2020002468 (P.T.A.B. Dec. 3, 2020)

Sara Cutler et al.

Patent Trials and Appeals BoardDec 3, 2020

2020002468 (P.T.A.B. Dec. 3, 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. 13/608,812 09/10/2012 Sara Cutler 3007246-1008 (KEM 198) 7043 86225 7590 12/03/2020 NYEMASTER GOODE P.C. 700 Walnut Street, Suite 1600 Des Moines, IA 50309-3899 EXAMINER SAYALA, CHHAYA D ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 12/03/2020 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): ptomail@nyemaster.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte SARA CUTLER, EWA SZAJNA-FULLER, ISABELLA ROTBERG, CARRIE WRAY, MY TRUONG, and MITCHELL POSS Appeal 2020-002468 Application 13/608,812 Technology Center 1700 Before LINDA M. GAUDETTE, DONNA M. PRAISS, and JOHN A. EVANS, Administrative Patent Judges. GAUDETTE, Administrative Patent Judge. DECISION ON APPEAL1 1 Citations to documents of record include the following: Specification filed Sept. 10, 2012 (“Spec.”); Final Office Action dated Mar. 18, 2019 (“Final Act.”); Appeal Brief filed Aug. 6, 2019 (“Appeal Br.”); Claims Appendix filed Sept. 10, 2019 (“Claims App.”); Examiner’s Answer dated Dec. 2, 2019 (“Ans.”); and Reply Brief filed Jan. 28, 2020 (“Reply Br.”). Appeal 2020-002468 Application 13/608,812 2 The Appellant2 appeals under 35 U.S.C. § 134(a), from the Examiner’s decision finally rejecting claims 10, 13, 19–21, 24, and 26.3 A telephonic hearing was held on November 19, 2020. We AFFIRM and enter a NEW GROUND OF REJECTION pursuant to 37 C.F.R. § 41.50(b). CLAIMED SUBJECT MATTER The invention “relates generally to antioxidant formulations containing extracts of tea and extracts of spearmint and, more specifically, to antioxidant formulations for pet food containing lipid-soluble extracts of tea and water-soluble extracts of a Lamiaceae spp. plant such as spearmint [or rosemary] containing, inter alia, rosmarinic acid.” Spec. ¶¶ 2, 6. Claims 10 and 19, reproduced below, are illustrative of the claimed subject matter: 10. A method for enhancing the stability of a fat-coated pet food composition comprising adding a combined antioxidant composition to the fat coating of the pet food composition, wherein the combined antioxidant composition comprises tocopherol, a rosmarinic acid-containing extract of a Lamiaceae spp. plant; and lipid soluble tea catechins, wherein the combined antioxidant composition exhibits similar or improved antioxidant activity compared to the first antioxidant composition. 19. A method for protecting animal fat in pet food from oxidation during rendering, comprising adding an antioxidant composition comprising tocopherol, a rosmarinic acid- containing extract of a Lamiaceae spp. plant, and lipid soluble 2 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies the real party in interest as Kemin Industries. Appeal Br. 5. 3 We have jurisdiction under 35 U.S.C. § 6(b). Appeal 2020-002468 Application 13/608,812 3 tea catechins to the fat prior to the rendering process or during the rendering process, whereby the tocopherol is added to the fat in an amount of between 10 and about 250 ppm and the lipid soluble tea catechins are added to the fat in an amount of between about 10 and 150 ppm. Claims App. 1. REFERENCES The Examiner relies on the following prior art: Name Reference Date Johnston US 5,498,434 Mar. 12, 1996 Todd US 5,527,552 June 18, 1996 Suzuki US 5,972,391 Oct. 26, 1999 Koike US 7,056,949 B2 June 6, 2006 Wolf US 2007/0059344 A1 Mar. 15, 2007 Lee US 7,244,460 B2 July 17, 2007 Horgan US 2007/0286932 A1 Dec. 13, 2007 Lin US 2008/0254177 A1 Oct. 16, 2008 Laskov US 2010/0021589 A1 Jan. 28, 2010 Horlacher US 2010/0260913 A1 Oct. 14, 2010 Baker AU 200010125 B3 June 15, 2000 Sakai EP 0 618 203 A1 Oct. 5, 1994 Zhong CN 1231277 A Oct. 13, 1999 Hsu WO 2007/021789 A1 Feb. 22, 2007 Shao CN 101270108 A Sept. 24, 2008 Appeal 2020-002468 Application 13/608,812 4 Ternes, Antioxidative constituents of Rosmarinus officinalis and Salvia officinalis, Z Lebensm Unters Forsch 201:548–550 (1995). Jia, Antioxidant synergism of tea polyphenols and –tocopherol against free radical induced peroxidation of linoleic acid in solution, J. Chemical Social Perkin Trans. 