NESTEC SA

Patent Trials and Appeals Board

Mar 2, 2021

2019006575 (P.T.A.B. Mar. 2, 2021)

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.
14/607,609 01/28/2015 Jean Luz Rayner 13343-US-NP 1090
69099 7590 03/02/2021
Nestle Purina Petcare Global Resources, Inc
Checkerboard Square
Intellectual Property Patents
ST. LOUIS, MO 63164
EXAMINER
MOORE, WALTER A
ART UNIT PAPER NUMBER
3619
NOTIFICATION DATE DELIVERY MODE
03/02/2021 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):
purinapatentmail@purina.nestle.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte JEAN LUZ RAYNER, MICHAEL J. SAYLOCK,
KORALJKA RADE-KUKIC, HUGO GLORIA-HERNANDEZ, and
JULIEN HUGO
____________

Appeal 2019-006575
Application 14/607,609
Technology Center 1700
____________

Before CATHERINE Q. TIMM, JEFFREY T. SMITH, and
JEFFREY R. SNAY, Administrative Patent Judges.

SNAY, Administrative Patent Judge.

DECISION ON APPEAL

STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision rejecting claims 1 and 2. We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 We use the word Appellant to refer to “applicant” as defined in 37 C.F.R.
§ 1.42. Appellant identifies Nestec S.A. as the real party in interest. Appeal
Br. 2.
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BACKGROUND
The invention relates to gluten-free pet food. Spec. ¶ 2. According to
the Specification, substituting canola protein isolate and flaxseed meal for
wheat germ does not negatively affect product structure, appearance, and
palatability. Id. ¶ 7. Claim 1 reads as follows:
Claim 1: A gluten-free pet food product having
visible small diameter fibers, the gluten-free pet food product
comprising:
emulsified meat material selected from the group
consisting of poultry, beef, pork, lamb and mixtures thereof;
and
a gluten-replacement ingredient present in the amount of
5% to 35% by weight of the emulsified meat material and
wherein the gluten-replacement ingredient comprises a
combination of flaxseed meal and canola protein isolate,
wherein the gluten-free pet food product does not contain
any soy protein.
Appeal Br. 21 (Claims Appendix).

REJECTION
Claims 1 and 2 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over Swenson,2 Dingman,3 and Tang.4

OPINION
Claim 1
Relevant to Appellant’s arguments on appeal, the Examiner finds
Swenson discloses a gluten-free pet food having aligned fibers that simulate

2 US 2008/0233244 A1, published September 25, 2008.
3 US 6,379,738 B1, issued April 30, 2002.
4 US 2009/0286961 A1, published November 19, 2009.
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animal meat. Non-Final Act. 3. The Examiner finds Swenson also discloses
optional additives, including flaxseed meal and canola protein5 in
concentration amounts which encompass those recited in claim 1. Id. at 5.
The Examiner finds Swenson teaches optionally including animal meat, and
acknowledges Swenson does not specify a meat emulsion. Id. at 4. The
Examiner relies on Dingman as evidence it was known to use a meat
emulsion in pet food. Id.
A preponderance of the evidence presented supports the foregoing
findings. Swenson’s disclosure is directed to animal food containing
structured plant protein, such as canola. Swenson ¶¶ 2, 30. According to
Swenson, the disclosed structured plant protein is formed by extrusion to
produce substantially aligned protein fibers that simulate real meat. Id. ¶ 30.
Swenson teaches the extruded plant protein product may be blended with
animal meat and various micronutrients to meet nutritional requirements of a
given animal. Id. ¶¶ 83, 89. “Generally speaking, [a] companion animal
composition comprising structured plant protein products may be combined
with the macronutrients and micronutrients to meet the nutrient requirements
of the animal.” Id. ¶ 112. Swenson states an “aspect of the invention”
provides a composition comprising “a structured plant protein product; a fat
substance in an amount sufficient to meet the daily nutrient requirements of
the companion animal; at least one nutrient selected from the group
consisting of vitamins and minerals in an amount sufficient to meet the daily
nutrient requirement of the companion animal; and animal meat.” Id. ¶ 10.

