Ex Parte Zicker et alDownload PDFPatent Trial and Appeal BoardAug 26, 201612528137 (P.T.A.B. Aug. 26, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 12/528, 137 09/02/2010 23909 7590 08/30/2016 COLGATE-PALMOLIVE COMPANY 909 RIVER ROAD PISCATAWAY, NJ 08855 FIRST NAMED INVENTOR Steven Curtis Zicker 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. 8075-00-US-Ol-HL 1870 EXAMINER YOO, HONG THI ART UNIT PAPER NUMBER 1793 NOTIFICATION DATE DELIVERY MODE 08/30/2016 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 uspto@thebellesgroup.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte STEVEN CURTIS ZICKER, RYAN MICHAEL YAMKA, and KIM GENE FRIESEN Appeal2015-000205 Application 12/528,137 Technology Center 1700 Before ADRIENE LEPIANE HANLON, MICHAEL P. COLAIANNI, and AVEL YN M. ROSS, Administrative Patent Judges. COLAIANNI, Administrative Patent Judge. DECISION ON APPEAL Appeal2015-000205 Application 12/528,137 Appellants appeal under 35 U.S.C. § 134 the final rejection of claims 1-15. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). We AFFIRM. Appellants' invention is directed to a pet food composition for enhancing the development of growing animals (Spec. i-f 2; claim 1 ). Claims 1 and 6 are illustrative: 1. A pet food composition comprising: about 0.5 to about 1.6% methionine; about 50 to about 200 ppm manganese; and about 0.1 to about 0.7% eicosapentaenoic acid. 6. The composition of claim 1 comprising about 1 to about 3% total n-3 fatty acids. Appellants appeal the following rejections: 1. Claims 1---6, 9-12, and 14 are rejected under 35 U.S.C. § 103(a) as unpatentable over Friesen et al (US 2006/0045909 Al; published Mar. 2, 2006) ("Friesen"). 2. Claims 7, 8, and 13 are rejected under 35 U.S.C. § 103(a) as unpatentable over Friesen in view of Zicker et al. (WO 2006/072084 A12, published July 6, 2006) ("Zicker"). 3. Claims 1-3 and 7-14 are provisionally rejected on the ground of nonstatutory obviousness-type double patenting as being unpatentable over claims 1, 2, 6, and 10 over copending Application No. 12/528,164. Regarding rejections (1) and (2), Appellants' arguments focus on independent claim 1 and dependent claim 6 (Br. 3---6). According, claims 2- 2 Appeal2015-000205 Application 12/528,137 5, and 7-15, which depend from claim 1, will stand or fall with our analysis of Appellants' arguments regarding claim 1. Regarding the provisional obviousness-type double patenting rejection, Appellants request that the Examiner reconsider the rejection upon indication of allowable subject matter in one of the applications (Br. 6-7). We note that the claims in Application No. 12/528,164 have been amended since the December 2013 Final Action in the present application. Because the claims have changed in scope, we decline to reach the provisional obviousness-type double patenting rejection. Ex parte Jerg, 2012 WL 1375142 *3 (BPAI 2012) (Informative) ("Panels have the flexibility to reach or not reach provisional obviousness-type double-patenting rejections. See Ex parte Moncla, 95 USPQ2d 1884 (BPAI 2010) [Precedential]"). We leave it to the Examiner to determine the propriety of the rejection in light of the changes to the claims upon return of jurisdiction to the Examiner. Id. FINDINGS OF FACT & ANALYSIS Claim 1 Appellants argue that Friesen's Table 19 pet food composition includes 2.395% methionine, which is outside the methionine range recited in claim 1 (Br. 3). Appellants contend that to arrive at the subject matter of claim 1, one of ordinary skill in the art would have to combine the methionine amount recited in the Table 18 composition with the Table 19 composition. Id. Appellants argue that the Examiner's rejection is premised on using Friesen's Table 19 composition as the base composition to modify, which Appellants argue the Examiner fails to provide any rationale for combining Friesen's Table 18 pet food composition with Friesen's Table 19 pet food composition (Br. 4). Appellants contend that modifying Friesen's 3 Appeal2015-000205 Application 12/528,137 Table 19 pet food composition with the methionine amount in Table 18 tailored for dog breeds of Cluster III would