Kyle Mckinney et al.

Patent Trials and Appeals Board

Jul 16, 2019

14109907 - (D) (P.T.A.B. Jul. 16, 2019)

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.
14/109,907 12/17/2013 Kyle McKinney 00076.0005US01 1290
119996 7590 07/16/2019
Alltech, Inc.
Legal Department - Intellectual Property
3031 Catnip Hill Pike
Nicholasville, KY 40356
EXAMINER
FAN, LYNN Y
ART UNIT PAPER NUMBER
1651
MAIL DATE DELIVERY MODE
07/16/2019 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 KYLE MCKINNEY, ALLYSON LOVELL, BENJAMIN HENRY,
PATRICK BECKER, and REBECCA A. TIMMONS
(APPLICANT: ALLTECH, INC.)
____________

Appeal 2018-006272
Application 14/109,9071
Technology Center 1600
____________

Before DONALD E. ADAMS, DEMETRA J. MILLS, and
JOHN E. SCHNEIDER, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
This Appeal under 35 U.S.C. § 134(a) involves claims 1, 6–9, and 21–
37 (Final Act.2 2). Examiner entered rejections under 35 U.S.C. § 103. We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 Appellants identify “Alltech, Inc.” as the real party in interest (Appellants’
January 5, 2018 Appeal Brief (App. Br.) 3 (emphasis omitted)).
2 Examiner’s October 11, 2017 Final Office Action.
Appeal 2018-006272
Application 14/109,907

2
STATEMENT OF THE CASE
Appellants’ disclosure “relates to systems and methods for adjusting
animal feeds. In particular, the present application relates to in vitro systems
and methods for analyzing animal feed for digestibility of nutrients” (Spec.
1:3–5).
Appellants’ only independent claim, claim 1, is representative and
reproduced below:
1. A method of analyzing feed for swine or poultry for
selecting an adjusted composition thereof, comprising steps of:
a) digesting in vitro a sample of animal feed having an
animal feed composition to generate digested animal feed
comprising at least one residual component that is selected
from the group consisting of protein, phosphorous, fat,
carbohydrates, and gross energy, wherein the digested animal
feed comprises at least one of i) an unknown numerical value of
concentration of at least one of the protein, phosphorous, fat, or
carbohydrates, or ii) an unknown numerical value of gross
energy content for the digested animal feed, wherein the sample
of animal feed consists of swine feed, poultry feed, and
mixtures thereof, wherein the animal feed composition
comprises one or more of corn, soybean, grain(s), distiller
grain(s), legumes, molasses, or a mixture of any thereof,
wherein digesting comprises two phases, wherein a phase of the
digesting is conducted in vitro at a pH of less than about 7 and
includes use of at least one enzyme comprising pepsin, and
wherein another phase of the digesting is conducted in vitro at a
neutral to acidic pH and includes at least one enzyme
comprising pancreatin to provide digested animal feed, and
wherein digesting further comprises separating the digested
animal feed into a solid component and a liquid component;

Appeal 2018-006272
Application 14/109,907

3
b) scanning the solid component of the digested animal
feed using a near infrared (NIR) spectrophotometer to generate
spectral data;
c) comparing the spectral data generated from scanning
the solid component of the digested animal feed to a computer
model of the at least one residual component to generate a
predicted numerical value of concentration of at least one
residual component that is protein, phosphorous, fat, or
carbohydrates, or a predicted numerical value of gross energy
content of the digested animal feed, wherein the spectral data is
compared using a computer implemented method comprising
receiving spectral data from the digested animal feed and
comparing the spectral data to the computer model of the at
least one residual component to obtain the predicted numerical
value of the concentration of the at least one residual
component or the predicted numerical value of the gross energy
content of the digested animal feed, wherein the computer
model is generated by obtaining spectral data in the same
manner as step b) for a plurality of animal feed samples having
different animal feed compositions, wherein the plurality of
animal feed samples have been pre-digested in the same manner
as step a) to provide a pre-digested plurality of animal feed
samples having a solid portion and a liquid portion of digested
animal feed, and further wherein the solid portion is separated
from the liquid portion to form a separated solid portion,
wherein each of the pre-digested plurality of animal feed
samples also has an analytically-determined numerical value of
concentration of at least one residual component that is protein,
phosphorous, fat, or carbohydrates or an analytically-
determined numerical value of gross energy content of the
digested animal feed by a chemical analysis performed on the
separated solid portion of each of the pre-digested plurality of

