ABSORBENT PRODUCTS LTD.

Patent Trials and Appeals Board

Mar 18, 2021

2020005985 (P.T.A.B. Mar. 18, 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.
14/440,829 05/05/2015 Peter Aylen 17719/047001; PUS22117 8039
153355 7590 03/18/2021
FBFK/Osler
3200 Southwest Freeway, Suite 3200
Houston, TX 77027
EXAMINER
LARSEN, JEFFREY R
ART UNIT PAPER NUMBER
3643
NOTIFICATION DATE DELIVERY MODE
03/18/2021 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):
docketing@fbfk.law
jhathaway@fbfk.law
rlord@fbfk.law
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte PETER AYLEN, STEVE GURNEY, and JENNIFER BYLYCIA
____________

Appeal 2020-005985
Application 14/440,8291
Technology Center 3600
____________

Before MURRIEL E. CRAWFORD, BRUCE T. WIEDER, and
TARA L. HUTCHINGS, Administrative Patent Judges.

WIEDER, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 1–10 and 12–24. We have jurisdiction
under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real party in interest as Absorbent
Products Ltd. (Appeal Br. 1.)
Appeal 2020-005985
Application 14/440,829

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CLAIMED SUBJECT MATTER
Appellant’s “invention relates to a composition comprising an
ammonia reducing agent for animal beddings and litters.” (Spec. ¶ 2.)
Claims 1, 10, and 12 are the independent claims on appeal. Claim 1 is
illustrative. It recites (emphasis and paragraphing added):
1. An animal bedding or litter amendment composition that
reduces ammonia levels in a barn, an animal stall or poultry
house containing the animal bedding or litter amendment
composition, the composition comprising:
30% to 95% w/w citric acid and one of:
a) a clay-based particulate;
b) diatomaceous earth; or
c) a combination of two or more of a clay-based
particulate, diatomaceous earth and an organic material,
wherein the citric acid reduces levels of ammonia arising
from animal waste in the barn, animal stall, or poultry house.

REJECTIONS
Claims 1, 3–5, 7, 8, 10, 12–16, 18, and 20–22 are rejected under
35 U.S.C. § 103(a) as unpatentable in view of Wang (US 2007/0277739 A1,
pub. Dec. 6, 2007) and Zaid (US 5,089,258, iss. Feb. 18, 1992).
Claim 1 is rejected under 35 U.S.C. § 103(a) as unpatentable in view
of Wax (US 5,054,434, iss. Oct. 8, 1991) and Zaid.
Claims 23 and 24 are rejected under 35 U.S.C. § 103(a) as
unpatentable in view of Wax, Zaid, and Durbye (US 4,509,457, iss.
Apr. 9, 1985).
Claims 2, 6, 17, and 19 are rejected under 35 U.S.C. § 103(a) as
unpatentable in view of Wang, Zaid, and Keithly (US 2003/0164144 A1,
pub. Sept. 4, 2003).
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Application 14/440,829

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Claim 9 is rejected under 35 U.S.C. § 103(a) as unpatentable in view
of Wang, Zaid, and Lawson (US 2011/0033410 A1, pub. Feb. 10, 2011).

ANALYSIS
Obviousness is a legal conclusion involving a determination of
underlying facts.
Under § 103, the scope and content of the prior art are to be
determined; differences between the prior art and the claims at
issue are to be ascertained; and the level of ordinary skill in the
pertinent art resolved. Against this background, the obviousness
or nonobviousness of the subject matter is determined. Such
secondary considerations as commercial success, long felt but
unsolved needs, failure of others, etc., might be utilized to give
light to the circumstances surrounding the origin of the subject
matter sought to be patented.

KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406 (2007) (quoting Graham v.
John Deere Co. of Kansas City, 383 U.S. 1, 17–18 (1966)).
With regard to the scope and content of the prior art, the Examiner
finds that “Wang teaches an animal bedding or litter amendment
composition that reduces ammonia levels in a barn, an animal stall or poultry
house containing the animal bedding or litter amendment composition, the
composition comprising citric acid.” (Final Action 2.) The Examiner also
finds that
Wang does not specifically teach 30%-95% w/w [(weight for
weight)] citric acid. Zaid teaches 30%-95% w/w citric acid [an
odor-reducing composition in particulate form and consisting
essentially of from about 0.1 to 30% by weight citric acid and at
least about 50% by weight of a monovalent salt of citric acid,
claim 1] for the purpose of providing compositions for reducing
or eliminating odors on a variety of substrates such as litter. It
would have been obvious to one having ordinary skill in the art
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Application 14/440,829

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at the time the invention was made to modify the composition
taught by Wang to include 30%-95% w/w citric acid as taught by
Zaid because doing so would have provided compositions for
reducing or eliminating odors on a variety of substrates such as
litter and since it has been held that where the general conditions
of a claim are disclosed in the prior art, discovering the optimum
or workable ranges involves only routine skill in the art. In re
Aller, 105 USPQ 233.

(Id. at 2–3 (emphasis omitted, second brackets in original).)
Appellant argues that “Wang teaches only inclusion of a minimal
amount (1%) of an acid, such as citric acid, to reduce the dispersion pH.
Wang at paras. 0036-0041, 0075, 0077, 0079, 0081.” (Appeal Br. 12; see
also Prema Decl. ¶ 62 (“Wang uses no higher than 1% w/w citric acid.”).)
With regard to Zaid, Appellant argues that
it is clear error to assert that Zaid teaches 30% to 95% w/w citric
acid in the animal bedding or litter amendment composition . . . ,
as claimed, when Zaid clearly teaches the use of 0.1-30% in
relation to an amount of citric acid salt and not in relation to clay-
based particulate, diatomaceous earth, and/or organic material.
Zaid at col. 3, 11. 30-32.

(Id. (emphasis omitted).) Appellant further argues that “as noted in Exh. 1,
no motivation exists to separate citric acid from citric acid salt of Zaid nor
does the Examiner provide one in the [Final Action].” (Id. at 13.) Exhibit 1
also notes that “the claimed product [in the present application] works to
reduce ammonia levels by using citric acid to lower pH (for examples see
tables 1 and 7a in [the application]” (Prima Decl. ¶ 7), and that “Zaid teaches
the use of citric acid in combination with sodium citrate, which results in a

2 Declaration of Dr. Dipesh Prema dated May 18, 2020 (hereinafter “Prema
Decl.” or “Exh. 1”).

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buffer. . . . Therefore, Zaid does not teach the use of citric acid to lower
pH” (id. ¶ 9).
The Examiner answers that “Zaid teaches compositions for absorbing
or reducing odors on a wide variety of substrates such as absorbent litterbox
fills [col. 3 lines 6-10] which are well known to comprise clay,
diatomaceous earth, and/or organic matter.” (Answer 4 (emphasis omitted,
brackets in original).) Further, “[t]he range of percentages of the citric acid
present in the composition taught by Zaid are the percentages of the citric
acid that may constitute the entire composition not just in relation to the salt.
It is well within the ability of one skilled in the art to vary the formulation
without excluding key components.” (Id. at 5.)
Wang discloses “an animal litter that includes a palm oil residue,
possibly in combination with another absorbent material such as whole
ground grain, virgin germ, seed meal, spent germ or clay.” (Wang,
Abstract.) Wang also discloses that including an acid “is believed to keep
the pH of animal urine sufficiently low to retard decay of urea to ammonia.
Any suitable acid may be employed, such as HCl, H2SO4, other mineral
acids, and organic acids such as citric and ascorbic acids.” (Id. ¶ 41; see
also id. ¶ 58 (listing “Citric Acid 1%” of the “Total Dry Weight %” of an
exemplary litter).).)
Zaid discloses an “odor-reducing composition [that] includes
respective quantities of citric acid and a monovalent salt of citric acid as
active ingredients.” (Id. at col. 2, ll. 63–66.) In particular, Zaid discloses a
composition including “from about 0.1-30% by weight citric acid, and from
about 70 to 99% by weight of citric acid monovalent salt. Moreover, in
order to improve the handling properties of such particulate compositions,
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Application 14/440,829

