Ex Parte Yamka et al

Patent Trial and Appeal Board

May 10, 2016

12528164 (P.T.A.B. May. 10, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
12/528, 164 08/21/2009
23909 7590 05/12/2016
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
FIRST NAMED INVENTOR
Ryan Michael Yamka
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.
8173-00-HL 1992
EXAMINER
N ANOV A, SVETLANA M
ART UNIT PAPER NUMBER
1627
NOTIFICATION DATE DELIVERY MODE
05/12/2016 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):
Patent_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, KIM GENE FRIESEN, and
STEVEN CURTIS ZICKER1
Appeal2014-000424
Application 12/528, 164
Technology Center 1600
Before LORA M. GREEN, ULRIKE W. JENKS, and
TIMOTHY G. MAJORS, Administrative Patent Judges.
MAJORS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 involving claims to
compositions and methods of administering compositions for the
improvement of neurological development of animals, which have been
rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b ).
We affirm.
1 Appellants identify the Real Party in Interest as Hill's Pet Nutrition, Inc. (a
wholly-owned subsidiary of Colgate-Palmolive Company). (Br. 2.)
Appeal2014-000424
Application 12/528, 164
STATEMENT OF THE CASE
"The present invention relates to compositions and methods for
enhancing the neurological development of mammals." (Spec. i-f 2) "It is
contemplated ... that any animal whose diet may be controlled by humans
may benefit from feeding the [disclosed] formulations . . . . Preferably, the
animal is a feline, either a kitten, or adult cat." (Spec. i-f 17.)
Claims 1, 2, 6, and 10-21 are on appeal. Claims 1 and 11 are
illustrative and reads as follows:
1. A pet food composition comprising:
about 0.1 % to about 0.7% DHA;
about 2400 ppm to about 7500 ppm choline;
about 200 IU/kg to about 1200 IU/kg vitamin E;
about 50 to about 500 ppm vitamin C;
about 2.5 g/1000 kcal to about 7g/1000 kcal lysine;
about 0.1 % to about 0.7% EPA;
about 50 ppm to about 200 ppm manganese;
and about 0.5% to about 1.6% methionine.
11. A method to enhance the neurologic development of a
feline comprising administering to the feline or to the mother of
the feline while the feline is in utero the composition of claim 1.
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The claims stand rejected as follows:
Claims 1, 2, 6, and 10-21 are rejected under 35 U.S.C. § 103(a) as
obvious over Zicker, 2 W olframAlpha, 3 Applicants' admitted prior art, 4
AAFC0,5 and Homstra. 6
Claims 13-17 are rejected under 35 U.S.C. 103(a) as obvious over
Zicker, WolframAlpha, Applicants' admitted prior art, AAFCO, and
Homstra, in further view of Jones. 7
DISCUSSION
Issues
There are two issues, which we address together: whether the
Examiner established by a preponderance of the evidence that claims 1, 2, 6,
and 10-21 would have been obvious over Zicker, W olframAlpha,
Applicants' admitted prior art, AAFCO, and Homstra; and whether the
Examiner established by a preponderance of the evidence that claims 13-1 7
2 Zicker et al., WO 2006/072084, published Jul. 6, 2006 ("Zicker").
3 W olframAlpha® computational knowledge engine conversions,
http://www.wolframalpha.com ("W olframAlpha").
4 Applicant's admitted prior art of commercial compositions A, Al and B.
(Spec. 10.) ("Applicants' admitted prior art").
5 AAFCO Cat Food Nutrient Profiles, 2003 Official Publication,
http://maxshouse.com/nutrition/aafco_cat_food_nutrient_profiles.htm
("AAFCO").
6 Homstra et al., Essential fatty acids in pregnancy and early human
development, 61 EUROPEAN JOURNAL OF OBSTETRICS & GYNECOLOGY AND
REPRODUCTIVE BIOLOGY 57----62 (1995) ("Homstra").
7 Barb Jones, FAQ: Cat Reproduction, Sacramento Area Animal Coalition
("Jones").
