Kent Nutrition Group, Inc.

Patent Trials and Appeals Board

Feb 11, 2022

2021001716 (P.T.A.B. Feb. 11, 2022)

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. 15/956,380 04/18/2018 Sarjit Johal 20616-142569-US 2589 74456 7590 02/11/2022 FITCH, EVEN, TABIN & FLANNERY, LLP 120 South LaSalle Street, Suite 2100 Chicago, IL 60603-3406 EXAMINER LI, CHANGQING ART UNIT PAPER NUMBER 1793 MAIL DATE DELIVERY MODE 02/11/2022 PAPER 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. PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte SARJIT JOHAL and MICHAEL EDMONDS ____________ Appeal 2021-001716 Application 15/956,380 Technology Center 1700 ____________ Before JAMES C. HOUSEL, N. WHITNEY WILSON, and MERRELL C. CASHION, JR., Administrative Patent Judges. CASHION, Administrative Patent Judge. DECISION ON APPEAL STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from a Final Office Action, dated June 12, 2020, rejecting claims 1, 2, 4, 6-9, and 12. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. 1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant identifies Kent Nutrition Group, Inc. as the real party in interest. Appeal Br. 3. Appeal 2021-001716 Application 15/956,380 2 The invention “relates to animal feed compositions and associated methods of preparation and use.” Spec. ¶ 1. Claim 1 is illustrative of the subject matter on appeal and is reproduced below (formatting added): 1. A method of feeding an animal, comprising: administering a composition comprising corn steep water solids and humic acid in conjunction with animal feed over a time span of at least ten days, said corn steep water solids and humic acid being administered in a collective amount effective to promote weight gain over said time span, and said composition optionally comprising butyric acid, wherein the amount of humic acid in the composition is greater than the amount of butyric acid. Appeal Br. 14 (Claims App.). Independent claim 7 recites a method of feeding an animal similar to the method of claim 1, but includes additional features. Appellant requests review of the following rejections from the Examiner’s Final Office Action (see generally Appeal Br.): I. claims 1, 4 and 6 rejected under 35 U.S.C. § 103 as unpatentable over Ji (F. Ji, et al., Effects of dietary humic substances on pig growth performance, carcass characteristics, and ammonia emission, Journal of Animal Science, ProQuest, Vol. 84, No. 9, 2482-2490, (2006) hereinafter “Ji”) and Packwood (Packwood et al, US 2014/0199467 A1, published July 17, 2014, hereinafter “Packwood”); II. claim 2 rejected under 35 U.S.C. § 103 as unpatentable over Ji, Packwood, and Edmonds (Michael Edmonds, Ph.D., Impact of Hydravantage® on Performance and Economics of Sew Pigs, Innovation and Research from Kent Nutrition Group, Nutrition Notes, 1-2, (2016), hereinafter “Edmonds”); and Appeal 2021-001716 Application 15/956,380 3 III. claims 7-9 and 12 rejected under 35 U.S.C. § 103 as unpatentable over Ji, Packwood, and Edmonds. Appellant presents separate arguments for claims 1, 6 and 7 and relies on these arguments to address the rejection of the remaining claims. See generally Appeal. Br. Accordingly, we select claim 1 as representative of the subject matter claimed and decide the appeal as to all grounds of rejection based on the arguments presented for claims 1, 6, and 7. OPINION After review of the respective positions provided by Appellant in the Appeal and Reply Briefs and the Examiner in the Final Office Action and the Answer, we affirm the Examiner’s prior art rejection of claims 1, 2, 4, 6- 9, and 12 for the reasons the Examiner presents. Claim 1 Claim 1 recites a method of feeding an animal including a step of administering a composition comprising corn steep water solids, humic acid, and optionally butyric acid, wherein the amount of humic acid in the composition is greater than the amount of butyric acid. The Examiner finds Ji teaches a method of feeding an animal (e.g., pigs) comprising the step of administering a composition comprising humic acid in conjunction with animal feed over a time span of at least ten days. Final Act. 4; see also Ji Abstract, 2483 (Tables 1 and 2), 2484 (Experiments 1 and 2). The Examiner finds Ji’s animal feed composition does not include Appeal 2021-001716 Application 15/956,380 4 butyric acid. Ans. 8-10.2 The Examiner finds Ji does not disclose administering corn steep water to the animal. Final Act. 4. The Examiner finds Packwood teaches it was known to add corn steep water to animal feed to provide nutrients such as proteins, amino acids, minerals, vitamins, reducing sugars, etc. Final Act. 4; see also Packwood ¶ 