PALM SILAGE, INC.

Patent Trials and Appeals Board

Dec 31, 2020

2020003233 (P.T.A.B. Dec. 31, 2020)

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.
13/794,686 03/11/2013 James Clifford Parks SILAG.001A 6541
20995 7590 12/31/2020
KNOBBE MARTENS OLSON & BEAR LLP
2040 MAIN STREET
FOURTEENTH FLOOR
IRVINE, CA 92614
EXAMINER
SAYALA, CHHAYA D
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
12/31/2020 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):
efiling@knobbe.com
jayna.cartee@knobbe.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JAMES CLIFFORD PARKS
Appeal 2020-003233
Application 13/794,686
Technology Center 1700
Before N. WHITNEY WILSON, BRIAN D. RANGE, and
MERRELL C. CASHION, JR., Administrative Patent Judges.
WILSON, Administrative Patent Judge.
DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s September 26, 2018 decision to finally reject claims 1, 19, 21,
22, 24, 28, 29, 32, 33, 36, 40, and 45–48 (“Final Act.”). An oral hearing was
held on December 10, 2020, an oral transcript of which will be part of the
record. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1 We use the word Appellant to refer to “applicant” as defined in
37 C.F.R. § 1.42(a). Appellant identifies the real party in interest as Palm
Silage, Inc. (Appeal Br. 4).
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CLAIMED SUBJECT MATTER
Appellant’s disclosure is directed to an animal feed formed with a
base of palm fronds combined with dates (Abstract). According to
Appellant, palm fronds and palm dates have been considered waste
materials, and have faced challenges when attempts have been made to
include them in feed pellets (Appeal Br. 4). Claim 1, reproduced below
from the Claims Appendix, is illustrative of the claimed subject matter:
1. An animal feed for cattle, the cattle feed comprising:
cattle feed pellets having a palm frond component, a
palm fruit component, and a nutritional additive component;
wherein the palm frond component is ground palm frond
that has a moisture content of less than 14% by weight of the
palm frond;
wherein the palm fruit component is dates;
wherein the nutritional additive component is a grain;
wherein the pellets comprise between about 40% and
about 60% ground palm frond by weight of the pellets, wherein
the pellets comprise between about 15% and about 35% dates
by weight of the pellets, and wherein the pellets comprise
between about 15% and about 35% grain by weight of the
pellets; and
wherein the pellets have a nutritional content of between
about 5% and about 30% crude protein by weight of the pellets,
between about 2% and about 8% crude fat by weight of the
pellets, between about 15% and about 45% crude fiber by
weight of the pellets, and between about 4% and about 17% ash
by weight of the pellets.
Appeal Br. 34 (Claims App.).

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REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Cummings et al. US 5,250,307 Oct. 05, 1993
Burghardiet al. US 7,296,536 B2 Nov. 20, 2007
Preston GB 797,763 July 09, 1958
Seike et al. GB 2 185 673 A July 29, 1987
Inoue et al. GB 2 220 027 A July 27, 1988
Werner et al. CA 2 319 978 Mar. 20, 2002
O. Mahgoub et al., “Effects of feeding ensiled date palm fronds and by-
product concentrate on performance and meat quality of Omani sheep,”
Animal Feed Science and Technology, Vol. 135 (2007), pp. 210-221
(“Mahgoub I”).
W.H. Barreveld, "Date Palm Products" downloaded from
http://www.fao.org/docrep/t0681 e/t0681 e00.htm, Chapter 4, 16 total
pages, 2/2001.
O. Mahgoub et al., Dates: Production, Processing, Food, and Medicinal
Values, Chapter 23, pp. 323-338, CRC Press (2012) (“Mahgoub II).
R.J. Rasby et al. ("Understanding and Using a Feed Analysis", dated
September 2008, 11 pages).
D. Genin et al., “Valorisation of date-palm by-products (DPBP) for
livestock feeding in Southern Tunisia,” CIHEAM, Options
Méditerraneennes: Série A. Seminaires Méditerraneans; n. 59, pp. 221-
226, 2004.

