Prakash, Satya et al.

Patent Trials and Appeals Board

Jan 3, 2020

13111105 - (D) (P.T.A.B. Jan. 3, 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.
13/111,105 05/19/2011 Satya Prakash UAS003US1 4868
100340 7590 01/03/2020
Jonathan M Kaplan
P.O. Box 521
Capitola, CA 95010
EXAMINER
AFREMOVA, VERA
ART UNIT PAPER NUMBER
1653
NOTIFICATION DATE DELIVERY MODE
01/03/2020 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
jonathan@kaplan-iplaw.com
tracie@kaplan-iplaw.com
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte SATYA PRAKASH,
MITCHELL LAWRENCE JONES, and
CHRISTOPHER MARTONI
____________________

Appeal 2018-004374
Application 13/111,105
Technology Center 1600
____________________

Before FRANCISCO C. PRATS, TAWEN CHANG, and DAVID COTTA,
Administrative Patent Judges.

CHANG, Administrative Patent Judge

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 3–6, 8–12, 14, 15, and 26–36.2 We
have jurisdiction under 35 U.S.C. § 6(b).
We REVERSE.

1 We use the word “Appellant” to refer to “applicant” as defined in 37
C.F.R. § 1.42. Appellant identifies the Real Party in Interest as UAS
Laboratories LLC. Appeal Br. 3.
2 An oral hearing was held on Sept. 12, 2019.
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BACKGROUND
Elevated LDL cholesterol is involved in atherosclerosis and coronary
artery disease (CAD). Spec. ¶ 5. In contrast, high-density lipoproteins
(HDL) “play a key role in ‘reverse cholesterol transport’, a pathway by
which excess cholesterol is removed from extrahepatic cells and returned to
the liver for excretion from the body.” Id. ¶ 6. Upon return to the liver,
cholesterol may be metabolized into bile salts and excreted from the body.
Id.
According to the Specification, “highly bile salt hydrolase (bsh) active
bacteria provide an improved agent for reducing serum cholesterol, serum
lipids, body fat, and atherogenic index and for prophylaxis and treatment of
atherosclerosis, cardiovascular and cerebrovascular diseases.” Id. ¶ 22.
Further according to the Specification,
[t]he present disclosure relates to an improved oral
composition of a highly bsh active bacteria, isolate or
supernatant thereof and processes for preparing the
improved composition. The present disclosure also relates
to methods and uses of the improved oral composition for
reducing serum cholesterol, serum lipids, body fat, or
atherogenic index and for prophylaxis and treatment of
atherosclerosis, cardiovascular or cerebrovascular
diseases.
Spec. ¶ 2.
CLAIMED SUBJECT MATTER
The claims are directed to a bile salt hydrolase (BSH) active bacteria
and oral compositions comprising such bacteria. Claims 3, 33, and 34 are
illustrative:
3. An oral composition, comprising the BSH active bacteria of
claim 34; wherein said first BSH activity degrades >2253 μmol
glycodeoxycholic acid (GDCA)/gram wet bacterial pellet/hr when
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measured over 30 minutes, wherein said high BSH activity is stable so
that at least about 69.2% of said BSH activity is retained when said
highly BSH active bacteria are stored for a time period of at least 3
weeks.

33. A bile salt hydrolase (BSH) active bacteria, comprising a first
BSH activity that results from growth in an optimized plurality of
growth medium components, wherein said first BSH activity is
between 6.1 and 113.6 fold higher than a second BSH activity that
results from the growth of said BSH active bacteria in de Man,
Rogosa, Sharpe (MRS) medium.

34. The BSH active bacteria of claim 33, wherein said first BSH
activity is between 8.9 and 113.6 fold higher than said second BSH
activity.
Appeal Br. 27, 29–30 (Claims App.).
REJECTIONS
The Examiner rejects claims 3–6, 8–11, 15, and 26–363 under 35
U.S.C. § 101 as being directed to a judicial exception (i.e., a law of nature, a
natural phenomenon, or an abstract idea) without significantly more. Ans. 4.
The Examiner rejects claims 3–5, 8, 9, 26, 28, 30, and 33–36 under
pre-AIA 35 U.S.C. § 102(b) as being anticipated by or, in the alternative,
under pre-AIA 35 U.S.C. § 103(a) as obvious over, De Smet.4 Ans. 9.

