Ex Parte Stojanovic

Patent Trial and Appeal Board

Sep 19, 2016

12214111 (P.T.A.B. Sep. 19, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/214,111 06/17/2008
27148 7590 09/21/2016
POLSINELLI PC
900 WEST 48TH PLACE
SUITE 900
KANSAS CITY, MO 64112-1895
FIRST NAMED INVENTOR
Marko Stojanovic
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.
IM0068 US3 9390
EXAMINER
SMITH, PRESTON
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
09/21/2016 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):
uspt@polsinelli.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MARKO STOJANOVIC
Appeal2015-000470
Application 12/214,111 1
Technology Center 1700
Before TERRY J. OWENS, MICHAEL P. COLAIANNI, and
CHRISTOPHER C. KENNEDY, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
1 This application is a continuation of Application No. 11/384,050 which
was the subject of Appeal No. 2013-006876.
Appeal2015-000470
Application 12/214,111
Appellant appeals under 35 U.S.C. § 134 the final rejection of claims
1-22. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b).
We AFFIRM.
Appellant's invention is directed to methods of increasing the health
of a dog or cat using a composition that comprises a probiotic component
and sweetener component (Spec. 1:8-11).
Claim 1 is illustrative:
A method of increasing the health in a dog or cat comprising orally
administering to the dog or cat a composition comprising a cocoa butter
component comprising cocoa butter wherein the cocoa butter component is
present at less than 5% by weight of the composition, a monosaccharide
wherein the monosaccharide is present at greater than 90% by weight of the
composition, and a Probiotic component in an amount effective to increase
the health in the dog or cat; and
wherein the cocoa butter component, the sweetener component, and
the Probiotic component are uniformly distributed within the composition;
wherein the Probiotic component comprises a Probiotic strain from
the genera Bifidobacterium; and
wherein the composition has a viable probiotic microorganism count
of at least about 109 CPU per gram of composition.
Appellant appeals the following rejections:
1. Claims 1---6, 8, 14--18, and 22 are rejected under 35 U.S.C. § 103(a) as
unpatentable over Ranganathan (US 2004/0161422 Al, published
Aug. 19, 2004) in view of Cavadini et al. (US 5,968,569, issued Oct.
19, 1999) ("Cavadini"), Mohlenkamp et al. (WO 91/09537, published
July 11, 1991) ("Mohlenkamp"), and Moraly et al. (US 6,527,868 B2,
issued Mar. 4, 2003) ("Moraly").
2. Claims 7 and 9-13 are rejected under 35 U.S.C. § 103(a) unpatentable
over Ranganathan in view of Cavadini, Mohlenkamp, Moraly, and
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Sorokulova et al. (US 2005/0271643 Al, published Dec. 8, 2005)
("Sorokulova").
3. Claim 21 is rejected under 35 U.S.C. § 103(a) as unpatentable over
Ranganathan in view of Cavadini, Moraly, Mohlenkamp, and Pearce
(US 2005/0008735 Al, published Jan. 13, 2005).
FINDINGS OF FACT & ANALYSIS
REJECTION (1)
Appellant argues the subject matter of independent claims 1 and 14
(Br. 4---6). We select claim 1 as representative. 37 C.F.R. §
41.37( c )(1)(iv)(2013).
The Examiner finds that Ranganathan teaches the limitations of claim
1, except for the sweetener being present in an amount greater than 90% by
weight of the composition, the use of cocoa butter and orally administering
the composition to a dog or cat2 (Ans. 2-3). The Examiner finds that
Mohlenkamp teaches a food composition which may comprise from about
2% to about 98% sugar components which includes candy bars (Ans. 4).
The Examiner concludes that it would have been obvious to increase the
amount of sugar content beyond 82 wt.% taught in Ranganathan in light of
the teachings of Mohlenkamp since increasing the weight percentage of the
sugar component would make the bar sweeter and thus more attractive to
consumers that desire the sweeter taste (Ans. 4). The Examiner finds that
2 The Examiner relies on Cavadini to teach orally administering a
composition to a dog or cat (Ans. 5). Appellant does not dispute the
Examiner's findings or conclusions regarding the teachings of Cavadini or
the combination of those teachings with Ranganathan, Moraly, and
Mohlenkamp (Br. 6). Accordingly, we do not further discuss Cavadini in
our decision.
