Zicker, Steven et al.

Patent Trials and Appeals Board

Sep 4, 2019

15635386 - (D) (P.T.A.B. Sep. 4, 2019)

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.
15/635,386 06/28/2017 Steven Zicker 8741-00-US-D1-HL 8007
23909 7590 09/04/2019
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
SAYALA, CHHAYA D
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
09/04/2019 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):
Patent_Mail@colpal.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte STEVEN ZICKER and KATHY GROSS
____________

Appeal 2019-000893
Application 15/635,386
Technology Center 1700
____________

Before JEFFREY B. ROBERTSON, MONTÉ T. SQUIRE, and
BRIAN D. RANGE, Administrative Patent Judges.

ROBERTSON, Administrative Patent Judge.

DECISION ON APPEAL1

STATEMENT OF THE CASE

Appellant2 appeals under 35 U.S.C. § 134(a) from the Examiner’s
Final Rejection of claims 1–3, 7, 8, and 11–21.3 (Appeal Br. 4.) We have
jurisdiction pursuant to 35 U.S.C. § 6(b).

1 This Decision includes citations to the following documents:
Specification filed June 28, 2017 (“Spec.”); Final Office Action mailed
February 23, 2018 (“Final Act.”); Appeal Brief filed July 23, 2018 (“Appeal
Br.”); and Examiner’s Answer mailed September 10, 2018 (“Ans.”).
2 Appellant/Applicant is Hill’s Pet Nutrition, Inc., which is also identified in
the Appeal Brief as the real party in interest. (Appeal Br. 2.)
3 As explained by Appellant, although only claims 1–3, 7, 8, and 12 are
indicated as rejected in the statement of rejection in the Final Action, the
Final Action discusses claims 11 and 13–21, such that the Examiner
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Application 15/635,386

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We AFFIRM.
THE INVENTION
Appellant states the invention encompasses pet food compositions that
deliver a slow, sustained-release amount of lipoic acid or salt thereof when
fed orally to a companion animal. (Spec. ¶ 2.)
Claim 1 is representative and reproduced below from the Claims
Appendix to the Appeal Brief:
1. A pet food kibble comprising:
a gelatinized starch matrix;
a sustained-release coating; and
lipoic acid or a salt thereof,
wherein the lipoic acid is delivered as a sustained-release
amount, and
wherein the sustained-release coating comprises one or more of
carnauba wax, spermaceti wax, cocoa butter, cetostearyl alcohol,
beeswax, partially hydrogenated vegetable oils, ceresin, paraffin,
myristyl alcohol, stearyl alcohol, cetyl alcohol, acacia gum, and
tragacanth.
(Appeal Br. (Claims Appendix) 10.)
Claim 8 is also independent and recites a pet food kibble with similar
limitations to claim 1. (Id. at 10–11.)

intended to reject those claims as well, which the Examiner confirmed in the
Advisory Action entered on May 10, 2018. (Appeal Br. 4; Final Action 12–
13; Advisory Action 4.) We observe that the statement of rejection in the
Answer omits claims 11 and 12, and includes cancelled claim 10. In view of
the discussion in the Answer of claims 11 and 12, we view these errors as
harmless. (Ans. 4, 6, 8; Appeal Br. 4.)
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REJECTION
1. The Examiner rejected claims 1–3, 7, 8, and 11–21 under pre-AIA 35
U.S.C. § 103(a) as obvious over Malnoe et al. (US 2004/0047896 A1,
published March 11, 2004, hereinafter “Malnoe”), van Lengerich (US
6,190,591 B1; issued February 20, 2001), Rein et al. (US 8,557,286
B1; issued October 15, 2013, hereinafter “Rein”), Hamilton (US
2003/0060503 A1, published March 27, 2003), and Myers et al. (US
5,853,762; issued December 29, 1998, hereinafter “Myers”).
(Ans. 4–9.)
We select independent claim 1 for disposition of this appeal, which is
representative of the arguments made by Appellant (See Appeal Br. 7–8).
37 C.F.R. § 41.37(c)(1)(iv).
ISSUE
The Examiner found Malnoe discloses a nutritionally complete pet
food in the form of a kibble including a gelatinized starch matrix and lipoic
acid. (Ans. 4–5.) The Examiner cited Van Lengerich and Rein as evidence
that extruded starch provides controlled release. (Id. at 5.) The Examiner
found Malnoe does not disclose the kibble includes a sustained-release
coating. (Id.) The Examiner found Hamilton discloses pet food
formulations containing lipoic acid in a timed release coating. (Id.) The
Examiner found Hamilton does not disclose the materials for the time
release coating recited in claim 1. (Id.) The Examiner found Myers
discloses slow release materials as recited in claim 1 are known slow-release
materials in the prior art. (Id. at 5–6.) The Examiner determined it would
have been obvious to coat kibble in order to obtain slow-release properties
for the coating with a reasonable expectation that such properties would be
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effective on a kibble and deliver a sustained release amount of lipoic acid.
(Id. at 6.)
Appellant argues Hamilton does not disclose or suggest a pet food
formulation can be in a timed release formulation. (Appeal Br. 6.)
Appellant contends Hamilton discloses different embodiments including a
pet formulation or a supplement for addition to a pet formulation, where the
supplements are coated but the pet food formulations are not coated.
(Appeal Br. 6–7.) Thus, Appellant argues that the Examiner has
mischaracterized Hamilton, and as a result, because none of the prior art
discloses a pet-food kibble with a sustained-release coating, the pet-food
kibble recited in claim 1 would not have been obvious. (Id. at 7–8.)
Accordingly, the dispositive issue with respect to this rejection is:
Has Appellant identified a reversible error in the Examiner’s
determination that it would have been obvious to have formulated a pet food
kibble with a sustained-release coating as recited in claim 1?

DISCUSSION
We are not persuaded by Appellant’s arguments. As the Examiner
explains, Hamilton discloses methods of coating a core to include
micronutrients and excipients as well as incorporating micronutrients into a
matrix. (Ans. 10–11, Hamilton ¶ 38.) In particular, Hamilton discloses
product-loaded cores in the form of pellets. (Id.) The Examiner explains
further that kibble is understood to be extruded pet food in the form of
pellets. (Id. at 10, citing definition of kibble from dictionary.com.) Thus,
we agree with, and adopt the Examiner’ reasoning that one of ordinary skill
in the art would have modified Malnoe to include a sustained-release coating
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as disclosed in Hamilton in order to apply the well-known technology of
coating product-loaded cores with sustained-release coatings to the product-
loaded cores of Malnoe. (Ans. 10–13.) Appellant’s arguments do not
address the Examiner’s position as to what one of ordinary skill in the art
would have understood from Hamilton’s disclosure in view of the
knowledge that coating product-loaded cores with sustained materials is
well-known and not new technology. (Id. at 12.) See KSR Int’l. Co. v.
Teleflex Inc., 550 U.S. 398, 416 (2007)(“[w]hen a work is available in one
field of endeavor, design incentives and other market forces can prompt
variations of it, either in the same field or a different one. If a person of
ordinary skill can implement a predictable variation, § 103 likely bars its
patentability.”)
Accordingly, we sustain the Examiner’s rejection.
DECISION
We affirm the Examiner’s decision rejecting claims 1–3, 7, 8, and 11–
21.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED