Ex Parte Pinon-Quintana et al

Patent Trial and Appeal Board

Dec 21, 2017

14245487 (P.T.A.B. Dec. 21, 2017)

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.
14/245,487 04/04/2014 Arturo PINON-QUINTANA ES-4662-2817 5508
23117 7590 12/26/2017
NIXON & VANDERHYE, PC
901 NORTH GLEBE ROAD, 11TH FLOOR
ARLINGTON, VA 22203
EXAMINER
SONG, JIANFENG
ART UNIT PAPER NUMBER
1613
NOTIFICATION DATE DELIVERY MODE
12/26/2017 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):
PTOMAIL@nixonvan.com
pair_nixon @ firsttofile. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte ARTURO PINON-QUINTANA and CARLOS SIMOES-NUNES
Appeal 2017-002472
Application 14/245,4871
Technology Center 1600
Before FRANCISCO C. PRATS, RICHARD J. SMITH, and
JOHN E. SCHNEIDER, Administrative Patent Judges.
PRATS, Administrative Patent Judge.
DECISION ON APPEAL
This appeal under 35 U.S.C. § 134(a) involves claims to a method of
reducing drip loss in pork meat. The Examiner rejected the claims as
anticipated.
We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
STATEMENT OF THE CASE
The sole rejection before us for review is the Examiner’s rejection of
claims 9-12 and 16—19 under 35 U.S.C. § 102(b) as anticipated by
1 As to the real party in interest, Appellants state that the “assignee, DSM IP
Assets B.V. (Heerlen, Netherlands) holds all rights in the subject invention .
. . .” Appeal Br. 3.
Appeal 2017-002472
Application 14/245,487
Simoes-Nunes,2 as evidenced by Hambrecht3 (Ans. 2-4).
Claim 9 is representative and reads as follows (Appeal Br. 15
(emphasis added to show claimed feature at issue)):
9. A method of reducing drip loss in pork meat
obtained from a pig comprising feeding said pig an animal feed
supplemented with 25-hydroxyvitamin D3, thereby reducing
said drip loss i[n] said pork meat obtained from said pig,
wherein said pig is a pig in need of reducing drip loss.
DISCUSSION
The Examiner’s Position
In finding that Simoes-Nunes anticipates representative claim 9, the
Examiner cited Simoes-Nunes as disclosing the administration of the
claimed active agent, 25-hydroxyvitamin D3, to a “growing-fattening pig.”
Ans. 2.
The Examiner reasoned that Simoes-Nunes’s process met claim 9’s
requirement for the active agent to be administered to a pig in need of
reducing drip loss, because the “instant application defme[s] the population
of [a] pig ‘in need of reducing drip loss’ [a]s [a] growing/fattening pig (page
2, line 31),” and Simoes-Nunes “teach[es] the method of feeding to growing-
fattening pig which is also in need of reducing drip loss.” Id. at 4.
2 EP 1 516 540 A1 (published March 23, 2005).
3 E. Hambrecht et al., Negative effects of stress immediately before slaughter
on pork quality are aggravated by suboptimal transport and lairage
conditions, 83 J. Anim, Sci. 440-448 (2005). The Examiner cited
Hambrecht as evidence that Simoes-Nunes inherently described a feature in
claim 16. See, e.g., Ans. 4 (discussing Hambrecht in context of claim 16’s
limitation of pigs exhibiting exsudative meat). Because Appellants do not
argue claim 16 separately, we do not discuss Hambrecht in our decision.
2
Appeal 2017-002472
Application 14/245,487
Therefore, the Examiner reasoned, “this limitation is not able to distinguish
the instant claimed invention and Simoes-Nunes et al. teaching.” Id-
Analysis
As stated in In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992):
[T]he examiner bears the initial burden ... of presenting a
prima facie case of unpatentability. . . .
After evidence or argument is submitted by the applicant
in response, patentability is determined on the totality of the
record, by a preponderance of evidence with due consideration
to persuasiveness of argument.
In the present case, Appellants do not persuade us that a
preponderance of the evidence fails to support the Examiner’s finding that
Simoes-Nunes describes a process encompassed by representative claim 9.
As the Examiner found, and Appellants do not dispute, Simoes-Nunes
describes administering a basal diet supplemented with the claimed active
agent, 25-hydroxyvitamin D3, to groups of “[g]rowing-fattening pigs.”
Simoes-Nunes 2 (Example 1, groups C and D).