2 (1998). Renton, What a nice pig, Daddy, let’s eat him! Turning a pet into sausages isn’t for the squeamish, you may need help from your children, Peelham Farm at, www.peelham.co.uk (2009). REJECTIONS 1. Claims 10, 13, 21, 24, and 26 are rejected under 35 U.S.C. § 103(a) as unpatentable over Koike, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Johnston, and Todd. 2. Claims 10, 13, 21, 24, and 26 are rejected under 35 U.S.C. § 103(a) as unpatentable over Koike, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Horlacher, Jia, Lin, and Lee. 3. Claims 10, 13, 21, 24, and 26 are rejected under 35 U.S.C. § 103(a) as unpatentable over Suzuki, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Johnston, and Todd. 4. Claims 10, 13, 21, 24, and 26 are rejected under 35 U.S.C. § 103(a) as unpatentable over Suzuki, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Horlacher, Jia, Lin, and Lee. 5. Claims 19 and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Koike and Wolf, as evidenced by Laskov, Horgan, Appeal 2020-002468 Application 13/608,812 5 Renton, in view of Baker, Sakai, Zhong, Shao, Hsu, Ternes, Todd, Lin, and Lee. OPINION New Ground of Rejection Claims 10 and 13 are rejected under 35 U.S.C. § 112, second paragraph, or 35 U.S.C. § 112(b) as indefinite. The claim 10 term “first antioxidant composition” lacks antecedent basis, thereby rendering the claim unclear as to which composition is being compared to the combined antioxidant composition. For purposes of considering the patentability of the claims under 35 U.S.C. § 103(a), we have interpreted “the first antioxidant composition” as referring to tocopherol, as this interpretation is most consistent with the Specification and the Appellant’s arguments. See, e.g., Spec. ¶¶ 29, 34; Appeal Br. 17. In addition to being indefinite by virtue of its dependency from claim 10, claim 13 is also indefinite because it is unclear from the claim preamble whether the claim is to a composition or limits the scope of method claim 10. We additionally note that claim 26 incorrectly recites a “fact-coated pet food composition,” rather than a “fat-coated pet food composition” as recited in claim 21 from which claim 26 depends. Ground 1 The Examiner rejected claims 10, 13, 21, 24, and 26 under 35 U.S.C. § 103(a) as unpatentable over Koike, as evidenced by Laskov, Horgan, and Appeal 2020-002468 Application 13/608,812 6 Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes4, Johnston, Todd, Lin, and Lee. See Final Act. 3. Koike discloses an oil/fat composition that is said to have “excellent processing properties, good taste and excellent lowering action against glutamic oxaloacetic transaminase (GOT) and glutamic pyruvic transaminase (GPT) levels in blood.” Koike Abstract. Koike discloses that the oil/fat composition may contain an antioxidant suitable for use in pharmaceuticals or foods (id. at 4:62–65), including livestock feed and pet foods (id. at 6:39–42). Koike discloses that a “[c]ombination of one or more of catechin, tocopherol, vitamin C fatty acid esters, phospholipid and natural antioxidant components is preferred, with tocopherol and catechin [being] particularly preferred.” Id. at 4:65–5:1. Koike discloses that, “the natural antioxidant components include herbs such as rosemary.” Id. at 5:3–4. The Examiner cited Laskov and Horgan as evidence that rosemary includes rosmarinic acid. Final Act. 4. The Examiner found that Johnston and Todd suggest that “catechins, rosemary extract and tocopherol when combined provide oxidative stability for pet foods and particularly fat.” Id. at 7–8. The Examiner found that Koike does not specify that the catechins are lipid-soluble. Final Act. 4. However, the Examiner determined that the ordinary artisan would have substituted all or some of Koike’s water-soluble catechins with lipid soluble catechins based on Sakai’s, Zhong’s, Shao’s, and Hsu’s disclosures that “lipid soluble catechins are significantly better 4 We need not discuss Ternes as the Examiner relies on this reference solely for a teaching of claim 13 and claim 24 limitations, which are not argued. See Final Act. 9. Appeal 2020-002468 Application 13/608,812 7 antioxidants than water