Appeal 2018-006272
Application 14/109,907

4
animal feed samples, and correlating the spectral data obtained
for each of the plurality of animal feed samples to the
analytically-determined numerical value of the concentration or
the analytically determined numerical value of the gross energy
content of the digested animal feed in each of the plurality of
animal feed samples to generate the computer model;
d) comparing the predicted numerical value of the
concentration or the predicted numerical value of the gross
energy content of the digested animal feed from step c) to a
preselected numerical value of a target concentration or a
preselected numerical value of a target gross energy content of
the digested animal feed to determine 1) digestability of the at
least one residual component in the animal feed composition of
step a) when the at least one residual component is selected
from the group consisting of protein, phosphorous, fat, and
carbohydrates, or 2) gross energy content of the animal feed
composition of step a) when the at least one residual component
is selected to be gross energy; and
e) selecting an adjusted animal feed composition which is
different from the animal feed composition of a) and which
provides the preselected numerical value of the target
concentration of the at least one residual component or the
preselected numerical value of the target gross energy content
of the digested animal feed, based on the determined
digestability 1) or 2) gross energy content in the comparing step
d).
(App. Br. 33–34.)

Appeal 2018-006272
Application 14/109,907

5
Grounds of rejection before this Panel for review:
I. Claims 1, 6–9, 21–23, 26, and 30–34 stand rejected under 35
U.S.C. § 103 as unpatentable over the combination of Boisen ’95,3 Coca-
Sinova,4 Gous,5 Kempen ’96,6 Kempen ’97,7 and Undersander.8
II. Claims 24, 29, 36, and 37 stand rejected under 35 U.S.C. § 103 as
unpatentable over the combination of Boisen ’95, Coca-Sinova, Gous,
Kempen ’96, Kempen ’97, Undersander, Reese,9 and Balthrop.10

3 S. Boisen & J.A. Fernández, Prediction of the apparent ileal digestibility of
protein and amino acids in feedstuffs and feed mixtures for pigs by in vitro
analyses, 51 ANIMAL FEED SCIENCE AND TECHNOLOGY 29–43 (1995).
4 Coca-Sinova et al., Apparent Ileal Digestibility of Energy, Nitrogen, and
Amino Acids of Soybean Meals of Different Origin in Broilers, 87 POULTRY
SCIENCE 2613–23 (2008).
5 Gous et al., Correlation between NIRS generated and chemically measured
feed quality data in barley (Hordeum vulgare), and potential use in QTL
analysis identification, 188 EUPHYTICA 325–32 (2012).
6 van Kempen, NIR technology: Can we measure amino acid digestibility
and energy values?, 12th Annual Carolina Swine Nutrition Conference,
available at https://www.ncsu.edu/project/swine_extension/
nutrition/miscellaneous/theo96csnc.htm (1996). Examiner and Appellants
refer to this reference as Kempen and Kempen (1996), respectively.
7 Theo A.T.G. van Kempen & P. Howard Simmins, Near-Infrared
Reflectance Spectroscopy in Precision Feed Formulation, 6 J. APPL.
POULTRY RES. 471–77 (1997). Examiner and Appellants refer to this
reference as Kempen et al. and Kempen (1997), respectively.
8 Undersander et al., Forage Analyses Procedures, National Forage Testing
Association 1–139 (1993).
9 Duane Reese, Utilization of Grain by Swine and Poultry, available at
https://passel.unl.edu/pages/printinformationmodule.php?idinformationmodu
le=1017786502 (2011).
10 Balthrop, et al., Quality Assurance for Animal Feed Analysis
Laboratories, FAO ANIMAL PRODUCTION AND HEALTH, 1–181 (2011).
Appeal 2018-006272
Application 14/109,907

6
III. Claim 25 stands rejected under 35 U.S.C. § 103 as unpatentable
over the combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96,
Kempen ’97, Undersander, and Boyce.11
IV. Claim 27 stands rejected under 35 U.S.C. § 103 as unpatentable
over the combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96,
Kempen ’97, Undersander, and Shelton.12
V. Claim 28 stands rejected under 35 U.S.C. § 103 as unpatentable
over the combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96,
Kempen ’97, Undersander, and Boisen ’90.13
VI. Claim 35 stands rejected under 35 U.S.C. § 103 as unpatentable
over the combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96,
Kempen ’97, Undersander, and Ru.14

ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?

