Lhoist North America, Inc. et al.

Patent Trials and Appeals Board

Nov 25, 2020

2019006456 (P.T.A.B. Nov. 25, 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.
14/359,854 05/21/2014 James S. Drouillard 20480.225 9193
42922 7590 11/25/2020
WHITAKER CHALK SWINDLE & SCHWARTZ PLLC
301 COMMERCE STREET
Suite 3500
FORT WORTH, TX 76102-4186
EXAMINER
SAYALA, CHHAYA D
ART UNIT PAPER NUMBER
1791
NOTIFICATION DATE DELIVERY MODE
11/25/2020 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):
eofficeaction@appcoll.com
patents@whitakerchalk.com
shorner@whitakerchalk.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________
Ex parte JAMES S. DROUILLARD, DAN A. KLAMFOTH,
and KEVIN D. INGRAM
____________
Appeal 2019-006456
Application 14/359,854
Technology Center 1700
____________
Before JEFFREY B. ROBERTSON, N. WHITNEY WILSON, and
DEBRA L. DENNETT, Administrative Patent Judges.
DENNETT, Administrative Patent Judge.
DECISION ON APPEAL1

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant2 appeals from the
Examiner’s decision to reject claims 19, 20, 23, and 25–32 of Application

1 In our Decision, we refer to the Specification (“Spec.”) of Application No.
14/359,854 filed May 21, 2014 (“the ’854 App.”); the Final Office Action
dated Oct. 25, 2018 (“Final Act.”); the Appeal Brief filed Mar. 3, 2019
(“Appeal Br.”); and the Examiner’s Answer dated May 22, 2019 (“Ans.”).
Appellant did not file a Reply Brief.
2 We use the word “Appellant” to refer to “applicant” as defined in
37 C.F.R. § 1.42. Appellant identifies the real parties in interest as S.A.
Lhoist Recherche et Developpement and Kansas State University Research
Foundation. Appeal Br. 3.
Appeal 2019-006456
Application 14/359,854
2
14/359,854, which constitute all the claims pending in this application. We
have jurisdiction under 35 U.S.C. § 6(b).
For the reasons set forth below, we AFFIRM.
The ’854 Application states that ruminant animals have a highly
specialized, four-compartment stomach, portions of which are inhabited by
microorganisms capable of digesting complex carbohydrates, such as
cellulose (fiber). Spec. 1, ll. 9–12. The first two compartments of the
ruminant stomach have dense populations of symbiotic bacteria, archaea,
protozoa, and fungi capable of fermenting ingested feeds, ultimately yielding
metabolites that can be used by other microorganisms or the host animal.
Spec. 1, ll. 13–17. This symbiotic relationship renders ruminants capable of
producing milk, meat, and other products while eating fibrous feeds that
cannot be digested by monogastric animals. Spec. 1, ll. 17–19. According
to the ’854 Application, the invention seeks to address excessive degradation
of nutrients by ruminal microorganisms. Spec. 1, ll. 27–28.
The ’854 Application defines “hydrated lime” as encompassing
calcium hydroxide and dolomitic hydrate manufactured from dolomitic
quicklime. Spec. 5, l. 22–6, l. 7.
Claim 19, reproduced below from the Claims Appendix of the Appeal
Brief, illustrates the claimed subject matter:
19. A ruminant animal feed composition in the form of
agglomerated particles which are processed to form a feed
pellet, the processed feed pellet comprising:
ruminant animal feed ingredients which are subject to
degradation by ruminal microorganisms combined with a
binder composition and water to thereby form a raw mixture,
the raw mixture so formed being processed into a processed
feed pellet;
Appeal 2019-006456
Application 14/359,854
3
wherein the binder composition is comprised of a
dolomitic hydrated lime;
wherein the dolomitic hydrated lime is present in the
mixture used to form the processed feed pellets in the range
from 40 to 95% by weight, based upon the total weight of the
mixture used to form the feed pellets; and
wherein the so processed feed pellets make ruminant
animal feed ingredients used in making the pellets resistant to
degradation by ruminal microorganisms.
REFERENCES
The Examiner relies on the following references:
Name Reference Date
Dannelly et al.
(“Dannelly”)
US 4,196,187 Apr. 1, 1980
Overton US 4,988,520 Jan. 29, 1991
Van der Walle US 4,996,065 Feb. 26, 1991
Vinci et al. (“Vinci”) US 5,182,126 Jan. 26, 1993
Smith US 5,378,471 Jan. 3, 1995
Freemantle US 2012/0114829 A1 May 10, 2012
Cecava et al.