soluble tea catechins in stabilizing lipids.” Id. at 5–6 (emphasis omitted). The Examiner found that the above-cited references do not disclose coating pet food with an antioxidant-containing, oil/fat composition. Final Act. 8. However, the Examiner found that fat, “a palatability enhancing agent for pet foods,” can be incorporated in pet foods in only two ways: “1) by including fat in the basal composition of the kibble or dry pet food and 2) by coating the kibble or dry pet food.” Id. The Examiner further found that Lin and Lee explicitly disclose coating dry pet food with fat and antioxidants and, therefore, applying the modified Koike composition as a coating would have required no more than routine skill. Id.; see Lee 6:25– 36, 7:20–24 (including tocopherols and rosemary extract in a list of five suitable antioxidants and preservatives for coating kibble). The Appellant argues that “Koike does not teach the use of tocopherol and/or rosemary for purposes of improving the stability of pet food as claimed.” Appeal Br. 16. This argument is not persuasive of reversible error in the Examiner’s obviousness determination. The recitations “for enhancing the stability” (claim 10) and “with enhanced stability” (claim 21) appear in only the claim preambles and state a purpose or intended use. See Ans. 18. Preamble language is not regarded as limiting “when the claim body describes a structurally complete invention such that deletion of the preamble phrase does not affect the structure or steps of the claimed invention.” Catalina Mktg. Int’l, Inc. v. Coolsavings.com, Inc., 289 F.3d 801, 809 (Fed. Cir. 2002); see also Rowe v. Dror, 112 F.3d 473, 478 (Fed. Cir. 1997). The Appellant has not identified, Appeal 2020-002468 Application 13/608,812 8 nor do we find, Specification disclosure that supports construing the above- quoted claim 10 and claim 21 phrases as limiting. See, e.g., Spec. ¶ 2, quoted above. The Appellant argues that Koike fails to teach or suggest the claimed, antioxidant combination of tocopherol, catechin, and rosmarinic acid. Appeal Br. 16. This argument is not persuasive. As the Appellant acknowledges (see Appeal Br. 16), Koike discloses that “[t]he oil/fat composition of the present invention may contain an antioxidant,” and a “[c]ombination of one or more of catechin, tocopherol, vitamin C fatty acid esters, phospholipid and natural antioxidant components is preferred” (Koike 4:62–67). Koike discloses that tocopherol and catechin are particularly preferred, and lists rosemary as one of two exemplary natural antioxidant components.” Id. at 4:67–5:5. Thus, although some selection would have been required, Koike provides direction to select catechin, tocopherol, and rosmarinic acid from the listed antioxidant components. See PharmaStem Therapeutics, Inc. v. ViaCell, Inc., 491 F.3d 1342, 1364 (Fed. Cir. 2007) (explaining that an obviousness rejection predicated on selection of one or more components from numerous possible choices may be appropriate if the prior art provides direction as to which of many possible choices is likely to be successful); Ans. 19. The Appellant argues that the applied prior art does not teach or suggest adding the claimed, antioxidant combination to the fat coating of a pet food composition. Appeal Br. 16. This argument is also unpersuasive. As found by the Examiner, Koike expressly lists livestock feed and pet foods as exemplary feed uses for the oil/fat composition (Koike 6:39– Appeal 2020-002468 Application 13/608,812 9 43). Regarding addition of the antioxidant combination to a coating composition, the Appellant argues that the Examiner’s finding that the ordinary artisan would have had two choices for including fat in pet food— adding it to the kibble or coating the kibble—is insufficient to support a conclusion of obviousness because the Examiner has not identified motivation in the prior to add Koike’s antioxidant combination as a coating. See Appeal Br. 18. As an initial matter, we note that the Appellant has not addressed the Examiner’s finding that Lin and Lee, i.e., the prior art, teach coating pet food with palatability enhancers comprising fat. See Final Act 8; Lin ¶ 83; Lee 6:25–27; see generally Appeal Br. 12–24. Moreover, the Supreme Court has stated expressly that although it can be important to identify a reason that would have prompted a person of ordinary skill in the relevant field to combine the elements in the way the claimed new invention does . . . [an obviousness] analysis need not seek out precise teachings [in the prior art] directed to the specific subject matter of the challenged claim. