BASF SE

Patent Trials and Appeals Board

Jul 1, 2020

14696996 - (D) (P.T.A.B. Jul. 1, 2020)

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.
14/696,996 04/27/2015 Arnulf TRÖSCHER 074012-0318-US-525842 1057
123223 7590 07/01/2020
Faegre Drinker Biddle & Reath LLP (WM)
Attn: Intellectual Property Group
One Logan Square, Suite 2000
Philadelphia, PA 19103-6996
EXAMINER
SMITH, PRESTON
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
07/01/2020 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):
DBRIPDocket@faegredrinker.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte ARNULF TRÖSCHER, NINA CHALLAND,
JOHANNA TROESCHER, and FRANZISKA TROESCHER
____________

Appeal 2019-004679
Application 14/696,996
Technology Center 1700
____________

Before ADRIENE LEPIANE HANLON, JAMES C. HOUSEL, and
MICHAEL G. McMANUS, Administrative Patent Judges.

McMANUS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 seeks review of the
Examiner’s decision to reject claims 18–21 and 27–31. We have jurisdiction
under 35 U.S.C. § 6(b).
We affirm.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies BASF SE as the real party in interest.
Appeal Brief (filed Nov. 19, 2018, hereinafter “Appeal Br.”) 2.
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CLAIMED SUBJECT MATTER
The present application generally relates to “the use of natural or
synthetic green fodder flavors as feed additive for ruminants.” Specification
(filed April 27, 2015, hereinafter “Spec.”) 1, ll. 1–2. The Specification
describes “green fodder” as “feedstuffs in which all of the plant, mostly
fresh, can be fed. Examples which may be mentioned are: grass, corn,
cereal, clover and legumes.” Id. at 2, ll. 24–25. The Specification teaches
that green fodder flavors may be used “for increasing the feed intake (kg/d)
and/or for increasing the frequency of feed intake (feed intake frequency).”
Id. at 5, ll. 12–14. The Specification additionally teaches that, in an
embodiment, “the green fodder flavors comprise hexanal and/or at least one
monounsaturated or polyunsaturated analog thereof.” Id. at 5, ll. 19–21.
Claim 29 is illustrative of the subject matter on appeal and is
reproduced below with certain language bolded for emphasis:
A method for increasing the feed intake frequency of dairy
cows, wherein feed is administered to the dairy cows, which
feed is supplemented with a feed additive comprising natural or
synthetic green fodder flavors, wherein the green fodder
flavors comprises at least one C6-breakdown product of long-
chain fatty acids.

Appeal Br. (Claims App.) (emphasis added).
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REFERENCES
The Examiner relies upon the following prior art:
Name Reference Date
Goers US 4,806,379 Feb. 21, 1989
Bruggemann2 US 2003/0176500 A1 Sept. 18, 2003
Norton US 2013/0309351 Al Nov. 21, 2013
REJECTIONS
The Examiner maintains the following rejections:3
1. Claims 21 and 27–31 are rejected under 35 U.S.C. § 103 as
unpatentable over Norton in view of Bruggemann. Final
Action (mailed June 18, 2018, hereinafter “Final Act.”) 3–4.
2. Claims 18–20 are rejected under 35 U.S.C. § 103 as
unpatentable over Norton in view of Goers and
Bruggemann. Id. at 4.
DISCUSSION
Rejection 1. The Examiner rejects claims 21 and 27–31 as obvious
over Norton in view of Bruggemann. Id. at 3–4. In support of the rejection,
the Examiner finds that “Norton teaches administering animal feed to
animals such as cattle (para 27) wherein the feed affects behavior (para 35).”
Id. at 3. The Examiner also finds that “Norton further teaches enhancing
feed intake (para 71).” Id. at 4–5.

