Ex Parte Sandra et alDownload PDFPatent Trial and Appeal BoardDec 4, 201714595298 (P.T.A.B. Dec. 4, 2017) Copy Citation 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. 14/595,298 01/13/2015 Sandra Sandra GPI00002 6314 3705 7590 12/06/2017 ECKERT SEAMANS CHERIN & MELLOTT, LLC 600 GRANT STREET 44TH FLOOR PITTSBURGH, PA 15219 EXAMINER MORNHINWEG, JEFFREY P ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 12/06/2017 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): ipmail @ eckertseamans. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SANDRA SANDRA and HENRY LIU Appeal 2017-001239 Application 14/595,298 Technology Center 1700 Before TERRY J. OWENS, JAMES C. HOUSEL, and JANE E. INGLESE, Administrative Patent Judges. INGLESE, Administrative Patent Judge. DECISION ON APPEAL Appellant1 requests our review under 35 U.S.C. § 134(a) of a final rejection of claims 1 and 3—62. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 Appellant is the Applicant, GUM PRODUCTS INTERNATIONAL INC., which, according to the Appeal Brief, is the real party in interest. Appeal Brief filed March 3, 2016 (“App. Br.”), 2. 2 Appellant cancelled claim 2 in an amendment filed December 28, 2015, and the Examiner confirmed entry of the amendment in an Advisory Action entered February 5, 2016. Appeal 2017-001239 Application 14/595,298 STATEMENT OF THE CASE Appellant claims a composition and method for treating raw poultry to increase shelf life and reduce pathogen and bacteria counts, and a food product comprising raw poultry treated with the composition. App. Br. 4. Claim 1 illustrates the subject matter on appeal and is reproduced below: 1. A composition for treating, reducing pathogen and bacteria counts and improving shelf life and safety of raw poultry comprising buffered vinegar (BV) and lauramide arginine ethyl ester (LAE). App. Br. 10 (Claims Appendix). The Examiner sets forth the rejection of claims 1 and 3—6 under 35 U.S.C. § 103(a) as unpatentable over Beltran (US 2004/0265443 Al; publ. Dec. 30, 2004) in view of Hull (US 2013/0267603 Al; publ. Oct. 10, 2013) in the Final Office Action entered July 17, 2015 (“Final Act.”), and maintains the rejection in the Examiner’s Answer entered August 28, 2016 (“Ans.”). DISCUSSION Upon consideration of the evidence relied upon in this appeal and each of Appellant’s contentions, we affirm the Examiner’s rejection of claims 1 and 3—6 under 35 U.S.C. § 103(a) based on the findings of fact, conclusions of law, and rebuttals to arguments expressed by the Examiner in the Final Office Action and the Answer. We add following comments for emphasis. Appellant argues the claims as a group. App. Br. 4—9. Therefore, we select claim 1 as representative, and decide the appeal based on claim 1 alone. 37 C.F.R. § 41.37(c)(l)(iv). 2 Appeal 2017-001239 Application 14/595,298 In the Final Office Action and the Answer, the Examiner provides—in commendable detail—reasoning with rational underpinning to support the conclusion of obviousness. In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006), cited with approval m.KSRInt’1 Co. v. Teleflex Inc., 550 U.S. 398, 417—18 (2007) (there must be some articulated reasoning with some rational underpinning to support the legal conclusion of obviousness). In so doing, the Examiner establishes that the composition of claim 1 defines a combination of prior art features whose improvement is no more than the predictable use of the prior art features according to their established functions. KSR, 550 U.S. at 417 (In assessing the obviousness of claims to a combination of prior art elements, the question to be asked is “whether the improvement is more than the predictable use of prior art elements according to their established functions.”). Appellant argues that one of ordinary skill in the art would not have combined buffered vinegar (BV) with lauramide arginine ethyl ester (LAE) because Hull does not teach combining BV with other antimicrobials, and explicitly discloses use of BV in combination with substances that do not include LEA. App. Br. 5. Similarly, Appellant argues that Beltran does not disclose or suggest combining LAE with other antimicrobials, and expressly teaches combining LAE with substances that do not include BV. Id. However, it is well-established that “[i]t is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition which is to be used for the very same purpose.” In re Kerkhoven, 626 F.2d 846, 850 (CCPA 1980). In addition, as the Examiner correctly finds, Hull explicitly discloses that buffered vinegar can supplement available microbial agents 3 Appeal 2017-001239 Application 14/595,298 —which include LAE as disclosed in Beltran—for control of pathogens. Ans. 6 (citing Hull 130 (published over nine years after publication of Beltran)). Furthermore, as the Examiner also correctly finds, Beltran discloses dissolving LAE in a food-grade solvent before adding the compound to food, such as poultry products, and explicitly indicates that use of a buffer solution—encompassing buffered vinegar—is recommended to obtain optimal pH. Ans. 8; Beltran || 18—20, 22. Therefore, Appellant’s arguments are unpersuasive of reversible error in the Examiner’s articulated reasoning for combining the relied-upon