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007). “If a person of ordinary skill can implement a predictable variation, § 103 likely bars its patentability.” Id. at 417; see also PharmaStem, 491 F.3d at 1364. The Examiner has addressed the Appellant’s argument that the Examiner’s reliance on numerous references evidences improper hindsight reconstruction. See Appeal Br. 17; Ans. 20. We add that many of the references are cited solely as evidence as to the knowledge of the ordinary artisan and the features inherent in the primary references’ compositions. See, e.g., Final Act. 4 (citing Laskov and Horgan as evidence that rosemary contains rosmarinic acid), 5 (citing Sakai, Zhong, Shao, and Hsu as evidence Appeal 2020-002468 Application 13/608,812 10 that the ordinary artisan was aware that lipid soluble tea catechins are better antioxidants than water soluble tea catechins in stabilizing lipids). The Appellant argues that the inventors surprisingly found that the combination of tocopherol and lipid soluble tea catechins in the claimed amounts “provide[s] a synergistic protective effect, enabling a reduction in tocopherol to approximately one-fifth of the prior inclusion level without significantly increasing either the peroxide or 1,4-decadienal values in the compositions tested.” Appeal Br. 17. The Appellant directs us to Table 11 and Specification page 11. Appeal Br. 17. The Appellant’s evidence is not persuasive of unexpected results. See Ans. 11. The Appellant argues claims 10, 13, 21, 24, and 26 as a group. When the Appellant argues multiple claims subject to the same ground of rejection as a group, “the Board may select a single claim from the group . . . and may decide the appeal as to the ground of rejection with respect to the group . . . on the basis of the selected claim alone.” 37 C.F.R. § 41.37(c)(iv). In other words, the Board may select claim 10 for purposes of deciding the appeal of above-listed ground of rejection 1. Claim 10 does not specify the amounts of tocopherol, catechins, or rosmarinic acid added to the fat coating. As the Specification disclosure provides testing of antioxidant combinations containing 240 ppm or less of tocopherol and 70 ppm or less of lipid soluble catechins, the evidence is far from commensurate in scope with claim 10 and, therefore, unpersuasive of unexpected results. See In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005). Although we need not consider the patentability of claims subject to this ground of rejection which do specify amounts of tocopherol and Appeal 2020-002468 Application 13/608,812 11 catechins, we make the following observations to advance prosecution. Claim 21 recites “[a]n improved fat-coated pet food composition with enhanced stability of the fat coating,” and specifies that “the fat-coating of the pet food comprises between 10 and about 250 ppm of the tocopherol and between 10 and 150 ppm of the lipid soluble tea catechins.” See Claims App. 1. On Specification page 11, the inventors describe testing the effect of antioxidant combinations on peroxide and 2,4-decadienal values. Fat treated with combinations of 70 ppm lipid soluble catechins and either 50 or 240 ppm tocopherol were tested and compared to untreated fat, fat containing 240 ppm tocopherol alone, and fat containing 70 ppm lipid soluble catechins alone. Spec. 11. As explained by our reviewing court, [e]vidence of secondary considerations must be reasonably commensurate with the scope of the claims. This does not mean that an applicant is required to test every embodiment within the scope of his or her claims. If an applicant demonstrates that an embodiment has an unexpected result and provides an adequate basis to support the conclusion that other embodiments falling