3. The Examiner determines it would have been obvious to one of ordinary skill in the art to have modified Ji’s method by using an animal feed that further comprises corn steep water for the reasons Packwood provides. Final Act. 4. Appellant argues one skilled in the art would not combine the teachings of the cited references because the references are fundamentally incompatible. Appeal Br. 7. According to Appellant, Ji is a research paper reporting a study exploring the effects of humic substances on animal growth, while Packwood discloses corn steep liquor as a supplement to hydrol that engenders a longer shelf-life to these components when mixed together. Id. at 7-8. Appellant contends that the references are fundamentally incompatible because the purpose of corn steep liquor in Packwood has nothing to do with the exploratory research reported by Ji. Id. at 8. Thus, Appellant contends that one skilled in the art would not combine the teachings of the cited art to address Appellant’s problem. Id. Appellant’s arguments do not identify error in the Examiner’s determination of obviousness. Appellant’s arguments principally attack Ji and Packwood individually and, therefore, do not address adequately the rejection the Examiner presents in the record. See In re Keller, 642 F.2d 413, 426 (CCPA 2 Appellant does not dispute this finding in either the Appeal or Reply Briefs. See generally Appeal and Reply Br. Appeal 2021-001716 Application 15/956,380 5 1981) (“[O]ne cannot show non-obviousness by attacking references individually where, as here, the rejections are based on combinations of references.”), 425 (“[T]he test [for obviousness] is what the combined teachings of the references would have suggested to those of ordinary skill in the art.”); see also In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986); and KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 418 (2007) (“[T]he [obviousness] analysis need not seek out precise teachings directed to the specific subject matter of the challenged claim, for a court can take account of the inferences and creative steps that a person of ordinary skill in the art would employ.”). We note that Ji’s animal feed includes proteins. Ji 2484. The Examiner determines that it would have been obvious to one skilled in the art to use Packwood’s corn steep water in Ji’s animal feed as a source of nutrients, such as proteins, given that both Ji and Packwood are directed to animal feeds. Final Act. 4. Thus, there is a reasonable basis for one skilled in the art to arrive at the claimed invention from the combined teachings of the cited art. Final Act. 4; see also In re O’Farrell, 853 F.2d 894, 904 (Fed. Cir. 1988) (“For obviousness under [35 U.S.C.] § 103, all that is required is a reasonable expectation of success.”). Appellant’s argument that Ji’ s study does not recommend the use of humic substances as a feed supplement, let alone humic acid on its own, is unavailing. Appeal Br. 9. As the Examiner notes, Ji discloses generally that humic substances, such as humic acid, may improve growth performance of pigs. Ans. 8; see also Ji Abstract. Moreover, the Specification acknowledges that humic acid is a well-known supplement for animal feed that supports immune system Appeal 2021-001716 Application 15/956,380 6 functions. Spec. ¶4. Given these disclosures, Appellant does not explain adequately why one skilled in the art would not have been capable of using humic acid by itself as a feed supplement. Appellant’s argument that the cited art does not address Appellant’s problem is equally unavailing because the prior art need not address the same problem that the claim addresses. See In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006) (“In considering motivation in the obviousness analysis, the problem examined is not the specific problem solved by the invention but the general problem that confronted the inventor before the invention was made.”). Thus, Appellant’s arguments do not explain adequately why one skilled in the art, using no more than ordinary creativity, would not have arrived at the claimed invention from the teachings of the cited art. