Ex Parte Green

Board of Patent Appeals and Interferences

Jul 2, 2007

10274711 (B.P.A.I. Jul. 2, 2007)

This opinion is not binding precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte LONNY S. GREEN
____________

Appeal 2007-2556
Application 10/274,711
Technology Center 1700
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Decided: 2 July 2007
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Before FRED E. McKELVEY, Senior Administrative Patent Judge, and
RICHARD TORCZON and JAMES T. MOORE, Administrative Patent
Judges.

TORCZON, Administrative Patent Judge.

DECISION ON APPEAL
The claims on appeal relate to a food formulation with natural
ingredients intended to maintain good health and bladder function. The
examiner rejected all pending claims, claims 1-27, under 35 U.S.C. § 103(a)
as having been obvious. The appellant seeks review. We affirm.
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FINDINGS
Claims
The appellant challenges the rejection of the claims as a unitary
group1 so we will analyze the rejection in terms of claim 1,2 which defines
the invention as follows—
1. A food supplement formulation, comprising:
L-methionine;
L-arginine;
zinc;
selenium;
Echinacea;
cranberry;
ginkgo; and
usnea barbata.

The Board must give claim 1 its broadest reasonable construction.3
Claim 1 is a composition claim without any express or implicit use
limitation. It uses the "comprising" transition, which means the claim is
open to the inclusion of ingredients other than those expressly listed.
Although the formulation must supplement food, the formulation itself could
be a liquid, a solid, or a mixture of the two. The amount of each ingredient
is not specified in claim 1.
Obviousness
In analyzing obviousness, the scope and content of the prior art must
be determined, the differences between the prior art and the claims

1 Appeal Brief (Br.) 4-6.
2 Claim language is taken from the claims appendix of the appeal brief. The
authority for selecting claim 1 appears in 37 C.F.R. § 41.37(c)(1)(vii).
3 In re Bigio, 381 F.3d 1320, 1324, 72 USPQ2d 1209, 1211 (Fed. Cir. 2004).
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ascertained, and the ordinary level of skill in the art resolved. Objective
evidence of the circumstances surrounding the origin of the claimed subject
matter (so-called secondary considerations) may also be relevant. Such
secondary considerations guard against the employment of impermissible
hindsight.4
Scope and content of the prior art
The examiner rejected all twenty-seven claims in view of the
published applications of Collins5 and Zhao6 and of the patent of Mehansho.7
All three references relate to health foods or drinks.
Collins is directed to compositions containing a more biologically
useful analogue of vitamin B12, adenosylcobalamin. A broad spectrum of
disorders are said to result from vitamin B12 deficiency, including anemia
and neurological disorders.8 Collins teaches that adenosylcobalamin can be
combined with amino acids and minerals,9 and with popular herbal
supplements, expressly including Echinacea, gingko, and usnea extracts.10
One embodiment uses the adenosylcobalamin in a fortified fruit juice,

4 Graham v. John Deere Co., 383 U.S. 1, 17, 36 (1966), cited with approval
in KSR Int'l v. Teleflex Inc., 127 S. Ct. 1727, 82 USPQ2d 1385 (2007). The
appellant has not directed us to any objective evidence of secondary
considerations.
5 Douglas A. Collins, "Adenosyl-cobalamin fortified compositions", US
2003/0018009 A1 (pub'd 23 January 2003) (Collins).
6 Iris Ginron Zhao, "Multi-phase food & beverage", US 2003/0228393 A1
(pub'd 11 December 2003) (Zhao).
7 Haile Mehansho et al., "Beverage compositions comprising
arabinogalactan and defined minerals", U.S. 6,703,056 B2 (issued 9 March
2004) (Mehansho).
8 Collins ¶0003.
9 Collins ¶0034.
10 Collins ¶0047.
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specifically including cranberry juice, to which herbal extracts and amino
acids may be added.11 Collins lists both arginine and methionine as
examples of amino acids to add.12 Zinc and selenium are specifically
suggested mineral additions.13 In short, Collins teaches all of the ingredients
in claim 1 as suggested additions to his food supplement.
Zhao is concerned with producing a satisfying food or drink with less
of the "empty sweet-sour water related disadvantages" she ascribes to
current health drinks.14 Zhao provides guidance to the advantages and
disadvantages of common additions to such compositions. A table15 entitled
"Providing & Using Amino Acids" discusses the pros and cons of arginine
and methionine. She also teaches the use of zinc and selenium,16
Echinacea,17 cranberry,18 and gingko,19 but not usnea barbata. Zhao also
recommends the use of cyanocobalamin,20 which is the common synthetic
vitamin B12 analogue that Collins wishes to see replaced with
adenosylcobalamin.
Mehansho and his colleagues disclose beverages for providing
minerals and fiber in a stable, palatable formulation.21 They specifically