11 Angela Boyce & Gary Walsh, A Series of Enzymology-based Experiments
Designed to Mimic an Applied Research Project, 33 Biochemistry and
Molecular Biology Education, 420–25 (2005).
12 Shelton, et al., Adding Phytase Proves Positive for Poultry, Swine Diet,
available at http://www.lsuagcenter.com/portals/communications/
publications/agmag/archive/2004/fa..., (2005).
13 S. Boisen, A model for Feed Evaluation Based on In Vitro Digestible Dry
Matter and Protein, IN VITRO DIGESTION FOR PIG AND POULTRY, Ch. 10,
135–45 (1990).
14 Y. J. Ru & P. C. Glatz, Application of Near Infrared Spectroscopy (NIR)
for Monitoring the Quality of Milk, Cheese, Meat and Fish, 13 ASIAN-AUS.
J. ANIM. SCI. 1017–25 (2000).
Appeal 2018-006272
Application 14/109,907

7
FACTUAL FINDINGS (FF)
FF 1. Examiner finds:
Boisen teaches a method based on in vitro measurements of
protein and dry matter digestibility for routine prediction of the
apparent ileal digestibility of protein and amino acids in pig
feeds (the sample of animal feed consists of swine feed) . . .,
comprising digesting in vitro a sample of animal feed having an
animal feed composition to generate digested animal feed
comprising at least one residual component including protein
and amino acids (having an unknown concentration % value),
wherein the animal feed composition comprises barley (grain),
wheat (grain), oats (grain), and soybean meal (comprises a pre-
additive including at least one enzyme).
(Ans.15 6 (citing Boisen ’95 30 and Table 3).)
FF 2. Examiner finds that Boisen’s digestion step
comprises two phases, wherein a phase is conducted for 6 hours
at a pH of less than about 7 and includes use of porcine pepsin
(adjusting the animal feed composition comprises adding at
least one post-additive which comprises an enzyme including
protease, e.g., pepsin, therefore adjusting an amount of protein
and amino acids compared to the animal feed composition of
step a) before digestion) . . ., another phase is conducted for 18
hours at a neutral to acidic pH of at least about 6.0 and includes
porcine pancreatin . . ., and the sample (after the pepsin and
pancreatin digestion) is then precipitated and dried (separating
the digested animal feed into a solid component and a liquid
component).
(Ans. 7 (citing Boisen ’95 31); see generally App. Br. 20 (“Boisen (1995)
. . . show[s] in vitro digestion of feed samples with pepsin and pancreatin
and separation and drying undigested residue”).)

15 Examiner’s April 30, 2018 Answer.
Appeal 2018-006272
Application 14/109,907

8
FF 3. Examiner finds:
Coca-Sinova teaches a method for assessing in vitro
digestibility of amino acids (protein) of diets containing
soybean meal (a sample of animal feed having an animal feed
composition) to predict apparent ileal digestibility of amino
acids of soybean meals in broilers (poultry feed) . . .,
comprising digesting in vitro a sample of animal feed having an
animal feed composition in two phases, wherein a phase is
conducted for 6 hours at a pH of less than about 7 and includes
use of porcine pepsin, another phase is conducted for 18 hours
at a neutral to acidic pH of at least about 6.0 and includes
porcine pancreatin, and the sample (after the pepsin and
pancreatin digestion) is then precipitated and dried (separating
the digested animal feed into a solid component and a liquid
component).
(Ans. 7 (citing Coca-Sinova, Abstract and 2617); see generally App. Br. 20
(“Boisen (1995) . . . show[s] in vitro digestion of feed samples with pepsin
and pancreatin and separation and drying undigested residue”).)
FF 4. Examiner finds that although Boisen ’95 and Coca-Sinova both
disclose “calculating in vitro digestibility of protein in feedstuffs,” the
combination of Boisen ’95 and Coca-Sinova fails to disclose steps b–e of
Appellants’ claim 1 (Ans. 8).
FF 5. Examiner relies on Gous to establish that the use of NIR
spectroscopy “to analyze protein content of both pre- and post-digestion
samples” “was well-known in the art” prior to “the effective filing date of
[Appellants’] claimed invention” (Ans. 8 (citing Gous, Abstract)).
FF 6. Examiner relies on Kempen ’96 and Kempen ’97 to establish that
those of ordinary skill in this art, prior to “the effective filing date of
[Appellants’] claimed invention,” used an NIR spectroscopy (NIRS) to
“predict the protein of feedstuffs to obtain the needed information on a
feedstuff” (Ans. 8).
Appeal 2018-006272
Application 14/109,907