3 In the Answer, the Examiner states that “[c]laims 3–6, 11, 15, and 26–32
are rejected under 35 U.S.C. § 101.” Ans. 4 (emphasis added). However,
the body of the rejection makes clear that the rejection encompasses claims
33–36 as well. Ans. 8 (stating that “the claimed bacteria and compositions
therewith are naturally occurring bacteria products (claims 33–36, 5, 6, 8–
11, 15, 26–32)” (emphasis added)), 4–5 (analyzing claims 33–36 under §
101).
4 I. De Smet et al., Significance of Bile Salt Hydrolytic Activities of
Lactobacilli, 79 J. APPLIED BACTERIOLOGY 292 (1995).
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The Examiner rejects claims 3–6, 8, 9, and 26–36 under pre-AIA 35
U.S.C. § 102(a) as being anticipated by or, in the alternative, under pre-AIA
35 U.S.C. § 103(a) as obvious over, Stanton.5 Ans. 13.
The Examiner rejects claims 3–6, 8, 9, 26–28, 30, 31, and 33–36
under pre-AIA 35 U.S.C. § 102(a) as being anticipated by or, in the
alternative, under pre-AIA 35 U.S.C. § 103(a) as obvious over, Casas.6 Ans.
15.
The Examiner rejects claims 3–6, 8, 9, 26, 27, 30, 31, and 33–36
under pre-AIA 35 U.S.C. § 102(a) as being anticipated by or, in the
alternative, under pre-AIA 35 U.S.C. § 103(a) as obvious over, Irmak.7 Ans.
16–17.
The Examiner rejects claims 3–5, 8–10, 26, 28, 30, and 33–36 under
pre-AIA 35 U.S.C. § 103(a) as being unpatentable over De Smet and
Martoni.8 Ans. 19.
The Examiner rejects claims 3–5, 8–10, 26–28, 30, 31, and 33–36
under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over De Smet,
Martoni, and Sridevi.9 Ans. 20.
The Examiner rejects claims 3–5, 8–12, 14, 15, 26–28, 30, 31, and
33–36 under pre-AIA 35 U.S.C. § 103(a) as being unpatentable over De

5 Stanton et al., US 7,223,543 B2, issued May 29, 2007.
6 Casas et al., US 5,534,253, issued July 9, 1996.
7 Sibel Irmak et al., Biocatalysis of Linoleic Acid to Conjugated Linoleic
Acid, 41 LIPIDS 771 (2006).
8 Christopher Martoni et al., Microencapsulated Bile Salt Hydrolase
Producing Lactobacillus reuteri for Oral Targeted Delivery in the
Gastrointestinal Tract, 81 APPLIED MICROBIOLOGY AND BIOTECHNOLOGY
225 (2008).
9 N. Sridevi et al., Hypocholesteremic Effect of Bile Salt Hydrolase from
Lactobacillus buchneri ATCC 4005, 42 FOOD RESEARCH INT’L 516 (2009).
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Smet, Martoni, Sridevi, DeSimone,10 Truong-Le,11 Shah,12 and Capela.13
Ans. 22–23.
The Examiner rejects claims 3–6,14 8–12, 14, 15, and 26–36 under
pre-AIA 35 U.S.C. § 103(a) as being unpatentable over De Smet, Martoni,
Sridevi, DeSimone, Truong-Le, Shan, Capela, Stanton, Casa, and Irmak.
Ans. 24–25.
I.
Issue
The Examiner has rejected claims 3–6, 8–11, 15, and 26–36 under 35
U.S.C. § 101 as being directed to a judicial exception (i.e., a law of nature, a
natural phenomenon, or an abstract idea) without significantly more.
The Examiner finds that the
[c]laims as a whole [are] directed to a natural product that
is a bacteria and/or an oral composition comprising the
bacteria, wherein the bacteria are derived from nature (or
are not genetically engineered microorganisms) and
wherein the bacteria are characterized by their natural
bacterial properties including biological function such as
enzymatic activity including bile salt hydrolase (BSH)

