15117719 - (D) (P.T.A.B. Feb. 19, 2020)

EVONIK DEGUSSA GMBH

Patent Trials and Appeals BoardFeb 19, 2020

15117719 - (D) (P.T.A.B. Feb. 19, 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. 15/117,719 08/09/2016 Meike Rademacher-Heilshorn 7601/16500 5770 66991 7590 02/19/2020 LAW OFFICE OF MICHAEL A. SANZO, LLC 15400 CALHOUN DR. SUITE 125 ROCKVILLE, MD 20855 EXAMINER NGUYEN, JOHN P ART UNIT PAPER NUMBER 1619 MAIL DATE DELIVERY MODE 02/19/2020 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 MEIKE RADEMACHER-HEILSHORN and RAMALHO RODRIGUERO Appeal 2019-004891 Application 15/117,719 Technology Center 1600 Before DONALD E. ADAMS, JOHN G. NEW, and JAMIE T. WISZ, Administrative Patent Judges. WISZ, Administrative Patent Judge. DECISION ON APPEAL Appeal 2019-004891 Application 15/117,719 2 STATEMENT OF THE CASE Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the Examiner’s decision to reject claims 36–38 and 40–47. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM. CLAIMED SUBJECT MATTER The Specification discloses “the use of guanidinoacetic acid and/or creatine and/or their salts for increasing the hatching rate of eggs, for reducing embryo mortality, for improving chick growth and/or for improving the chicks’ feed conversion.” Spec. 1. Claim 36, reproduced below, is illustrative of the claimed subject matter: 36. A method for the production of poultry, comprising: providing sexually mature animals with a daily feed which has been adjusted to comprise a percentage of guanidinoacetic acid (GAA) or salts of GAA, sufficient to increase the hatch rate in eggs produced by said animals, compared to eggs produced by animals provided with a feed not having GAA or salts of GAA. Appeal Br. 12 (Claims App.). REJECTIONS The Examiner rejected claims 36, 37, and 40–42 under 35 U.S.C. § 103(a) as being obvious over Gastner.2 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 Evonik Degussa GmbH. Appeal Br. 2. 2 Gastner et al., US 2007/0231370 A1, published Oct. 4, 2007 (“Gastner”). Appeal 2019-004891 Application 15/117,719 3 The Examiner rejected claim 38 under 35 U.S.C. § 103(a) as being obvious over Gastner in view of Mitrovic.3 The Examiner rejected claims 43–47 under 35 U.S.C. § 103(a) as being obvious over Gastner in view of Shehadeh.4 ISSUES AND ANALYSIS Rejection of claims 36, 37, and 40–42 under 35 U.S.C. § 103(a) as being obvious over Gastner The Examiner finds that Gastner teaches the use of guanidinoacetic acid (“GAA”) and/or salts thereof as feed additive for breeding livestock (e.g., sexually mature animals) in predominantly vegetarian diets for increasing growth performance and reproduction performance. Final Act. 8 (citing Gastner ¶ 15). The Examiner also finds that Gastner discloses administering 0.092% by weight of GAA to hens, which is sufficient to increase the hatch rate in the eggs produced by these hens compared to eggs produced by hens not provided GAA, as evidenced by the current Specification which shows a rate of at least 0.08% to 0.12% GAA caused an increase in hatch rate. Id. (citing Gastner ¶ 37; Spec., Table 6). The Examiner concludes that: It would have been prima facie obvious at the time the invention was made to feed breeding poultry feed containing 0.092% by weight of guanidinoacetic acid (e.g. sufficient to increase the hatch rate in eggs produced by said animals, compared to eggs produced by animals provided with a feed not having GAA) 3 Mitrovic et al., The Effect of the Broiler Parents Age and the Period of Egg Storage on Incubation Indicators, Third International Scientific Symposium “Agrosym Jahorina 2012,” 559–565 (2012) (“Mitrovic”). 4 Shehadeh et al., US 2010/0233274 A1, published Sept. 16, 2010 (“Shehadeh”). Appeal 2019-004891 Application 15/117,719 4 because Gastner teaches feeding including breeding livestock (paragraph [0015]) and a feed containing 0.092% by weight of guanidinoacetic acid (paragraph [0037]) . . . Therefore, an amount of 0.092%, which lies inside the range would necessarily increase the hatch rate of breeding livestock (e.g. sexually mature animals). Id. at 9–10. Appellant argues that Gastner does not disclose a procedure that increases the hatch rate in eggs of poultry but only discloses that GAA improves reproduction performance in breeding and growing livestock, but that no definition of “reproduction performance” is provided. Appeal Br. 8. Appellant also asserts that Gastner does not suggest administering feed with 0.092% GAA to sexually mature poultry to increase the hatch rate of eggs produced by these animals but, rather, discloses the administration of this feed to growing hens which may not have been reproducing hens. Id. at 10. Appellant concludes that “[f]eeding a GAA-containing diet to sexually mature animals is clearly not the necessary consequence of feeding the diet to growing animals.” Id. The Examiner responds that Gastner also teaches that a particularly preferred daily amount of GAA and salts in the feed is from about 1.0 to about 5.0 g (e.g., about .1% to about .5%). Ans. 3–4 (citing Gastner ¶¶ 26– 27). The Examiner also finds that, “[t]he amount of the guanidinoacetic acid and/or salts of guanidinoacetic acid in an amount of from about 1.0 g/kg to about 5.0 g/kg of feed (e.g. about .1 % to about .5%) is a close overlapping amount to the instantly disclosed amount that is sufficient to increase the hatch rate in eggs produced