9
FF 7. Kempen ’96 discloses:
The success of NIRS in the ruminant area suggests . . . that the
NIRS is capable of predicting energy values for feeds or
feedstuffs for swine. In addition, the theoretical basis of NIRS
suggests that energy predictions should be achievable. Until a
serious attempt to do so is published, though, it remains to be
seen if it is feasible in real life.
(Kempen ’96, Part II: NIRS to predict the energy content of feedstuffs; see
also id. at Practical use of NIRS calibrations (Kempen ’96 discloses that “the
presented NIRS calibrations are most interesting for monitoring the
nutritional profile of a feedstuff upon reception. . . . Over time (when
several subsequent batches of a feedstuff have been predicted), in
conjunction with laboratory analyses, the NIRS data may be used to adjust
formulations”); see also Kempen ’97 475–77 (describing NIRS as a
“promising” technique to “assess the nutritional value of feedstuffs”);
Kempen ’97 (disclosing the potential benefit of NIRS “[i]f NIRS
calibrations that can explain 80-85% of the variation in digestible amino acid
content between batches of all important feedstuffs are feasible”); Gous 330
(The lack of strong correlations between the NIRS predications and the
analytical chemistry estimates for most [feed] traits examined is likely to
arise from several factors”); Gous 331 (“The physical, chemical and
resultant spectral characteristics of milled grain, or milled grain recovered
from the rumen, may well demand the generation of a specific set of
calibration equations before feed characteristics can be predicted with any
confidence. This is no small task”).)
FF 8. Examiner finds that the combination of Boisen ’95, Coca-Sinova,
Gous, Kempen ’96, Kempen ’97, and Undersander fails to disclose a
“method wherein the animal composition comprises corn (claims 24 and 29),
Appeal 2018-006272
Application 14/109,907

10
wherein the at least one residual component is gross energy content, and
wherein the analytically-determined gross energy content value is
determined using a bomb calorimeter (claims 36-37),” and relies on Reese
and Balthrop to make up for this deficiency (Ans. 10).
FF 9. Examiner finds that the combination of Boisen ’95, Coca-Sinova,
Gous, Kempen ’96, Kempen ’97, and Undersander fails to disclose a
“method wherein the digestion phases further include use of an acetate
buffer, as recited in [Appellants’] claim 25,” and relies on Boyce to make up
for this deficiency (Ans. 11).
FF 10. Examiner finds that the combination of Boisen ’95, Coca-Sinova,
Gous, Kempen ’96, Kempen ’97, and Undersander fails to disclose a
“method further comprises including at least one enzyme comprising
phytase [Appellants’] (claim 27),” and relies on Shelton to make up for this
deficiency (Ans. 12–13).
FF 11. Examiner finds that the combination of Boisen ’95, Coca-Sinova,
Gous, Kempen ’96, Kempen ’97, and Undersander fails to disclose a
“method wherein the pepsin digestion phase is conducted for 30 minutes to 2
hours and the pancreatin digestion phase is conducted for 30 minutes to 2
hours, as recited in [Appellants’] claim 28” and relies on Boisen ’90 to make
up for this deficiency (Ans. 14).
FF 12. Examiner finds that the combination of Boisen ’95, Coca-Sinova,
Gous, Kempen ’96, Kempen ’97, and Undersander fails to disclose a
“method wherein the solid component is freeze dried before NIR scanning,
as recited in [Appellants’] claim 35” and relies on Ru to make up for this
deficiency (Ans. 15).