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Appellant discloses a broader range for the amount of sugar from 0.001 to
99% or less sweetener at page 6, lines 23-27 of the Specification. (Id.) The
Examiner finds that such a broadly disclosed range of acceptable sweetener
amounts underscores that the claimed range "of 'greater than 90%'" is not
critical. (Id.) The Examiner finds that the amount of sweetener is
optimizable depending upon the desired level of sweetness in the product.
(Id.) The Examiner concludes that the claimed composition having greater
than 90% sweetener would have been obvious in view ofRanganathan. (Id.)
The Examiner finds that Ranganathan teaches using butter as a fat in
the composition but does not teach that the butter is cocoa butter. (Ans. 3).
The Examiner finds that it is well known in the art to mix cocoa butter into
food bars. (Id.) The Examiner further finds that Moraly teaches adding
cocoa butter to bar mixtures. (Id.) The Examiner concludes that it would
have been obvious to look to Moraly for additional types of fats that can be
used in food bars in order to expand the list of fats capable of use with
Ranganathan's invention. (Id.) The Examiner further concludes that it
would have been obvious to use cocoa butter in Ranganathan's nutritional
bars as the substitution of one known fat for another and would have
produced predictable results (id. at 3--4).
Appellant contends that a person looking to modify Ranganathan' s
nutritional product would not look to Mohlenkamp or Moraly that are
directed to confectionaries, such as chocolate-flavored coatings and
chocolate-flavored candy bars (Br. 5). Appellant contends that one
formulating a dog food would have no reason to look to a document directed
to chocolate bars and chocolate coatings because chocolate is toxic to dogs.
(Id.)
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Contrary to Appellant's argument, ivlohlenkamp is not directed solely
to chocolate confectionaries. Indeed, Mohlenkamp teaches that in addition
to chocolate confectionaries, baked goods, and emulsified oil products can
be made (Mohlenkamp 26:28-34; 29:1-5, 27-31). Mohlenkamp teaches
that the baked goods include biscuits and bar cookies (Mohlenkamp 29: 17).
The Examiner relies on Mohlenkamp for the teaching that it is
conventionally known to use a particular quantity of a known low calorie
sweetener to bar based foods for achieving a degree of sweetness while also
controlling caloric intake. In other words, the Examiner finds that
Mohlenkamp teaches that the amount of sweetener, which includes low or
no calorie sweetener, in a product may be optimized based upon the desired
sweetness to the product (Ans. 4). Appellant does not dispute this finding.
The Examiner's finding is supported by Mohlenkamp's disclosure that the
amount of sugar including reduced calorie sugar present in a food
composition will vary greatly depending on the particular food product
involved and the desired reduced calorie benefits (Mohlenkamp 25: 13-16;
26: 14--17).
Although Mohlenkamp exemplifies that baked goods "typically" have
20 to about 60% sugar component, Mohlenkamp discloses a broader range
of about 2% to about 98% of a sugar component (Mohlenkamp 25:9-13, 17-
19). We do not find that Mohlenkamp's disclosure regarding the amount of
sugar in exemplary baked goods to limit the disclosure to only 20% to about
60% sugar component for baked goods such as bar cookies. Rather,
Mohlenkamp's disclosed broader range of sugar concentrations (i.e., 2 to
about 98%) coupled with the disclosure that food compositions will vary
greatly depending upon the food composition involved would have
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suggested that the amount of sweetener is optimizable to any value with the
broader range.
Appellant argues that the Examiner provides no evidence that
increasing the sweetener in Ranganathan will make the health food more
attractive to consumers (Br. 6). Appellant contends that adding more sugar
does not necessarily improve the taste and may affect the consistency of the
final product. (Id.) Appellant argues that adding more sugar may also
increase the caloric content of the health food making it less appealing to
consumers. (Id.)
The Examiner finds that Ranganathan is directed to "nutritional food"
or "nutritional [] products" not strictly diet food (Ans. 8). Indeed,
Ranganathan is directed to nutritional or medicinal food products which
provide probiotics to the gastrointestinal tract of a subject (Ranganathan
i-f 3). Accordingly, the preponderance of the evidence favors the Examiner's
finding that Ranganathan is not limited solely to low calorie food bars.