within the claim will behave in the same manner, this will generally establish that the evidence is commensurate with scope of the claims. In re Kao, 639 F.3d 1057, 1068 (Fed. Cir. 2011) (internal citations omitted). The Appellant’s evidence is insufficient to meet these requirements. No testing was conducted at the end points of the claimed ranges, or outside of the claimed ranges. There was no testing of amounts near the low end of the claimed ranges, and only a single amount of lipid soluble catechins was tested. In sum, taking into account the Appellant’s evidence of unexpected results, we determine that a preponderance of the evidence weighs in favor Appeal 2020-002468 Application 13/608,812 12 of obviousness for the reasons stated in the Final Office Action, the Answer, and above. We sustain the rejection of claims 10, 13, 21, 24, and 26 as unpatentable over Koike, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Johnston, Todd, Lin, and Lee. Ground 2 The Examiner rejected claims 10, 13, 21, 24, and 26 under 35 U.S.C. § 103(a) as unpatentable over Koike, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Horlacher, Jia, Lin, and Lee. See Final Act. 3. The Examiner found that Horlacher and Jia disclose that “catechins, rosemary extract and tocopherol when combined provide oxidative stability for pet foods and particularly fat.” Final Act. 7–8. The Examiner relies on Koike, Laskov, Horgan, Renton, Sakai, Zhong, Shao, Hsu, Ternes, Lin, and Lee as discussed in Ground 1, above. The Appellant does not raise additional arguments directed to this combination of references. Accordingly, we sustain the rejection for the same reasons discussed in Ground 1. Ground 3 The Examiner rejected claims 10, 13, 21, 24, and 26 under 35 U.S.C. § 103(a) as unpatentable over Suzuki, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Johnston, Todd, Lin, and Lee. See Final Act. 3. Suzuki discloses manufacturing feed for swine by blending spices and vitamin E with starting materials, such as grains, and then forming pellets, mush, or crumbles. Suzuki 2:65–3:11. Preferred spices include tea, rosemary, sage, and oregano. Id. at 2:31–33. The Examiner cited Laskov and Appeal 2020-002468 Application 13/608,812 13 Horgan as evidence that “rosmarinic acid, a natural polyphenol antioxidant carboxylic acid, is found in many Lamiaceae plants such as rosemary, sage, [and] oregano. Final Act. 4. The Examiner found that vitamin E includes tocopherol. Id. The Examiner cited Renton as evidence that a pig is an animal that is both reared as a pet and as a food source. Id. at 4. The Examiner relies on the same fact finding and reasoning discussed in Ground 1, above, as to the remaining references. See id. at 5–9. The Appellant argues that Suzuki adds spice and vitamin E to swine feed to improve “the quality, the taste and the smell, etc. of livestock meat,” and is not concerned with improving the shelf-life of the feed itself. Appeal Br. 14 (citing Suzuki 1:15–37). The Appellant contends that “Suzuki’s limited teachings regarding livestock feed do not extend to compositions for stabilizing a fat-coated pet food composition as the Examiner suggests and should be rejected.” These arguments are not persuasive of reversible error in the Examiner’s obviousness determination. As discussed in Ground 1, above, we construe the preamble language “for enhancing the stability” (claim 10) and “with enhanced stability” (claim 21) as functional language that is not limiting. To the extent that the Appellant is suggesting that Suzuki is nonanalogous art, we disagree. The Federal Circuit counsels us to construe the scope of analogous art broadly. Wyers v. Master Lock Co., 616 F.3d 1231, 1238 (Fed. Cir. 2010). Suzuki is directed to formulating animal feed, the same field of endeavor with which the inventors were concerned. As to the recitation of a “pet food composition,” we view the term “pet” as a functional recitation. In other words, the Specification does not define “pet food” and the Appellant has Appeal 2020-002468 Application 13/608,812 14 not explained how food intended for pets differs in structure or composition from food intended for livestock. See Final Act. 4 (“Note that the instant specification does not define what animals are to be considered as pets and describes only one food, a kibble food, hence being totally non-descriptive as to what pets and pet foods are included.”); In re Swinehart, 439 F.3d 210, 212 (CCPA 1971) (explaining that functional language is nothing more than “defin[ing] (in this case, a composition) by what it does rather than by what it is (as evidenced by specific structure or material, for example). . . . [W]here the Patent Office has reason to believe that a functional limitation asserted to be critical for establishing novelty in the claimed subject matter may, in fact, be an inherent characteristic of the prior art, it possesses the authority to require the applicant to prove that the subject matter shown to be in the prior art does not possess the characteristic relied on.”). Any additional arguments made by the Appellant have been discussed above in Ground 1. In sum, taking into account the Appellant’s evidence of unexpected results, we determine that a preponderance of the evidence weighs in favor of obviousness for the reasons stated in the Final Office Action, the Answer, and above. We sustain the rejection of claims 10, 13, 21, 24, and 26 over Suzuki, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Johnston, Todd, Lin, and Lee. Ground 4 The Examiner rejected claims 10, 13, 21, 24, and 26 under 35 U.S.C. § 103(a) as unpatentable over Suzuki, as evidenced by Laskov, Horgan, and Renton, in view of Sakai, Zhong, Shao, Hsu, Ternes, Horlacher, Jia, Lin, and Lee. See Final Act. 3. The Examiner found that Horlacher and Jia disclose Appeal 2020-002468 Application 13/608,812 15 that “catechins, rosemary extract and tocopherol when combined provide oxidative stability for pet foods and particularly fat.” Final Act. 7–8. The Examiner relies on Suzuki, Laskov, Horgan, Renton, Sakai, Zhong, Shao, Hsu, Ternes, Lin, and Lee as discussed in Ground 3, above. The Appellant does not raise additional arguments directed to this combination of references. Accordingly, we sustain the rejection for the same reasons discussed in Ground 3. Ground 5 Claims 19 and 20 are rejected under 35 U.S.C. § 103(a) as unpatentable over Koike and Wolf, as evidenced by Laskov, Horgan, and Renton, in view of Baker, Sakai, Zhong, Shao, Hsu, Ternes5, Todd, Lin, and Lee. Claim 19 recites “A method for protecting animal fat in pet food from oxidation during rendering, comprising adding an antioxidant composition comprising tocopherol, a rosmarinic acid-containing extract of a Lamiaceae spp. plant, and lipid soluble tea catechins to the fat prior to the rendering process or during the rendering process.” Claims App. 1 (emphases added). The Examiner’s findings as to Koike’s disclosure are discussed in Ground 1, above. The Examiner relied on Wolf for a teaching of adding tocopherols to swine feed before the rendering process and adding rosemary extract and catechins to swine feed during the rendering process. Final Act. 11. The Examiner also relied on Baker for a disclosure of “rendering animal fat wherein the process uses antioxidants such as rosemary and vitamin E 5 Ternes is relied on for limitations recited in claim 20, which is not separately argued. See Final Act. 15. Appeal 2020-002468 Application 13/608,812 16 during the early stage of the processes of rendering to avoid degradation.” Id. For reasons similar to those discussed in Ground 1, above, we do not interpret the preamble language “for protecting animal fat in pet food from oxidation during rendering” as limiting the scope of the claim. Therefore, the fact that Koike and Wolfe may be directed to formulating feed for different purposes is not persuasive of reversible error in the Examiner’s obviousness conclusion. See Appeal Br. 20 (arguing that Wolf teaches the addition of tocopherols, rosemary extract, and catechins “for the purpose of improving the quality of the pork or meat resulting from the slaughter of the animal that eats the feed, and NOT for purposes of improving the shelf-life of the animal feed itself” (internal citation omitted)). Moreover, the Appellant has not refuted the Examiner’s finding that because “the combined