2 Although Molly is the first listed inventor, we follow the Examiner’s
practice of referring to this reference as “Bruggemann” in the interest of
consistency. See US 2003/0176500 A1, code (76).
3 The Examiner additionally rejected claim 22 as anticipated by Norton.
Final Act. 2. Claim 22 was canceled by amendment dated Sept. 5, 2018
(entered Sept. 18, 2018).
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The Examiner further finds that Bruggemann “teaches feed
compositions having these c6 [sic, C6] compounds are known in the art.” Id.
at 3 (citing Bruggemann, Abstract). The Examiner determines that one of
ordinary skill in the art would have had reason “to incorporate such products
to enhance antimicrobial properties (para 021). This would be beneficial
since the products of Norton are drawn to feeding young animals which have
developing digestive tracks.” Id.
Appellant argues that the rejection is flawed because “Norton does not
give any hint to use the flavor, in particular any green fodder flavor, in order
to affect the eating behavior of dairy cows, i.e. to increase the frequency of
feed intake.” Appeal Br. 10. Appellant similarly argues that “Bruggemann
does not refer to [a] method of affecting the eating behavior of dairy cows.”
Id. Appellant additionally argues that a person of ordinary skill in the art,
seeking a method of increasing the feed intake of dairy cows, would not
have had reason to combine the teachings of Norton and Bruggemann. Id. at
10–11.
Appellant’s argument that Norton does not teach to use green fodder
flavor to affect eating behavior is not persuasive of error. Independent claim
29 (from which all claims at issue depend) requires “[a] method for
increasing the feed intake” that includes the administration of feed
supplemented with “green fodder flavors.” Appeal Br. (Claims App.). The
claim does not require that the green fodder flavors cause the increase in
feed intake. Here, Norton teaches the use of a particular starter feed
(RAMP® Starter Feed) to increase the dry matter intake of calves during
certain time periods. Norton ¶ 71; see id. Figs. 7 and 8. Accordingly,
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Appellant has not shown error in the Examiner’s finding that Norton teaches
a method for increasing feed intake.
Bruggemann teaches “a feed composition for an animal comprising a
feed supplement containing one or more medium chain fatty acids.”
Bruggemann, Abstract. Bruggemann specifically teaches to use medium
chain fatty acids such as caproic acid (C6) to inhibit microbial
contamination. Id.
The Examiner finds that one of skill in the art would use the fatty acid
compounds taught by Bruggemann in order to enhance antimicrobial
properties. Final Act. 3. Appellant argues that “Bruggemann does not refer
to [a] method of affecting the eating behavior of dairy cows and thus does
not at all seem to be relevant for a discussion of inventiveness of the claimed
subject matter.” Appeal Br. 10. This argument is not persuasive of error. In
considering obviousness, a tribunal is “not limited to the same motivation
that may have motivated the inventors.” Par Pharm., Inc. v. TWI Pharm.,
Inc., 773 F.3d 1186, 1197 (Fed. Cir. 2014) (citing Alcon Research, Ltd. v.
Apotex Inc., 687 F.3d 1362, 1369 (Fed. Cir. 2012) (“We have repeatedly
held that the motivation to modify a prior art reference to arrive at the
claimed invention need not be the same motivation that the patentee had.”)).
Accordingly, Appellant has not shown error in the Examiner’s stated reason
to combine the teachings of Norton and Bruggenmann.
In view of the foregoing, we determine that Appellant has not shown
error in the rejection of claims 21 and 27–31.

Rejection 2. The Examiner rejects claims 18–20 as obvious over
Norton in view of Goers and Bruggemann. Final Act. 4.
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In support of the rejection, the Examiner finds that Norton teaches
administering an animal feed that affects behavior. Id. (citing Norton ¶ 35).
The Examiner further finds that “Goer[s] teaches a feed additive comprising
flavors and having cis 3 hexenal.” Id. The Examiner then determines that
“[i]t would have been obvious to incorporate these substances into the
product of Norton for purposes of enhancing the flavor (abstract of
Goer[s]).” Id.
Appellant argues that Goers describes the use of green leaf essence to
impart a fresh taste to human food but does not describe the “use of the
green leaf essence as feed additive for affecting the eating behavior of dairy
cows.” Appeal Br. 11. Appellant further argues that the references are
directed to different problems and the Examiner has not shown an adequate
reason to combine the teachings of the references. Id. at 11–12.
The Examiner finds that a person of ordinary skill in the art would
have had reason to incorporate the flavors of Goer, including cis-3-hexenal,
into an animal feed in order to enhance the flavor of the animal feed.
Appellant indicates its disagreement but does not show specific error in the
Examiner’s determination. Its assertion that the references are directed to
different problems is unavailing – it is not necessary for the prior art to
recognize the same problem and solution contemplated by Appellants. See
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 420 (2007) (“Under the correct
analysis, any need or problem known in the field of endeavor at the time of
invention and addressed by the patent can provide a reason for combining
the elements in the manner claimed”).
Additionally, as persons of scientific competence in the fields in
which they work, examiners are responsible for making findings, informed
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by their scientific knowledge, as to the meaning of prior art references to
persons of ordinary skill in the art. Absent legal error or contrary factual
evidence, those findings can establish a prima facie case of obviousness. In
re Berg, 320 F.3d 1310, 1315 (Fed. Cir. 2003). Here, the Examiner makes a
reasoned finding that one of skill in the art would regard the flavorants of
Goers as appropriate for incorporation into the feed of Norton to enhance the
flavor of the feed. In this regard, we note that Norton contemplates the
addition of palatability agents such as flavorants to the animal feed. Norton ¶
41. Appellant has not shown any specific error in this determination.
Accordingly, Appellant has not shown error in the stated reason to
combine. Further, one may reasonably infer that enhancing the flavor of
animal feed, as posited by the Examiner, would increase feed intake. In
addition, as discussed above, Norton also teaches a method of increasing
feed intake. Accordingly, Appellant has not shown that the references fail to
teach a method for increasing feed intake that includes the use of a feed
additive comprising green fodder flavors.
CONCLUSION
In view of the evidence and analysis set forth in the Final Action, the
Examiner’s Answer, and above, the Examiner’s rejections are affirmed.
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
21, 27–31 103 Norton,
Bruggemann
21, 27–31
18–20 103 Norton, Goers,
Bruggemann
18–20
Overall
Outcome
18–21,
27–31

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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