Appellants contend, however, that the Examiner erred in concluding
that claim 9’s limitation, requiring the vitamin to be administered to “a pig
in need of reducing drip loss” (Appeal Br. 15, claim 9), encompasses
Simoes-Nunes’s administration of the vitamin to growing-fattening pigs.
Appeal Br. 9. In particular, Appellants contend, the Examiner “failed to
acknowledge that a portion of growth fattening pigs will not be the claimed
‘pig in need of reducing drip loss’ . . . .” Id. at 10.
As is evident, the central issue in this appeal is the interpretation of
the term “pig in need of reducing drip loss” in claim 9.
3
Appeal 2017-002472
Application 14/245,487
It might be true, as Appellants contend (Appeal Br. 9), that the
Specification does not clearly define that term. Appellants, nonetheless, fail
to advance a specific interpretation of that critical claim term that
distinguishes claim 9 from the process described in Simoes-Nunes.
Moreover, it is well settled that, “[djuring examination, ‘claims . . .
are to be given their broadest reasonable interpretation consistent with the
specification, and . . . claim language should be read in light of the
specification as it would be interpreted by one of ordinary skill in the art.’”
In re American Academy Of Science Tech Center, 367 F.3d 1359, 1364 (Fed.
Cir. 2004) (quoting In re Bond, 910 F.2d 831, 833 (Fed.Cir.1990))).
In the present case, Appellants fail to argue or explain adequately why
the Examiner interpreted claim 9 overly broadly, or in an unreasonable
manner, in determining that claim 9 encompasses the process described in
Simoes-Nunes. Reading claim 9 in light of the Specification, moreover,
supports the Examiner’s determination that, when given its broadest
reasonable interpretation consistent with the Specification, the term “pig in
need of reducing drip loss” encompasses the growing-fattening pigs
described in Simoes-Nunes.
In particular, the Specification discloses, as one objective, that “it
would be desirable to be able to reduce drip losses in pork meat by
influencing the diet of the growing-fattening pigs.” Spec. 2:11—12. We find
this language to be consistent with the Examiner’s determination that the
term “pig in need of reducing drip loss” in claim 9 encompasses growing-
fattening pigs.
4
Appeal 2017-002472
Application 14/245,487
Similarly, when viewed in full, the passage that includes the portion
of the Specification cited by the Examiner supports the Examiner’s claim
interpretation:
It has been found that by feeding an animal feed supplemented
with 25-hydroxyvitamin D3, the water holding capacity (WHC)
of the resulting meat can be increased, and thus drip loss of the
carcass can be reduced. Thus, one aspect of this invention is
feeding an animal feed supplemented with 25-hydroxyvitamin
D3 in an amount sufficient to improve WHC of the resulting
meat.
In particular, it has been found, in accordance with this
invention that the carcasses of growing-fattening pigs which
received 25-hydroxycholecalciferol (also called 25-hydroxy
vitamin D3; 25-OH D3) in the diet had a reduced amount of
drip losses. Thus, one aspect of this invention is a method of
reducing drip losses in pork meat by administering 25-
hydroxy vitamin D3 to growing/fattening pigs.
Spec. 2:21-31.
Thus, the Specification discloses that, in general, 25-hydroxyvitamin
D3 increases water holding capacity and reduces drip loss. Immediately
thereafter, the Specification discloses the inventors’ finding that
25-hydroxyvitamin D3 reduces drip loss in growing-fattening pigs and,
based on that finding, discloses that one aspect of the invention is reducing
drip loss in growing-fattening pigs by administering 25-hydroxyvitamin D3.
Given these disclosures, we are not persuaded that the Examiner interpreted
claim 9 unreasonably broadly, or in a manner inconsistent with the
Specification, in determining that the term “pig in need of reducing drip
loss” encompasses the growing-fattening pigs described in Simoes-Nunes.
5
Appeal 2017-002472
Application 14/245,487
Appellants cite Vermeulen,4 Huff-Lonergan l,5 and Huff-Lonergan
2,6 as evidence that Simoes-Nunes’s growing-fattening pigs are not pigs in
need of reducing drip loss. Appeal Br. 10-11. Appellants’ arguments do
not identify any particular portions of the references that support their
assertions in that regard, however, nor do Appellants explain specifically
why Vermeulen, Huff-Lonergan 1, and Huff-Lonergan 2 demonstrate that
growth-fattening pigs are not necessarily pigs in need of reducing drip loss.