(“Cecava”)
US 2012/0282388 A1 Nov. 8, 2012
Kenyon et al.
(“Kenyon”)
WO 2005/082158 A1 Sept. 9, 2005
REJECTIONS
The Examiner maintains the following rejections under 35 U.S.C. § 103(a):
A. claims 19, 26, 28, 31, and 32 over Cecava, Van der Walle,
Freemantle, and Smith;
B. claims 20 and 23 over Cecava, Van der Walle, Freemantle,
Smith, and Overton;
C. claim 25 over Cecava, Van der Walle, Freemantle, Smith, and
Kenyon;
Appeal 2019-006456
Application 14/359,854
4
D. claim 27 over Cecava, Van der Walle, Freemantle, Smith, and
Dannelly;
E. claim 29 over Cecava, Van der Walle, Freemantle, Smith, and
Vinci; and
F. claim 30 over Cecava, Van der Walle, Freemantle, and Smith.
Final Act. 4–15.
DISCUSSION
Claim interpretation
During prosecution, an application’s claims are given their broadest
reasonable scope consistent with the specification. In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d 1359, 1364 (Fed. Cir. 2004). The words used in a claim
must be read in light of the specification, as it would have been interpreted
by one of ordinary skill in the art at the time of the invention. Id.
Appellant asserts that the Examiner unduly limits the scope of the
invention. Appeal Br. 9.
Appellant’s first complaint concerns whether the claims require
dolomitic hydrated lime to be present in the final feed pellet at 40 to 95% by
weight. Id. at 9–11
The Examiner finds that the claim term “wherein the dolomitic
hydrated lime is present in the mixture used to form the processed feed
pellets in the range from 40 to 95% by weight, based upon the total weight
of the mixture used to form the feed pellets” limits the starting mixture; it
does not limit the final feed pellet to having 40 to 95% by weight dolomitic
hydrated lime, based upon the total weight of the final feed pellet. Final Act.
2–3.
Appeal 2019-006456
Application 14/359,854
5
Appellant argues that dolomitic hydrated lime (an hydroxide) does not
form the same chemical composition that highly reactive calcium hydroxide
does in the presence of water. Appeal Br. 10. Therefore, according to
Appellant, the starting mixture is not altered by a heat of hydration, and the
composition of the final pellets and starting mixture is essentially the same.
Id. at 11.
Appellant may be correct, but it does not alter the fact that both
independent claims (claims 19 and 32) recite that the dolomitic hydrated
lime is present in the mixture used to form the processed feed pellets in the
range from 40 to 95% by weight, based upon the total weight of the mixture
used to form the feed pellets, indicating that the starting mixture is 40 to
95% by weight dolomitic hydrated lime. The claims do not place any
limitation on the weight percent of dolomitic hydrated lime in the final
product. Appellant fails to identify anything in the Specification that would
alter the straightforward language of the claims. See In re Am. Acad. of Sci.
Tech. Ctr., 367 F.3d at 1364.
Appellant’s second complaint is that the Examiner unduly limits the
scope of the invention in giving the transitional phrase “consisting of” in
claim 32 little or no weight. Appeal Br. 12.
Claim 32 reads as follows:
A ruminant animal feed composition in the form of
agglomerated particles which are processed to form a feed
pellet, the processed feed pellet consisting of:
ruminant animal feed ingredients which are subject to
degradation by ruminal microorganisms combined with a
binder composition and water to thereby form a raw mixture,
the raw mixture so formed being processed into a processed
feed pellet;
Appeal 2019-006456
Application 14/359,854
6
wherein the binder composition is comprised of a
dolomitic hydrated lime;
wherein the dolomitic hydrated lime is present in the
mixture used to form the processed feed pellets in the range
from 40 to 95 % by weight, based upon the total weight of the
mixture used to form the feed pellets; and
wherein the so processed feed pellets make ruminant
animal feed ingredients used in making the pellets resistant to
degradation by ruminal microorganisms.
Appeal Br. 23 (emphasis added).
The Examiner notes the inclusion of the transitional phrase
“consisting of” and that it excludes any element, step, or ingredient not
specified in the claims. Final Act. 10. The Examiner finds that it is not clear
from claim 32 what is being excluded—the composition, the process steps,
or the raw mixture. Id. The Examiner also finds that the claim is open to
anything that is a binder. Id.
Our review of the claim language indicates that “consisting of”
applies to the composition ingredients: “ruminant animal feed ingredients
which are subject to degradation by ruminal microorganisms,” “a binder
composition,” and water. See In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d at
1364. The binder composition is comprised of dolomitic hydrated lime.
Appeal Br. 23.
