Ex Parte Santana et alDownload PDFPatent Trial and Appeal BoardNov 29, 201712450583 (P.T.A.B. Nov. 29, 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. 12/450,583 10/01/2009 Ruben D. Santana 8254/US/PCT 7545 69099 7590 12/01/2017 Nestle Purina Petcare Global Resources, Inc Checkerboard Square Intellectual Property Patents ST. LOUIS, MO 63164 EXAMINER GWARTNEY, ELIZABETH A ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 12/01/2017 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): purinapatentmail@purina.nestle.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RUBEN D. SANTANA, ASA M. GORE, BHATNAGAR SANDEEP, and AKUA AGYEKUMAA KWAKWA Appeal 2017-003625 Application 12/450,583 Technology Center 1700 Before MICHAEL P. COLAIANNI, DONNA M. PRAISS, and SHELDON M. McGEE, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2017-003625 Application 12/450,583 Appellants appeal under 35 U.S.C. § 134 the Non-Final rejection of claims 67, 70—79, 81, 82, and 84—89. Claim 21 is pending but has been withdrawn from consideration by the Examiner. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants’ invention is directed to food compositions integrally incorporating relatively large amounts of medium chain triglycerides (MCT) (Spec. 12). Claim 67 is illustrative: 67. A food composition comprising 1-60% protein by weight, 1-50% carbohydrate by weight, 4-10% medium chain triglycerides (MCTs) by weight integrally incorporated into the food composition, and 5-20% gluten meal by weight comprising 60-95% protein by weight; wherein the food composition further comprises a coating applied to the food composition, the coating comprising 2-7% MCTs relative to the food composition such that the food composition comprises a total MCT amount from about 8-15%; wherein the food composition contains more MCTs integrally incorporated than in the coating. Appellants appeal the following rejection: Claims 67, 70—79, 81, 82, and 84—89 are rejected under 35 U.S.C. § 103(a) as obvious over Couzy (US 7,479,286 B2; issued Jan. 20, 2009) in view of Berthe (EP 1 820 407 Al; published Aug. 22, 2007), Laflamme (D. P. Laflamme, Use of Medium Chain Triglycerides in Clinical Nutrition, Purina Research Report, Ralston Purina Company) as evidenced by Wu (Y. Victor Wu, Evaluation of Corn Gluten Meal Extracted with Supercritical Carbon Dioxide and Other Solvents: Flavor and Composition, 71 Cereal Chem. 217 (1994)). 2 Appeal 2017-003625 Application 12/450,583 Appellants separately argue independent claim 67 and dependent claim 89 (App. Br. 12—18). FINDINGS OF FACT & ANALYSIS The Examiner’s findings and conclusions regarding Couzy, Berthe, and Laflamme are located on pages 4—6 of the Non-Final Office Action. The Examiner finds that Couzy teaches the limitations of claim 67, except for the total Medium Chain Triglycerides (MCT) content of the food composition being between 8—15% (Non-Final Act. 5). The Examiner finds that Berthe teaches a dog food composition having a fat content between 15 to 25% (Non-Final Act. 5). The Examiner finds that Laflamme teaches that the MCTs are beneficial to dogs and MCTs should not exceed 50% of dietary fat for diets that will be fed chronically (Non-Final Act. 5). The Examiner concludes that it would have been obvious to increase the fat content of the pet food of Couzy to allow for incorporation of additional MCTs and obtain a pet food composition having a total MCT content between 8 to 15% (Non-Final Act. 6). The Examiner’s obviousness conclusion is based upon the findings that Couzy’s teaching that selecting the lipid source of the dog food is largely determined by the nutritional needs of the animal, palatability considerations and the type of product produced, and that Berthe and Laflamme teach the amounts and type of fats that are desirable in pet foods to address certain health conditions (Non-Final Act. 5—6). The Examiner calculates that modifying Couzy to include 25% of a mixture of edible oils including 60% coconut oil as suggested by the references would have resulted in a dog food composition containing 9% MCT (Non-Final Act. 6). 