Ex Parte Westfall

Board of Patent Appeals and Interferences

Mar 15, 2011

11137826 (B.P.A.I. Mar. 15, 2011)

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.
11/137,826 05/25/2005 Geofrey J. Westfall GJW0002/US 8223
33072 7590 03/15/2011
KAGAN BINDER, PLLC
SUITE 200, MAPLE ISLAND BUILDING
221 MAIN STREET NORTH
STILLWATER, MN 55082
EXAMINER
MUI, CHRISTINE T
ART UNIT PAPER NUMBER
1774
MAIL DATE DELIVERY MODE
03/15/2011 PAPER
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.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte GEOFREY J. WESTFALL
________________

Appeal 2010-003113
Application 11/137,826
Technology Center 1700
________________

Before BRADLEY R. GARRIS, PETER F. KRATZ, and
BEVERLY A. FRANKLIN, Administrative Patent Judges.

GARRIS, Administrative Patent Judge.

DECISION ON APPEAL1

1 The 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 2010-003113
Application 11/137,826

2
Appellant appeals under 35 U.S.C. § 134 from the Examiner's final
rejection of claims 1, 3-5, 7, 9, and 11-20 under 35 U.S.C. § 103(a) as
unpatentable over Gilbertsson (WO 2005/006849 A1 published Jan. 27,
2005) in view of Gomo (Exnevia Gomo et al., Subclinical Mastitis Among
HIV-Infected and Uninfected Zimbabwean Women Participating in a
Multimicronutrient Supplementation Trial, 97 Transactions Royal Soc’y
Tropical Med. & Hygiene 212 (2003)). We have jurisdiction under
35 U.S.C. § 6.
We AFFIRM-IN-PART.

Appellant claims a method for testing quality of milk comprising,
for example, measuring the concentration of sodium ion and potassium ion
in the milk and calculating a ratio of sodium/potassium in order to determine
whether the quality of the milk is acceptable (claim 1).
Representative claim 1 reads as follows:
1. A method for testing quality of milk, the method
comprising:
(a) providing a sample of un-homogenized and un-pasteurized
whole milk from a cow or a goat;
(b) measuring the concentration of at least two of sodium ion,
chloride ion, potassium ion, and calcium ion in the milk using no
more than one ion selective electrode for each ion measured;
(c) calculating a ratio of at least one of sodium / potassium,
sodium / calcium, chloride / potassium, and chloride / calcium; and
(d) determining whether the quality of the milk is acceptable
based on the ratio, with acceptable having:
a sodium / potassium ratio less than 30;
Appeal 2010-003113
Application 11/137,826

3
a sodium / calcium ratio less than 30;
a chloride / potassium ratio less than 80; or
a chloride / calcium ratio less than 80.
The Examiner finds that Gomo discloses using a sodium/potassium
ratio for testing quality of milk and concludes that it would have been
obvious for an artisan to use such a ratio in Gilbertsson's method for testing
milk quality (Ans. para. bridging 5-6, para. bridging 9-11).
Appellant argues that the Examiner's rejection is improper because
"[t]he WO reference [i.e., Gilbertsson] fails to disclose that the ratio between
the measured ions [e.g., sodium and potassium] may be an advantageous
parameter for testing the quality of milk" (Br. 5).
This argument is unpersuasive. The rejection under consideration is
not based on Gilbertsson alone. It is based on the combined teachings of
Gilbertsson and Gomo. Moreover, the Examiner expressly relies on the
teachings of Gomo for the findings of fact and conclusions of law relating to
the use of a sodium/potassium ratio for testing milk quality. Appellant's
argument contains no discussion of Gomo and accordingly fails to reveal
any error in the Examiner's above noted findings and conclusions.
Appellant also argues that "[t]he WO reference [i.e., Gilbertsson]
appears silent about the variation of calcium ion concentration during
development of mastitis; pending claims 7, 11, 16 and 18 are directed to
using calcium ion concentration in a ratio to determine the milk quality" (Br.
6).
The Answer contains no response to this argument by the Examiner.
Further, the rejection set forth in the Answer contains no discussion of the
Appeal 2010-003113
Application 11/137,826

4
calcium limitation in claims 7, 11, 16, and 18. On this record, the Examiner
has failed to even address, much less establish a prima facie case of
obviousness for, the subject matter defined by these claims.
For the above stated reasons, we sustain the Examiner's § 103
rejection of claims 1, 3-5, 9, 12-15, 17, 19, and 20 but do not sustain the
rejection of claims 7, 11, 16, and 18.

The decision of the Examiner is affirmed-in-part.
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).

AFFIRMED-IN-PART

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KAGAN BINDER, PLLC
SUITE 200, MAPLE ISLAND BUILDING
221 MAIN STREET NORTH
STILLWATER, MN 55082