Ex Parte Sunvold et al

Patent Trial and Appeal Board

Feb 12, 2016

12473417 (P.T.A.B. Feb. 12, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/473,417 05/28/2009
27148 7590 02/17/2016
POLSINELLI PC
900 WEST 48TH PLACE
SUITE 900
KANSAS CITY, MO 64112-1895
FIRST NAMED INVENTOR
Gregory Dean Sunvold
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.
P206 9570
EXAMINER
TARAZANO, DONALD LAWRENCE
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
02/17/2016 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 GREGORY DEAN SUNVOLD
and PA TRICK JOSEPH CORRIGAN
Appeal2014-002036
Application 12/473,417
Technology Center 1700
Before ROMULO H. DELMENDO, WESLEY B. DERRICK, and
SHEILA F. McSHANE, Administrative Patent Judges.
DELMENDO, Administrative Patent Judge.
DECISION ON APPEAL
The Appellants 1 seek our review under 35 U.S.C. § 134(a) of a final
decision of the Primary Examiner to reject claims 1-20. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 The Appellants state that "The Procter & Gamble Company" is the Real
Party in Interest (Appeal Brief filed August 29, 2013, hereinafter "Br.," 1).
Appeal2014-002036
Application 12/473,417
BACKGROl.J1'-JD
The subject matter on appeal relates to a method for delivering an
active ingredient to a pet by providing a specified coated kibble
(Specification, hereinafter "Spec.," 1, 1. 32-2, 1. 10). The active ingredient is
described as including materials "such as sources of fiber ingredients,
mineral ingredients, vitamin ingredients, polyphenols ingredients, amino
acid ingredients, carotenoid ingredients, antioxidant ingredients, fatty acid
ingredients, glucose mimetic ingredients, Probiotic ingredients, prebiotic
ingredients, and still other ingredients" (id. at 6, 11. 20-23).
Representative claims 1 and 14 are reproduced from the Claims
Appendix (Br. 11, 13) as follows:
1. A method of delivery of an active ingredient,
compnsmg:
providing a coated kibble, wherein the coated kibble
compnses:
an extruded core comprising a gelatinized starch
matrix;
and
an inner coating comprising a binder component;
an outer coating comprising a protein component;
an active ingredient disposed in the inner coating or
the outer coating; and
providing the coated kibble to a pet;
wherein the active ingredient is present in an amount effective to
increase the health of the pet and the coated kibble has less than
12 % water content.
14. A method of delivering an active ingredient,
compnsmg:
providing a pet food in the form of a coated kibble,
compnsmg:
an extruded core having a water content less than
12%;
2
Appeal2014-002036
Application 12/473,417
from 0.1 % to 75% of a coating comprising less than
12% moisture, the coating coated on the extruded core to
form a coated kibble;
wherein the coating comprises coating components
comprising a protein component at from 50% to 99% of
the coating, a binder component at from 1 % to 50% of the
coating, and an active ingredient at from 0.01 % to 50% of
the coating;
wherein the coated kibble comprises less than 12%
water content; and
providing the coated kibble to a pet;
wherein the active ingredient is present in an amount effective
to increase the health of the pet.
THE REJECTIONS
The Examiner rejected the claims under 35 U.S.C. § 103(a) as
follows:
I. Claims 1-9, 12, and 13 as unpatentable over Sokhey et al.
(Sokhey),2 as evidenced by "Francis,"3 in view of Harris et al.
(Harris)4 and :farther in view of Parthasarathy;5
II. Claim 10 as unpatentable over Sokhey in view of Harris,
Parthasarathy, and Cavadini et al. (Cavadini); 6
III. Claim 11 as unpatentable over Sokhey in view of Harris,
Parthasarathy, and Blank et al. (Blank);7 and
2 US 7,479,294 B2 issued January 20, 2009.
3 Incomplete document (document identification and publication information
missing); listed in Form PT0-892 entered June 7, 2011 as "Francis,
Frederick J. (ed.) Wiley Encyclopedia of Food Science and Technology,
'Extrusion Cooking.' 2nd Edition. 1999. Page 702-703."