3 Appeal 2017-003625 Application 12/450,583 Regarding the coating limitation of claim 67, the Examiner finds that Couzy teaches in Example 3 that either part or all of the fat may be added to the food at a later stage such as a coating (Non-Final Act. 6). The Examiner concludes that it would have been obvious to select any proportion of the lipid mixture to use in the coating, including wherein the coating comprises less of the MCTs than the MCTs integrally incorporated into the dry dog food composition as recited in claim 67 (Non-Final Act. 6). Appellants argue that the applied prior art does not alone or in combination teach or suggest a food composition comprising 4 to 10% medium chain triglycerides (MCT) integrally incorporated into the food composition and where the food composition further comprises 2 to 7% MCT in a coating to achieve a total MCT content of 8 to 15% (App. Br. 14). Appellants argue that the Examiner has not provided reasoning as to why one skilled in the art would specifically provide a certain percentage of MCT integrally incorporated into the food with additional MCT in the coating on the food (App. Br. 15). Appellants argue that Couzy does not contain the present amount of MCTs or the present structure including integrally incorporated MCTs in an amount higher than the MCTs in the coating to provide a total MCT amount of 8 to 15% (App. Br. 15—16). Appellants’ arguments are not persuasive because they fail to show reversible error in the Examiner’s stated rejection. Specifically, the Examiner finds that Couzy teaches that the fat in the composition can be added in either part or total at a later stage such as the coating (Non-Final Act. 6). The Examiner concludes that it would have been obvious to select any proportion of the lipid mixture to use in the coating. Id. Appellants do not specifically dispute this conclusion or finding of the Examiner. 4 Appeal 2017-003625 Application 12/450,583 Accordingly, the teachings of Couzy, Berthe, and Laflamme would have suggested increasing the MCT fat content to a total level within the range of 8 to 15%, and Couzy teaches that the amounts can be distributed between application in the food composition and in a coating on the food. The Examiner has established a prima facie case of obviousness. Appellants argue that the evidence in Table 1 and paragraphs 71 and 72 of the Specification shows that the food composition according to the claims has improved palatability, decreased density, and reduced discoloration and staining (App. Br. 16). The Examiner correctly finds that the evidence in Table 1 is limited to a chicken and rice dog food composition containing MCT and rice starch, Fibrim, or com gluten meal, which is not commensurate in scope with the broadly drafted claim to a food composition (Ans. 8-9; Spec, f 69 Table 1). Appellants define food composition broadly in paragraph 14 of the Specification. Appellants’ evidence is too narrow to support unexpected results for the scope of claim 1. The Examiner correctly finds that the data in Table 1 does not appear to show that the results with regard to palatability were unexpected (Ans. 9). Table 1 shows that when a MCT maintaining agent (e.g., rice starch or fibrim) was added to the food, the palatability ratio dropped as compared to a dog food that only contains the MCT. In other words, the allegedly unexpectedly better palatability resulting from using a MCT maintaining agent in the composition does not seem to be supported by the evidence of record. 5 Appeal 2017-003625 Application 12/450,583 Regarding claim 89, the Examiner finds that about 9% MCT includes the bottom end of the range of MCTs required by claim 89 (i.e., “about 10%â€) (Non-Final Act. 6). Appellants argue that the Examiner’s interpretation that “about 10%†MCT includes 9% MCT is unreasonable because more than a 10% difference would not qualify under the term “about†(App. Br. 17). Appellants contend that the Examiner has not disclosed any reasoning on why over a 10% difference in endpoint would be acceptable (App. Br. 17— 18). Although Appellants argue that more than a 10% difference is excluded from the term “about,†Appellants do not direct us to any definition in the Specification of the term “about.†Rather, the Examiner’s broadest reasonable interpretation in light of the Specification that a 9% MCT content would have been included within the scope of claim 89’s recitation of “about 10%†for a dog food composition appears reasonable on the record before us. The preponderance of the evidence favors the Examiner’s broadest reasonable interpretation. On this record, we affirm the Examiner’s § 103 rejection. DECISION The Examiner’s decision is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(1). See 37 C.F.R. § 1.136(a)(l)(iv). ORDER AFFIRMED 6 Copy with citationCopy as parenthetical citation