Benemilk Ltd.

Patent Trials and Appeals Board

Jun 23, 2021

2020004207 (P.T.A.B. Jun. 23, 2021)

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.
13/756,363 01/31/2013 Merja HOLMA BMLK155380 9742
26389 7590 06/23/2021
CHRISTENSEN O'CONNOR JOHNSON KINDNESS PLLC
1201 Third Avenue
Suite 3600
Seattle, WA 98101
EXAMINER
ZILBERING, ASSAF
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
06/23/2021 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@cojk.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte MERJA HOLMA
Appeal 2020-004207
Application 13/756,363
Technology Center 1700
Before JEFFREY B. ROBERTSON, GEORGE C. BEST, and
DONNA M. PRAISS, Administrative Patent Judges.
ROBERTSON, Administrative Patent Judge.
DECISION ON APPEAL1

1 This Decision includes citations to the following documents: Specification
filed January 31, 2013 (“Spec.”); Non-Final Office Action mailed May 2,
2019 (“Non-Final Act.”); Appeal Brief filed November 26, 2019 (“Appeal
Br.”); Examiner’s Answer mailed March 20, 2020 (“Ans.”), and Reply Brief
filed May 19, 2020 (“Reply Br.”).
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Application 13/756,363

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STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 1–4 and 28–32.3 See Appeal Br. 6. We
have jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM, but we designate our affirmance as a new ground of
rejection.
CLAIMED SUBJECT MATTER
Appellant states the invention relates to an animal feed and a process
for its preparation. Spec. 1, ll. 3–13. Independent claim 1, reproduced
below, is illustrative of the claimed subject matter (Appeal Br., Claims
Appendix 15):
1. A feed mixture comprising:
at least three feed components, wherein one or
more of the feed components is comprised of raw material
particles that have inside portions and surfaces;
wherein a fatty acid mixture is disposed on the
inside portions and the surfaces of the plurality of raw material
particles, and wherein the fatty acid mixture comprises greater
than 90% by weight of palmitic acid; and
the feed mixture comprises from 3% to 8% by weight of
the fatty acid mixture;
the feed mixture comprises about 0.03% by weight of an
emulsifier; and
the feed mixture is comprised of pellets, granulas, or
meal.

2 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as Nutes Oy. Appeal Br. 3.
3 Pending claims 12–16 and 18–21 have been withdrawn from consideration.
See Non-Final Act. 1.
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Claim 30 is also independent and is directed to a feed mixture.
Id. at 19.
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Mologni US 6,482,463 B1 Nov. 19, 2002
“Dairy Cattle Nutrition and Feeding” Section 15, Animal Nutrition
Handbook, Aug. 23, 2005 p. 493 www.ag.auburn.edu (“Auburn”).

W. Steele & J.H. Moore, “The effects of a series of saturated fatty acids in
the diet on milk-fat secretion in the cow,” 35(3) Journal of Dairy Research
361–70 (1968) (“Steele”).

J.L. Warntjes et al., “Effects of feeding supplemental palmitic acid (C16:0)
on performance and milk fatty acid profile of lactating dairy cows under
summer heat,” 140 Animal Feed Science and Technology 241–57 (2008)
(“Warntjes”).

“The Pelleting Process,” www.CPM.net (“CPM”).

Keith C. Behnke, “Factors Influencing Pellet Quality,”
https://pdfs.semanticscholar .org/43d9/1d59f6cda3cf69aa6f12e61ac1
c33b832ec7.pdf (“Behnke”).