Appeal 2018-006272
Application 14/109,907

11
ANALYSIS
REJECTION I:
Appellants’ independent claim 1 is reproduced above. The method of
analyzing feed for swine or poultry for selecting an adjusted composition
thereof set forth in Appellants’ claim 1 comprises, inter alia, the use of NIR
spectroscopy to generate spectral data (see step b) that is used to analyze at
least one residual component of the solid component of in vitro digested
feed (see steps c–d) and ultimately, in step e, provide for the selection of an
adjusted animal feed composition that is different from the starting animal
feed composition and “provides the preselected numerical value of the target
concentration of the at least one residual component or the preselected
numerical value of the target gross energy content of the digested animal
feed, based on the determined digestability 1) or 2) gross energy content in
the comparing step d)” (App. Br. 34).
Based on the combination of Boisen ’95, Coca-Sinova, Gous, Kempen
’96, Kempen ’97, and Undersander, Examiner concludes that, at the time
Appellants’ invention was made, it would have been prima facie obvious
to scan a solid component of a digested animal feed (after
pepsin/ pancreatin digestion) using a NIR spectrophotometer to
generate a predicted concentration of the protein content of
feedstuffs, to generate a computer model by obtaining spectral
data of a plurality of animal feed samples in the same manner as
steps a) and b), and to select an adjusted animal feed
composition which is different from the animal feed
composition of a), since Gous discloses that NIR
spectrophotometer is used to analyze protein content of both
pre- and post-digestion samples, Kempen (1996) discloses that
NIR technology is used in the art to predict contents of
feedstuffs to obtain the needed information on a feedstuff (p.1
para 2) and that NIRS fits within the time and cost constraints
and approaches the accuracy limit (p.10 para 3), and Kempen
Appeal 2018-006272
Application 14/109,907

12
(1997) discloses that the precision of NIRS technology and its
short sample analysis time lead to diets which better match their
intended nutritional profile (p.471 Summary, p.477 para 1).
(Ans. 9.) We are not persuaded.
The consistent criterion for determination of obviousness is
whether the prior art would have suggested to one of ordinary
skill in the art that this process should be carried out and would
have a reasonable likelihood of success, viewed in the light of
the prior art. Both the suggestion and the expectation of
success must be founded in the prior art, not in the applicant’s
disclosure.
In re Dow Chemical Co., 837 F.2d 469, 473 (Fed. Cir. 1988) (citations
omitted). Although Examiner finds, on this record, that a person of ordinary
skill in this art would have had a reasonable expectation of success in
combining Boisen ’95, Coca-Sinova, Gous, Kempen ’96, Kempen ’97, and
Undersander to arrive at Appellants’ claimed invention, the prior art relied
upon by Examiner makes clear that the use of NIRS in a method of
analyzing and selecting an adjusted composition for swine or poultry feed
was far from a reasonably predictable technique (see FF 7).
In this regard, we agree with Examiner that, at the time of Appellants’
claimed invention, the prior art provided a general NIRS approach that
seemed to be a promising field of experimentation (see FF 1–6; see also FF
7 (Kempen ’96 discloses that “[t]he success of NIRS in the ruminant area
suggests . . . that the NIRS is capable of predicting energy values for feeds
or feedstuffs for swine. In addition, the theoretical basis of NIRS suggests
that energy predictions should be achievable”); FF 7 (Kempen ’97 describes
NIRS as a “promising” technique to “assess the nutritional value of
feedstuffs”)).
Appeal 2018-006272
Application 14/109,907