REJECTIONS
1. Claims 1, 19, 21, 22, 24, 28, 29, 32, 33, 36, 40, and 45–47 are
rejected under 35 U.S.C. § 112, first paragraph for failing to comply with the
written description requirement.
2. Claims 1, 36, 40, and 45–47 are rejected under
35 U.S.C. §103(a) as unpatentable over Mahgoub I in view of Barreveld,
Mahgoub II, Werner, Burghardi, and Rasby.
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3. Claim 48 is rejected under 35 U.S.C. §103(a) as unpatentable
over Mahgoub I in view of Barreveld, Maugoub II, Werner, Burghardi, and
Rasby.
4. Claims 19, 21, 22, 24, 28, 29, 32, and 33 are rejected under
35 U.S.C. §103(a) as unpatentable over Mahgoub I in view of Barreveld,
Mahgoub II, Werner, Burghardi, Rasby, and Cummings.
5. Claims 1, 19, 21, 22, 24, 28, 29, 32, 33, 36, 40, and 45–48 are
rejected under 35 U.S.C. § 103(a) as unpatentable over Inoue and Seike, in
view of Preston, Mahgoub II, Werner, and Barreveld.
6. Claims 19, 21–24, 28, 29, 32, 33, 36, 40, and 45–48 are rejected
under 35 U.S.C. § 103(a) as unpatentable over Preston in view of Genin,
Mahgoub II, Barreveld, and Werner.
DISCUSSION
Rejection 1 – Written Description. The Examiner determines that
claims 1, 19, 21, 22, 24, 28, 29, 32, 33, 36, 40, and 45–47 fail to comply
with the written description requirement of 35 U.S.C. § 112, first paragraph
because the Specification allegedly does not describe the percentages of the
claimed components as percent by weight of the pellets (Final Act. 2–3). In
particular, the Examiner points to the fact that the claim language recites an
animal feed which comprises pellets, but the Specification only describes the
weight percentages in terms of the weight of the feed (id.).
To satisfy the written description requirement of 35 U.S.C. § 112, the
Specification must allow a person of ordinary skill in the art to recognize
that the inventor invented what is claimed. In re Gosteli, 872 F.2d 1008,
1012 (Fed. Cir. 1989). The Specification must reasonably convey to a
person of ordinary skill in the art that the inventor had possession of the
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claimed subject matter as of the filing date. Ralston Purina Co. v. Far-Mar-
Co, Inc., 772 F.2d 1570, 1575 (Fed. Cir. 1985); see also Vas-Cath Inc. v.
Mahurkar, 935 F.2d 1555, 1563 (Fed. Cir. 1991). The Specification,
however, need not describe the claimed subject matter word-for-word. In re
Wertheim, 541 F.2d 257, 262 (CCPA 1976).
In this instance, we agree with Appellant that a person of skill in the
art would have understood that the inventor had possession of the claimed
subject matter as of the filing date. The Specification is clear in noting that
the feed may be formed into pellets (Spec. ¶ 40). Thus, references to a
weight percentage of the feed would also convey to a person of skill in the
art that this also refers to a weight percentage of the pellets, if the feed were
solely in the form of pellets. That the claim recites a feed comprising pellets
does not mean that the claimed feed cannot consist of pellets (i.e. have
nothing but pellets). It merely allows for the possibility that the claimed
feed may include components other than the claimed pellets.
Therefore, we conclude that the claims satisfy the written description
requirement.
Rejections 2–6 – Obviousness Rejections. Each of the three
independent claims recite that the palm frond component of the claimed
pellets is ground palm frond with a moisture component of less than 14% by
weight of the palm frond (see, claims 1, 19, and 48). Appellant argues, inter
alia, that the Examiner has not adequately established that this limitation
would have been obvious in view of the cited art. Based on a review of the
evidence and arguments adduced by both Appellant and the Examiner, we
agree with Appellant.
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In each of Rejections 2, 3, and 4, the Examiner relies on Barreveld as
rendering obvious the ground palm frond having a moisture content of less
than 14% (Final Act. 8–9, 15, 20–21). For Rejections 5 and 6, the Examiner
relies on Seike (Final Act. 30, 35) and Preston (Final Act. 39), respectively,
as rendering this limitation obvious. In particular, the Examiner relies on
Barreveld as teaching that “the moisture content of the final pellet must be
not more than 12–15%” and that “[t]herefore, it would have been obvious
that palm fronds which contain 55% moisture should also be reduced to 12–
15% moisture content when pelleted, so that water activity is low to provide
suitable storability and pellet quality as disclosed by Barreveld” (Final Act.
9). With respect to Seike, the Examiner finds that “[w]ith regards to
moisture content of the pellet, Seike discloses using corn mixed with dates
as in Example 1…[and] include a moisture content within 13%, rendering
the claimed amount obvious” (Final Act. 30). In connection with Preston,
the Examiner finds that Preston “discloses that the ‘finished material’ has
between 1-2% moisture” (Final Act. 39).
In each one of these instances, the Examiner relies on findings that the
final products (pellets) in the three references have moisture contents which
render obvious the limitation at issue here. However, that limitation does
not relate to the moisture content of the final pellet. Instead, the claims
recite the moisture content of the ground palm frond component. None of
the references address this specific issue.
The Examiner has the initial burden of establishing a prima facie case
of obviousness based on an inherent or explicit disclosure of the claimed
subject matter under 35 U.S.C. § 103. In re Oetiker, 977 F.2d 1443, 1445
(Fed. Cir. 1992) (“[T]he examiner bears the initial burden, on review of the
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prior art or on any other ground, of presenting a prima facie case of
unpatentability.”). To establish a prima facie case of obviousness, the
Examiner must show that each and every limitation of the claim is described
or suggested by the prior art or would have been obvious based on the
knowledge of those of ordinary skill in the art. In re Fine, 837 F.2d 1071,
1074 (Fed. Cir. 1988).
In this instance, the evidence of record does not support the
Examiner’s determination that the moisture content of the ground palm
frond component would have been obvious in view of the prior art. Instead,
the Examiner’s determination that the claimed moisture limitation would
have been obvious appears to be based on impermissible hindsight.
Accordingly, we reverse each of the prior art rejections.

