does not provide any
reasoning as to why Riley would have wanted or needed to include vitamin
K, a potassium source, iodine, and choline." Appeal Br. 6; see Reply Br. 2.
We recognize that Riley does not want to combine aspirin with some
vitamins because they may interfere with aspirin's benefits. FF3. Riley,
however, also teaches formulations that do not contain aspirin. Thus, there is
no persuasive evidence suggesting that vitamin K, a potassium source,
iodine, and choline cannot reasonably be added to Riley's modules that are
free of aspirin.
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Application 14/104,940
In this case, Examiner is not relying on any teaching in Riley to
additionally incorporate vitamin K, potassium, iodine, and choline into
Riley's formulation. Instead, Examiner relies on the teaching of Cooper to
espouse the benefits of vitamin K, potassium, iodine, and choline, and
motivate the inclusion of these components with Riley for the purpose of
producing a more complete micronutrient mix. See Final Act. 5. There is
already much overlap between the composition taught in Riley and the
composition taught in Cooper. See supra p. 11 (Riley, Cooper, and
Sultenfuss comparison table). Cooper additionally teaches that the "multi-
vitamin and mineral supplement ... may reduce cardiovascular risk by
decreasing the susceptibility of LDL to oxidation." Cooper 15:30-34, 14:32-
34 ("[T]he multi-vitamin and mineral supplement ... may reduce
cardiovascular risk by decreasing homocysteine levels."). We see no error
with the Examiner's reliance on these noted benefits taught in Cooper to
motivate the inclusion of additional components into Riley's formulations
lacking aspirin. Examiner relies on the rationale that it is reasonable to
combine two components, each taught to be beneficial for the same purpose,
in order to formulate another composition that would function for the same
purpose. See Ans. 8 ( citing Kerkhoven, 626 F .2d at 850).
Sultenfuss teaches a daily multivitamin and multimineral supplement
that contains molybdenum and inositol. FF5. Examiner reasons that it would
have "been obvious to include other micronutrients not found in the
composition of Riley and Cooper (including molybdenum and inositol) to
ensure the most complete supplementation possible." Ans. 10. Sultenfuss
explains that molybdenum helps metabolize fats and inositol helps remove
fats from arteries. FF5. These teachings in Sultenfuss reasonably support
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Application 14/104,940
Examiner's inclusion of these components into a supplement that is used for
the treatment of cardiovascular disease as suggested in Riley.
Fish oil is also shown to reduce the risk of cardiovascular disease.
FF6. Thus, inclusion of fish oil into the vitamin supplement of Riley for the
purpose of reducing the risk of cardiovascular disease is reasonable. See
Final Act. 6; see Ans. 11 ("[t]he cited motivation to include fish oil was to
provide cardiovascular effects"). We find no error with Examiner's rationale
for incorporating fish oil with Riley's composition.
Examiner's motivation to include ProJoba's formulation with Riley
was "both to include energy and to provide micronutrient supplementation."
Ans. 11. We find no error with Examiner's combination and note that in
addition to probiotics, the ProJoba formulation also contains superoxide
dismutase, a powerful antioxidant. See FF6. Riley recognizes the benefit for
improved life expectancy by maintaining "antioxidants, and the enzymes
superoxide dismutase (SOD), catalase, and glutathione peroxidase, in the
liver, heart and brain." Riley 10:12-16; see also id. at 2:9-14 ("that
antioxidant micronutrients are involved in preventing molecular biological
processes affecting health and disease at the subcellular and submolecular
level. It is current thought that free-radical effects on cells and tissues can be
modified by antioxidant micronutrients reducing cellular damage"); see id.
6:5-24. Riley teaching of incorporating antioxidant micronutrients in the
formulation further supports Examiner's reason of including ProJoba's
formulation with Riley, namely for the purpose of providing a more
complete micronutrient supplementation.
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Application 14/104,940
Accordingly, for these reasons we are not persuaded by Appellant's
contention that the rejection lacks an articulated reason for making the
combination.
Lacks Amino Acid Element
Appellant contends that "[ t ]he Patent Office has made a factual error
when it states that Riley discloses 'one or more amino acids ( taurine and L-
camitine ). ' Neither one of those compounds is an amino acid, though at least
camitine appears to be biosynthesized from the amino acids lysine and
methionine." Appeal Br. 6 n.26.
