Carel Theo Jozef Wreesmann et al.

Patent Trials and Appeals Board

May 25, 2021

2020006443 (P.T.A.B. May. 25, 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.
13/503,237 05/18/2012 Carel Theo Jozef Wreesmann 364.0734US / 10963 090 2881
152163 7590 05/25/2021
Nouryon Chemicals LLC
131 South Dearborn
Suite 1000
Chicago, IL 60603
EXAMINER
ZILBERING, ASSAF
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
05/25/2021 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):
nouryonpatents@lkglobal.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte CAREL THEO JOZEF WREESMANN,
ADRIANUS MARIA REICHWEIN,
MARCELLINUS ALEXANDER VAN DOORN, and
JAVIER MARTIN-TERESO LOPEZ

Appeal 2020-006443
Application 13/503,237
Technology Center 1700
____________

Before DONNA M. PRAISS, N. WHITNEY WILSON, and
MONTÉ T. SQUIRE, Administrative Patent Judges.

PRAISS, Administrative Patent Judge.

DECISION ON APPEAL1

Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 2–9 and 11–20. A telephonic hearing
was held on May 17, 2021. We have jurisdiction under 35 U.S.C. § 6(b).

1 In this Decision, we refer to the Specification filed Apr. 20, 2012
(“Spec.”), the Final Office Action dated May 14, 2019 (“Final Act.”), the
Appeal Brief filed Feb. 19, 2020 (“Appeal Br.”), the Examiner’s Answer
dated Aug. 18, 2020 (“Ans.”), and the Reply Brief filed Sept. 16, 2020
(“Reply Br.”).
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies Nouryon Chemicals International B.V.
as the real party in interest. Appeal Br. 1.
Appeal 2020-006443
Application 13/503,237

2
We REVERSE.

STATEMENT OF THE CASE
The subject matter on appeal relates to the use of a supplement for
making metals nutritionally available to animals. Spec. 1:3–4. More
particularly, the subject matter relates to a supplement comprising at least
one compound selected from the group including glutamic acid N,N-diacetic
acid (“GLDA”), a metal complex of GLDA, a sodium salt of GLDA, a
potassium salt of GLDA, methylglycine-N,N-diacetic acid (“MGDA”), a
metal complex of MGDA, a sodium salt of MGDA, and a potassium salt of
MGDA. Id. at 4:17–26; Appeal Br. 2.
Claim 6 reproduced below is the sole independent claim and
illustrative of the subject matter in this Appeal.
6. A method of making a metal nutritionally available to an
animal comprising the step of providing the animal with a
supplement incorporated in animal feed, animal drinking water,
salt licks, or premixes therefor, wherein the supplement
comprises at least one compound selected from the group
consisting of glutamic acid N,N-diacetic acid (GLDA), a metal
complex of GLDA, a sodium salt of GLDA, a potassium salt of
GLDA, methylglycine-N,N-diacetic acid (MGDA), a metal
complex of MGDA, a sodium salt of MGDA, and a potassium
salt of MGDA.
Appeal Br. 22 (Claims Appendix).
ANALYSIS
We review the appealed rejections for error based upon the issues
Appellant identifies, and in light of the arguments and evidence produced
thereon. Ex parte Frye, 94 USPQ2d 1072, 1075 (BPAI 2010) (precedential)
(cited with approval in In re Jung, 637 F.3d 1356, 1365 (Fed. Cir. 2011)
Appeal 2020-006443
Application 13/503,237

3
(“[I]t has long been the Board’s practice to require an applicant to identify
the alleged error in the examiner’s rejections.”)). After considering the
argued claims and Appellant’s arguments, we are persuaded of reversible
error in the appealed rejections.
The Examiner rejects claims 2–9 and 11–20 as follows. Final Act. 3,
5.
Claim(s) Rejected 35 U.S.C. § Reference(s)/Basis
2–9, 11–15, 18–20 103(a) Beres,
3 Chemserv,4
Essentialingredients5
16, 17 103(a) Cordon,6 Chemserv
We address each rejection below.
Obviousness of Claims 2–9, 11–15, and 18–20
The Examiner rejects sole independent claim 6 over the combination
of Beres, Chemserv, and Essentialingredients based on the findings that
Beres discloses biologically acceptable compounds of trace elements-ligands
complexes (chelates) where the ligands are amino carboxylates, such as
EDTA, and Chemserv discloses that GLDA is a direct alternative chelating
agent to EDTA, food approved, non-toxic, more thermally stable, and more