13
The prior art, however, gave only general guidance relating to the
application of NIRS in Appellants’ claimed method and made clear that
more work needs to be performed before a reasonable expectation of success
could be attained (see FF 7 (Kempen ’96 discloses that until more work is
done “it remains to be seen if it is feasible in real life”); id. (Gous discloses
that “[t]he physical, chemical and resultant spectral characteristics of milled
grain, or milled grain recovered from the rumen, may well demand the
generation of a specific set of calibration equations before feed
characteristics can be predicted with any confidence. This is no small
task”); see also App. Br. 21 (citing Gous 331); Reply Br.16 4–5 (citing Gous
330)).
[A]n invention is not obvious to try where vague prior art does
not guide an inventor toward a particular solution. A finding of
obviousness would not obtain where “what was ‘obvious to try’
was to explore a new technology or general approach that
seemed to be a promising field of experimentation, where the
prior art gave only general guidance as to the particular form of
the claimed invention or how to achieve it.” . . . This expresses
the same idea as the KSR requirement that the identified
solutions be “predictable.”
Bayer Schering Pharma AG v. Barr Laboratories, Inc., 575 F.3d 1341, 1347
(Fed. Cir. 2009) (citations omitted).
For the foregoing reasons, Examiner has, at best, established that it
would have been obvious to try the methodology set forth in the
combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96, Kempen ’97,
and Undersander. “‘[O]bvious to try’[, however,] is not the standard under
§ 103.” In re O’Farrell, 853 F.2d 894, 903 (Fed. Cir. 1988).

16 Appellants’ May 31, 2018 Reply Brief.
Appeal 2018-006272
Application 14/109,907

14
REJECTION II:
The method of Appellants’ claims 24 and 29, depend ultimately from
and further limit Appellants’ claim 1 to require that the: sample of animal
feed is swine feed and the animal composition comprises corn or sample of
animal feed is poultry feed and the animal composition comprises corn,
respectively (see App. Br. 35–36).
Based on the combination of Boisen ’95, Coca-Sinova, Gous, Kempen
’96, Kempen ’97, Undersander, Reese, and Balthrop, Examiner concludes
that, at the time Appellants’ invention was made, it would have been prima
facie obvious
to include corn, which contains gross energy, as an animal
composition since Reese discloses that corn is the most widely
used grain source for livestock feeding. In addition, before the
effective filing date of the claimed invention, it would have
been obvious to one of ordinary skill in the art to select and
analyze gross energy content of feeds since Balthrop teaches
that the determination of the gross energy content of feeds gives
an idea of their calorific value.
(Ans. 11; see FF 1–8.) We are not persuaded.
Examiner failed to establish an evidentiary basis on this record to
establish that Reese and Balthrop make up for the deficiencies discussed
above with respect to Rejection I (see generally App. Br. 25).

REJECTION III:
The method of Appellants’ claim 25 depends ultimately from and
further limits Appellants’ claim 1 to require that sample of animal feed is
swine feed and that the digestion phase and the other digestion phase further
includes the use of an acetate buffer (see App. Br. 35).
Appeal 2018-006272
Application 14/109,907

15
Based on the combination of Boisen ’95, Coca-Sinova, Gous, Kempen
’96, Kempen ’97, Undersander, and Boyce, Examiner concludes that, at the
time Appellants’ invention was made, it would have been prima facie
obvious “to include acetate buffer in stomach-small intestine digestion
phases since Boisen and Boyce both disclose simulating digestion in
stomach and small intestine, and Boyce discloses that stomach-small
intestine conditions entail co-incubation of pepsin-pancreatin and acetate
buffer” (Ans. 12; see FF 1–7 and 9). We are not persuaded.
Examiner failed to establish an evidentiary basis on this record to
establish that Boyce makes up for the deficiencies discussed above with
respect to Rejection I (see App. Br. 26 (“Boyce does not remedy the
deficiencies of the other references with respect to base claim 1.”)).

REJECTION IV:
The method of Appellants’ claim 27 depends from and further limits
Appellants’ claim 1 to require that the sample of animal feed is poultry feed,
and wherein the digesting further comprises an in vitro digestion phase
conducted on the sample of animal feed that includes at least one enzyme
comprising phytase (see App. Br. 36).
Based on the combination of Boisen ’95, Coca-Sinova, Gous, Kempen
’96, Kempen ’97, Undersander, and Shelton, Examiner concludes that, at the

Appeal 2018-006272
Application 14/109,907

16
time Appellants’ invention was made, it would have been prima facie
obvious
to include at least one enzyme comprising phytase, since
Kempen (1996 and 1997) disclose that producing diets which
accurately match the intended nutritional profile should be
cheaper, result in better animal performance, and reduce
environmental pollution, and Shelton discloses that adding
phytase to poultry and swine diets increases animal
performance, and reduces diet cost and environmental
pollution.
(Ans. 13; see FF 1–7 and 10.) We are not persuaded.
Examiner failed to establish an evidentiary basis on this record to
establish that Shelton makes up for the deficiencies discussed above with
respect to Rejection I (see App. Br. 28 (“Shelton does not remedy the
deficiencies of the other references with respect to base claim 1.”)).

