Ex Parte Eaton

Board of Patent Appeals and Interferences

Aug 27, 2012

11145716 (B.P.A.I. Aug. 27, 2012)

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.
11/145,716 06/06/2005 Kevin P. Eaton AZEAT.0001 3770
22858 7590 08/27/2012
CARSTENS & CAHOON, LLP
P.O. Box 802334
DALLAS, TX 75380-2334
EXAMINER
SCHLIENTZ, NATHAN W
ART UNIT PAPER NUMBER
1616
MAIL DATE DELIVERY MODE
08/27/2012 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 BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KEVIN P. EATON
__________

Appeal 2011-013161
Application 11/145,716
Technology Center 1600
__________

Before DEMETRA J. MILLS, LORA M. GREEN, and STEPHEN WALSH,
Administrative Patent Judges.

WALSH, Administrative Patent Judge.

DECISION ON REQUEST FOR REHEARING
Appellant requests rehearing of the Decision on Appeal entered June
20, 2012, which affirmed the rejections of all the pending claims on grounds
of anticipation and obviousness.
Appeal 2011-013161
Application 11/145,716

2
BACKGROUND
Appellant claims a method of treating psoriasis by administering a
vitamin supplement composition “essentially free of anti-oxidants.”
The Patent Examiner determined claim 1 anticipated by Jungkeit,
1

claim 11 anticipated by Meredith,
2
claims 1 and 8-10 obvious over Jungkeit
and Mantynen,
3
and claims 11 and 14 obvious over Bereston,
4
Plewig,
5
and
Mantynen. (Decision 2.) This Board affirmed all the rejections. (Id. at 4.)
Appellant requests rehearing of the anticipation rejection of claim 1
over Jungkeit. (Req. Reh‟g 4.)

DISCUSSION
According to Appellant, the claim phrase “essentially free of anti-
oxidants” must be interpreted as prohibiting vitamin C from the composition
used in the claimed method. (Id.) The Examiner had found that Jungkeit
treated psoriasis with a composition comprising B6, B12, and folic acid in the
requisite amounts. Notwithstanding the fact that Jungkeit‟s composition
also comprised 200μg of vitamin C, we affirmed that Jungkeit anticipated
claim 1.
The Decision concluded: “the Examiner correctly interpreted the
claim terminology „essentially free of anti-oxidants‟ according to the

1
Jungkeit, DE 10053155 A1, May 8, 2002.
2
Meredith, US 7,115,286 B2, issued Oct. 3, 2006.
3
Mantynen, US 6,107,349, issued Aug. 22, 2000.
4
Bereston, Vitamins in Dermatology, 2 J. CLIN. NUTRI. 133-139 (1954).
5
Gerd Plewig and Thomas Jansen, Seborrheic Dermatitis 1-17, ch. 126,
DERMATOLOGY IN GENERAL MEDICINE, 5
th
ed. (The McGraw-Hill
Companies 1999).
Appeal 2011-013161
Application 11/145,716

3
Specification‟s definition (Ans. 5 and 10-12), and we adopt the Examiner‟s
reasoning.” (Decision 3.)
The Specification states:
By “essentially free” it is meant that the vitamin
composition should not contain an amount of antioxidants
which would tend to damage and inactivate some of the vitamin
B12 and/or folic acid of the vitamin supplement. The presence
of lower amounts of antioxidants would not render the vitamin
composition of the present invention ineffective or of reduced
effectiveness.

(Spec. 4, ll. 6-10.) The Examiner explained that the 200μg of vitamin C in
Jungkeit‟s B6, B12, and folic acid composition did not damage or inactivate
the B12 or folic acid. (Ans. 5.) Because the Specification defined
“essentially free” to allow antioxidants as long as they do not damage or
inactivate the B12 or folic acid, we agreed with the Examiner that claim 1
was reasonably interpreted to allow for 200μg of vitamin C.
The Specification addresses vitamin C as follows:
In the case of a vitamin supplement compound that is
essentially free of antioxidants, among the antioxidants
especially to be avoided is added vitamin C, and no
antioxidants of any kind should be added to any of the
compounds disclosed herein (although such antioxidants may
be present during the preparation of such vitamins provided that
they are removed afterward, either completely or at least to a
level where they have virtually no effect on the vitamin
components of the present invention).

(Spec. 6, ll. 1-7.) Like the definition at Spec. 4, quoted above, the guidance
at Spec. 6 directs that if vitamin C or other antioxidants are present during
preparation of the treatment composition, they should be reduced “at least to
a level where they have virtually no effect on the vitamin components of the
Appeal 2011-013161
Application 11/145,716

4
present invention.” Given this instruction, and the evidence that Jungkeit‟s
composition containing 200μg of vitamin C was effective to treat psoriasis,
we continue to agree with the Examiner that claim 1, interpreted in light of
the Specification, includes the composition Jungkeit described.

SUMMARY
We have reconsidered the anticipation rejection over Jungkeit as
requested, but deny the requested relief.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

DENIED

cdc