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Application 12/528, 164
are obvious over Zicker, W olframAlpha, Applicants' admitted prior art,
AAFCO, and Homstra, in further view of Jones.
Findings of Fact
1. Zicker teaches food compositions and methods for enhancing the
life of a growing animal." (Zicker Abstract.) Zicker teaches "feeding the
animal an amount of the composition effective to enhance the animal's
quality of life, wherein enhanced quality of life is evidenced by an
improvement in one or more characteristics selected from the group
consisting of trainability, cognitive function, motor skills coordination or
agility, retinal development, cartilage protection, maintenance of muscle
mass, and skin and pelage quality." (Zicker i-f 10.) In Zicker, "'growing
animals' means animals that are in the growth stage of life. For small or
regular breed canines, as well as for felines, the growth stage is from birth to
one year of age." (Zicker i-f 19.)
2. Zicker teaches
the method comprises feeding a growing feline a composition
in an amount effective to enhance the feline' s trainability and
cognitive function. The composition comprises:
(a) at least one of the following:
(i) at least about 0.05% (or from about 0.05%
to about 0.40%, or from about 0.1 % to
about 0.40%, or from about 0.1 % to about
0.24%) DHA,
and
(ii) at least about 0.1 % (or from about 0.1 % to
about 1 %, or from about 0.2% to about 1 %,
or from about 0.2% to about 0.62%) of a
mixture ofDHA and EPA,
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Application 12/528, 164
(b) at least about 15% (or from about 15% to about 70%, or
from about 30% to about 45%, or from about 30% to about
43%, or from about 43% to about 45%) protein,
(c) at least about 4% (or from about 4% to about 45%, or from
about 9% to about 28%,or from about 9% to about 25%, or
from about 25% to about 28% fat,
( d) at least one of the following:
(i) at least about 250 ppm (or from about 250
ppm to about 1500 ppm, or from about 500
ppm to about 1500 ppm, or from about 500
ppm to about 1100 ppm) vitamin E,
(xxiv) at least about 5 ppm (or from about 5 ppm to
about 225 ppm, or from about 10 ppm to
about 225 ppm, or from about 10 ppm to
about 150 ppm) vitamin C,
(xxv) at least about 500 ppm (or from about 600
ppm to about 3000 ppm, or from about 1000
ppm to about 3000 ppm, or from about 1000
ppm to about 2150 ppm) taurine, and
(xxvi) at least about 0.05 ppm (or from about 0.05
to about 3. 0 ppm, or from about 0 .1 ppm to
about 3 .0 ppm, or from about 0.1 ppm to
about 1.6 ppm) beta-carotene.
( e) at least about 500 ppm (or from about 500 ppm to about
7500ppm, or from about 1200 ppm to about 7500 ppm, or
from about 1200 ppm to about 5000 ppm, or from about
2400 to about 5000 ppm) choline,
( f) at least about 0. 5 ppm (or from about 0. 5 ppm to about 7 5
ppm, or from about 1. 0 ppm to about 7 5 ppm, or from about
1.0 ppm to about 50 ppm) thiamine, and
(g) at least about 0.5% (or from about 0.5% to about 5%, or
from about 1 % to about 5%, or from about 1 % to about
3%) egg powder.
(Zicker i-f30.)
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3. Zicker teaches that "compositions for use in the present invention
further comprise at least one nutrient selected from the group consisting of
manganese, methionine, cysteine, mixtures of methionine and cysteine, L-
camitine, lysine, and arginine." (Zicker i-f 31 (emphasis added).) In
addition, Zicker teaches
[ w ]hen the composition is an animal food, vitamins and
minerals are included in amounts required to avoid deficiency
and maintain health. These amounts are readily available in the
art ... [and] the American Feed Control Officials (AAFCO),
for example, provides recommended amounts of such
ingredients for dogs and cats. See American Feed Control
Officials, Inc., Official publication, pp. 126-140 (2003).
(Zicker i-f 33; see also, id. at i-f 37.)