5 The Examiner finds Swenson implicitly discloses the canola protein as an
isolate and alternatively finds Tang teaches it was known to provide canola
protein as an isolate in pet food. Non-Final Act. 6. Appellant does not
dispute these findings.
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Swenson identifies flaxseed meal as an optional carbohydrate source. Id. ¶
87. Dingman teaches it was known to replace natural meat with meat
emulsions in pet food to reduce cost. Dingman 1:34–37.
Appellant argues Swenson’s extrusion process is performed using a
protein material pre-mix that is not an emulsion. Id. at 7. Appellant
contends Swenson does not suggest that substituting a meat emulsion for the
disclosed pre-mix could produce the desired animal food products having
substantially aligned protein fibers. Id. at 8. Appellant also contends
changing Swenson’s pre-mix to a meat emulsion would “completely change
the principle of operation of the extrusion process of Swenson.” Id. at 9.
Appellant’s foregoing arguments are not persuasive of reversible
error. As noted, Swenson teaches extruding plant protein in a manner that
yields structurally aligned fibers to simulate meat. See e.g., Swenson claim
1 (reciting an animal food composition comprising, inter alia, “a structured
plant protein product comprising protein fibers that are substantially aligned,
the structured plant protein product comprising an extrudate of plant protein
material.”). The structured plant protein extrudate may then be combined
with additional ingredients such as animal meat. Swenson ¶ 83
(characterizing “[b]lends” or “combination[s] of animal meat and
“structured plant protein product produced by the extrusion process.”); id. ¶
101 (“Typically, the process of making a food composition, particularly for a
companion animal, involves hydrating the structure plant protein product . . .
and then blending it with the rest of the ingredients that form the food
composition.”); id. ¶ 146 (“employing the extruded [plant] protein product
of example 4 and combining it with chicken meat”). In light of the
foregoing disclosures in Swenson, we are not persuaded that substituting
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meat emulsion for animal meat in Swenson’s step of blending meat with
plant protein extrudate would materially have changed Swenson’s principal
of operation. Contrary to Appellant’s contention, such substitution would
not alter Swenson’s pre-mix or extrusion process because the blending
would occur after extruding the plant protein material to form the structured
plant protein product.
Appellant also argues the Examiner applies impermissible hindsight in
selecting canola protein isolate and flaxseed meal from the list of possible
ingredients identified in Swenson. Appeal Br. 10–11. Swenson expressly
identifies canola as a suitable source of plant protein for producing the
desired structured plant protein extrudate ingredient. Swenson ¶ 30.
Swenson also expressly identifies flaxseed meal as a suitable source of a
desired carbohydrate ingredient. Id. ¶ 87. These identifications in Swenson
support the Examiner’s finding that one of ordinary skill would have had a
reason to select canola and flaxseed meal in formulating Swenson’s animal
food composition. The mere fact that Swenson also identifies additional
possible sources of plant protein and carbohydrate does not negate
Swenson’s identification of canola and flaxseed meal as suitable for the
stated purposes.
Appellant argues Swenson does not suggest the recited amounts of
canola isolate and flaxseed meal. Appeal Br. 12. As noted, Swenson
teaches canola protein as a suitable structured plant protein component of the
feed composition. Swenson ¶ 30. Swenson also teaches, “the amount of
structured protein product in relation to the amount of animal meat in the
animal food compositions can and will vary depending upon the
composition’s intended use.” Id. ¶ 83. For example, Swenson identifies
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structured protein concentrations ranging from 5 to 99% blended with
animal meat at concentrations ranging from 0 to 45%. Id. Carbohydrate,
such as flaxseed meal, is said optionally to be included in an amount from 1–
99% by weight. Id. ¶ 87. These broad ranges taught by Swenson
encompass the narrower range recited in claim 1. Appellant does not
persuasively show error in the Examiner’s determination that concentration
values within the recited range would not have been prima facie obvious
over the broad ranges taught by Swenson.
Appellant argues Swenson does not teach a composition that does not
contain soy protein because, according to Appellant, “all of the
embodiments of Swenson that include visible fibers also use both soybean
protein and gluten in high contents.” Appeal Br. 15. See also Reply Br. 2–
3. Swenson’s disclosure is not limited to its working examples. Appellant’s
argument does not show error in the Examiner’s findings that Swenson
expressly teaches compositions that are gluten-free and formed from plant
protein sources other than soy.
Lastly, Appellant contends Examples 3–5 set forth in the Specification
demonstrate unexpected results. Appeal Br. 17.6 Examples 3–5 report pet
food compositions which contained flaxseed meal and canola protein, but

