Ex Parte Bauman et al

Patent Trial and Appeal Board

Nov 13, 2018

13512663 (P.T.A.B. Nov. 13, 2018)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
13/512,663 07/30/2012
45738 7590 11/15/2018
STINSON LEONARD STREET LLP (MTC)
7700 FORSYTH BOULEVARD, SUITE 1100
ST LOUIS, MO 63105
FIRST NAMED INVENTOR
Dale Elton Bauman
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
ATTORNEY DOCKET NO. CONFIRMATION NO.
MTC 56922.US 1058
EXAMINER
ZILBERING, ASSAF
ART UNIT PAPER NUMBER
1792
NOTIFICATION DATE DELIVERY MODE
11/15/2018 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):
stl.uspatents@stinson.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte DALE ELTON BAUMAN, GARY F. HARTNELL,
NICHOLAS J. NISSING, GARY J. KLOPF, and JOHN L. VICINI
Appeal2017-009033
Application 13/512,663
Technology Center 1700
Before RAEL YNN P. GUEST, N. WHITNEY WILSON, and
MICHAEL G. McMANUS, Administrative Patent Judges.
GUEST, Administrative Patent Judge.
DECISION ON APPEAL
I. STATEMENT OF CASE
Appellants 1 appeal under 35 U.S.C. § 134(a) from the Examiner's
Decision to reject claims 1-13 and 20 under pre-AIA 35 U.S.C. § 103(a) as
being unpatentable over Hartnell, 2 in view of Rosenberg3 and Daniells. 4 See
1 Appellants identify Monsanto Technology LLC as the real party in interest.
Appeal Brief 2, dated November 8, 2016 ("Br.").
2 US 2009/0202672 Al, published August 13, 2009, and naming Gary F.
Hartnell as the inventor ("Hartnell").
3 US 2004/0058003 Al, published March 25, 2004, and naming Moshe
Rosenberg et al. as the inventors ("Rosenberg").
4 Stephen Daniells, Benefits of omega-3 fed cows passed onto consumers,
FEEDNAVIGATOR.COM (May 23, 2007, 14:06 GMT), https://www.feed
Appeal2017-009033
Application 13/512,663
Examiner's Final Office Action, dated May 9, 2016 ("Final Act.");
Examiner's Answer, dated February 24, 2017 ("Ans."). We have
jurisdiction under 35 U.S.C. § 6(b ).
We AFFIRM.
Appellants' disclosure is related to an enhancement of desirable
characteristics in ruminant animals and ruminant products, such as dairy and
meat products, through the incorporation of beneficial fatty acids. In
particular, the disclosure is directed to incorporating stearidonic acid
("SDA") and other omega-3 fatty acids, such as gamma linolenic acid
("GLA") into the feed of ruminant animals. Specification ("Spec.") ,r 14.
Independent claim 1 is exemplary of the subject matter on appeal and
is reproduced below (with paragraphing added for clarity):
1. A ruminant feed comprising:
SDA·
' GLA; and,
additional feed components, wherein the ruminant feed
compnses
at least about 0.05% by weight SDA and
at least about 0.03% by weight GLA,
wherein the ratio of SDA/GLA is at least about 1.3
and further comprises
a fatty acid protective agent selected from the group
consisting of an undegradable protein, a whey protein gel
complex, a protein coating material, and a combination thereof.
Br. 8 (Claim App'x).
Unless otherwise indicated, we adopt the Examiner's findings in the
Answer as our own and add any additional findings of fact appearing below
for emphasis.
navigator.com/ Article/2007 /05/24/Benefits-of-omega-3-fed-cows-passed-
onto-consumers ("Daniells").
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Application 13/512,663
II. Discussion
Appellants present arguments only with respect to claim 1, and thus
all the claims stand or fall with claim 1.
The Appellants argue that the art does not give a technical reason for
using the claimed compounds of SDA and GLA at the concentrations recited
in claim 1 of at least about 0.05% and at least about 0.03%, respectively, or
the specifically recited ratio of SDA/GLA of at least about 1.3. Br. 5.
Appellants' argument is not persuasive. The Examiner finds that
Hartnell discloses a feed composition that has at least 0.5% of SDA and at
least about 0.3% of GLA wherein the range of SDA/GLA is about 1.3 to
about 4.0. Ans. 8 (citing, e.g., Hartnell ,r 93). Accordingly, Hartnell's
disclosed range of concentration and ratio of the claimed compounds falls
squarely within the ranges recited in claim 1.
Additionally, Appellants argue that there would be no reasonable
expectation that feeding ruminant animals the SDA/GLA ratio taught by
Hartnell would provide advantageous results because the feed of Hartnell is
aquaculture feed. Br. 5.
Appellants' argument is not persuasive because it does not address the
teachings of Daniells which explain the benefits of fatty acids, such as that
taught by Hartnell, to beef and the consumer of the beef. Thus, we agree
with the Examiner (Ans. 6) that Daniells explains why the skilled artisan
would have reasonably expected benefits in giving ruminant animals the
fatty acid feed concentrations taught by Hartnell.
Appellants also argue that the Examiner has not provided a reason
why the aquaculture feed of Hartnell or the flaxseed of Daniells would have
been combined with the composite gel of Rosenberg because the aquaculture
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Application 13/512,663
feed of Hartnell does not require protection from hydrogenation and the