Nevertheless, the Examiner finds that reduced calorie sweeteners may be
used which would have controlled the caloric content of the bar.
We understand the Examiner's rejection with regard to the
combination of Moraly with Ranganathan to be that Ranganathan teaches
that a wide variety of fats may be used in the nutritional bar. The Examiner
finds that Ranganathan teaches that butter may be used in i-f 16. Indeed,
Ranganathan teaches in i-f 16 that a variety of fats may be used including
butter and "other ... vegetable ... fats." Ranganathan further teaches that
the nutritional composition may be made for "a human or other animal"
(Ranganathan i-f 9). The Examiner's reliance on Moraly is based on the
disclosure that cocoa butter is another suitable fat that is used in making
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food compositions with a bar structure. Although ivforaly uses cocoa butter
in a chocolate bar, such an exemplary teaching does not detract from
Ranganathan's teaching that "other ... vegetable ... fats" may be used in
the nutritional food composition, which may be made for an animal that
includes a dog. In other words, the teaching of the references as a whole
would have suggested that other vegetable fats includes the use of cocoa
butter in nutritional food compositions for dogs.
Appellant's argument that the skilled artisan would not have looked to
Moraly and Mohlenkamp directed to chocolate formulations because
chocolate is toxic to dogs is unpersuasive. "A person of ordinary skill is also
a person of ordinary creativity, not an automaton." KSR Int 'l Co. v. Teleflex
Inc., 550 U.S. 398, 421 (2007). Ranganathan teaches formulating
compositions suitable for "other animals" which reasonably includes dogs.
It would have been within the knowledge of the skilled artisan to use an
appropriate amount of cocoa butter fat (including 3 to 5% fat as taught by
Ranganathan and falling within the range recited in claim 1) to make a bar
suitable for a particular animal. Moreover, Mohlenkamp teaches that in
addition to chocolate confectionaries, baked goods, and emulsified oil
products can be made (Mohlenkamp 26:28-34; 29: 1-5, 27-31 ).
Mohlenkamp teaches that the baked goods include biscuits and bar cookies
(Mohlenkamp 29: 17). Therefore, one of ordinary skill would have looked to
Mohlenkamp's and Moraly's teachings regarding suitable fat and sugar
content for a dog or cat bar formulation.
Moreover, the Examiner provides an additional rationale for using
cocoa butter as the fat in Ranganathan's nutritional bar. Specifically, the
Examiner finds that it is well known in the art to mix cocoa butter into food
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bars (Ans. 8). The Examiner concludes that it would have been obvious to
add cocoa butter since this would improve the structure and taste of the bar.
Id. Because Appellant does not specifically challenge either the finding or
the conclusion based upon that finding, we accept the finding as fact. Cf In
re Kunzmann, 326 F.2d 424, 426 n.3 (CCPA 1964) ("Since appellant has not
shown this finding to be clearly erroneous, we accept it as fact.").
Appellant contends that different fats have different properties and
cannot be easily substituted without impacting the outcome of the final
product (Br. 5). Appellant argues that Moraly uses 8% cocoa butter and
provides no reason to use less than about 5% as required by the claims. Id.
Appellant has not provided any evidence to substantiate the argument
that the use of cocoa butter in lieu of other fats would have adversely
impacted the final product. To the contrary, Ranganathan teaches a broad
list of suitable fats, including "other ... vegetable ... fats" that in light of
the prior art teachings as a whole would have reasonably included cocoa
butter. Appellant's argument regarding the amount of cocoa butter is not
persuasive, because Ranganathan teaches that 3 to 5% of fats can be used in
making the bar and Mohlenkamp teaches that the amounts of fat and sugar
can vary widely (i.e., between 2 to about 98% by weight) depending upon
the product being made (Ranganathan i-f 45; Mohlenkamp 25:13-16).
On this record, we affirm the Examiner's§ 103 rejection over
Ranganathan in view of Mohlenkamp, Moraly, and Cavadini.
REJECTION (2)
Appellant argues that Ranganathan, Moraly, Mohlenkamp, Cavadini,
and Sorokulova fail to teach that the use of Bifidobacterium probiotic
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increases joint mobility (Br. 6-7). Appellant contends that Sorokulova does
not teach that every probiotic can help with arthritis, but instead cites to the
article by Malin that teaches using Lactobacillus strains to help modulate
immune system response (Br. 7).