The Examiner finds that claiming a binder composition comprised of a
dolomitic hydrated lime means that the scope of the claim includes any
binder composition which also includes dolomitic hydrated lime. Final Act.
10. In contrast, Appellant argues that use of “consisting of” interpreted in
light of the Specification limits the binder to dolomitic lime” mixed with
water. Appeal Br. 12. Appellant contends that use of “consisting of”
Appeal 2019-006456
Application 14/359,854
7
specifically excludes the sugar and corn syrup ingredients in the Smith
reference cited by the Examiner. Id.
The open transitional term “comprising” permits elements in addition
to those specified to be included in the composition of the claim. In re
Crish, 393 F.3d 1253, 1257 (Fed. Cir. 2004) (“[I]t is well-established that
‘[c]omprising’ is a term of art used in claim language which means that the
named elements are essential, but other elements may be added and still
form a construct within the scope of the claim.” (quoting Genentech, Inc. v.
Chiron Corp., 112 F.3d 495, 501 (Fed.Cir.1997)). Thus, the binder
composition in the claim must include at least dolomitic hydrated lime, and
the dolomitic hydrated lime must be present at 40 to 95 % by weight. See
Appeal Br. 23. However, due to the use of “comprising,” the binder
composition is not limited to dolomitic hydrated lime, and may include other
ingredients.
The Specification does not require otherwise. The Specification
states, “[p]referred calcitic and dolomite mineral hydrates used as binder
components for the food ingredients in making the agglomerated particles of
the invention thus include both high calcium hydrate and dolomitic hydrate,
as well as mixtures of calcium and magnesium hydroxide.” Spec. 5, ll. 19–
22 (emphasis added). The Specification does not limit the binder to
dolomitic hydrated lime, or even to hydrated lime (which is stated only to be
“preferred”). See id. “[L]imitations are not to be read into the claims from
the specification.” In re Van Guens, 988 F.2d 1181, 1184 (Fed. Cir. 1993).
Appellant’s arguments are not persuasive of reversible error.
Appeal 2019-006456
Application 14/359,854
8
Rejection of claims as obvious
The Examiner finds claims 19, 26, 28, 30, 31, and 32 to be obvious
over the combination of Cecava, Van der Walle, Freemantle, and Smith.3
Final Act. 4–11, 15–16. The Examiner finds claims 20, 23, 25, 27, and 29
obvious over the same references in combination with an additional
reference (Overton, Kenyon, Dannelly, or Vinci). Id. at 11–15.
Appellant addresses only independent claims 19 and 32, and argues
the claims as a group. Appeal Br. 13–19. Appellant does not argue any
dependent claim separately. See id. We select claim 19 as representative of
the group. 37 C.F.R. § 41.37(c)(1)(iv). Claims 20, 23, and 25–32 stand or
fall with claim 19.
Regarding claim 19, the Examiner finds that Cecava discloses alkaline
crystalline solids combined with water and at least one proteinaceous feed to
form an improved animal feed that obtains rumen bypass properties, with the
final product in the form of a pellet. Final Act. 5. The alkaline crystalline
solids include calcium oxide (CaO), magnesium oxide (MgO), lime (CaO),
and combinations thereof. Cecava ¶ 18; see also id. ¶ 52.
The Examiner acknowledges that Cecava does not disclose dolomitic
hydrated lime. Final Act. 5. However, the Examiner finds that Van de
Walle discloses a pelleted animal feed comprising proteinaceous matter and
a binder composition that includes calcium magnesium oxide (CaMgO2) and

3 The Examiner issues a separate rejection for claim 30 (see Final Act. 15–
16) over the same references used against claims 19, 26, 28, 31, and 32 (see
id. at 4–11).
Appeal 2019-006456
Application 14/359,854
9
magnesium calcium hydroxide (MgCa(OH)4).4 Id. (citing Van de Walle
3:30–35, 5:29–30); see also id. at 4:45–46. And the Examiner finds that
Freemantle discloses use of hydrated lime (Ca(OH)2) as an inorganic
binding agent to bind vegetable matter known as proteinaceous containing
matter. Id. (citing Freemantle ¶¶ 27, 30). Based on the combination of
references, the Examiner determines that it would have been obvious to use
the hydrated form of Cecava’s alkaline earth metal binder composition to
bind feed ingredient materials. Id.
The Examiner finds that all of the cited references discloses calcium
compounds as binders for use in animal feeds, thus their amounts are result-
effective variables. Id. at 7.