4. Zicker teaches the benefits of" [ e] ssential fatty acids, consisting of
omega-3 and omega-6 polyunsaturated fatty acids, [which] are critical
nutrients for the health of an animal ... and therefore must be consumed in
an animal's diet. See, e.g., Homstra, G., et al., 'Essential fatty acids in
pregnancy and early human development."' (Zicker i-f 4.)
5. Homstra is cited and incorporated by reference in Zicker (Zicker
i-fi-1 4, 50), and teaches essential fatty acids "are vitally important structural
elements of cell membranes and, therefore, instrumental in the formation of
new tissues." (Homstra Abstract.) Homstra identifies "two families of
essential fatty acids, the (n-6) and the (n-3) family" and teaches that the
"parent EPA" in the (n-6) family is linoleic acid." (Homstra pp. 57-58.)
6. AAFCO teaches "cat food nutrient profiles" and identifies "growth
and reproduction minimum" amounts of those nutrients including:
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Application 12/528, 164
methionine at 0.62%, lysine at 3.0 g per 1000 kcal, linoleic acid at 0.5%, and
manganese at 7.5 mg/kg (7.5 ppm). (AAFCO pp. 1-3.)
7. Jones provides frequently asked questions regarding cat
reproduction. Jones teaches that "[f]emale cats typically reach sexual
maturity when they are about 4.5-7.0 lb ... or between five to nine months
of age." (Jones p. 1.) Jones teaches further that "it is possible for female
kittens as young as four months to go into heat and become pregnant!" (Id.)
Jones additionally discloses that the gestation period for cats is "56 to 71
days" and that the "average length is 67 days." (Id.)
Principles of Law
"[W]here the general conditions of a claim are disclosed in the prior
art, it is not inventive to discover the optimum or workable ranges by routine
experimentation." In re Aller, 220 F.2d 454, 456 (CCP A 1955). Indeed, a
"prima facie case of obviousness typically exists when the ranges of a
claimed composition overlap the ranges disclosed in the prior art." In re
Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003).
Analysis
The Examiner rejected all the pending claims as obvious over Zicker,
AAFCO, WolframAlpha (merely for unit conversion), Applicants' admitted
prior art, and Homstra. The Examiner finds that "Zicker discloses in a
single embodiment all the ingredients [of claim 1], with overlapping ranges
... , and discloses manganese, methionine, and lysine (except as to their
ranges." (Final Act. 4---6.) As for the specific amounts of manganese,
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methionine, and lysine, the Examiner finds that "Zicker states that '[t]hese
amounts are readily available in the art." (Final Act. 9.)
The Examiner concludes "it would have been obvious to a person of
skill in the art the modify the composition of Zicker, to include the specific
amounts of manganese, methionine, [and] lysine ... that are readily
available in the art, such as disclosed in the Applicant's admitted prior art
and the AAFCO Cat Food." (Id. at 11.) According to the Examiner, "a
person of skill in the art would have been motivated to do so with a
reasonable chance of success in view of the teachings of Zicker that these
amounts are readily available in the art, and would have accordingly looked
to these amounts in other cat foods compositions, accordingly, i.e., the
closest prior art." (Id.) The Examiner finds that the Zicker "composition is
explicitly stated by Zicker to be for feeding a feline in an amount effective to
enhance the feline's trainability and cognitive function. ([0030-33])." (Id.
at 19.) Accordingly, The Examiner finds that "Zicker clearly and explicitly
provides a design need and market pressure for the skilled artisan to use a
commonsensical approach to arrive at the ranges of these ingredients" based,
for example, on an "optimization rationale under Aller." (Id. at 20.)
