Ex Parte Scott et alDownload PDFPatent Trial and Appeal BoardMar 20, 201713049451 (P.T.A.B. Mar. 20, 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. 13/049,451 03/16/2011 Ronald Ray Scott P222226.US.03 1707 25763 7590 03/22/2017 DORSEY & WHITNEY LLP - MINNEAPOLIS ATTENTION: PATENT PROSECUTION DOCKETING DEPARTMENT INTELLECTUAL PROPERTY PRACTICE GROUP - PT/16TH EL 50 SOUTH SIXTH STREET, SUITE 1500 MINNEAPOLIS, MN 55402-1498 EXAMINER YOO, HONG THI ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 03/22/2017 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): ip. docket @ dorsey .com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RONALD RAY SCOTT and JAMES CHRISTOPHER FORCHERIO Appeal 2016-0011311 Application 13/049,451 Technology Center 1700 Before TERRY J. OWENS, RICHARD M. LEBOVITZ, and LILAN REN, Administrative Patent Judges. LEBOVITZ, Administrative Patent Judge. DECISION ON APPEAL This appeal involves claims directed to methods of feeding confined cattle. The Examiner rejected the claims as obvious under 35 U.S.C. § 103(a). We have jurisdiction under 35 U.S.C. § 134. We affirm. 1 The Appeal Brief (“Appeal Br.”) page 3 lists Purina Animal Nutrition LLC, a Delaware corporation, as the real party in interest. Appeal 2016-001131 Application 13/049,451 STATEMENT OF THE CASE Appellants appeal from the Examiner’s final rejection claims 10—17, 28, and 31—39. The claims stand rejected by the Examiner as follows: 1. Claims 10, 11, 28, and 31—33 under 35 U.S.C. § 103(a) as unpatentable over Hahn (U.S. Pat. No. 3,956,482; issued May 11, 1976), Mueller (U.S. Pat. No. 5,686,125; issued Nov. 11, 1997), andBlezinger (Cattle Today: Creep Feeding - Taking Another Look, http://www.cattletoday.com/archive/2000/July/Cattle_Today97.shtml (last visited Mar. 10, 2017)). Final Act. 5. 2. Claims 12—17 and 34—39 under 35 U.S.C. § 103(a) as unpatentable over Hahn, Mueller, and Blezinger, and further in view of Williams (U.S. Pat. No. 5,169,656; issued Dec. 8, 1992). Final Act. 7. There are two independent claims on appeal, claims 10 and 31. We selected claim 10 as representative. Claim 10 is reproduced below: 10. A method of feeding confined cattle comprising: confining the cattle; and feeding the cattle a daily ration of a feed composition comprising roughage at about 2 percent by weight to about 5 percent by weight of the total feed on a dry matter basis and calcium chloride between about 0.15 weight percent and about 0.40 weight percent on a dry matter basis, wherein the feeding results in more frequent feedings and less intake per feeding compared to a conventional ration with about 8-15 weight percent roughage, wherein the roughage comprises at least one of grass, hay, silage, fodder, com cobs or cottonseed hulls. REJECTIONS Claim 10 is directed to a method of feeding confined cattle. The method comprises a step of feeding cattle a daily ration of a feed composition comprising: 1) roughage at about 2 to about 5 percent by 2 Appeal 2016-001131 Application 13/049,451 weight of the total feed on a dry matter basis; and 2) calcium chloride between about 0.15 and about 0.40 weight percent on a dry matter basis. The claim further requires “wherein the feeding results in more frequent feedings and less intake per feeding compared to a conventional ration with about 8-15 weight percent roughage.” Appeal Br. 23 (emphasis added). Independent claim 31 is similar to claim 10, but recites roughage of about 2 to about 5 percent by weight of the total feed and a comparative diet of 8-10 weight percent roughage. The Examiner identified prior art with overlapping amounts of roughage and calcium chloride. It is well established that, when there is a range disclosed in the prior art, and the claimed invention overlaps or falls within that range, there is a presumption of obviousness. In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003); Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322 (Fed. Cir. 2004). Specifically, the Examiner cited Hahn for its teaching of a feed composition comprising: 1) roughage of 1—55% (compare to claim of about 2—5%); and 2) calcium chloride. Final Act. 5 flflf 13, 14). To reach the recited amount of calcium chloride, the Examiner relied upon the teaching in Mueller of a dry cow feed product comprising 0-15% wt. calcium chloride (compare to claim of about 0.15-0.40%). Id. flflf 15, 16). The Examiner also found that Blezinger teaches that calcium chloride limits food intake, leading one of ordinary skill in the art to have optimized the amounts of calcium chloride. Id. at 5—6 (115). 