4 US 2007/0077334 Al published April 5, 2007.
5 US 6,926,917 B2 issued August 9, 2005.
6 US 5,968,569 issued October 19, 1999.
7 US 6,592,924 B2 issued July 15, 2003.
3
Appeal2014-002036
Application 12/473,417
IV. Claims 14--20 as unpatentable over Sokhey in view of
Parthasarathy and Spanier et al. (Spanier).8
(Examiner's Answer entered October 8, 2013, hereinafter "Ans.," 4--18;
Final Office Action entered April 4, 2013 at 2-15.)
DISCUSSION
I
The Appellants argue for the reversal of Rejection I based solely on
the limitations of claim 1 (Br. 7). Consistent with the Appellants'
arguments, we confine our discussion to claim 1, which we select as
representative pursuant to 37 C.F.R. § 41.37(c)(l)(iv). By rule, claims 2-9,
12, and 13 stand or fall with claim 1.
The Examiner found that Sokhey does not describe every limitation of
claim 1 but, in view of additional findings, concluded that the subject matter
of the claim would have been obvious to a person of ordinary skill in the art
(Ans. 4--6). Specifically, the Examiner found that although Sokhey teaches
a coated kibble with a surface coating that may include active ingredients, a
binder, and protein, it does not describe "an inner coating comprising a
binder component," as recited in claim 1 (id. at 4). The Examiner found
further, however, that Harris teaches applying two separate coatings to
animal food in order to improve nutritive value, digestibility, palatability,
shelf-life, and appearance (id. at 5). The Examiner concluded from these
findings that "one of ordinary skill in the art ... would [have found] ... it
obvious to implement the two (inner and outer) coatings of Harris ... into
the coated pet food of Sokhey ... . "(id.). Additionally, the Examiner found
8 US 5,532,010 issued July 2, 1996.
4
Appeal2014-002036
Application 12/473,417
that although Sokhey discloses that the kibble should have a moisture
content of less than about 50%, it does not explicitly describe that "the
coated kibble has less than 12% water content," as recited in claim 1 (id. at
6). The Examiner found further, however, that a person of ordinary skill in
the art would have looked to other pet foods for suitable moisture contents-
such as that disclosed in Parthasarathy (moisture content of 5-12%}-and,
therefore, "one of ordinary skill in the art would [have found] ... it obvious
to use the moisture content as taught by Parthasarathy when creating a pet
food as taught by Sokhey" (id.).
The Appellants do not contest the Examiner's findings and conclusion
regarding the moisture content limitation of claim 1 (Br. 7). Rather, the
Appellants contend that the Examiner interpretation of the claim terms
"outer coating" as reading on Sokhey's surface coating was "erroneous and
should be withdrawn" (id. at 5). The Appellants further contend that "there
was no apparent reason to combine Sokhey and Harris in the manner
suggested" because Harris refers to US 5,204, 102 issued to Coles et al.
(Coles) on April 20, 1993, which-unlike Sokhey-relates to animal
feedstuff comprising fluffy cottonseed (id. at 5---6). According to the
Appellants, "[ n Jo rationale exists on the record for why one of skill in the art
would have been motivated to modify an extruded kibble as taught in
Sokhey, in the manner taught by Harris for rendering fluffy cottonseed
flowable" (id. at 6).
The Appellants' arguments fail to identify a reversible error in the
Examiner's rejection of claim 1. In re Jung, 637 F.3d 1356, 1365 (Fed. Cir.
2011).
5
Appeal2014-002036
Application 12/473,417
Consistent with the Examiner's findings (Ans. 4), Sokhey describes a
kibble with a surface coating composition based on a mixture of liquid fat,
dry additives, and liquid additives, which typically include materials such as
vitamins and proteins (Abst.; col. 2, 11. 11-13; col. 6, 11. 48-52, 55-52). As
stated above, the Appellants argue that "outer coating," as recited in claim 1,
does not read on Sokhey's surface coating because the term is used in the
context of a two-coating system including an "inner coating" and an "outer
coating" (Br. 5). In support, the Appellants rely on the description in the
Specification at page 31, line 25 to page 32, line 11 (id.).