The Examiner relies on Smith’s disclosure of 28–34% by weight
dolomitic lime in a nutritive binder composition for pelleted feeds to meet
the claimed 40 to 95% by weight of dolomitic hydrated lime. Id. at 7–8.
Because the Examiner finds that the amounts of calcium compounds as
binders in animal feeds are result effective variables, the Examiner
determines that the range of dolomitic lime suggested by Smith would have
been obvious. Id. at 8.
The claim term “subject to degradation by ruminal microorganisms”
is an intended use, which does not lend patentability to the claimed
composition according to the Examiner. Id. at 7.
Appellant disputes that the combined references teach the claimed
invention. Appeal Br. 15. Concerning Cecava, Appellant argues that the

4 Van de Walle discloses magnesium calcium oxide, magnesium oxide, and
calcium oxide, but not magnesium calcium hydroxide. See Van de Walle
3:34–37.
Appeal 2019-006456
Application 14/359,854
10
reference discloses a need for the heat produced by the reaction between
alkaline crystalline solid and water, but such heat is not needed or desired in
the invention referencing Appellant’s discussion of the Examiner’s claim
interpretation. Id. at 16.
This argument is not persuasive of reversible error by the Examiner.
Cecava discloses that an alkaline crystalline solid and water cause an
exothermic reaction. Cecava ¶ 17. Cecava states “it is believed that the
ingredient [alkaline crystalline solid] may affect the reaction of proteins with
sugars via a Maillard[] reaction.” Id. ¶ 29. However, consistent with our
claim interpretation above, such a reaction is not excluded by the limitations
of claim 19. See Appeal Br. 21 (Claims App.).
Appellant also argues that Cecava teaches the addition of 1 to 2%
calcium oxide, not the higher range of dolomitic hydrate. Id. at 16. Here,
Appellant argues Cecava as an individual reference rather than part of a
whole. “Non-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references.” In re Merck & Co., 800 F.2d 1091, 1097 (Fed.
Cir. 1986). Each reference cited by the Examiner must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole. See id.
Appellant contends that Van de Walle teaches calcium magnesium
hydroxide at a much lower percent by weight (0.25-5%) than that claimed,
and does not report any importance of reactive metal oxide or hydroxide in
the binder. Appeal Br. 16. Appellant argues that use of a more reactive
oxide would be unsuitable for its purpose. Appeal Br. 16.
As above, Appellant is not considering the teachings of the combined
references, but attacks the reference individually. See In re Merck, 800 F.2d
Appeal 2019-006456
Application 14/359,854
11
at 1097. The Examiner is not relying on Van de Walle to teach the claimed
percentage by weight, or to support use of a more reactive oxide. See
generally Final Act.
Appellant argues that Van de Walle combined with Cecava teach
away from the claimed composition because both references teach calcium
oxide or hydroxide at levels far below that claimed. Appeal Br. 17. This
argument ignores the disclosure of Smith, as well as the Examiner’s finding
that the amounts of calcium compounds in pelletized animal feed
compositions are result effective variables. See Final Act. 7. Moreover,
teaching away requires that a reference “criticize, discredit, or otherwise
discourage the solution claimed” by Appellant. In re Fulton, 391 F.3d 1195,
1201 (Fed. Cir. 2004). “We will not read into a reference a teaching away
from a process where no such language exists.” Dystar Textilfarben GmbH
v. C.H. Patrick Co., 464 F.3d 1356, 1364 (Fed. Cir. 2006). Appellant directs
us to nothing in Cecava and Van de Wall that teaches away from the claimed
composition.
Appellant’s argument that Smith’s disclosed range (28–34% by
weight) of dolomitic lime is below the claimed 40-95% is accurate, but
unavailing. See Appeal Br. 17. The law is replete with cases in which the
difference between the claimed invention and the prior art is some range or
other variable within the claims. It is well settled that, generally speaking, it
would have been obvious for an artisan with ordinary skill to develop
workable or even optimum ranges for result-effective variables. Appellant
must show that the particular claimed range is critical, generally by showing
that the claimed range achieves unexpected results relative to the prior art
range. See, e.g., In re Peterson, 315 F.3d at 1329; In re Woodruff, 919 F.2d
1575, 1578 (Fed. Cir. 1990); see also In re Aller, 220 F.2d 454, 456 (CCPA
Appeal 2019-006456
Application 14/359,854
12
1955) (Where the general conditions of a claim are disclosed in the prior art,
it is not inventive to discover the optimum or workable ranges by routine
experimentation.); In re Boesch, 617 F.2d 272, 276, (CCPA 1980)
(“[D]iscovery of an optimum value of a result effective variable in a known
process is ordinarily within the skill of the art.”). As elaborated below,
Appellant fails to demonstrate unexpected results.