10 DeSimone, US RE40,023 E, reissued Jan. 22, 2008.
11 Truong-Le, US 8,067,017 B2, issued Nov. 29, 2011.
12 N.P. Shah et al., Microencpasulation of Probiotic Bacteria and Their
Survival in Frozen Fermented Dairy Desserts, 55 AUSTRALIAN J. DIARY
TECH. 139 (2000).
13 P. Capela et al., Effect of Cryoprotectants, Prebiotics and
Microencapsulation on Survival of Probiotic Organisms in Yoghurt and
Freeze-dried Yoghurt, 39 FOOD RES. INT’L 203 (2006).
14 In the Answer, the Examiner states that claims 1–6, 8–12, 14, 15, and 26–
36 are rejected over De Smet, Martoni, Sridevi, DeSimone, Truong-Le,
Shan, Capela, Stanton, Casa, and Irmak. Ans. 24–25. However, claims 1
and 2 have been canceled. Appeal Br. 27 (Claims App.).
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activity and including stability of the biological function
including enzymatic activity.
Ans. 4.
Appellant contends that bacteria having an increased BSH activity of
between 6.1 and 113.6 fold over the MRS medium do not occur in nature.
Appeal Br. 9. Appellant likewise contends that stabilized BSH activity as
recited in claim 3 has not been reported in nature. Id. at 19. Finally,
Appellant further argues that the claims include additional elements that are
significantly more than a judicial exception. Id. at 18–19.
The issue with respect to this rejection is whether a preponderance of
the evidence of record supports the Examiner’s determination that the claims
are directed to a natural phenomenon without significantly more.
Analysis
We analyze this case under the framework set forth by the Supreme
Court in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566
U.S. 66 (2012), and applied by our reviewing court in Ariosa Diagnostics,
Inc. v. Sequenom, Inc., 788 F.3d 1371 (Fed. Cir. 2015). As the Ariosa court
explained:
In Mayo . . . , the Supreme Court set forth a framework for
distinguishing patents that claim laws of nature, natural
phenomena, and abstract ideas from those that claim
patent-eligible applications of those concepts. First, we
determine whether the claims at issue are directed to a
patent-ineligible concept. . . . If the answer is yes, then
we next consider the elements of each claim both
individually and “as an ordered combination” to determine
whether additional elements “transform the nature of the
claim” into a patent-eligible application. . . . The Supreme
Court has described the second step of this analysis as a
search for an “inventive concept”—i.e., an element or
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combination of elements that is “sufficient to ensure that
the patent in practice amounts to significantly more than a
patent upon the [ineligible concept] itself.”
Id. at 1375.
As an initial matter, we construe the claim limitation, “[a] bile salt
hydrolase (BSH) active bacteria, comprising a first BSH activity that results
from growth in an optimized plurality of growth medium components,”
under the broadest reasonable interpretation standard. See, e.g., In re
Morris, 127 F.3d 1048, 1055 (Fed. Cir. 1997). Under this standard, “words
of the claim must be given their plain meaning, unless such meaning is
inconsistent with the specification and prosecution history.” Trivascular,
Inc. v. Samuels, 812 F.3d 1056, 1061–1062 (Fed. Cir. 2016). In this case,
the claims require a bacteria “comprising” a certain amount of BSH activity,
and we conclude that the plain meaning of this phrase requires that the
bacteria presently possesses the recited BSH activity. Cf. Straight Path IP
Group, Inc. v. Sipnet EU S.R.O., 806 F.3d 1356, 1360–1363 (rejecting the
Board’s construction of phrase “a query as to whether the second process is
connected to computer network” because use of the present tense verb “is”
plainly requires determination of whether the second unit is connected at the
time that the query is sent and not at registration). Accordingly, we construe
“[a] bile salt hydrolase (BSH) active bacteria, comprising a first BSH
activity that results from growth in an optimized plurality of growth medium
components,” to mean a BSH active bacteria grown in an optimized plurality
of growth medium components such that it possesses the level of recited
“first BSH activity” in the presence of the appropriate substrate at the time
such activity is being measured.
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We turn next to the first step of the Mayo test. On January 7, 2019,
the Director of the USPTO issued the “2019 Revised Patent Subject Matter
Eligibility Guidance” (“Revised Guidance”), which provides further details
regarding how the Patent Office analyzes patent-eligibility questions under
35 U.S.C. § 101. 84 Fed. Reg. 50–57 (Jan. 7, 2019). Under the Revised
Guidance, the first step of the Mayo test (i.e., Step 2A of the Revised
Guidance) is “a two-pronged inquiry.” Id. at 54. In prong one, we evaluate