flaxseed feed of Daniells showed improved omega-3 fatty acid
concentrations in the beef products using an enriched flaxseed, even without
such protection from degradation. Br. 5.
The Examiner finds that Rosenberg teaches (1) that omega-3 fatty
acids are subject to degradation in the rumen of ruminant animals and (2)
using a whey protein composite gel to protect against biohydrogenation of
omega-3 fatty acids and to increase the omega-3 fatty acids in the animal
tissue and derived dairy products. Ans. 7 ( citing, e.g., Rosenberg ,r,r 5---6).
The Examiner further finds that Rosenberg teaches unprotected unsaturated
fatty acids lead to an increase in the content of undesirable saturated fatty
acids in the animal tissue. Ans. 7. Further, we find that Rosenberg teaches
that, without protection in the rumen, large amounts of polyunsaturated fats
can have a toxic effect on rumen microbes which leads to reduced nutrient
absorption from the feed. See Rosenberg ,r 5.
Accordingly, we agree with the Examiner (Ans. 10-11, 12) that it
would have been obvious to one skilled in the art to use the protection taught
by Rosenberg when feeding an omega-3 fatty acid enriched diet, as taught
by Hartnell, to ruminant animals, as taught by Daniells, in order to avoid
degradation of the fatty acids in the rumen of such animals, and further to
avoid the toxic effect when using larger amounts of omega-3 fatty acids. In
doing so, the skilled artisan would expect increased amounts of omega-3
fatty acids in the beef and dairy products of such animals over that of
animals given feed with omega-3 fatty acids without such protection, as
taught by Rosenberg.
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Appellants also argue that none of the references describe or
demonstrate protection of SDA. Br. 6. Thus, Appellants argue that a person
of ordinary skill in the art would not have had a reasonable expectation that
protecting SDA from biohydrogenation in the cow's rumen would have
successfully incorporated SDA into the beef as contended by the office.
Br. 5. In particular, Appellants refer to "the variability of incorporation of
various fatty acids into the tissues of animals as described in the studies of
Scollan."5 Br. 6.
The Examiner disagrees, finding that Rosenberg teaches successfully
protecting polyunsaturated fatty acids, particularly omega-3 fatty acids, to
increase the content of omega-3 unsaturated fatty acids in the beef and dairy
products, and the feed art recognizes SDA as a known omega-3
polyunsaturated fatty acid. Ans. 13-14; see, e.g., Hartnell ,r 4. We agree
with the Examiner that Rosenberg's teachings suggest that all
polyunsaturated fatty acid, particularly omega-3 fatty acids, and thus
including SDA, would break down in the rumen of ruminant animals and
thus would have benefitted from the whey protein gel protection taught by
5 The Final Rejection and Answer mentions two additional references as
further evidence: N.D. Scollan et al., Biohydrogenation and digestion of
long chain fatty acids in steers fed on different sources of lipid, 136(3) J. OF
AGRICULTURAL SCI. 345-55 (2001) (Abstract of record only) and N.D.
Scollan et al., Effects of including a ruminally protected lipid supplement in
the diet on the fatty acid composition of beef muscle, 90 BRITISH J. OF
NUTRITION 709-16 (2003) ("Scollan"). The Examiner finds these references
show "cows fed ruminally protected PUP As [ (polyunsaturated fatty acids)]
provided higher tissue PUP A content than cows fed unprotected oil seeds
(e.g., flaxseeds), due to the higher ruminal bio hydrogenation rate of the
unprotected PUFAs in the flaxseeds." Final Act. 6-7; Ans. 13. In other
words, the teachings of Scollan appear to be cumulative of Rosenberg.
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Rosenberg. Even if Scollan teaches variations in incorporation of particular
fatty acids, which is not particularly well-explained by Appellants,
Appellants have not shown error in the Examiner's analysis or explained
why this fact would draw into question the teaching in Rosenberg of omega-
3 fatty acid increase in beef and dairy products when feed added omega-3
fatty acids are protected in the rumen. While the skilled artisan may expect
variation between the relative increases of particular fatty acids in beef and
dairy products, increase of incorporation of protected SDA would
nonetheless be expected as compared to unprotected SDA, as with all other
polyunsaturated fatty acids, as taught by Rosenberg.
Accordingly, we sustain the Examiner's rejection of claim 1 and the
remaining claims on appeal are similarly sustained.
III. CONCLUSION
On the record before us and for the reasons discussed above, we
sustain the rejection of claims 1-13 and 20 under pre-AIA 35 U.S.C.
§ 103(a) as being unpatentable over Hartnell in view of Rosenberg and
Daniells. Accordingly, we affirm the Examiner's decision to reject the
claims on appeal.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l )(iv).
AFFIRMED
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