Appellant's arguments are not persuasive because Ranganathan
teaches using Bifidobacterium as a probiotic in a nutritional bar (i-f 19). The
Examiner used Sorokulova as evidence that probiotics have been used to
treat arthritis (Ans. 6-7). Because Ranganathan teaches to use
Bifidobacterium as the probiotic, the same one recited by Appellant in the
claims, it is reasonable to conclude that the probiotic containing bar would
possess the same beneficial increase in joint mobility. In re Papesch, 315
F.2d 381, 391(CCPA1963) ("From the standpoint of patent law, a
compound and all of its properties are inseparable; they are one and the same
thing.") It is irrelevant whether the prior art recognized that Bifidobacterium
probiotic increased joint mobility. In re Baxter Travenol Labs., 952 F.2d
388, 392 (Fed. Cir. 1991).
On this record, we affirm the Examiner's§ 103 rejection over
Ranganathan in view ofMohlenkamp, Moraly, Cavadini, and Sorokulova.
REJECTION (3)
The Examiner finds that Ranganathan in view of Mohlenkamp,
Moraly and Cavadini teach the subject matter of claim 21, except for the pet
food supplement being in the form of an edible film (Ans. 7). The Examiner
finds that Pearce teaches that pet food in the form of edible films are well
known in the art. Id. Ranganathan teaches that the composition can be used
to make various types of food, including foods that can be very thin such as
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chips and candies (ii 9; Ans. 7). Pearce uses similar sweeteners and fats like
Ranganathan and can also be formed into candy. (i-fi-f 40, 52). The Examiner
concludes that it would have been obvious to convert the composition of
Ranganathan to an edible film since edible films are easy to digest and can
be incorporated into many different kinds of foods. (Ans. 7).
Appellant argues that Ranganathan' s composition as modified by
Mohlenkamp, Moraly, and Cavadini would not contain the film forming
agents as disclosed in Pearce (Br. 8). Appellant contends that Pearce does
not teach an edible film having greater than 90% of a sweetener ingredient.
(Id.) Appellant argues that Pearce teaches away from formulating edible
films with high levels of sweetener because Pearce teaches using small
amounts of sweetener to avoid aftertaste in i149. (Id.)
The Examiner finds that i1 49 in Pearce relates to a preferred
embodiment which does not teach away (Ans. 9). We agree. Pearce
discloses in i1 49 that it is preferred to use small amounts of sweetener to
avoid aftertaste in the snacks. However, a preferred embodiment does not
discourage or otherwise teach away from using a less preferred embodiment
having a greater amount of sweetener. Pearce does not disclose in i1 49 that
using greater amounts of sweetener would prevent film formation otherwise
fail to form the edible film.
Appellant's argument that Pearce does not teach using greater than
90% sweetener improperly attacks the references individually. As found by
the Examiner, Mohlenkamp teaches using greater than 90% sweetener (Ans.
9). As discussed supra we agree with the Examiner that the combined
teachings of Ranganathan and Mohlenkamp would have suggested
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optimizing Ranganathan' s nutritional product to have greater than 90%
sweetener.
Appellant's argument that Ranganathan, Moraly, Cavadini, and
Mohlenkamp do not teach using Pearce's film forming agent is not
persuasive. Appellant attacks the references individually instead of
addressing what the combined teachings of Pearce, Ranganathan, Moraly,
Cavadini, and Mohlenkamp would have suggested to the ordinarily skilled
artisan. Ranganathan teaches that the nutritional composition can take many
forms including chips, and sticks (i.e., very thin forms). Pearce discloses pet
food supplement in the form an edible film (i.e., a very thin form).
Accordingly, it would have been within the skill of the ordinary artisan to
form Ranganathan's composition into an edible film as taught by Pearce in
order to provide easier digestion and permit the probiotic composition to be
used in a variety of foods.
On this record, we affirm the Examiner's § 103 rejection of claim 21
over Ranganathan in view of Mohlenkamp, Moraly, Cavadini, and Pearce.
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)(l).
ORDER
AFFIRMED
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