whether the claim recites a judicial exception, such as laws of nature, natural
phenomena, or abstract ideas. Id. If the claim recites a judicial exception,
the claim is further analyzed under prong two, which requires “evaluat[ion
of] whether the claim recites additional elements that integrate the exception
into a practical application of that exception.” Id.
Pursuant to prong one of Step 2A of the Revised Guidance, therefore,
we begin by evaluating whether the claims recite a judicial exception when
they recite, e.g., “[a] bile salt hydrolase (BSH) active bacteria” that
comprises a certain level of BSH activity. As discussed below, we find that
they do not.
As explained in both case law and the Revised Guidance, natural
phenomena, including naturally occurring organisms, are not
patentable. In re Roslin Institute (Edinburgh), 750 F.3d 1333, 1335–
1336 (Fed. Cir. 2014). Two Supreme Court cases, Funk Brothers and
Chakrabarty, elucidate the analysis for determining whether an organism is
“naturally occurring.”
In Funk Brothers, “bacteria produced by the laboratory methods of
culture are placed in a powder or liquid base and packaged for sale to and
use by agriculturists in the inoculation of the seeds of leguminous
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plants.” Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 129
(1948). The Supreme Court concluded that such a mixture of bacteria was
not patent eligible: “The qualities of these bacteria, like the heat of the sun,
electricity, or the qualities of metals, are part of the storehouse of knowledge
of all men. They are manifestations of laws of nature, free to all men and
reserved exclusively to none.” Id. at 130; see also Roslin, 750 F.3d at 1336
(explaining that “while the method of selecting the strains of bacteria
[in Funk Brothers] might have been patent eligible, the natural organism
itself – the mixture of bacteria – was unpatentable because its ‘qualities are
the work of nature’ unaltered by the hand of man”) (citation omitted).
In contrast, in Chakrabarty, the Supreme Court held certain
genetically engineered bacterium to be patent-eligible. 447 U.S. 303, 310
(1980). In that case, the invention was directed to “a bacterium from the
genus Pseudomonas containing therein at least two stable energy-generating
plasmids, each of said plasmids providing a separate hydrocarbon
degradative pathway.” Id. at 305. “This human-made, genetically
engineered bacterium is capable of breaking down multiple components of
crude oil,” a property “possessed by no naturally occurring bacteria.” Id.
The Supreme Court found that, in contrast to the mixture of bacteria in Funk
Brothers, “the patentee has produced a new bacterium with markedly
different characteristics from any found in nature and one having the
potential for significant utility.” Chakrabarty, 447 U.S. at 310 (emphasis
added).
Keeping our claim construction and the principles articulated in Funk
Brothers and Chakrabarty in mind, we are persuaded by Appellant’s
contention that, while BSH active bacteria are naturally occurring, a BSH
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active bacteria comprising the claimed BSH activity (i.e., “a first BSH
activity . . . wherein said first BSH activity is between 6.1 and 113.6 fold
higher than a second BSH activity that results from the growth of said BSH
active bacteria in de Man, Rogosa, Sharpe (MRS) medium”), has markedly
different characteristics (i.e., in the level of BSH activity) from the bacteria
found in nature.
We recognize that this case is different from Chakrabarty in that the
claimed bacteria does not possess a characteristic (BSH activity) entirely
absent from naturally occurring bacteria but rather possesses it to a degree
that does not naturally occur. However, the Examiner has not cited, and we
are not aware of, any authority that a significant difference in the degree to
which a phenotypic characteristic is exhibited cannot be considered a
“markedly different” characteristic for purposes of Section 101 analysis.
Neither has the Examiner presented persuasive evidence that such a BSH
active bacteria would be found in nature, absent human intervention (i.e.,
optimization of the growth medium) as described in the Specification. For
example, the Examiner has not persuasively shown that the 6.1 to 113.6 fold
increase in BSH activity (over bacteria grown in the MRS medium) falls
within the expected variation in BSH activity in naturally occurring BSH
bacteria.
In short, we find this case to be closer to Chakrabarty, where the
“discovery is not nature’s handiwork,” 447 U.S. at 310, than to Funk
Brothers, where the claims were directed to the mere packaging of a
plurality of selected, naturally occurring strains of different bacteria that
were mutually non-inhibitive, 333 U.S. at 131.
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We also find Roslin to be instructive. In Roslin, our reviewing court