We are not persuaded by Appellant's contention, because, as
Examiner points out, taurine is known in the art as an amino acid, albeit a
sulfur group-based (rather than carboxy group-based) amino acid. Ans. 14.
Here, claim 13 requires the use of "one or more" amino acids, meaning that
a single amino acid is sufficient to meet the claim limitation. Riley teaches
compositions that contain camitine and/or taurine. Even if camitine is not an
amino acid, there is sufficient evidence in the record to establish that taurine
does meet this limitation. See Ans. 14--15. Therefore, Riley's composition
meets the claim limitation of "one or more" amino acids. Additionally, we
note that the ProJoba composition, relied on by the Examiner to teach flower
pollen extract in conjunction with probiotics, also discloses that the
composition contains amino acids. See FF7. Accordingly, we are not
persuaded by Appellant's contention that the references in combination do
not disclose the limitation of one or more amino acids.
Unexpected Results
Appellant contends that Examiner has not considered "clinical data
obtained from actual patients showing that compositions comprising the
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claimed components 'mitigates cardiovascular disease (CVD) risk factors as
determined by pulse wave velocity (PWV) and augmentation index (AIX)."'
Appeal Br. 7-8.
We are not persuaded by Appellant's contention. As Examiner
explains, "[ t ]he submission of evidence that a new product possesses
unexpected properties does not necessarily require a conclusion that the
claimed invention is nonobvious." Ans. 16 (citing In re Payne, 606 F.2d 303
(CCPA 1979)). Examiner explains that "cardiovascular benefits such as
those observed by Appellant would have been expected from the prior art
composition." Ans. 17. "Riley explicitly teaches cardiovascular benefits of
the composition (see rejection and see abstract of Riley), and indeed, the
cardiovascular benefits are even the motivation for combining Riley with
Kris-Etherton." Id. In other words, Examiner relies on the teachings of Riley
and Kris-Etherton to suggest that one of ordinary skill would have treated
the same patient population with the nutritional supplement. "[I]t is not
required ... that the prior art disclose or suggest the properties newly-
discovered by an applicant in order for there to be a prima facie case of
obviousness." In re Dillon, 919 F.2d 688, 697 (Fed. Cir. 1990); see also
Atlas Powder Co. v. Ireco, Inc., 190 F.3d 1342, 1347 (Fed. Cir. 1999)
("[T]he discovery of a previously unappreciated property of a prior art
composition, or of a scientific explanation for the prior art's functioning,
does not render the old composition patentably new to the discoverer.").
Mere recognition of latent properties in the prior art does not render
nonobvious an otherwise known invention. In re Prindle, 297 F .2d 251, 254
(CCPA 1962).
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Examiner explains that Appellant's reliance on the results in the
Specification are not persuasive because they are not compared to the closest
prior art. See Ans. 15-16; see also Ex parte Obiaya, 227 USPQ 58, 60
(BP AI 1985) ("The fact that appellant has recognized another advantage
which would flow naturally from following the suggestion of the prior art
cannot be the basis for patentability when the differences would otherwise
be obvious."). Here, the record supports that Examiner has considered the
Appellant's evidence, but finds the evidence insufficient to overcome the
prima facie case. See Ans. 15-20. We find no error with the Examiner's
consideration of the clinical data.
We affirm the rejection of claim 13 under 35 U.S.C. § 103(a) as
unpatentable over Riley, Cooper, Sultenfuss, Kris-Etherton, ProJoba,
Lourens-Hattingh, and Daikeler as evidenced byNIHl, NIH2, and ProJoba2.
Claims 14--18, 20, 23-25, and 27-29 were not separately argued and fall
with claim 13.
Appellant does not provide additional arguments with respect to the
rejection of claim 21 (see Appeal Br. 1 O); accordingly, we affirm this
rejection for the same reason discussed above for claim 13.
Appellant does not provide additional arguments with respect to the
rejection of claim 22 and 26 (see Appeal Br. 10); accordingly, we affirm this
rejection for the same reason discussed above for claim 13.
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SUMMARY
We affirm the rejection of all claims.
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
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