by animals.” Id. at 4. Appellant asserts that Gastner refers to using GAA in feed “to improve feed uptake, to increase growth performance, muscle meat gain, Appeal 2019-004891 Application 15/117,719 5 meat quality and/or reproduction performance” evidencing that the livestock may exhibit, for example, improved meat quality but not improved reproduction performance. Reply 2. Appellant further asserts that the full preferred range of GAA in the feed is about 0.01 to about 100 g/kg of feed and a specific range will vary from species to species; therefore, there is no inherent disclosure of the claim elements. Id. We agree with the Examiner that Gastner teaches the use of GAA as a feed additive for livestock, including poultry. Gastner ¶¶ 15, 20. Gastner also discloses that a “particularly preferred” amount of such feed is from about 1.0 to about 5.0 g (about 0.1 % to about 0.5%) of GAA. Id. ¶ 27. Appellant does not disagree that such an amount would be effective to increase the hatch rate in eggs produced by the poultry receiving such feed compared to eggs produced by poultry provided food with no GAA, as evidenced by the current Specification, which shows a rate of at least 0.08% to 0.12% GAA caused an increase in hatching rate. Spec., Table 6. We find that, based on the disclosure in Gastner, one of ordinary skill in the art would have found it obvious to administer GAA in an amount between about 0.1 % to about 0.5% to poultry in order to enhance reproduction performance in the poultry, which would have resulted in an increased hatch rate. Even if, as Appellant suggests, one of skill in the art would not necessarily be intending to increase the hatch rate of poultry in administering the GAA, “[m]ere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention.” In re Baxter Travenol Labs., 952 F.2d 388, 392 (Fed. Cir. 1991). Therefore, we affirm the Examiner’s rejection of claim 36 as obvious over Gastner. Claims 37 and 40–42 are not argued separately apart from the Appeal 2019-004891 Application 15/117,719 6 independent claims, and therefore fall with claim 36. See 37 C.F.R. § 41.37(c)(1)(iv). Rejection of claim 38 under 35 U.S.C. § 103(a) as being obvious over Gastner in view of Mitrovic The Examiner’s findings with respect to Gastner are discussed supra. For claim 38, which recites that “only animals at an age where the hatch rate is at its maximum or older are fed a diet with GAA or salts of GAA,” the Examiner finds that Mitrovic teaches that the age of broiler parents affected the fertility of eggs and chicken hatching. Final Act. 10; Appeal Br. 12 (Claims App.). The Examiner also finds that Mitrovic teaches that “the lowest fertility and worst hatching were seen in PA58 broiler parents (58 weeks old)” and it would have been obvious for a person of ordinary skill in the art to feed breeding chickens, wherein the chickens are at an age including 58 weeks. Id. (citing Mitrovic Table 1, 561–562). Appellant does not make any specific arguments regarding Mitrovic but states that, since claim 38 is a proper dependent claim, it should be allowable if claim 36 is allowable. Appeal Br. 10–11. We affirm the Examiner’s obviousness rejection of claim 38 based on the reasoning discussed above with respect to Gastner. Rejection of claims 43–47 under 35 U.S.C. § 103(a) as being obvious over Gastner in view of Shehadeh The Examiner’s findings with respect to Gastner are discussed supra. For claims 43–47, which recite additional feed components, the Examiner finds that Gastner discloses that GAA can be used in combination with fats, amino acids, and vitamins and that Shehadeh teaches a fat amount including Appeal 2019-004891 Application 15/117,719 7 7.35% of a feed composition for poultry. Final Act. 11–12 (citing Gastner ¶ 28; Shehadeh, Abstract, Table 1). The Examiner also finds that Shehadeh teaches that the poultry includes game birds (e.g., wild fowl) and quail. Id. at 12 (citing Shehadeh ¶ 41). Appellant does not make any specific arguments regarding Shehadeh but states that, since claims 43–47 are proper dependent claims, they should be allowable if claim 36 is allowable. Appeal Br. 10–11. We affirm the Examiner’s obviousness rejection of claims 43–47 based on the reasoning discussed above with respect to Gastner. Furthermore, with regard to claims 44 and 46, Gastner discloses administering 0.092% by weight of GAA, which falls within the claimed range of 0.06 to 0.2% by weight. Gastner ¶¶ 36–37. As discussed above, Gastner also discloses that a “particularly preferred” amount of such feed is from about 1.0 to about 5.0 g (about .1 % to about .5%) of GAA, which overlaps with the claimed ranged. Id. ¶ 27. See In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) (“In cases involving overlapping ranges, we and our predecessor court have consistently held that even a slight overlap in range establishes a prima facie case of obviousness.”). CONCLUSION For the reasons described herein and those already of record, we affirm the Examiner’s rejection of claims 36–38 and 40–47. Appeal 2019-004891 Application 15/117,719 8 DECISION SUMMARY In summary: Claims Rejected 35 U.S.C. § Reference(s)/Basis Affirmed Reversed 36, 37, 40–42 103 Gastner 36, 37, 40–42 38 103 Gastner, Mitrovic 38 43–47 103 Gastner, Shehadeh 43–47 Overall Outcome 36–38, 40–47 TIME PERIOD FOR RESPONSE 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