found that claims to a “live-born clone” of a donor mammal are not directed
to patent-eligible subject matter. Roslin, 750 F.3d at 1337. In particular,
although patent applicants contended that “copies (clones) are eligible for
protection because they are ‘the product of human ingenuity’ and not
‘nature’s handiwork, but [their] own,”’ the Roslin Court found that a clone is
not patentable because it is “an exact genetic replica” of the donor mammal
and “does not possess ‘markedly different characteristics from any [farm
animals] found in nature.”’ Id. (brackets in original and citations omitted).
In response to Roslin’s argument that “‘environmental factors’ lead to
phenotypic differences that distinguish its clones from their donor
mammals,” the Court noted that such phenotypic difference are unclaimed
and that, as Roslin acknowledged, “any phenotypic difference came about or
were produced ‘quite independently of any effort of the patentee.’” Id. at
1338. In contrast, the claims here recite the phenotypic difference (i.e., level
of BSH activity) alleged to differentiate the claimed bacteria from naturally
occurring bacteria. Moreover, the phenotypic difference came about through
the effort of the patentee in selecting the optimized media components.
The Examiner asserts that “the core structure of claimed bacteria is
the same as the structure of natural bacteria” because they are genetically
identical, and “[t]he genetically identical natural bacteria is reasonably
expected to manifest [the] same relative increase in enzymatic activity under
growth conditions.” Ans. 4, 27, 28. The Examiner asserts that “[t]he
relative increase as claimed does not indicate what structural changes in a
bacterial product provide[] for increase in its BSH function.” Id. at 4.
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We are not persuaded. The Examiner cites no authority, and we are
not aware of any, that only genetic differences can impart “markedly
different characteristics” distinguishing patent-eligible subject matter from
natural phenomenon. Indeed, as discussed above, Roslin suggests that
phenotypic differences may be considered to impart “markedly different
characteristics” so long as these differences are claimed and came about or
were produced through the effort of the applicant. Roslin, 750 F.3d at 1338;
see also 2014 Interim Guidance on Patent Subject Matter Eligibility (Dec.
16, 2014) (“Interim Guidance”), Example 9 (explaining that a claim to “[a]n
isolated man-made human pacemaker cell expressing marker Z” would be
patent-eligible where naturally occurring pacemaker cells do not express
marker Z, even if they “contain genes that are capable of expressing . . .
marker Z”). Neither has the Examiner provided persuasive evidence that the
growth conditions that allegedly resulted in the claimed increase in relative
enzymatic activity are naturally occurring and that, therefore, bacteria
having the recited enzymatic activity is also naturally occurring.
The Examiner points to claim 3, which recites an oral composition
comprising the highly BSH active bacteria recited in claim 34 “wherein [the]
high BSH activity is stable so that at least about 69.2% of said BSH activity
is retained when said highly BSH active bacteria are stored for a time period
of at least 3 weeks.” The Examiner asserts that, based on the claim, “it is
unclear if the high activity is a transient characteristics of the bacterial
product” and further asserts that “[o]nce the activity reduces to the level of
‘at least 69.2%’ this is not ‘significantly more’ to make it patent eligible
over the natural product since now the activity is not much higher than that
of the natural product.” Ans. 27–28; see also id. at 5–6.
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We are not persuaded. We agree with the Examiner that a claim may
encompass natural phenomenon and thus patent-ineligible subject matter if
the markedly different characteristic is transient and if the claim
encompasses bacteria that no longer possesses the markedly different
characteristic. Claim 33, however, is directed only to BSH active bacteria
that have the characteristic of heightened BSH activity (i.e., a BSH activity
between 6.1 and 113.6 fold higher than the activity of bacteria grown on
MRS medium). The Examiner cites no authority, and we are not aware of
any, that a transient characteristic may not also be a “markedly different”
characteristic that distinguishes patent-eligible subject matter from natural
phenomenon, so long as the claim is limited to subject matter that possesses
that transient characteristic.15 Neither has the Examiner persuasively
explained why 69.2% of the original high level of BSH activity (i.e.,
between 8.9 and 113.6 fold higher than activity of the bacteria when grown
in MRS medium) would not be considered a “markedly different”
characteristic.