6 Appellant points to paragraphs 4–9 of an unspecified Declaration, Appeal
Br. 17, but neither includes a copy of such Declaration in the briefs nor
identifies its location in the record. See 37 C.F.R. § 41.37(c)(1)(iv) (“Except
as provided for in §§41.41, 41.47 and 41.52, any arguments or authorities
not included in the appeal brief will be refused consideration by the Board
for purposes of the present appeal.”). To the extent Appellant relies on the
Declaration Under 37 C.F.R. § 1.132, dated August 29, 2018, the
Declarant’s opinion evidence set forth in paragraphs 4–9 of that document
are substantively equivalent to the arguments presented in the Appeal Brief
and are addressed below.
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omitted wheat gluten and soy protein. Spec. Fig. 1. Appellant contends
Examples 3–5 were surprisingly similar in appearance and texture compared
to Example 1, which included wheat gluten and soy protein, but omitted
flaxseed meal and canola protein. Appeal Br. 17.
The burden of establishing that unexpected results support a
conclusion of nonobviousness rests with the Appellant. In re Huang, 100
F.3d 135, 139 (Fed. Cir. 1996). “[W]hen unexpected results are used as
evidence of nonobviousness, the results must be shown to be unexpected
compared with the closest prior art.” In re Baxter Travenol Labs., 952 F.2d
388, 392 (Fed. Cir. 1991). “[I]t is not enough to show that results are
obtained which differ from those obtained in the prior art: that difference
must be shown to be an unexpected difference.” See In re Klosak, 455 F.2d
1077, 1080 (CCPA 1972) (emphasis in original). Additionally, the relied-
upon results must be commensurate in scope with the claims. See In re
Peterson, 315 F.3d 1325, 1329–31 (Fed. Cir. 2003). “Establishing that one
(or a small number of) species gives unexpected results is inadequate proof,
for ‘it is the view of [the CCPA] that objective evidence of non-obviousness
must be commensurate in scope with the claims which the evidence is
offered to support.’” See In re Greenfield, 571 F.2d 1185, 1189 (CCPA
1978) (quoting In re Tiffin, 448 F.2d 791, 792 (CCPA 1971)). Finally, “it is
well settled that unexpected results must be established by factual evidence.
‘Mere argument or conclusory statements in the specification does not
suffice.’” See In re Geisler, 116 F.3d 1465, 1470 (Fed. Cir. 1997) (quoting
In re De Blauwe, 736 F.2d 699, 705 (Fed. Cir. 1994)); see also In re
Pearson, 494 F.2d 1399, 1405 (CCPA 1974) (“Attorney’s argument in a
brief cannot take the place of evidence.”).
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Here, Appellant’s claim recites “a gluten-replacement ingredient in
the amount of 5% to 35% by weight,” whereas each of the relied-upon
Examples corresponded to a single concentration of 28%. See Spec. Fig. 1.
Moreover, claim 1 is not limited in scope with regard to relative
concentration of flaxseed meal and canola protein—the two ingredients
Appellants asserts are responsible for the resulting appearance and texture.
Appellant does not present evidence sufficient to demonstrate the resultant
appearance and texture would have been expected for all relative
concentrations of these ingredients over the range encompassed by the
claims.
In addition, although secondary considerations such as unexpected
results must be taken into account, they do not necessarily control the
obviousness conclusion. See Sud-Chemie, Inc. v. Multisorb Technologies,
Inc., 554 F.3d 1001, 1009 (Fed. Cir. 2009) (“[E]vidence of unexpected
results and other secondary considerations will not necessarily overcome a
strong prima facie showing of obviousness”); Pfizer, Inc. v. Apotex, Inc., 480
F.3d at 1372 (“[T]his secondary consideration does not overcome the strong
showing of obviousness in this case. Although secondary considerations
must be taken into account, they do not necessarily control the obviousness
conclusion.”); see also Newell Cos. v. Kenney Mfg. Co., 864 F.2d 757, 769
(Fed. Cir. 1988). In this case, viewing Appellant’s qualitative evidence
regarding appearance and texture together with the relatively strong
evidence supporting the Examiner’s prima facie showing, we are not
persuaded of reversible error in the Examiner’s obviousness determination.
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For the foregoing reasons, Appellant does not identify error in the
Examiner’s rejection of claim 1. Appellant does not argue with particularity
any error in the Examiner’s rejection of claim 2.
The Examiner’s rejection is sustained.

CONCLUSION
The Examiner’s decision rejecting claims 1 and 2 is affirmed.

DECISION SUMMARY
In summary:
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 2 103(a) Swenson,
Dingman, Tang
1, 2

No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv).

AFFIRMED