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 421 (2007) (“A person of ordinary skill is also a person of ordinary creativity, not an automaton.”); see also In re Sovish, 769 F.2d 738, 743 (Fed. Cir. 1985) (presuming skill on the part of one of ordinary skill in the art). Appellant argues the combined teachings of the cited art fail to disclose or suggest the notion of humic acid exceeding the amount of any butyric acid in the composition. Appeal Br. 10. According to Appellant, this limitation arises from the inventors’s discovery that when compared with a feed supplement containing humic acid and butyric acid (and no corn steep water), a feed supplement comprising humic acid, corn steep water, and considerably less butyric acid results in similar positive growth outcomes in swine. Id. Appellant argues the Examiner fails to give adequate weight to this claim limitation. Id. at 10-11. Appeal 2021-001716 Application 15/956,380 7 Appellant’s arguments are not persuasive of reversible error in the Examiner’s conclusion of obviousness. Contrary to Appellant’s arguments, the Examiner gave proper weight to the disputed limitation. Specifically, we understand that the Examiner interpreted the claim for the purposes of the rejection as containing no butyric acid. Final Act. 4; see also Ans. 8-10. Appellant acknowledges that the claim encompasses such an embodiment. Reply Br. 1. In the absence of butyric acid, any amount of humic acid would be greater as claimed. Thus, Appellant fails to explain reversible error in the Examiner’s determination of obviousness. Claim 6 Claim 6 recites that the corn steep water solids and humic acid are present in a dry solids ratio relative to one another in the range from 10:1 to 160:1. We refer to the Examiner’s Final Office Action for a statement of the rejection of this claim. Final Act. 4. Appellant argues the Examiner has not established that the claimed ratio is recognized as a results effective variable. Appeal Br. 11-12. A particular parameter must first be recognized as a result-effective variable, i.e., a variable which achieves a recognized result, before the determination of the optimum or workable ranges of said variable might be characterized as routine experimentation. In re Antonie, 559 F.2d 618, 620 (CCPA 1977). Here, the Examiner finds the prior art recognizes the amounts of corn steep water and humic acid have an effect on the growth of the animal and, thus, recognizes these amounts as result effective variables. Appeal 2021-001716 Application 15/956,380 8 Ans. 9; see also Ji 2483 (Table 2), 2484; Packwood ¶¶ 26 (Table 1), and 27 (Table 2). Appellant does not contest this finding. See generally Appeal Br. and Reply Br. The Examiner then determines that the prior art’s recognition of these two amounts as result effective variables would lead one skilled in the art to recognize that the ratio of these two amounts is also a result effective variable. Final Act. 5. Appellant’s arguments do not refute persuasively the Examiner’s reasoning. Nor, as the Examiner explains, does Appellant direct us to any evidence of criticality for the ratio of dry solids. Ans. 9. Claim 7 Independent claim 7 recites limitations from claims 1 and 6. In addition, claim 7 recites administering a composition comprising corn steep water solids and humic acid in an animal’s drinking water. To the extent that Appellant argues that the subject matter is patentable over Ji and Packwood, we direct attention to our previous discussion of this issue. Appeal Br. 12. With respect to feeding the animal feed via the animal’s drinking water, the Examiner finds Edmonds teaches it was conventional to administer animal feed and feed supplements through the animal’s drinking water to improve feeding efficiency. Final Act. 7; see also Edmonds 1. Further, the Specification also acknowledges this practice as known. Spec. ¶ 2. We have considered Appellant’s arguments regarding this issue in full. Appeal Br. 12. However, the arguments focus on the distinctions between the animal feed compositions Edmonds administers and the animal Appeal 2021-001716 Application 15/956,380 9 feed compositions the claimed invention administers. Id. Appellant’s arguments do not explain adequately why one skilled in the art, using no more than ordinary creativity, would not have been capable of feeding the animal feed/supplement from the combined teachings of Ji and Packwood through the animal’s drinking water. See KSR, 550 U.S. at 421; see also Sovish, 769 F.2d at 743. Arguments not specifically addressed are deemed not persuasive for the reasons the Examiner presents. Accordingly, we affirm the Examiner’s prior art rejection of claims 1, 2, 4, 6-9, and 12 for the reasons the Examiner presents and we give above. CONCLUSION The Examiner’s rejections of claims 1, 2, 4, 6-9, and 12 under 35 U.S.C. § 103 are affirmed. DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 1, 4, 6 103 Ji, Packwood 1, 4, 6 2 103 Ji, Packwood, Edmonds 2 7-9, 12 103 Ji, Packwood, Edmonds 7-9, 12 Overall Outcome 1, 2, 4, 6-9, 12 Appeal 2021-001716 Application 15/956,380 10 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv). AFFIRMED