15 We are cognizant of the Examiner’s concern that claim 3 may be read as
encompassing an oral composition comprising BSH active bacteria that does
not have the high level of BSH activity recited in claim 34, because claim 3
encompasses bacteria whose BSH activity has decreased to 69.2% of its
original level. However, claim 3 may simply require a bacteria whose BSH
activity is such that 69.2% of its highest level of BSH activity would still be
between the 8.9 and 113.6 fold higher activity recited in claim 34. In
addition, claim 3 specifies that the degraded activity may be found “when
said highly active bacteria are stored for a time period of at least 3 weeks.”
The claimed bacteria could thus currently have the activity recited in claim
34 and have the activity recited in claim 3 if the measurement were taken
three weeks later. Furthermore, to the extent the claims are ambiguous, the
appropriate rejection would be indefiniteness rather than ineligibility under
Section 101.
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The Examiner asserts that the rejected claims do not recite “the
purported inventive feature and the patent eligible matter,” which is “the
specific medium that causes [the recited] high [BSH] activity” and also do
not recite “incorporation of lyoprotectant materials that provide for enhanced
stability.”16 Ans. 4, 7, 27, 28. The Examiner further asserts that “it is
routine and conventional to add several components to optimize growth” and
that “[t]he product-by-process limitation, i.e. growing in an ‘optimized’
medium, is . . . conventional and routine in the art.” Id. The Examiner
asserts that “[a] generic natural bacteria having BSH activity inherently
expresses BSH to a relatively better degree when exposed to a relatively
better and/or “optimized” natural environment.” Id. at 4–5. Likewise, the
Examiner asserts that “[a] generic composition with a natural bacteria
having BSH activity is inherently characterized by stable expression of
BSH.” Id. at 5–6, 6–7.
We are not persuaded. The claims recite the phenotypic difference
that is asserted to be “markedly different” from bacteria occurring in nature.
The Examiner has not cited authority, and we are not aware of any, that a
claim must also recite the steps taken to achieve the characteristic(s) alleged
to be markedly different from natural phenomenon, in order to be patent-
eligible under Section 101. In Example 9 of the Interim Guidance, for
instance, the PTO explained that a claim to “[a]n isolated man-made human
pacemaker cell expressing marker Z” would be patent-eligible where
naturally occurring pacemaker cells do not express marker Z, even though