Appellants argue the Examiner's analysis is legally flawed. More
specifically, Appellants contend the Examiner has "failed to provide an
articulated rationale for why one of ordinary skill in the art would have
combined the myriad of various scopes disclosed in Zicker in order to arrive
at the Applicants' claimed invention" and further that the Examiner "failed
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Application 12/528, 164
to establish that there were a finite number of identifiable and predictable
solutions disclosed in Zicker." (Br. 5, 8.)8
Appellants' arguments are not persuasive. As the Examiner correctly
points out, Zicker discloses a pet food composition that includes all of the
ingredients of claim 1. (FF 2, 3.) With the exception of lysine, manganese,
and methionine, the ranges of the ingredients in Zicker and claim 1 overlap.
(Id.) As for lysine, manganese, and methionine, those are well known
ingredients for cat foods as recognized in at least Zicker and AAFCO. (FF
3, 6.) And AAFCO discloses amounts for lysine, manganese, and
8 Appellants also argue that the "commercial" compositions described in
Example 2 of the Specification are not "identified as 'prior art."' (Br. 3--4).
Thus, 1A1ppellants argue, it \~1as inappropriate for the Examiner to cite those
compositions in the rejections. The "commercial" compositions in
Example 2 are identified in the Specification as "being available from
commercial sources" and "the same brand of food, but produced in different
lots." (Spec. i-f 36). From this, the Examiner inferred those compositions are
prior art. (Ans. 16-22.) Whether the compositions are prior art is
information that would seem to be uniquely in control of Appellants, who
owe a duty of good faith and candor in proceedings before the Patent Office.
(Ans. 20.) Nevertheless, we need not decide if the "commercial"
compositions are, in fact, prior art. The Examiner cited those compositions
to illustrate it was well known to use methionine, manganese, and linoleic
acid in cat food compositions (methionine and manganese appearing in these
"commercial" compositions in amounts within the range of claim 1 ). (Ans.
9-11, 20-21; Br. 7.) Other art of record, such as AAFCO, discloses use of
methionine, manganese, and linoleic acid in cat food sufficient to sustain the
present rejections. See generally, In re Bush, 296 F.2d 491, 496 (CCPA
1961) (the Board may rely on less than all of the references relied upon by
Examiner).
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methionine in cat food that overlap with the claimed ranges, or nearly so. 9
We illustrate the disclosures in Zicker and AAFCO (regarding lysine,
manganese, and methionine) compared to claim 1 in the table below:
DHA (about 0.1---0.7%)
Choline (about 2400-
7500 ppm)
Vitamin E (about 200-
1200 IU/kg = 133-533
Ill
Vitamin C (about 50-
500 ppm)
Lysine (about 2.5-7
/1000 kcal)
EPA (about 0.1---0.7%)
DHA (about 0.05-
0.4%)
Choline (about 500-
7500 ppm)
Vitamin E (250-1500
ppm)
Vitamin C (about 5-
225 ppm)
Lysine
EPA & DPA mixture
(about 0.1-1 %)
Manganese (about 50- Manganese
200 Ill
Methionine (about 0.5- Methionine
1.6%)
Lysine (minimum 3.00
/1000 kcal)
Manganese (minimum
7 .5 Ill
Methionine (minimum
0.62% to maximum
1.5%)
Contrary to Appellants' argument, the Examiner has articulated a
rationale for why the person of ordinary skill in the art would have chosen
the composition of Zicker as a starting point. Appellants argue that the
Examiner's focus on this composition "does not explain why the Examiner
9 Although the 7.5 ppm of manganese in AAFCO is below the claimed range
of about 50-250 ppm, AAFCO discloses it is a "minimum" amount. (FF 6.)
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honed in on that scope, to the exclusion of any of the specific formulations
disclosed in Zicker." (Br. 5.) But, as the Examiner notes, the relied-upon
composition in Zicker and the composition of claim 1 are addressed to the
same problem - neurological development of a cat. (Final Act. 19;
compare Zicker i-f 30 with Spec. i-f 27.) The Examiner's selection of the
particular composition of Zicker, therefore, is supported by evidence and an
explanation with a rational underpinning. Moreover, Zicker' s teaching of
the need for cat foods "to enhance the feline's trainability and cognitive
function" establishes a design and market need, and provides a reason to
believe the skilled artisan would, as a matter of routine optimization, have
predictably designed a composition within the scope of the present claims
based on the ingredients and ranges already known in the art. (Final Act.