3 Appeal 2016-001131 Application 13/049,451 Roughage Appellants contend that the cited publications do not lead one of ordinary skill in the art to the claimed range of roughage. Appellants contend that the Examiner relied upon a nutrient media described in Hahn, not a feed for cows. Appeal Br. 14. In addition to this, Appellants argue that the range of 1—55% would not have directed the skilled worker to the claimed ranges of about 2—5% and 1—5% roughage, particularly, when the example in Hahn uses 56—60% roughage. Id. at 15—16. Appellants also argue that the high roughage is necessary in Hahn to increase milk production. Id. at 16, 18. Appellants’ arguments are not persuasive. The range of 1—55% by weight of roughage was disclosed by Hahn in the context of a nutrient media, but the range was described as the amounts of roughage fed to cattle. Hahn teaches: The nutrient medium can comprise any feedstuff (basal ration) customarily fed to dairy cattle during lactation. These feeds ordinarily comprise about 45—95% concentrate . . . , plus forage or roughage (1—55%) such as hay, com silage, ground com cobs, beet pulp, and the like, plus (optionally) a small amount of molasses (0-10% ), plus (optionally) a a [sic] small amount (0-10%) of nutritionally conventional minerals, e.g., salt, (0— 10%). Hahn, col. 4,11. 50—61 (emphasis added). Thus, while certain examples in Hahn may include high amounts of roughage, Hahn clearly teaches that lower amounts maybe incorporated into “feedstuff’ as well. In addition to this, the Specification admits that “finishing diets consisting of only 5-15% roughage (conventional finishing ration)” were fed to cattle. Spec. 1 3. In the “Background of the Invention,” the Specification also teaches that “[ijncluding 5-15% roughage in the diet of finishing cattle tends to 4 Appeal 2016-001131 Application 13/049,451 lessen the variation in day-to-day feed intake compared to cattle receiving feed containing no roughage.” Id. 14. This teaching is contained in the cited Williams patent, as well: Including 5—15% roughage in the diet of finishing cattle tends to lessen the variation in feed intake, to reduce the amount of feed cattle will normally consume at each feeding, and to increase the number of feedings each day compared to cattle receiving feed containing no roughage. Williams, col. 1,11.28-33. Based on these findings, we conclude that a preponderance of the evidence supports the Examiner’s conclusion that it would have been obvious to one of ordinary skill in that art to have routinely optimized the amount of roughage in a cattle diet, e.g., to lessen variation in feed intake, reduce feed intake, and increase feedings. See Spec. 14; Williams, col. 1,11. 28—33. We further note that while the upper limit of 5% in the claim abuts the 5% lower limit of the prior art described in the Specification and in Williams, even when ranges do not precisely overlap, when they “are so close that prima facie one skilled in the art would have expected them to have the same properties,” as they are here, the burden shifts to the applicant to show they are different. Titanium Metals Corp. v. Banner, 778 F.2d 775, 783 (Fed. Cir. 1985). Appellants have not established that the claimed range has different properties than the range described in the prior art. In fact, the limitation that “the feeding results in more frequent feedings and less intake per feeding compared to a conventional ration with about 8-15 weight percent roughage,” (emphasis added) appears to have been reasonably expected based on the aforementioned disclosures in the Specification and Williams. 