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CONCLUSION
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 19, 21,
22, 24, 28,
29, 32, 33,
36, 40, 45–
47
112, ¶ 1 Written
Description
1, 19, 21, 22,
24, 28, 29,
32, 33, 36,
40, and 45–
47
1, 36, 40,
45–47
103(a) Mahgoub I,
Barreveld,
Mahgoub II,
Werner, Burghardi,
Rasby
1, 36, 40,
45–47
48 103(a) Mahgoub I,
Barreveld,
Mahgoub II,
Werner, Burghardi,
Rasby
48
19, 21, 22,
24, 28, 29,
32, 33
103(a) Mahgoub I,
Barreveld,
Mahgoub II,
Werner, Burghardi,
Rasby, Cummings
19, 21, 22,
24, 28, 29,
32, 33
1, 19, 21,
22, 24, 28,
29, 32, 33,
36, 40, 45–
48
103(a) Inoue, Seike,
Preston, Mahgoub
II, Werner,
Barreveld
1, 19, 21, 22,
24, 28, 29,
32, 33, 36,
40, 45–48
19, 21–24,
28, 29, 32,
33, 36, 40,
45–48
103(a) Preston, Genin,
Mahgoub II,
Barreveld, and
Werner
19, 21, 22,
24, 28, 29,
32, 33, 36,
40, 45–48
Overall
Outcome
1, 19, 21, 22,
24, 28, 29,
32, 33, 36,
40, 45–48

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REVERSED