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they would normally also include a minor amount of an anti-caking agent.”
(Id. at col. 3, ll. 30–36.)
We agree with the Examiner that “Zaid teaches compositions for
absorbing or reducing odors on a wide variety of substrates such as
absorbent litterbox fills.” (Answer 4 (emphasis added).) We agree that
Wang does not specifically teach the use of 30–95% weight for weight citric
acid. (See Final Action 2.) And although we also agree that Zaid teaches
from about 0.1–30% by weight citric acid, Zaid teaches this as one element
of a composition that also includes 70–99% by weight of citric acid
monovalent salt. (See Zaid at col. 3, ll. 30–36.) The Examiner does not
direct us to a teaching in Zaid of the use of citric acid without the
corresponding use of a citric acid monovalent salt in the composition.
The Supreme Court in KSR Int’l Co. v. Teleflex Inc., 550
U.S. 398 . . . (2007), explained that, “because inventions in most,
if not all, instances rely upon building blocks long since
uncovered, and claimed discoveries almost of necessity will be
combinations of what, in some sense, is already known,” “it can
be important to identify a reason that would have prompted a
person of ordinary skill in the relevant field to combine the
elements in the way the claimed new invention does.” Id. at 418–
19.

Personal Web Techs., LLC v. Apple, Inc., 848 F.3d 987, 991–92 (Fed. Cir.
2017). Here, the Examiner determines that it would have been obvious to
modify Wang to include the 30% citric acid disclosed in Zaid because it
would provide “compositions for reducing or eliminating odors on a variety
of substrates such as litter and since it has been held that where the general
conditions of a claim are disclosed in the prior art, discovering the optimum
or workable ranges involves only routine skill in the art.” (Final Action 3.)
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However, the Examiner does not sufficiently explain why it would
have been obvious, absent guidance from the present application, to modify
Wang by selecting just one of the components of the claimed composition of
Zaid, i.e., the acid component, in the weight for weight percentage of Zaid,
but without the monovalent salt of citric acid component that makes up most
of the rest of the composition of Zaid, and in view of which the weight for
weight percentage is measured. (See Zaid at col. 4, ll. 36–43.)
Therefore, we will reverse this rejection of claim 1. Independent
claims 10 and 12 include similar language and the Examiner relies on the
same determinations. Therefore, we will also reverse the rejection of
claims 10 and 12, and dependent claims 3–5, 7, 8, 13–16, 18, and 20–22.
The additional art cited in the rejections of dependent claims 2, 6, 9, 17,
and 19 does not cure the above noted deficiency. Therefore, we will also
reverse the rejections of claims 2, 6, 9, 17, and 19.
With regard to the rejection of claim 1 in view of Wax3 and Zaid, the
Examiner finds that, like Wang, “Wax does not specifically teach 30% to
95% w/w citric acid.” (Final Action 8.) The Examiner again relies on Zaid
to teach this limitation. (Id.)
The Examiner, however, does not sufficiently explain why it would
have been obvious, absent guidance from the present application, to modify
Wax by selecting just one of the components of the claimed composition of
Zaid, i.e., the acid component, in the weight for weight percentage of Zaid,
but without the monovalent salt of citric acid component that makes up most

3 Wax discloses “adding low molecular weight, non-volatile acids to . . .
animal litter or bedding” (Wax at col. 2, ll. 66–68) “for the control of
ammonia which is being generated by animals” (id. at col. 1, ll. 8–10).
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Application 14/440,829

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of the rest of the composition of Zaid, and in view of which the weight for
weight percentage is measured. (See Zaid at col. 4, ll. 36–43.)
Therefore, we will reverse this rejection of claim 1. The additional art
cited in the rejection of dependent claims 23 and 24 does not cure the above
noted deficiency. Therefore, we will also reverse the rejection of claims 23
and 24.

CONCLUSION
The Examiner’s rejections of claims 1–10 and 12–24 under 35 U.S.C.
§ 103(a) are reversed.
Specifically:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
1, 3–5, 7,
8, 10, 12–
16, 18,
20–22
103(a) Wang, Zaid 1, 3–5, 7,
8, 10, 12–
16, 18,
20–22
1 103(a) Wax, Zaid 1
23, 24 103(a) Wax, Zaid, Durbye 23, 24
2, 6, 17,
19
103(a) Wang, Zaid, Keithly 2, 6, 17,
19
9 103(a) Wang, Zaid, Lawson 9
Overall
Outcome
1–10, 12–
24

REVERSED