Ex Parte Schydlowsky

Board of Patent Appeals and Interferences

Jul 30, 2010

10697767 (B.P.A.I. Jul. 30, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte ANDREW SCHYDLOWSKY
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Appeal 2009-014026
Application 10/697,767
Technology Center 3600
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Before: MURRIEL E. CRAWFORD, BIBHU R. MOHANTY, and
STEPHEN C. SIU, Administrative Patent Judges.

CRAWFORD, Administrative Patent Judge.

DECISION ON APPEAL1

1The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

Appeal 2009-014026
Application 10/697,767

2
STATEMENT OF THE CASE
Appellant seeks our review under 35 U.S.C. § 134 (2002) of the
Examiner’s final decision rejecting claims 26 to 29, 31, 33, 34, and 46 to 49.
We have jurisdiction over the appeal under 35 U.S.C. § 6(b) (2002).
We REVERSE.
Claim 26, with the underlining added, is illustrative:
26. A kit for making a nutritional supplement
comprising:
a dietary supplement product, wherein the
dietary supplement product is a powder comprising
one or more of a protein, peptide, amino acid,
carbohydrate, electrolyte, herb, or combination
thereof; and
at least one additive, wherein the additive is
packaged separately from the dietary supplement
product.
The Examiner relies on the following evidence:
Morrissette 2002/0150658 A1 Oct. 17, 2002

The Examiner made the following rejections:
1. Claims 26 to 29, 31, 33, 34, and 46 to 49 under 35 U.S.C. § 112,
second paragraph as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the Appellant regards as the
invention.
2. Claims 26 to 29, 31, 33, 34, and 46 to 49 under 35 U.S.C. § 102(b)
as anticipated by Morrissette.

Appeal 2009-014026
Application 10/697,767

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ISSUES
Did the Examiner err in rejecting the appealed claims under 35 U.S.C.
§ 112, second paragraph because a person of ordinary skill in the art would
understand the scope of the term “powder?”
Did the Examiner err in rejecting the appealed claims under 35 U.S.C.
§ 102(b) because Morrissette does not disclose a powder dietary supplement
product?

ANALYSIS
Indefiniteness
The Examiner argues that the term “powder” is a term of degree and
there is nothing in the Specification that further defines the powder. The
Appellant argues that a person of ordinary skill in the art would understand
the scope of the term “powder.” We agree. In our view, a person of
ordinary skill in the art would understand the ordinary and customary
meaning of the term “powder.” We note that Merriam-Webster’s Collegiate
Dictionary (11th Ed., Merriam-Webster, Inc. 2004) defines powder as
“matter in a finely divided state : particulate matter” (id. at 973).
Therefore, we will not sustain this rejection.

Anticipation
The Appellant argues that Morrissette does not disclose a powder
dietary supplement. We agree. Morrissette discloses a food product in a
package having two compartments or chambers containing food products
isolated from each other by a partition or seal which prevents mixing of the
contents (para. [0004]). In one embodiment the two food products are milk
and ready to eat cereal (para. [0010)]. It is the Examiner’s view that the
Appeal 2009-014026
Application 10/697,767

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ready to eat cereal reads on a powder. We do not agree. In our view, a
ready to eat cereal is not matter in a finely divided state or particulate matter.
In addition, Morrissette does not disclose that the ready to eat cereal therein
disclosed is a powder. In addition, although the Examiner may be correct
that hot baby cereal may have a powdery form, Morrissette does not disclose
hot baby cereal.
In view of the foregoing, we will not sustain the rejection as it is
directed to claim 26 and claims 27 to 29, 31, 33, 34, 46 to 49.

DECISION
We reverse the Examiner’s § 112, second paragraph and § 102(b)
rejections.

REVERSED

hh

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