“Palmitic Acid,” Available at www.scienceofcooking.com, June 5, 2006.
REJECTION
Claims 1–4 and 28–32 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Auburn, Steele, Warntjes, Mologni, CPM, Behnke, and
Palmitic Acid. Non-Final Act. 3–8.
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OPINION
Appellant presents separate arguments with respect to claims 1, 30,
and 31 subject to this rejection. See Appeal Br. 6–14. We select claims 1,
30, and 31 as representative for disposition of this rejection. 37 C.F.R.
§ 41.37(c)(1)(iv)(2019).
Claim 1
The Examiner’s Rejection
In rejecting claim 1, the Examiner found Auburn discloses feed
mixtures including the same ingredients as recited in the claims with the
exception of a fatty acid mixture. Non-Final Act. 3–4. The Examiner found
that Steele and Warntjes both disclose feed mixtures for lactating dairy cows
including palmitic acid, where Steele discloses including 10% palmitic acid
in the feed and Warntjes discloses 1.66% palmitic acid in the feed, and both
disclose an increase the milk yield and milk fat content. Id. at 4. As a result
of these disclosures, the Examiner determined it would have been obvious to
have included palmitic acid in a feed concentrate mixture as disclosed in
Auburn. Id.
Regarding the amount of fatty acid mixture recited in claim 1, the
Examiner found Warntjes discloses the presence of palmitic acid in milk
triglycerides increases due to palmitic acid in the feed, such that the amount
of palmitic acid must be considered to balance the benefits of palmitic acid
supplementation on cow productivity against the negative effect on the
nutritional value in the milk. Non-Final Act. 4–5. Accordingly, the
Examiner determined it would have been obvious to have adjusted the
amount of palmitic acid added to Auburn’s feed to arrive at the recited
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amounts of palmitic acid in claim 1 as a matter of routine optimization of a
result-effective variable. Id. at 5.
As to claim 1’s recitation that the fatty acid mixture is disposed on the
inside portions and surface of the plurality of raw material particles, the
Examiner found Mologni discloses adding a liquid water-in-oil emulsion
comprising a liquid fatty acid mixture with a melting point between 20 °C
and 90 °C, mixing the dry feed ingredients with the liquid emulsion at an
increased temperature, and cooling the mixture to a temperature below the
melting point of the fatty acid mixture. Non-Final Act. 7. As a result of this
mixing, the Examiner found that a portion of the liquid molten emulsion
would permeate the feed particles and cover the inside and outside surfaces.
Id. In the alternative, the Examiner determined that because Auburn’s
modified feed would contain palmitic acid, and the steam conditioning step
contemplated by Appellant is conducted at temperatures and times that are
well known and conventional, the raw material particles of the pellets
formed from the fed concentrate mixture would comprise palmitic acid on
both the inside and outside surfaces as recited in claim 1. Id. (citing
Mologni, col. 2, l. 23–col. 3, l. 31; CPM 16–21).
Appellant’s Arguments
Appellant argues the prior art does not establish that a fatty acid
mixture would be present on the inside of the raw material particles as a
natural result of the combination of references. Appeal Br. 6. Appellant
contends Mologni does not disclose any particular time for its high
temperature treatment, much less a time that is suitable to allow the
introduction of fatty acid on the inside of raw material particles. Id. at 8.
Appellant argues that because Mologni discloses increasing water content,
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Mologni discloses decreasing time. Id. Appellant contends CPM also does
not disclose any particular time for its steam treatment, where the goal of
CPM is to have moisture and heat penetrate into the particles. Id. at 9.
Appellant argues Mologni and CPM are not combinable because they teach
away from each other, where Mologni discloses longer times decrease
moisture due to evaporation, and CPM discloses longer times increase
moisture through steam penetration. Id.
Appellant argues also that the process according to the invention
produces unexpected results in the form of more effective utilization of
nutrients, decreased methane production, and increased milk production,
milk fat content, and milk protein content. Appeal Br. 9–10. Appellant
contends none of the references discloses an increase in all three of milk
production, milk fat content, and milk protein content. Id.
Appellant argues further that the prior art does not disclose a feed
including a fatty acid mixture of 2% to 8% and the Examiner does not
provide a sufficient rationale for modifying the amounts of fatty acid
mixture in the prior art, which are outside the recited ranges, to amounts
within the ranges recited in the claims. Appeal Br. 11–12.
Issue
Did the Examiner err in determining that the feed mixture recited in
claim 1 would have been obvious over the prior art of record?
Discussion
We are not persuaded by Appellant’s arguments. As to Appellant’s
argument that Mologni does not disclose any time, much less a time suited
to allow the introduction of fatty acid on the inside of raw material particles,
we first observe that claim 1 does not recite any particular amount of fatty