have rendered the Table 19 composition unsuitable for its intended purpose of treating the concerns unique to the dog breeds of Cluster IV (Br. 4--5). Appellants argue that there is no reason to modify the pet food composition of Cluster IV with the methionine amount recited for Cluster III dogs because Friesen discloses that the composition of Table 19 is designed to match the needs of Cluster IV dogs (Br. 5). Appellants' arguments have been fully considered but are unpersuasive because they fail to show reversible error with the Examiner's specifically stated rejection. In particular, the Examiner finds that Friesen's Table 18 composition contains all the components recited in claim 1 in amounts that fall within or overlap the ranges recited in claim 1 except for the amount of eicosapentaenoic acid (EPA) and manganese (Final Act. 3). The Examiner further finds that Friesen discloses that the amount of manganese in the Table 18 pet food composition includes 230 ppm manganese, which is included in the claim limitation of "about 200 ppm" manganese (Ans. 3). In other words, the Examiner finds that Friesen's Table 18 composition is only missing the amount of EPA required by the claim 1. The Examiner finds that Friesen's Table 19 pet food composition includes an amount of EPA and manganese that overlaps with the range recited in claim 1. (Final Act. 3). The Examiner concludes that it would have been obvious to add EPA in an amount taught by Friesen in the Table 19 pet food composition to the pet food composition described in Table 18 that contains DL-methionine (methionine) and manganese in order to provide known health benefits to the animal (Final Act. 3; Ans. 4 ). The Examiner finds that 4 Appeal2015-000205 Application 12/528,137 Friesen discloses designing the food composition to address a disease, treatment, or prevention of a particular animal (Ans. 3--4). The Examiner finds that Friesen discloses that the food content can be customized to the particular animal (Ans. 4). The Examiner's rejection is based upon using Friesen's Table 18 composition as the primary composition containing amounts of methionine and manganese that are within the ranges recited in claim 1. The Examiner proposes modifying Friesen's Table 18 composition to include the amount of EPA recited in Table 19 so as to customize the food composition and provide the benefits of EPA to an animal (Ans. 3--4). Appellants have not filed a reply brief to challenge or contest any of the Examiner's findings stated in the Answer. Friesen teaches that EPA is added to the pet food composition to treat arthritis in dogs (i-f 68). Friesen discloses that the Table 18 food composition is an exemplary food compositions for dog breeds of Cluster III (i-f l 08). Friesen further discloses that Cluster III includes the breeds Irish wolfuound and St. Bernard that are prone to having arthritis (i-f 60). Accordingly, it would have been obvious to modify the exemplary pet food composition of Table 18 to include an EPA amount from the Table 19 food composition to address arthritis in breeds included in Cluster III. Claim 6 Appellants argue that the Examiner erroneously relies upon Friesen teaching that the amount of omega-6 and omega-3 fatty acids total 6% (Br. 5). Appellants contend that Friesen's Table 16 teaches that the ratio of 5 Appeal2015-000205 Application 12/528,137 omega-6 to omega-3 fatty acids is 6, not that the percent of the composition is 6% omega fatty acids (Br. 6). Appellants' argument regarding claim 6 does not show reversible error with the Examiner's finding that Friesen's Table 16 disclosure that the ratio of omega-6 fatty acids to omega-3 fatty acids is 6 means that for 6% omega-6 fatty acids in the composition there is 1 % omega-3 fatty acids (Final Act. 4). Indeed, a ratio is a fixed relation in degree, number, etc. between two similar things. 1 On this record and for the above reasons, we affirm the Examiner's § 103 rejections. 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 1 Webster's New World Dictionary of the American Language, College Ed. "ratio" 1206 © 1964. 6 Copy with citationCopy as parenthetical citation