3 WO 83/01559 A1, pub. May 11, 1983.
4 Dissolvine GL Product Article, Chem/Serv Inc., Akzo Nobel Introduces A
New Biodegradable Chelating Agent 1–4 (Oct 10, 2007)
(http://www.dissolvine.com).
5 Dissolvine GL Product Article, Essentialingredients.com, New Eco-
Friendly Chelating Agent: GLDA (Apr. 18, 2009)
(http://www.dissolvine.com).
6 US 2,960,406, iss. Nov. 15, 1960.
Appeal 2020-006443
Application 13/503,237

4
water soluble over a wide pH range. Final Act. 3 (additionally citing
Essentialingredients for GLDA-chelated metals remaining soluble over a
wide pH range). The Examiner determines it would have been obvious to a
person having ordinary skill in the art to substitute GLDA from Chemserv
and Essentialingredients for Beres’s EDTA because it is a direct alternative
and environmentally friendly. Id. at 4.
Appellant contends the Examiner erred in rejecting claim 6 over the
prior art combination because Chemserv discloses functional equivalence
between GLDA and EDTA for ex vivo applications only and the in vivo
environment is fundamentally different than ex vivo due to competition for
the metal from phytates and other nutritional antagonists present in vivo.
Appeal Br. 3. Appellant argues that this difference means the substitution of
GLDA for EDTA in animal food products lacks a reasonable expectation of
success. Therefore, the Examiner’s proposed substitution would not have
been obvious to a person having ordinary skill in the art. Id. Appellant
supports these arguments with Rule 132 Declarations from Javier Martin-
Tereso dated April 26, 2018 (“Decl. I”) and November 29, 2018 (“Decl. II”)
and from Martin Heus dated November 29, 2018 (“Heus Decl.”)
(collectively, “the Declarations”).
Appellant’s arguments and declaration evidence persuade us that the
Examiner reversibly erred in rejecting the claims on appeal.
The Declarations support Appellant’s position that a person having
ordinary skill in the art would not have had a reasonable expectation of
success substituting GLDA for EDTA in an in vivo environment because the
affinity constants of GLDA are log 5-fold lower, which is 100,000 times
lower, than the affinity constants of EDTA for the exact same trace metals.
Appeal 2020-006443
Application 13/503,237

5
Appeal Br. 12; Decl. II ¶ 3; Heus Decl. ¶ 16. In the Answer, the Examiner
acknowledges that the Declarations support the lower affinity constants
compared to EDTA, but finds that the cited references disclose GLDA
exhibits metal sequestering power and solubility over a broad range of pH
that is at least as good as EDTA and has excellent properties with regards to
eco and human toxicity. Ans. 10 (citing Chemserv 2–4; Essentialingredients
2). The evidence of record, however, shows that solubility over a wide pH
range is not an important characteristic in an in vivo environment because
the pH range in the stomach is 3.5–4, the pH range in the intestinal tract is
pH 5.5–6.5, and the amount of EDTA typically used is very low in the range
of 100 ppm. Decl. II ¶ 4.b. The evidence of record also shows that because
100,000 times more GLDA would have been expected to achieve a
performance similar to that of EDTA, food safety at that level would have
been questionable. Id. ¶ 3. In addition, Chemserv discloses that it is L-
glutamic acid, not GLDA, which is food approved and regarded as a safe
food additive. Reply Br. 2.
Because the Examiner’s conclusion is not supported by the
preponderance of the evidence cited in this Appeal record, we reverse the
Examiner’s rejection of claim 6. We also reverse the rejection of claims 2–5,
7–9, 11–15, and 18–20 based on their dependency from claim 1.
Obviousness of Claims 16 and 17
Claim 16 depends from claim 6 and recites “wherein the animal feed,
animal drinking water, salt licks, or premixes therefor comprises the metal.”
Appeal Br. 24 (Claims Appendix). Claim 17 depends from claim 16 and
further recites “a reduced amount of the metal compared to animal feed,
Appeal 2020-006443
Application 13/503,237

6
animal drinking water, salt licks, or premixes therefor that does not have the
supplement.” Id.
Appellant contends the Examiner erred in rejecting claims 16 and 17
as obvious over the combination of Cordon and Chemserv because Cordon
only discloses EDTA and does not cure the deficiencies of Chemserv
identified in connection with the rejection of claim 6. Id. at 19–20. Because
Cordon does not cure the deficiencies of Chemserv discussed above in
connection with the rejection of independent claim 6, we likewise reverse
the Examiner’s rejection of dependent claims 16 and 17 under 35 U.S.C.
§ 103(a) based on Chemserv and Cordon.
CONCLUSION
In summary:
Claim(s)
Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed
2–9, 11–15,
18–20 103(a) Beres, Chemserv
2–9, 11–15,
18–20
16, 17 103(a) Cordon, Chemserv 16, 17
Overall
Outcome
2–9, 11–20

REVERSED