11 Collins ¶¶0082-0083.
12 Collins ¶0046. We note that amino acids in the human diet typically have
an L conformation.
13 Collins ¶0043.
14 Zhao ¶¶0001-0002.
15 Zhao pp. 10-11.
16 Zhao ¶173; see also ¶¶0064, 0085 & 102.
17 Zhao ¶0130, 0131 & 0192 (for infections).
18 Zhao ¶¶0148 (for flavor and treating urinary tract infections) & 0178 (for
kidney stones). We note that the bladder is part of the urinary tract.
19 Zhao ¶0190 (for osteoporosis).
20 Zhao ¶0091.
21 Mehansho 1:11-56.
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disclose a beverage with arabinogalactan (a fiber) and several minerals
including zinc and selenium.22 Echinacea is a recommended source for
arabinogalactan.23 They recommend the use of amino acids, specifically
including arginine and methionine, as chelators to stabilize zinc,24 while
selenomethionine is described as the principle form of selenium in foods.25
Cranberry is a recommended flavor source.26
Differences
Collins teaches the use of all the ingredients in claim 1. Collins would
use them to fortify an improved vitamin B12 supplement. Collins does not
appear to be concerned with bladder function, but bladder function is not a
feature of claim 1.
Zhao teaches the use of all the ingredients in claim 1 except usnea.
Mehansho does not disclose the use of gingko or usnea barbata.
Although Echinacea is a source of the arabinogalactan, in most embodiments
very little of the Echinacea apart from the arabinogalactan would remain
after processing.
Ordinary level of skill
We look to the evidence of record—the applicant's disclosure, the
cited references, and any declaration testimony—in resolving the ordinary

22 Mehansho 2:62-67.
23 Mehansho 3:35-36.
24 Mehansho 5:27-40. They are also used to stabilize other minerals.
25 Mehansho 9:22-23.
26 Mehansho 18:1-11.
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level of skill in the art.27 Those of skill in the art were aware of the panoply
of common additions to health foods and drinks, including the advantages
and disadvantages of each. They knew an ingredient could be included for
more than one use, including both a health-related and an unrelated use. For
instance, cranberry could be added to as a flavoring or to address urinary
tract infections. Amino acids could be supplements in their own right or
chelators for mineral supplements.
ANALYSIS
The reason to combine need not be the same as the appellant's stated
purpose.28 In the present case, appellant's stated purpose is not a limitation
in claim 1 anyhow. Moreover, the appellant's stated purpose of maintaining
bladder function is inherently met by the use of cranberry juice, something
all three references recommend.
Collins teaches the use of all of the ingredients in claim 1 as part of a
food supplement. Thus, the reason for combining Collins with Zhao and
Mehansho is moot since the subject matter of claim 1 would have been
obvious in view of Collins alone.
Collins, Zhao and Mehansho belong to the same art, food
supplements, and independently teach all or nearly all of the ingredients of
claim 1 as standard additions to a food supplement. When standard

27 Ex parte Jud, 2006 WL 4080053 at *2 (BPAI) (rehearing with expanded
panel).
28 In re Dillon, 919 F.2d 688, 692-94, 16 USPQ2d 1897, 1901-02 (Fed. Cir.
1990) (en banc).
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ingredients are used in standard ways to produce standard benefits, the
combination is facially obvious.29
HOLDING
In view of the strong teachings and suggestions in the prior art to use
all of the ingredients in claim 1 in a food supplement, we must uphold the
examiner's rejection of claim 1. Since the appellant has not specifically
argued the separate patentability of any other claim, we uphold the rejection
of claims 2-27 as well. The examiner's rejection of claims 1-27 is—
AFFIRMED

Donald R. Fraser
FRASER CLEMENS MARTIN & MILLER LLC
28366 KENSINGTON LANE
PERRYSBURG, OH 43551

29 KSR Int'l, 127 S. Ct. at 1740, 82 USPQ2d at 1395-96, citing Sakraida v.
AG Pro, Inc., 425 U.S. 273, 282 (1976); accord Richardson-Vicks Inc. v.
Upjohn Co., 122 F.3d 1476, 1484, 44 USPQ2d 1181, 1187 (Fed. Cir. 1997)
(obvious to combine compositions treating different symptoms of same
disorder).