disclosures in Beltran and Hull. Appellant further argues that Hull teaches away from combining BV with other antimicrobials by disclosing use of BV in combination with materials other than antimicrobials, which are selected from essential oils, malic acid, levulinic acid, and caprylic acid. App. Br. 5. Similarly, Appellant argues that one of ordinary skill in the art would have been led to exclude use of auxiliary components and excipients with LAE that are not explicitly disclosed in Beltran, “thus excluding the possibility of combining LAE with BV.” Id. However, “mere disclosure of alternative designs does not teach away.” In re Fulton, 391 F.3d 1195, 1201 (Fed. Cir. 2004). Rather, teaching away requires “clear discouragement” from implementing a technical feature. In re Ethicon, Inc., 844 F.3d 1344, 1351 (Fed. Cir. 2017). “A reference teaches away when it suggests that the line of development flowing from the reference’s disclosure is unlikely to be productive of the result sought by the applicant.” Santarus, Inc. v. Par Pharm., Inc., 694 F.3d 1344, 1354 (Fed. Cir. 2012) (quoting Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1165 (Fed. Cir. 2006) (quotations omitted)). 4 Appeal 2017-001239 Application 14/595,298 Therefore, contrary to Appellant’s arguments, Hull’s failure to explicitly disclose combining BV with other antimicrobials, and disclosure of combining BV with substances other than LAE, and Beltran’s failure to explicitly disclose combining LEA with other antimicrobials, and disclosure of combining LEA with substances other than BV, would not have discouraged one of ordinary skill in the art from combining the two known antimicrobials to form an antimicrobial composition. In view of Beltran’s disclosures of the effectiveness of LAE as an antimicrobial agent and Hull’s disclosures of the effectiveness of B V as an antimicrobial agent, one of ordinary skill in the art reasonably would have expected that LAE could be successfully combined with BV to form an antimicrobial composition. Appellant also argues that the “evidence in the specification and both Sandra Declarations demonstrate that the objectives of the invention are achieved and that the results are clearly better than what would have been expected, thus demonstrating objective evidence of non-obviousness.” App. Br. 8. However, the burden of analyzing and explaining evidence to support an assertion of non-obviousness rests with the Appellant. In re Klosak, 455 F.2d 1077, 1080 (CCPA 1972). In the present case, Appellant discusses only the second Sandra Declaration with particularity, and provides no explanation of his basis for relying on the Specification and the first Sandra Declaration to demonstrate nonobviousness. App. Br. 7—9. It is well-established that an Appellant’s mere arguments and conclusory statements cannot take the place of objective evidence. See, e.g., In re Geisler, 116 F.3d 1465, 1471 (Fed. Cir. 1997); In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1984); In re Lindner, 457 F.2d 506, 508 (CCPA 1972). 5 Appeal 2017-001239 Application 14/595,298 With respect to the second Sandra Declaration, Appellant does not explain why the limited data provided in the Declaration are sufficient to show that the full scope of the compositions covered by claim 1 impart unexpected results relative to the compositions of the closest prior art —Beltran. App. Br. 7—9. In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) (“Even assuming that the results were unexpected, Harris needed to show results covering the scope of the claimed range. Alternatively Harris needed to narrow the claims.”); In re Greenfield, 571 F.2d 1185, 1189 (CCPA 1978) (“Establishing that one (or a small number of) species gives unexpected results is inadequate proof, for ‘it is the view of this court that objective evidence of non-obviousness must be commensurate in scope with the claims which the evidence is offered to support.’”) (quoting In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)); In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991) (“[W]hen unexpected results are used as evidence of nonobviousness, the results must be shown to be unexpected compared with the closest prior art.”). In addition, the Examiner provides a thorough, reasoned explanation supported by objective evidence at pages 11—12, and 16 of the Answer as to why the results presented in the second Sandra Declaration would have been expected by one of ordinary skill in the art at the time of the invention, and Appellant fails to demonstrate otherwise. App. Br. 7—9. Accordingly, Appellant does not show that the Examiner erred in evaluating the merits of Appellant’s evidence or in weighing such evidence against the teachings of the prior art and level of ordinary skill in art. Therefore, the preponderance of the evidence relied upon in this appeal supports the Examiner’s conclusion of obviousness, and we accordingly 6 Appeal 2017-001239 Application 14/595,298 sustain the Examiner’s rejection of claims 1 and 3—6 under 35 U.S.C. § 103(a). DECISION We affirm the Examiner’s rejection of claims 1 and 3—6 under 35 U.S.C. § 103(a). 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 7 Copy with citationCopy as parenthetical citation