5 Appeal 2016-001131 Application 13/049,451 Calcium chloride Appellants’ state that the calcium chloride utilized in Hahn is for a saliva provided in a nutrient media. Reply Br. 3. Appellants contend that there is no “indication that such a small amount could be used to, effect feed intake changes.” Id. With respect to Mueller, Appellants argue: Mueller mentions calcium chloride only a single time, in a table of 17 ingredients that may or may not be included in the disclosed dry cow product. Mueller presents no examples or discussion of which ingredients to select for the product or how much of each ingredient to include in the product. The recited range of calcium chloride is 0-15% by weight, which means calcium chloride might not be included. In contrast, the claimed range of calcium chloride is “about 0.15 weight percent to about 0.40 weight percent.” This range spans 0.25 weight percent; it encompasses 1/60 of the range of Mueller. Appeal Br. 17. Appellants contend that the combination of Blezinger with Hahn and Muller does not make the claim obvious because Blezinger does not mention roughage nor amounts of calcium chloride, and its disclosure of calcium chloride is for “creep feed” to be consumed by calves not confined beef cattle. Id. at 21. For this reason, Appellants contend Blezinger provides no teaching or suggestion of adding calcium chloride to a low roughage feed for confined beef cattle. Id. We have considered Appellants’ arguments about the non obviousness of utilizing the claimed range of calcium chloride but are not persuaded that the Examiner erred. Hahn teaches that salts can be present in a feedstuff customarily feed to cattle. Hahn, col. 4,1. 61. Mueller teaches a dry cattle feed can contain 0—15% calcium chloride. While it is one of 17 ingredients, it is expressly described as an ingredient that may be included in 6 Appeal 2016-001131 Application 13/049,451 a cattle feed. Mueller, col. 4,11. 15—35. Mueller also includes calcium chloride in a list of six anionic salts that are included in a dry cow feed product. Id. at Abstract, col. 2,11. 9—14. Based on these disclosures one of ordinary skill in the art would have had reason to utilize calcium chloride in a feed because it is a conventional ingredient included in a cow feed. Both Hahn and Mueller describe diets for dairy cows. Hahn, col. 4,11. 50—52; Mueller, Abstract. As indicated by Appellants, Blezinger describes “creep feeding,” which “is the practice of providing supplemental feed to nursing calves . . . done usually with the use of a creep gate or fence, large enough for calves to enter the feeding area, but too small to allow cows to pass.” Blezinger 1,2 Blezinger teaches that calcium chloride may be added to limit daily intake of food because it “functions to limit intake by manipulating blood chemistry.” Id. at 3. While Blezinger makes such a disclosure in the context of creep feeding, he describes the general physiological mechanism for its efficacy, providing a reasonable basis to believe that calcium chloride limit food intake in cow feeds for other purposes. Consistently, we note that Williams also teach the additional of calcium chloride to limit food intake to avoid over eating. Williams, col. 2,11. 27-40. Mueller also describes the desirability to limit and control food intake under some circumstances. Mueller, col. 1,11. 28—55 ; see also Spec. 15 (describing, in the Background section, erratic intake of food as causing adverse effects on cattle). Based on this evidence, one of ordinary skill in the art would have had reason to routinely optimize the amount of calcium chloride in order to limit food 2 The pages of Belzinger are not numbered; we begin numbering beginning with the first page. 7 Appeal 2016-001131 Application 13/049,451 intake to avoid over eating and other adverse effects. Even while the range in Mueller of 0—15% calcium chloride is broad, the claimed range of “between about 0.15 weight percent and about 0.40 weight percent on a dry matter basis,” still falls within it, establishing a presumption of obviousness. It is well established that, when there is a range disclosed in the prior art, and the claimed invention overlaps or falls within that range, there is a presumption of obviousness. Peterson, 315 F.3d at 1329; Iron Grip, 392 F.3d at 1322. Appellants have not provided evidence that the claimed range does not perform as a food take limiter as taught by Blezinger. Claims 12—17 and 34—29 Appellants argue that Williams “fails to cure the disclosure deficiencies of Hahn, Mueller, and Blezinger with respect to claims 10 and 31, from which claims 12-17 and 34-39 depend.” Appeal Br. 21. We thus affirm the rejection of the claims for the reasons we found Hahn, Mueller, and Blezinger deficient. SUMMARY Rejections 1 and 2 are affirmed. To the extent claims were not separately argued, they fall with claims 10 and 31. 37 C.F.R. § 41.37(c)(l)(iv). 8 Appeal 2016-001131 Application 13/049,451 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)(l)(iv). AFFIRMED 9 Copy with citationCopy as parenthetical citation