Ex Parte Hartnell et al

Patent Trial and Appeal Board

Dec 11, 2018

14250766 (P.T.A.B. Dec. 11, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
14/250,766 04/11/2014
45738 7590 12/13/2018
STINSON LEONARD STREET LLP (MTC)
7700 FORSYTH BOULEVARD, SUITE 1100
ST LOUIS, MO 63105
FIRST NAMED INVENTOR
Gary F. Hartnell
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.
MTC 55562.2CON 8758
EXAMINER
TIJRNER, FELICIA C
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
12/13/2018 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):
stl.uspatents@stinson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL
AND APPEAL BOARD
Ex parte GARY F. HARTNELL, VIRGINIA M. URSIN, and DON LUCAS
Appeal2017-009142
Application 14/250,766
Technology Center 1700
Before MICHAEL P. COLAIANNI, DEBRA L. DENNETT, and
LILAN REN, Administrative Patent Judges.
COLAIANNI, Administrative Patent Judge.
DECISION ON APPEAL
Appeal2017-009142
Application 14/250,766
Appellants appeal under 35 U.S.C. § 134 the final rejection of claims
41---60. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b ).
We AFFIRM.
The appeal is directed to a swine feed composition and a method of
producing pork products comprising polyunsaturated fatty acids including
stearidonic acid (claims 41 and 58; Spec. ,r 2).
Claim 41 is illustrative:
41. A swine feed comprising
a. stearidonic acid (SDA);
b. gamma linolenic acid (GLA); and
c. additional feed components;
wherein said swine feed comprises from about 0.20% to about 0.80%
stearidonic acid based on the total weight of the feed, wherein the
ratio of SDA/GLA is at least about 1.3.
Appellants appeal the following rejections:
1. Claims 41--45, 48-52, and 54--57 are rejected under 35 U.S.C. §
I03(a) as unpatentable over Ursin (US 2006/0156435 Al, published
July 13, 2006) in view ofDamude (US 2005/0132441 Al, published
June 16, 2005), and Lanter (US 2005/0271788 Al, published Dec. 8,
2005).
2. Claims 46 and 47 are rejected under 35 U.S.C. § I03(a) as
unpatentable over Ursin in view of Damude, Lanter, and Heise (US
2006/0110521 Al, published May 25, 2006).
3. Claim 53 is rejected under 35 U.S.C. § I03(a) as unpatentable over
Ursin in view ofDamude, Lanter, and Saebo (US 2005/0215641 Al,
published Sep. 29, 2005).
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Application 14/250,766
4. Claims 58-60 are rejected under 35 U.S.C. § 103(a) as unpatentable
over Ursin in view ofDamude, Lanter, and Wilson (CA 2 410 960
published Dec. 6, 2001 ).
FINDINGS OF FACT & ANALYSIS
REJECTION (1)
Appellants argue the subject matter of claim 41 only (App. Br. 4--7).
Any claim not argued separately will stand or fall with the sole independent
claim 41.
Appellants argue that Ursin, Damude and Lanter fail to disclose a
finite number of identified, predictable solutions as required by KSR
International v. Teleflex Co., 550 US 398 (2007). (App. Br. 6). Based on
that argument, Appellants contend that a skilled person would have had
absolutely no reason to select the combination of elements to arrive at claim
41 from the combination of cited references (App. Br. 6). Appellants
contend that the combination would not have had a reasonable expectation
of success given that the references would not have led one skilled in the art
to the claimed swine food (App. Br. 6). Appellants argue that Ursin
provides a broad disclosure of both the stearidonic acid (SDA) concentration
in seed oils and omega-6 to omega-3 fatty acid ratios such that a person of
ordinary skill would not have had a reason to select the SDA concentration
and SDA to GLA ratio recited in claim 41 (App. Br. 6-7).
The Examiner's combination of the teachings of Ursin, Damude, and
Lanter is not based on conclusory statements. Rather, the Examiner
provides a reasoned rejection that finds that Ursin teaches an oil composition
that may be used with animal feedstock and Ursin teaches most of the
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Application 14/250,766
limitations of claim 41, except for the use of the composition as swine feed
and the broadly worded "additional feed components" recited in claim 41
(Final Act. 2). The Examiner finds that Damude teaches using canola oil in
swine feed stock and Lanter teaches using up to 10% fat in livestock feed,
which may include canola oil (Final Act. 3). The Examiner finds that Ursin
discloses SDA levels of 8% to 27%, including 16.8%, and GLA at less than
10%, specifically 3.1 % (Final Act. 3). The Examiner finds that Ursin's
embodiment where the SDA amount is 16. 8% and the GLA amount is 3 .1 %
yields a SDA:GLA ratio of around 5 (Ans. 9). The Examiner determines
that Lanter teaches to use oil in the feed for swine in an amount of O to 10%
(Ans. 9). The Examiner finds that the combined teachings ofUrsin with
Lanter would have suggested a SDA content of around 0.8% and SDA:GLA
ratio of 1.3 or more (Ans. 9). Appellants do not contest these findings or
otherwise show reversible error with them. The Examiner's reason for using