20.) In re Peterson, 315 F.3d at 1329-30 ("The normal desire of scientists or
artisans to improve upon what is already generally known provides the
motivation to determine where in a disclosed set of percentage ranges is the
optimum combination of percentages.") In making these contentions, and
supporting them with reasoning and evidence, the Examiner met their
burden.
We similarly reject Appellants' argument that the possibilities in
Zicker are too numerous to sustain the obviousness rejections. (Br. 9.)
Instead, we agree with the Examiner that the optimization required is within
the capabilities of the skilled person, absent evidence to the contrary. KSR
Int'! Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (an obviousness analysis
"can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.") As discussed, Zicker discloses all
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eight of the ingredients in the composition of claim 1, and teaches ranges
that encompass the claimed amounts for five of those ingredients. (FF 2, 3.)
AAFCO teaches amounts of well-known cat food ingredients lysine,
manganese, and methionine within or close to Appellants' claimed ranges.
(FF 6.) Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317, 1322
(Fed. Cir. 2004) (internal citations omitted) ("[W]here there is a range
disclosed in the prior art, and the claimed invention falls within that range,
there is a presumption of obviousness. But the presumption will be rebutted
if it can be shown: ( 1) That the prior art taught away from the claimed
invention ... or (2) that there are new and unexpected results relative to the
prior art.") Based on the existing record, which has not provided sufficient
evidence of teaching away, or of criticality, or unexpected results of the
claimed ranges, we agree with the Examiner's determination that claim 1 is
obvious. 10
Claims 2, 6, and 10 have not been argued separately and fall with
claim 1. 37 C.F.R. § 41.37( c )(1 )(iv).
Claims 20 and 21 include the additional ingredient of linoleic acid.
The Examiner cites to Zicker's teaching of the benefits of omega-3 and
omega-6 fatty acids, but notes that linoleic acid is not expressly identified in
10 Appellant states that "claimed composition, which is useful for enhancing
neurological development, comprises eight recited interdependent
components, where the level of each is influenced by and dependent upon
the level of the other components of the composition." (Br. 9.) Such
attorney argument does not take the place of objective evidence, and fails to
persuade us that the claims are nonobvious. In re Pearson, 494 F.2d 1399,
1405 (CCPA 1974).
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its compositions. (Final Act. 4---6.) The Examiner further cites to AAFCO
as teaching the use of linoleic acid in cat foods, and cites to Homstra as
teaching the "essentiality of [omega-3 and omega-6 fatty acids] for
reproductive, brain and visual functions ... [with] special emphasis on
linoleic acid." (Id. at 7.) The Examiner concludes it would have been
obvious to modify the compound of Zicker to include linoleic acid as taught
in AAFCO and Homstra for at least the reason that the references recognize
it as "a critical nutrient for the health of an animal, that is essential for
reproductive, brain and visual functions, and that it is a precursor to other
longer chain fatty acids in the body." (Id. at 13.)
The Appellants' principle counterargument is that Homstra is non-
analogous art. (Br. 8. ("Homstra, however, seems relevant simply for
background on the importance for essential fatty acids with respect to
humans, not necessarily felines.")). We disagree. Homstra is cited (indeed
incorporated by reference) in Zicker as teaching "[e]ssential fatty acids ...
are critical nutrients for the health of an animal ... [that] cannot be made in
sufficient amounts to elicit benefits and therefore must be consumed in an
animal's diet." (FF 4, 5; Zicker i-fi-14, 50.) Like the present application,
Zicker is concerned with pet foods related to the health and neurological
development of cats. (FF 1--4.) Because Zicker and the present application
share common inventors, Homstra most likely would have been considered
by those inventors in addressing essentially the same problem. In re Klein,
647 F.3d 1343, 1348 (Fed. Cir. 2011) (a reference is reasonably pertinent
and thus analogous if it "would have commended itself to an inventor's
attention in considering his problem."). Homstra is reasonably pertinent to
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the problem addressed in the present application. The arguments to the
contrary are not persuasive.
