13054742 (P.T.A.B. Mar. 27, 2017)

Ex Parte Yamka et al

Patent Trial and Appeal BoardMar 27, 2017

13054742 (P.T.A.B. Mar. 27, 2017)

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. 13/054,742 04/08/2011 Ryan Michael Yamka 8684-00-US-01-HL 9123 23909 7590 03/29/2017 COLGATE-PALMOLIVE COMPANY 909 RIVER ROAD PISCATAWAY, NJ 08855 EXAMINER ZILBERING, ASSAF ART UNIT PAPER NUMBER 1792 NOTIFICATION DATE DELIVERY MODE 03/29/2017 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): Paten t_Mail @ colpal. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte RYAN MICHAEL YAMKA, NOLAN ZEBULON FRANTZ, XIANGMING GAO, and SAMER AL-MURRANI Appeal 2015-007781 Application 13/054,742 Technology Center 1700 Before ROMULO H. DELMENDO, MICHAEL P. COLAIANNI, and BRIAN D. RANGE, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appeal 2015-007781 Application 13/054,742 Appellants appeal under 35 U.S.C. § 134 the final rejection of claims 1-8, and 20-24. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants’ invention is directed to compositions for treating disorders and diseases associated with obesity (Spec. 11). Claim 1 is illustrative: 1. A composition for canine consumption comprising: (a) 26 wt. % to 35 wt. % of crude protein on a dry matter basis; (b) 7.5 wt. % to 8.5 wt. % of crude fat on a dry matter basis; (c) 20 wt. % to 30 wt. % of total dietary fiber on a dry matter basis; (d) 10 wt. % to 20 wt. % of crude fiber on a dry matter basis; and (e) at least 0.02 wt. % of omega-3 polyunsaturated fatty acid on a dry matter basis. Appellants appeal the following rejection: Claims 1-8, and 20-24 are rejected under 35 U.S.C. § 103(a) as unpatentable over Opitz et al., The measurement of dietary fibre in pet food: a comparison of methods, J. Anim. Physiol, a. Anim. Nutr. 79 (1998), 146- 152 (“Opitz”) in view of Zicker et al., (WO 2006/072084 Al, pub. July 6, 2006)(“Zicker”). Appellants argue the subject matter of independent claim 1 only (App. Br. 3-5). Claims 2-8 and 20-24 will stand or fall with our analysis of the rejection of claim 1. 2 Appeal 2015-007781 Application 13/054,742 FINDINGS OF FACT & ANALYSIS The Examiner finds that Opitz discloses in Table 2 a survey of what was known in the art with regard to ranges of suitable crude protein, crude fat, crude fiber and total fiber (Ans. 7). The Examiner finds that surveys provide guidance to the skilled artisan as to acceptable amounts of crude protein, crude fat, crude fiber and total fiber to use in pet food compositions. Id. The Examiner finds that the claimed ranges overlap with the ranges of the claimed pet food composition components which would have rendered using the amounts recited in the claims prima facie obvious (Ans. 6-7). The Examiner finds that Opitz does not disclose using omega-3 fatty acids (e.g., DHA or EPA) (Ans. 4). The Examiner finds that Zicker teaches using DHA or EPA in pet food compositions to enhance the health benefits of the food composition such as improving brain functions, mood and cognitive functions (Ans. 4, 8). Appellants argue that the Examiner has failed to provide any reason why one of ordinary skill in the art would have selected and combined the dog or cat food components to arrive at the claimed invention (Br. 3,4). Appellants contend that Opitz’s disclosure of the fiber content of 51 pet foods does not amount to a disclosure of the proximate content of 51 pet foods (Br. 4). Appellants argue that the ordinarily skilled artisan would have no reason to look to Opitz and Zicker to arrive at the claimed invention because Opitz fails to teach or suggest nutrient compositions of pet foods (Br. 4). Appellants contend that Table 2 on page 148 of Opitz gives ranges derived from across 51 pet food compositions and Table 2 does not include a single, particular pet food composition (Br. 4-5). Appellants contend that 3 Appeal 2015-007781 Application 13/054,742 Zicker may teach using omega-3 polyunsaturated fatty acids in pet foods but does not teach the other limitations in claim 1 (Br. 5). The preponderance of the evidence favors the Examiner’s obviousness conclusion. Opitz’s Table 2 provides a survey of pet foods that lists the ranges of each ingredient as determined from the various pet food compositions used in the survey. In other words, Opitz’s Table 2 provides a summary of acceptable ranges for each ingredient used in pet food compositions. We find one of ordinary skill in the art would have understood that an acceptable pet food composition would have been made by selecting amounts within the ranges for each ingredient. Contrary to Appellants’ argument, the Examiner provides a reason for modifying the pet food compositions taught by Opitz to have the omega-3 fatty acids of Zicker: to enhance the health benefits by improving brain function, mood and cognitive ability. Zicker teaches that it is known to use omega-3 fatty acids in pet foods to achieve such a health benefit in the animal (Zicker || 4, 10). Therefore, the applied prior art would have suggested using Zicker’s omega-3 fatty acids in Opitz’s pet food compositions to provide the desired health benefit to the pet. On this record, we affirm the Examiner’s § 103 rejection. 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)(1). ORDER 4 Appeal 2015-007781 Application 13/054,742 AFFIRMED 5