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acid mixture that is present on the inside portions of the raw material
particles. The Specification describes that the process of preparing the feed
includes heating the feed mixture so that the fatty acid mixture melts and
spreads inside and on the surface of the raw material particles of the feed.
Spec. 10, ll. 16–22. The Specification describes times ranging from a few
seconds to 35 minutes depending on the temperature used. Id. at 11,
ll. 10–13.
Mologni discloses preparing an animal feed where a hydrophobic
component, such as fatty acids preferably with melting points lower than
90 °C, is added to the feed as a liquid or added to the feed and processed
above its melting point. Mologni, col. 1, ll. 50–61; col. 2, ll. 31–52, col. 3,
ll. 16–26. Thus, Mologni discloses processes where the fatty acids are
mixed with the raw feed ingredients at temperatures above the melting point
of the fatty acids and in similar apparatuses, such as expanders, as described
in the Specification. Id. at col. 3, ll. 18–28; Spec. 11, ll. 18–20. Mologni
discloses also that the hydrophobic component (e.g., fatty acid) reduces the
tendency of the animal feed to form lumps. Id. at col. 2, ll. 13–15.
Accordingly, because Mologni discloses specifically adding a fatty
acid to the feed mixture at a temperature above its melting point, we are of
the view that the Examiner’s position that Mologni’s method would result in
fatty acid mixture on the inside surfaces of the raw material particles. This
is particularly true because Mologni is concerned with lumps forming in the
resulting animal feed.
We are also not persuaded by Appellant’s argument that CPM does
not teach any particular time. CPM discloses steam conditioning, which is
used to produce high quality feed pellets. CPM 16. CPM discloses the
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purpose of conditioning a mixture of feed ingredients is to uniformly
penetrate each particle with the same amount of moisture and heat to provide
homogenization. Id. at 21. CPM discloses that regardless of particle size or
shape, time is required for moisture and heat to thoroughly penetrate the
particles. Id. CPM discloses that if the method disclosed therein is
followed, the surface of each particle will be void of excess moisture and fat.
Id. CPM discloses that if liquid added to mixed feed ingredients does not
penetrate the particle, the particles are mixed and adhere to each other,
resulting in erratic production and quality. Id. Thus, although Appellant is
correct that CPM does not disclose particular times, CPM expressly
discloses penetration of liquids beyond just moisture into the particle.
As to Appellant’s argument that Mologni and CPM teach away from
each other, we are not persuaded by this argument. Both Mologni and CPM
disclose methods for producing animal feeds with a predetermined water
content. Mologni, col. 1, ll. 10–11; CPM 17. Both Mologni and CPM
disclose conditions that effect the amount of moisture that is imparted to the
feed based on the processes disclosed in each reference. Mologni, col. 3,
ll. 17–35; CPM 20. We do not discern these disclosures to constitute a
teaching away from one another, rather, we understand these disclosures to
provide guidance to one of ordinary skill in the art to obtain the particular
moisture content desired in a particular feed mixture.
We are also unpersuaded by Appellant’s argument that the amount of
fatty acid mixture recited in claim 1 would not have been obvious. Initially,
we observe that the Specification describes amounts of about 1–10% by
weight of the total weight of the feed, where the amount of 3–8% by weight
is considered a “concentrate feed.” Spec. 6, ll. 27–32. The Specification
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assigns no particular criticality to the amounts of fatty acid mixture
contained in the feed.
Warntjes discloses in order to maximize positive effects of palmitic
acid supplementation on milk production while minimizing palmitic acid
transfer to milk fat, cows may be divided based on their milk fat proportions,
with cows producing lower fat milk proportions receiving palmitic acid
supplementation. Warntjes 255–256. We are not persuaded that this
disclosure means that a feed having 1.66% fatty acid mixture is the
maximum amount of fatty acid mixture possible as argued by Appellant.
Rather, Warntjes informs one of ordinary skill in the art that the amount of
fatty acid mixture may be adjusted based on the milk fat proportion of the
cows, which would also include higher amounts, such as the 3–8 % by
weight recited in claim 1.
We are not persuaded by Appellant’s arguments that the process
disclosed in the Specification produces unexpected results. Appeal
Br. 9–10. In particular, Appellant contends that a feed having 3% fatty acid
mixture and processed according to the invention results in increased milk
production, milk fat content, and milk protein content. Id. at 10 (citing Spec.
18, Ex. 4). Appellant argues that in contrast, Auburn does not disclose any
of these properties are altered, Steele discloses palmitic acid increases milk
fat yield, and Warntjes discloses milk production and milk protein increase,
but milk fat content decreased. Id.
We are not persuaded that Appellant has sufficiently demonstrated
unexpected results. A showing of unexpected results may be sufficient to