Appellant argues that the transitional term “consisting of” excludes
the sugar and corn syrup of Smith. Appeal Br. 17–18. We explained above
why this argument is not persuasive.
The Examiner takes Freemantle out of context, according to
Appellant. Id. at 18. Appellant argues that Freemantle does not teach any
type of product with a binding action like that claimed, Freemantle describes
a minimum of three ingredients, and Freemantle fails to rely on ruminal
bypass. Id. at 18–19. However, none of these arguments persuade us that
one of ordinary skill in the art would not combine Freemantle with the other
cited references. The Examiner explains that Freemantle—like Cecava and
Van de Walle—discloses animal feed compositions comprising
proteinaceous material and hydrated lime. Final Act. 6. Freemantle
explicitly discloses that hydrated lime may be an inorganic binder.
Freemantle ¶ 30. Thus, Freemantle is not taken out of context.
Finally, Appellant argues that the claimed combination of ingredients
is surprisingly efficacious, relying on Figures 1 and 2 of the ’854
Application and a declaration by the inventor (Second Declaration of James
Drouillard Under 37 C.F.R. § 1.132 (“Drouillard Decl.”). Appeal Br. 14–15.
In addition to the problems with the declaration stated by the Examiner (see
Final Act. 17–18), at best, the Drouillard Declaration supports that pills
made from a 50:50 blend of dolomitic hydrate and ground flaxseed provides
Appeal 2019-006456
Application 14/359,854
13
superior results in comparison to a zeolite/hydrate+flaxseed mixture. See
Drouillard Decl. 4, 6–7. Such results are not commensurate in scope with
claim 19.
“Commensurate in scope” means that the evidence provides a
reasonable basis for concluding that the untested embodiments encompassed
by the claims would behave in the same manner as the tested
embodiment(s). See In re Lindner, 457 F.2d 506, 508 (CCPA 1972) (“Here,
only one mixture of ingredients was tested. . . . The claims, however, are
much broader in scope, . . . and we have to agree with the Patent Office that
there is no ‘adequate basis for reasonably concluding that the great number
and variety of compositions included by the claims would behave in the
same manner as the [single] tested composition.’”) (bracketed material in
original). The Drouillard Declaration concerns a single comparison of a
single composition falling within claim 19 and a single composition falling
outside of it. Such data does not provide unexpected results “commensurate
in scope with the degree of protection sought by the claims on appeal.” See
In re Harris, 409 F.3d 1339, 1344 (Fed. Cir. 2005) (Unexpected results must
also be “commensurate in scope with the degree of protection sought by the
claims on appeal.”); In re Graselli, 713 F.2d 731, 743 (Fed. Cir. 1983) (It is
well settled “that objective evidence of non-obviousness must be
commensurate in scope with the claims which the evidence is offered to
support.”)
The Examiner’s findings are supported adequately by the evidence of
record. “When the PTO shows prima facie obviousness, the burden then
shifts to the applicant to rebut.” In re Harris, 409 F.3d 1339, 1342 (Fed.
Cir. 2005) (citing In re Dillion, 919 F.2d 688, 692 (Fed. Cir. 1990) (en
banc)). Appellant’s arguments and evidence fail to rebut the Examiner’s
Appeal 2019-006456
Application 14/359,854
14
case. We sustain the rejection of claim 19 as obvious over the combination
of Cecava, Van de Walle, Freemantle, and Smith. We likewise sustain the
rejections of claims 20, 23, and 25–32 over the same and additional
references, as Appellant fails to argue patentability of these claims
separately. 37 C.F.R. § 41.37(c)(1)(iv).
DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
19, 26, 28,
31, 32 103(a)
Cecava, Van de
Walle, Freemantle,
Smith
19, 26, 28,
31, 32
20, 23 103(a)
Cecava, Van de
Walle, Freemantle,
Smith, Overton
20, 23
25 103(a)
Cecava, Van de
Walle, Freemantle,
Smith, Kenyon
25
27 103(a)
Cecava, Van de
Walle, Freemantle,
Smith, Dannelly
27
29 103(a)
Cecava, Van de
Walle, Freemantle,
Smith, Vinci
29
30 103(a)
Cecava, Van de
Walle, Freemantle,
Smith
30
Overall
Outcome
19, 20, 23,
25–32
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).
Appeal 2019-006456
Application 14/359,854
15
AFFIRMED