REJECTION V:
The method of Appellants’ claim 28 depends from and further limits
Appellants’ claim 27 to require that the phase that includes pepsin is
conducted at a pH of less than about 7 for 30 minutes to 2 hours and the
other phase that includes pancreatin is conducted at a neutral pH to acidic
pH of at least about 6.0 for 30 minutes to 2 hours, to generate the digested
animal feed (see App. Br. 36).
Based on the combination of Boisen ’95, Coca-Sinova, Gous, Kempen
’96, Kempen ’97, Undersander, and Boisen ’90, Examiner concludes that, at
the time Appellants’ invention was made, it would have been prima facie
obvious “to optimize pepsin / pancreatin digestion time for assessing in vitro
digestibility of protein and amino acids of animal diets, since Boisen (1995)
discloses that varied pepsin / pancreatin digestion time are used in a feed
Appeal 2018-006272
Application 14/109,907

17
evaluation system for predicting digestibility of protein and amino acids”
(Ans. 14; see FF 1–7 and 11). We are not persuaded.
Examiner failed to establish an evidentiary basis on this record to
establish that Boisen ’90 makes up for the deficiencies discussed above with
respect to Rejection I (see App. Br. 29 (Boisen ’90 “does not remedy the
deficiencies of the other references with respect to intervening claim 27 or
the base claim 1”)).

REJECTION VI:
The method of Appellants’ claim 35 depends ultimately from and
further limits Appellants’ claim 1 to require that the solid component of step
a) is freeze dried before the scanning of step b) (see App. Br. 37).
Based on the combination of Boisen ’95, Coca-Sinova, Gous, Kempen
’96, Kempen ’97, Undersander, and Ru, Examiner concludes that, at the
time Appellants’ invention was made, it would have been prima facie
obvious “to freeze dry a solid component before NIR scanning since Ru
discloses that freeze drying samples would reduce the prediction errors of
NIR measurements due to the less complex system without water and the
increase in the protein concentration” (Ans. 15; see also FF 1–7 and 12).
We are not persuaded.
Examiner failed to establish an evidentiary basis on this record to
establish that Ru makes up for the deficiencies discussed above with respect
to Rejection I (see App. Br. 31 (“Ru does not remedy the . . . deficiencies of
the other cited references with regard to the base claim”)).

Appeal 2018-006272
Application 14/109,907

18
CONCLUSION
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness.
The rejection of claims 1, 6–9, 21–23, 26, and 30–34 under 35 U.S.C.
§ 103 as unpatentable over the combination of Boisen ’95, Coca-Sinova,
Gous, Kempen ’96, Kempen ’97, and Undersander (Rejection I) is reversed.
The rejection of claims 24, 29, 36, and 37 under 35 U.S.C. § 103 as
unpatentable over the combination of Boisen ’95, Coca-Sinova, Gous,
Kempen ’96, Kempen ’97, Undersander, Reese, and Balthrop (Rejection II)
is reversed.
The rejection of claim 25 under 35 U.S.C. § 103 as unpatentable over
the combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96, Kempen
’97, Undersander, and Boyce (Rejection III) is reversed.
The rejection of claim 27 under 35 U.S.C. § 103 as unpatentable over
the combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96, Kempen
’97, Undersander, and Shelton (Rejection IV) is reversed.
The rejection of claim 28 under 35 U.S.C. § 103 as unpatentable over
the combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96, Kempen
’97, Undersander, and Boisen ’90 (Rejection V) is reversed.
The rejection of claim 35 under 35 U.S.C. § 103 as unpatentable over
the combination of Boisen ’95, Coca-Sinova, Gous, Kempen ’96, Kempen
’97, Undersander, and Ru (Rejection VI) is reversed.

REVERSED