references disclose tocopherol and catechins as claimed, then the step of adding such antioxidants to the fat as claimed would have realized the method of protecting animal fat in the pet food (preamble)” (Ans. 21). The Appellant’s argument that Todd teaches water-soluble green tea catechins, not the claimed lipid soluble tea catechins, also is unpersuasive of reversible error. See Appeal Br. 21. As explained by the Examiner, this argument fails to identify error in the Examiner’s findings as to what the ordinary artisan would have understood from the combined references’ teachings. Ans. 22; Final Act. 15–16 (“Todd thus recognizes that a combination of tea catechin when combined with natural (such as rosemary extract) and synthetic antioxidants provides a synergistic effect (col. 3, lines 47–50). Such synergism would have motivated the skilled worker to make Appeal 2020-002468 Application 13/608,812 17 the combination rosemary extract with tea catechins, and more so lipid- soluble tea catechins because the above applied references disclose that lipid-soluble tea catechins are more favorable as antioxidants.” (emphasis omitted)); see also Reply Br. 4 (“[E]ach of the four references teaches one or two of catechin, rosemary, or tocopherol—not the synergistic combination that is claimed.”). The Appellant’s arguments that the claimed invention achieves unexpected results are unpersuasive for the reasons discussed in Ground 1, as to claim 21, which recites the same ranges of tocopherol and lipid soluble tea catechin amounts recited in claim 19. Any additional arguments made by the Appellant have been discussed above in Grounds 1 or 3. In sum, taking into account the Appellant’s evidence of unexpected results, we determine that a preponderance of the evidence weighs in favor of obviousness for the reasons stated in the Final Office Action, the Answer, and above. We sustain the rejection of claims 19 and 20 as unpatentable over Koike and Wolf, as evidenced by Laskov, Horgan, and Renton, in view of Baker, Sakai, Zhong, Shao, Hsu, Ternes, Todd, Lin, and Lee. CONCLUSION The Appellant has not identified reversible error in the Examiner’s conclusion that the subject matter of claims 10, 13, 19–21, 24, and 26 would have been obvious. Any arguments made by the Appellant, but not discussed explicitly in this Decision, are unpersuasive for the reasons stated in the Final Office Action or the Answer. Appeal 2020-002468 Application 13/608,812 18 DECISION SUMMARY Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed New Ground 10, 13, 21, 24, 26 103(a) Koike, Laskov, Horgan, Renton, Sakai, Zhong, Shao, Hsu, Ternes, Johnston, Todd, Lin, Lee 10, 13, 21, 24, 26 10, 13, 21, 24, 26 103(a) Koike, Laskov, Horgan, Renton, Sakai, Zhong, Shao, Hsu, Ternes, Horlacher, Jia, Lin, Lee 10, 13, 21, 24, 26 10, 13, 21, 24, 26 103(a) Suzuki, Laskov, Horgan, Renton, Sakai, Zhong, Shao, Hsu, Ternes, Johnston, Todd, Lin, Lee 10, 13, 21, 24, 26 10, 13, 21, 24, 26 103(a) Suzuki, Laskov, Horgan, Renton, Sakai, Zhong, Shao, Hsu, Ternes, Horlacher, Jia, Lin, Lee 10, 13, 21, 24, 26 19, 20 103(a) Koike, Wolf, Laskov, Horgan, Renton, Baker, Sakai, Zhong, Shao, Hsu, Ternes, Todd, Lin, Lee 19, 20 10, 13 112 indefiniteness 10, 13 Overall Outcome: 10, 13, 19–21, 24, 26 10, 13 Appeal 2020-002468 Application 13/608,812 19 TIME PERIOD FOR RESPONSE 37 C.F.R. § 41.50(b) provides that “[a] new ground of rejection pursuant to this paragraph shall not be considered final for judicial review.” 37 C.F.R. § 41.50(b) further states that the Appellant, WITHIN TWO MONTHS FROM THE DATE OF THE DECISION, must exercise one of the following two options with respect to the new ground of rejection to avoid termination of the appeal as to the rejected claims: (1) Reopen prosecution. Submit an appropriate amendment of the claims so rejected or new Evidence relating to the claims so rejected, or both, and have the matter reconsidered by the examiner, in which event the prosecution will be remanded to the examiner. . . . (2) Request rehearing. Request that the proceeding be reheard under § 41.52 by the Board upon the same Record. 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; 37 C.F.R. § 41.50(b)