See id. Given the lack of a specific explanation as to how or why
Vermeulen, Huff-Lonergan 1, and Huff-Lonergan 2 demonstrate that
growth-fattening pigs are not necessarily pigs in need of reducing drip loss,
Appellants’ citation of those references does not persuade us that the
Examiner erred in maintaining the anticipation rejection, particularly given
Appellants’ failure to identify in the record a specific interpretation of the
critical limitation at issue in representative claim 9.
We acknowledge Appellants’ contention in the Reply Brief (Reply Br.
3) that the Figure on page 6 of Huff-Lonergan describes the existence of
“DFD (Dark, Firm, and Dry)” meat that exhibits “very little or no drip loss”
(Huff-Fonergan 2, 6).
This new argument, however, could have been presented in the
Appeal Brief, but was not. As explained in 37 C.F.R. § 41.37(c)(l)(iv),
4 F. Vermeulen et al., Pre-slaughter handling and pork quality, 100 Meat
Sci. 118-123 (2015).
5 Elisabeth Huff-Fonergan and Steven M. Fonergan, Mechanisms of water­
holding capacity of meat: The role ofpostmortem biochemical and
structural changes, 71 Meat Sci. 194—204 (2005).
6 Elisabeth Huff-Fonergan, Water-Holding Capacity of Fresh Meat, Pork
Checkoff, National Pork Board 2002.
6
Appeal 2017-002472
Application 14/245,487
except in certain circumstances not applicable here, “any arguments or
authorities not included in the appeal brief will be refused consideration by
the Board for purposes of the present appeal.”
We are not persuaded, therefore, that this new argument is properly
presented for the first time in the Reply Brief, such that we should consider
it now. See also 37 CFR § 41.41(b)(2) (“Any argument raised in the reply
brief which was not raised in the appeal brief, or is not responsive to an
argument raised in the examiner’s answer, including any designated new
ground of rejection, will not be considered by the Board for purposes of the
present appeal, unless good cause is shown.”); Ex parte Borden, 93 USPQ2d
1473, 1477 (BPAI 2010) (The reply brief is not “an opportunity to make
arguments that could have been made in the principal brief on appeal to
rebut the Examiner’s rejections, but were not.”) (“Informative”).
In any event, Appellants fail to explain persuasively how or why the
mere existence of DFD meat demonstrates that Simoes-Nunes describes or
suggests that any of its growing-fattening pigs necessarily would have
contained DFD meat. Nor have Appellants explained persuasively how or
why the growing-fattening pigs in Simoes-Nunes would have contained only
DFD meat, such that no need for reducing drip loss would have been present
in those pigs.
Lastly, Appellants do not persuade us (see Appeal Br. 12—13; Reply
Br. 4—6) that the Examiner’s inadvertent mention of § 103 in an advisory
action, and inadvertent citation of an obviousness-related section of the
MPEP in the Examiner’s Answer, warrant reversal on the merits of the
rejection.
7
Appeal 2017-002472
Application 14/245,487
Appellants’ arguments on the merits are entirely directed to the issue
of anticipation. Appellants do not persuade us, therefore, that the
Examiner’s inadvertent missteps led Appellants to fail to recognize that the
rejection was on any ground other than anticipation. See In re Jung, 637
F.3d 1356, 1362 (Fed. Cir. 2011) (notice requirement of making prima facie
rejection “is violated when a rejection is so uninformative that it prevents the
applicant from recognizing and seeking to counter the grounds for
rejection”) (citing Chester v. Miller, 906 F.2d 1574, 1578 (Fed. Cir. 1990)).
We are not persuaded, moreover, that the Examiner’s inadvertent
missteps demonstrate that the Examiner incorrectly applied an obviousness
standard to the maintained anticipation rejection. To the contrary, for the
reasons discussed above, we agree with the Examiner that Simoes-Nunes
describes administering the active agent required by representative claim 9,
to a pig encompassed by claim 9. Because Simoes-Nunes, therefore,
describes a process having all of the steps and features required by claim 9,
we affirm the Examiner’s rejection of claim 9 as anticipated by Simoes-
Nunes. Because the remaining rejected claims were not argued separately,
they fall with claim 9. See 37 C.F.R. § 41.37(c)(l)(iv).
SUMMARY
For the reasons discussed, we affirm the Examiner’s rejection of
claims 9—12 and 16—19 under 35 U.S.C. § 102(b) as anticipated by Simoes-
Nunes.
8
Appeal 2017-002472
Application 14/245,487
TIME PERIOD
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
9