overcome a prima facie case of obviousness. In re Dillon, 919 F.2d 688,
692–93 (Fed. Cir. 1990). Such a showing must be based on evidence, not
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argument or speculation. In re Mayne, 104 F.3d 1339, 1343–44 (Fed. Cir.
1997); In re Schulze, 346 F.2d 600, 602 (CCPA 1965). The evidence must
also be reasonably commensurate in scope with the claimed invention. In re
Greenfield, 571 F.2d 1185, 1189 (CCPA 1978). “[W]hen unexpected results
are used as evidence of nonobviousness, the results must be shown to be
unexpected compared with the closest prior art.” In re Baxter Travenol
Labs., 952 F.2d 388, 392 (Fed. Cir. 1991).
In this case, Appellant relies on one example (Example 4) in the
Specification, testing only one concentration of fatty acid mixture (3% by
weight) to support the position that the combined increase in milk
production, milk protein increase, and milk fat increase would have been
unexpected, and is not reasonably commensurate in scope with claim 1,
which recites a range of from 3%–8% by weight of the fatty acid mixture.
Importantly, the comparison made by Appellant is between feeds
containing fatty acid mixture and emulsifier and feed not containing any
fatty acid and emulsifier. See Spec. 18–19, Exs. 5, 6. Not only do these
examples fail to compare the closest prior art, Steele and Warntjes, which
both disclose the addition of palmitic acid to animal feeds, but these
examples also do not compare different amounts of palmitic acid added to an
animal feed.
As a result, we are unable to ascertain whether a difference in
amounts of fatty acid, such as 1.66% by weight disclosed in Warntjes versus
3% by weight in Example 4 of the Specification impacts any differences in
the amount of milk fat content observed in the obtained milk such that the
differences would have been unexpected. In this regard, we observe the
difference between the test feed of Example 4 and the reference feed is
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4.53% by weight versus 4.16% by weight in the obtained milk, a difference
of 0.37% by weight, or 4.90% by weight versus 4.45% by weight, a
difference of 0.45% by weight. Spec. 18–19, Exs. 5, 6. We are not
persuaded that these differences would have been unexpected where Steele
expressly discloses an increase in milk fat yield when palmitic acid is added
to hay and fed to cows. Steele 1.
Thus, although the Examiner does not address Appellant’s arguments
with respect to an increase in milk fat observed (Ans. 11), we are not
persuaded by Appellant’s arguments that the results would have been
unexpected.
Accordingly, we affirm the Examiner’s rejection of claim 1.
However, because we have expounded on the Examiner’s reasoning and
rationale, we designate our affirmance as a new ground of rejection.
Claims 30 and 31
In rejecting claims 30 and 31, the Examiner stated that steam
conditioning, temperature, and conditioning intervals as well as
modifications thereto to attain desired pellets are well known in the art.
Non-Final Act. 7–8 (citing Mologni, col. 2, l. 23 – col. 3, l. 31; CPM 16–21;
Behnke 1–5). The Examiner further stated that because Mologni discloses
dry feed ingredients are mixed with the liquid emulsion at temperatures
above the melting point of the liquid emulsion and there is no disclosure of
any barriers to prevent at least a portion of the liquid molten emulsion from
penetrating the dry feed particles in the mixture, the feed mixture recited in
claims 30 and 31 is the same or similar to the feed mixture taught by the
prior art references. Ans. 14.
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Appellant argues that because Mologni does not disclose steam
treatments, it teaches away from the claims because Mologni reduces
treatment time to prevent evaporation, which is contrary to the longterm
conditioner recited in claim 30. Appeal Br. 13–14.
We are not persuaded by Appellant’s arguments. That is, as discussed
above, Mologni discloses producing an animal feed without lumps, and
CPM discloses producing homogenized particles, where a desired liquid
penetrates the particle. Mologni, col. 2, ll. 13–15; CPM 21. Thus, both
references contemplate producing particles with a consistent structure. In
view of such teachings, we are not convinced that particles produced by the
methods recited in claims 30 and 31 would result in a feed mixture that is
different than recited in the prior art.
As a result, we affirm the Examiner’s rejection of claims 30 and 31.
However, similar to claim 1 above, because we have expounded upon the
Examiner’s rationale, we designate our affirmance as a new ground of
rejection.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed New
Ground
1–4, 28–
32
103(a) Auburn, Steele,
Warntjes, Mologni,
CPM, Behnke,
Palmitic Acid
1–4, 28–
32
1–4, 28–
32
TIME PERIOD FOR RESPONSE
This Decision contains a new ground of rejection pursuant to
37 C.F.R. § 41.50(b). 37 C.F.R. § 41.50(b) provides “[a] new ground of
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rejection pursuant to this paragraph shall not be considered final for judicial
review.”
37 C.F.R. § 41.50(b) also provides 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 proceeding
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. . . .
Further guidance on responding to a new ground of rejection can be
found in the Manual of Patent Examining Procedure § 1214.01.
AFFIRMED
37 C.F.R. § 41.50(b)