At most, however, the Appellants' argument amounts to an individual
attack on Sokhey. Even if the Appellants were correct on the construction of
the term "outer coating," the Examiner also relied on Harris, which teaches a
coated animal feed having two coating layers to provide improved "nutritive
value, digestibility, palatability, shelf-life, and appearance" (Harris, Abst.;
i-f 12). According to Harris (Abst.), the coated animal feed includes a first
coating comprising at least 20% by weight of sugar selected from the group
consisting of monosaccharide, disaccharide, and combinations thereof-an
ingredient that the Examiner found (Ans. 5) to be disclosed on page 10 of
the current Specification as a suitable binder-and a second coating
comprising at least 20% by weight of phospholipid. Although Harris states
that the second coating requires at least 20% by weight of phospholipid, it
does not place any limitations on other additives that may be included in the
second coating. Thus, given the collective teachings of Sokhey and Harris,
we conclude that a person of ordinary skill in the art would have been
prompted to implement a two-coating system including a first coating of
binder, as suggested by Harris, and a second surface coating including
6
Appeal2014-002036
Application 12/473,417
phospholipid and other additives such as protein and vitamins, as suggested
by Sokhey and Harris, in the manufacture of Sokhey' s kibble in order to
provide a product with improved nutritive value, digestibility, palatability,
shelf-life, and appearance. In re Merck & Co., Inc., 800 F.2d 1091, 1097
(Fed. Cir. 1986) ("Non-obviousness cannot be established by attacking
references individually where the rejection is based upon the teachings of a
combination of references.").
The Appellants' argument (Br. 5---6) that Coles, which is discussed in
Harris i-f 7, discloses animal feedstuff comprising fluffy cottonseed is
without merit. As explained by the Examiner (Ans. 15), "the full reference
of Harris ... is being relied upon for a teaching of an inner coating
comprising a binder." The Appellants fail to explain why the Examiner's
reliance on Harris' s disclosure as a whole constituted reversible error.
For these reasons, we uphold Rejection I.
II & III
In arguing for the reversal of Rejections II and III, the Appellants rely
on the same arguments offered for claim 1, adding only that the additionally-
cited references (Cavadini and Blank) do not cure the perceived deficiencies
in the rejection of claim 1 (Br. 7-8). Because we found the Appellants'
arguments against Rejection I insufficient, we uphold Rejections II and III
for the same reasons discussed above.
IV
For Rejection IV, the Appellants argue claims 14--20 together,
focusing only on claim 14. Therefore, we confine our discussion to claim
14. Claims 15-20 stand or fall with claim 14. 37 C.F.R. § 41.37(c)(l)(iv).
7
Appeal2014-002036
Application 12/473,417
The Appellants argue that "the liquid additive of Sokhey would not
have a moisture content less than 12%," as required by claim 14 (Br. 9)
(citing Sokhey col. 6, 11. 42--44). We cannot agree.
As we found above, Sokhey teaches that the moisture content of the
coated kibble is less than about 50% by weight (col. 4, 11. 11-14) and that
the kibble includes liquid additives (col. 2, 11. 11-13). Although Sokhey
teaches that "a substance that has a moisture content above about 35 wt. %"
is one definition of the term "liquid additive" (col. 6, 11. 42--44), Sokhey
teaches also that an alternative definition for the term "liquid additive" is "an
additive that is substantially liquid at 25QC." (id.). Therefore, we discern no
error in the Examiner's conclusion (Ans. 11) that a person of ordinary skill
in the art would have taken account of Parthasarathy's disclosure of a dry pet
food having a moisture content of 5-12% in the formulation of Sokhey's
kibble having a moisture content less than about 50% by weight.
For these reasons, we also uphold Rejection IV.
SUMMARY
Rejections I-IV are affirmed. Therefore, the Examiner's final
decision to reject claim 1-20 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).
AFFIRMED
8