Ursin's composition on swine feed is based upon the teachings of the
references, not conclusory, unsupported statements.
Contrary to Appellants' arguments, the Examiner relies on Ursin's
teaching of specific concentrations for the SDA and GLA amounts (Final
Act. 2). In other words, even though Ursin teaches a range of concentrations
for the SDA and GLA, Ursin further discloses particular values in an
embodiment for the SDA and GLA (Final Act. 2). The Examiner's rejection
is reasonably based upon the teachings of the prior art references.
Appellants' argument that the Examiner has not shown there is a finite
number of predictable solutions is mistaken. The portion of KSR relied upon
by Appellants refers to when claimed subject matter would have been
"obvious-to-try." KSR, 550 US at 421. The Examiner does not rely upon an
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Application 14/250,766
obvious-to-try rationale and so Appellants' argument is not germane to the
basis of the rejection (Final Act. 2-3; Ans. 10).
Appellants argue that the evidence in Table 6c of the Specification
shows that feed containing SDA in the range of 0.2% to 0.8% produce a ham
product having unexpectedly better DHA levels (App. Br. 7). Appellants
contend that the deposition of DHA in the animal tissues shows an
unexpected result (App. Br. 7).
The Examiner finds that the evidence is not commensurate in scope
with the claimed invention because the showing is limited to the ham portion
of the pig, whereas the claims are not so limited ( Ans. 11 ). We agree that
the showing is not commensurate in scope with the claims in that the claims
include "additional feed components" and there is no showing or discussion
of the effect of those other feed components (if any) on the DHA in the meat
from pig.
Moreover, evidence in Table 6c shows that even the "Control" feed
that contains only com oil had a DHA content of0.05. The values ofDHA
for feed containing 0.2% SDA and 0.4% SDA were 0.09 and 0.08,
respectively (Table 6c ). In the case were the SDA was doubled to 0.4% the
DHA level decreased as compared with a SDA content of 0.2%. Appellants
have not explained how the quantity of DHA demonstrates unexpected
results in the claimed composition. Indeed, even a composition having only
com oil had the same order of magnitude DHA content as the DHA values
achieved using feed with SDA in the claimed range (Table 6c ). On this
record, the evidence is insufficient to establish unexpected results.
We affirm the Examiner's§ 103 rejection (1) above.
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REJECTIONS (2) TO (4): Claims 46, 53, 58
Claim 46 depends from claim 41 and recites the swine feed "further
comprises eicosenoic acid."
Claim 5 3 depends from claim 41 and recites the swine feed "further
comprising 6, 9-octadecadienoic acid."
Claim 5 8 is directed to a method of producing pigs using the swine
composition of claim 41.
With regard to claim 46, Appellants argue that the Heise reference
uses eicosenoic acid in mayonnaise and the Examiner has not explained why
one of ordinary skill in the art would have put eicosenoic acid in swine feed
(App. Br. 8). Appellants contend that the Examiner has not explained why
there is a need to provide a better balance of fatty acids in the feed
composition (App. Br. 8). Contrary to Appellants' argument, paragraph 99
of Heise is cited by the Examiner (Final Act. 5). Heise in paragraph 99
teaches that any of the oil compositions disclosed in section 1 of Heise may
be used in, for example, animal feed. The oil compositions disclosed by
Heise include eicosenoic acid (Heise e.g., ,r,r 44, 58). The Examiner finds
that Heise suggested that the combination of eicosenoic acid, SDA and GLA
were also disclosed as relevant to pet foods or animal feeds (Ans. 13).
Accordingly, the teachings Heise would have suggested using the eicosenoic
acid oil in an animal feed, such as the swine feed suggested by Ursin,
Damude and Lanter.
With regard to claim 53, Appellants argue that the Examiner has
failed to explain why a person of ordinary skill in the art after reading Ursin,
Damude, and Lanter, would tum to Saebo and incorporate 6,9-
octadecadienoic acid into animal or swine feed (App. Br. 9). Contrary to
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Appellants' argument, the Examiner finds and Appellants do not contest,
that Saebo teaches that the conjugated lineolic acid (CLA) such as 6, 9-
octadecadienoic acid is disclosed by Saebo as beneficial to animal feeds by
providing anti-mutagenic properties (Ans. 13).
With regard to claim 58, Appellants contend that Wilson fails to
remedy the deficiencies of the combined teachings of Ursin, Damude and
Lanter (App. Br. 10). As noted above, we do not find the combination of
Ursin, Damude and Lanter as having any deficiency.
On this record, we affirm the Examiner's rejections (2) to (4) above.
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 )(iv).
ORDER
AFFIRMED
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