Appellants' only remaining argument with respect to linoleic acid is
that the "concentration disclosed by the AAFCO reference is well below
what is currently claimed." (Br. 9.) We reject this argument for reasons
similar to those above. AAFCO discloses a minimum of 0.5% of linoleic
acid (FF 6) while claims 20 and 21 recite "about 2.5% to about 6% linoleic
acid." We find that it would have been obvious to modify the amount of
linoleic acid in AAFCO in a composition of Zicker as a matter of routine
optimization, particularly considering the importance attributed to such
essential fatty acids as disclosed in Zicker and Homstra. (FF 4---6; Final Act.
13.)
Appellants offer additional arguments with respect to method
claims 11-20, which generally recite administering the composition of
claim 1 to a feline (e.g., a pregnant feline, a feline in utero, a kitten prior to
or after weaning). These arguments, however, are little more than recitation
of the claim language and statements that the claims are not obvious.
(Br. 11 ("the method to enhance the neurologic development of a feline
comprising administering to the feline or to the mother of the feline while
the feline is in utero the composition of claim 1 would not be obvious.").)
The Examiner, on the other hand, finds that "Zicker discloses that the
growth stage of the growing animal is from birth to one year of age" and "is
inclusive of a kitten, per Applicant's claims 11, 12, 18[,] and 19." (Ans. 8,
35; Final Act. 26-28.) The Examiner finds that "[a] person of skill in the art
would further know that a cat is capable of becoming pregnant during the
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specified growth stage of Zicker. As such, Zicker is applicable to both
newly born kittens, as well as cats, which can become pregnant and carry a
fetus in utero." (Ans. 35.) In discussing claims 13-17, the Examiner further
points to Jones as teaching that "female cats typically reach sexual maturity
between five and nine months of age, and that it is further also possible for
female kittens as young as four months to go into heat and become
pregnant." (Ans. 14.) 11 The Examiner then concludes, "the growth stage of
Zicker is inclusive of the growth age before pregnancy, as well as the growth
age during which a cat can become pregnant and give birth. Accordingly, in
view of the teachings of Zicker, further in view of Jones, a person of skill in
the art would be motivated to give the composition of Zicker to both
sexually immature kittens after birth, as well as to sexually mature kittens
while they are pregnant." (Id.)
The Examiner has the better position. Appellants' arguments do not
respond to the substance of the Examiner's rejections. 37 C.F.R. §
41.37(c)(l)(iv) (argument that merely points out what a claim recites is
unpersuasive). To the extent Appellants argue Jones "provides no teaching
regarding any particular diet or any method to enhance the neurologic
development of a feline" (Br. 11 ), that is irrelevant. The diet for
neurological development is disclosed in Zicker and the other references,
11 Appellants question the prior art status of Jones (according to Examiner,
for the first time on appeal) stating it "seems to be an undated website." (Br.
11.) The Examiner cites to a communication from the website publisher that
the Examiner contends "establishes that Jones was available in 2006, and is
thus prior art." (Ans. 35.) Appellants did not contest this evidence, so we
find the Examiner has sufficiently shown that Jones is prior art.
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whereas the Examiner relies on Jones to support the conclusion that it would
have been obvious that feeding such a diet to growing felines includes
feeding pregnant and non-pregnant cats and kittens. (FF. 1, 7.)
Conclusion of Law
We conclude that the Examiner established by a preponderance of the
evidence that claims 1, 2, 6, and 10-21 would have been obvious over
Zicker, WolframAlpha, Applicants' admitted prior art, AAFCO, and
Homstra.
We further conclude that the Examiner established by a
preponderance of the evidence that claims 13-17 are obvious over Zicker,
WolframAlpha, Applicants' admitted prior art, AAFCO, and Homstra, in
further view of Jones.
SUMMARY
We affirm the rejections of claims 1, 2, 6, and 10-21 as obvious.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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