Ex Parte Ravetti

Patent Trial and Appeal Board

Nov 14, 2016

11816287 (P.T.A.B. Nov. 14, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR
111816,287 08/15/2007 Renato Ravetti
210 7590 11/16/2016
MERCK
POBOX2000
RAHWAY, NJ 07065-0907
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.
2005.020US 7611
EXAMINER
RICCI, CRAIG D
ART UNIT PAPER NUMBER
1628
NOTIFICATION DATE DELIVERY MODE
11/16/2016 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):
US-DOCKET-PATENT@merck.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte RENATO RA VETTI 1
Appeal2015-007020
Application 11/816,287
Technology Center 1600
Before ERIC B. GRIMES, ULRIKE W. JENKS, and DAVID COTT A,
Administrative Patent Judges.
JENKS, Administrative Patent Judge.
uECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims directed
to a method of delivering live vaccines to animals. The Examiner rejects the
claims as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We affirm.
Claims 9, 21, and 22 are on appeal, and can be found in the Claims
Appendix of the Appeal Brief (Br. 11 ).
The Examiner rejected claims 9, 21, and 22 under 35 U.S.C. § 103(a)
1 According to Appellant, the real parties in interest are Intervet International
BV (a wholly owned subsidiary of Merck Sharp and Dohme Corp.), and
Salmix Industria e Comercio Ltda. (Br. 3.).
Appeal2015-007020
Application 11/816,287
as unpatentable over Bernard2 in view of Saif3 and Peterka4 .
Upon consideration of the evidence on this record and each of
Appellant's contentions, we find that the preponderance of evidence on this
record supports the Examiner's conclusions that the subject matter of
Appellant's claims 9, 21, and 22 is unpatentable over the combination of
Bernard, Saif, and Peterka. Accordingly, we affirm the Examiner's
rejections of each of these claims for the reasons set forth in the Final
Action5 and Answer (Final Act. 2-9 and Ans. 3-8) which we incorporate
herein by reference.
For emphasis only, we provide the following: Although not in the
same field of endeavor as the claimed invention Peterka is still analogous
art, as it is reasonably pertinent to the particular problem with which the
inventor is involved, i.e., dechlorinating water in order to stabilize the active
vaccine ingredient for the administration to an animal. See In re Clay, 966
F.2d 656, 658---659 (Fed. Cir. 1992). A person of ordinary skill in the art
seeking to dechlorinate water for the purpose of administering a vaccine in a
water source would naturally look to any means of dechlorinating water that
does not produce byproducts that could potentially be detrimental to animal
2 WO 01/26622 Al published Apr. 19, 2001 ("Bernard"). Because the
WIPO document is not available the Examiner relies on the machine
translation of the priority document FR 2001/2799651 both of record (see
form 892 mailed Jan. 17, 2014) (Final Act. 2-3). Appellant also cites to the
machine translation (Appeal Br. 6).
3 Y. M. Saif, Diseases of Poultry, 11th edition, page 25 (2003).
4 Greg Peterka, The Endangered Species Act and Chlorinated Water
Discharges' RESEARCH AND EXTENSION w ATER QUALITY CONFERENCE
2002.
5 Final Office Action mailed May 30, 2014 ("Final Act.").
2
Appeal2015-007020
Application 11/816,287
welfare. See In re ICON Health and Fitness, Inc., 496 F.3d 1374, 1380
(Fed. Cir. 2007)( "[A Jn inventor considering a hinge and latch mechanism
for portable computers would naturally look to references employing other
'housings, hinges, latches, springs, etc.,"' from areas outside the inventor's
field of endeavor.); andin re Paulsen, 30 F.3d 1475, 1481 (Fed. Cir. 1994).
Here, Peterka teaches that chlorine needs to be removed from
wastewater before it is discharged into streams because "[a]ll forms of
chlorine are hazardous to aquatic life even at extremely low levels" (Peterka
1 ). Peterka recognizes that dechlorinating water has traditionally been
achieved using chemical neutralization methods "using 'good old boy' sulfur
based compounds such as sodium thiosulfate, sodium metabisulfite, sodium
bisulfite, sodium sulfite, or sulfur dioxide" (id.). The use of any of these
sulfur based compounds in the dechlorinating process results in the
liberation of sulfites that can be hazardous (see id.). It has now been
discovered that vitamin C is useful for "performing routine chlorine
neutralization within the water and wastewater industry" without negative
environmental impact (id.). Based on the teachings in Peterka we agree with
the Examiner that "a person of ordinary skill in the art would have
recognized the interchangeability of the elements and could have substituted
one known element for another" even if the benefits of using vitamin C is
described with an emphasis on the application in wastewater treatment (Ans.
7).
3
Appeal2015-007020
Application 11/816,287
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
4