16 The Examiner states that “[c]laims 12 and 14 are patent-eligible under 35
USC 101 because the use and/or incorporation of specific materials as
claimed provides for claimed stability of claimed BSH activity.” Ans. 7.
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the claim does not recite the process required to make such cells (i.e.,
culturing isolated stem cells in a particular growth medium, in the presence
of growth factor A, at various temperatures).
The Examiner asserts that the declarations provided by Appellant do
not support the conclusion that BSH activity increases “as [a] result from
growth on a specially designed combination (or ‘plurality’) of . . . nutrients.”
Ans. 29.
We are not persuaded. The relevant question with respect to Section
101 is whether the claimed bacteria has “markedly different characteristics”
from bacteria occurring in nature. To the extent the Specification does not
enable a skilled artisan to produce the claimed bacteria (e.g., because the
disclosed combination of growth medium components do not result in the
claimed BSH activity increase), the appropriate rejection is one of lack of
enablement.
The Examiner asserts that, based upon the data provided by Appellant,
“the BSH activity of natural bacterial of [De Smet] is comparable or even
higher than the claimed bacteria (claim 3).” Ans. 6, 30. The Examiner
asserts that, to the extent the BSH activity of the claimed bacteria cannot be
realistically compared to the bacteria described in De Smet, “the claimed
BSH activity cannot be considered as a markedly different phenotypic
characteristic as argued by appellants for [at] least [the] reason that it [has]
not [been] compared.” Id.
We are not persuaded. As discussed in greater detail below with
respect to the prior art rejections, the Examiner has not persuasively shown
that the BSH activity of the bacteria in De Smet is in fact comparable or
higher than the BSH activity required by claim 3. For instance, claim 3
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depends from claim 34, which requires BSH activity between 8.9 and 113.6
fold higher than the activity of the bacteria grown on MRS medium. The
Examiner has not persuasively shown that the bacteria taught by De Smet
exhibits BSH activity between 8.9 and 113.6 fold higher than the bacteria
grown on MRS medium.
As to the Examiner’s argument that the claimed bacteria cannot be
considered to possess markedly different characteristics to the extent it
cannot be realistically compared with those described in De Smet, we are not
persuaded. “[T]he examiner bears the initial burden, on review of the prior
art or on any other ground, of presenting a prima facie case of
unpatentability.” In re Oetiker, 977 F.2d 1443, 1445 (Fed. Cir. 1992).
Where the Examiner has not persuasively shown that a bacteria in nature
exhibits the claimed level of BSH activity, such a prima facie case of
unpatentability has not been established.
Accordingly, we conclude that prong one of Step 2A of the Revised
Guidance, and thus the first threshold under Mayo, is not met: That is, the
claimed subject matter does not recite and therefore is not directed to a
natural product or another judicial exception. We reverse the Examiner’s
rejection based on that ground.
II.
Issue
The Examiner rejects claims 3–5, 8, 9, 26, 28, 30, and 33–36 under
pre-AIA 35 U.S.C. § 102(b) as being anticipated by or, in the alternative,
under pre-AIA 35 U.S.C. § 103(a) as obvious over, De Smet. The Examiner
rejects claims 3–5, 8–10, 26, 28, 30, and 33–36 as obvious over De Smet and
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Martoni. The same issue is dispositive for both rejections; we therefore
discuss them together.
The Examiner finds that De Smet teaches “compositions comprising
highly bile salt hydrolase (BSH) active bacteria Lactobacillus.” Ans. 9. The
Examiner finds that De Smet teaches a natural strain of Lactobacillus, H364,
characterized by BSH activity of 7.103 µmol GDCA degraded per 1010 cells
per minute. Id. at 10. Taking the weight of 1 bacteria cell to be about 10-12
g, the Examiner finds that strain H364 as taught by De Smet has BSH
activity of 710 µmol per 1 g of cells per minute, or about 42600 µmol per 1
g of cells per 60 minutes. Id. The Examiner finds that strain H364 thus
meets the limitation in claim 3 of a BSH active bacteria comprising “BSH
activity [that] degrades > 2253 µmol glycodeoxycholic acid (GDCA)/gram
wet bacterial pellet/hr when measured over 30 minutes.” Id.
With respect to the limitations in claim 3 relating to stability and
retention of BSH activity, the Examiner notes that
[t]he reference by De Smet discloses that BSH activity was
measured at a stationary phase . . . . During the stationary
phase the bacterial cultures are maintained at a stable
stationary state with the same concentrations of viable and
active cells. The same level of BSH activity is reasonably
expected to be retained for an indefinite period of time
including “at least 3 weeks” when cultures are constantly
maintained or “stored” at the same conditions that provide
for the expression of high BSH activity.
Id. at 11.
With respect to independent claim 33, the Examiner finds that,
“although the cited reference describes culturing bacteria on MRS medium,
the claimed bacteria and the claimed ‘optimized’ conditions are generic and
thus culturing in MRS reads on this product-by-process limitation.” Id. at
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10. Accordingly, the Examiner finds that “the differences [between De Smet
and claim 33], if any, are considered either anticipated for the reasons set
forth or are considered so slight as to render it obvious based on the
optimization of the growth medium,” as discussed further below. Id. at 10–
11.
The Examiner further asserts that “[o]nce a product appearing to be
substantially identical is found and a 102/103 rejection is made the burden
shifts to applicant.” Id. at 11. The Examiner finds that De Smet teaches a
bacteria substantially identical to the claimed bacteria in part because De
Smet describes BSH producing bacteria cultured on media under proper
conditions and teaches a plurality of growth medium components including
“various carbon sources (at least a glucose in the MRS medium), various
nitrogen sources (yeast extract, beef extract and peptone in the MRS
medium) and also a generic reducing agent (yeast extract, for example).” Id.
at 11–12. Thus, under the broadest reasonable interpretation, the Examiner
finds that the BSH activity of De Smet’s bacteria results from “growth in an
optimized plurality of growth medium components” as recited in the
product-by-process limitation of claim 33. Id. at 11.
Finally, the Examiner finds that
De Smet . . . clearly recognizes that survival and activity
of BSH-producing strains depends on the presence of
nutrients including carbon source . . . ; and that bile acid
resistance of BSH producing bacteria, particularly in the
presence of nutrients, directly correlates with higher level
of BSH. Therefore, the cited reference teaches and
suggests modification of BSH activity of BSH-producing
bacterial strains by fermentation in the presence of various
grown medium components to produce a highly active
bacteria. Thus, if the bacteria disclosed by De[]Smet is
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not anticipated, it is clearly rendered obvious since
De[]Smet teaches manipulating the growth medium in
order to tweak the BSH activity of the bacteria.
Id. at 12.
Appellant contends that the cited art does not literally or inherently
disclose or suggest all elements of the claims, that a skilled artisan would not
have had a reasonable expectation of success in creating the claimed subject
matter based, and that the claimed subject matter “was a surprising result that
has resulted in commercial success.” Appeal Br. 22.
The issue with respect to this rejection is whether a preponderance of
the evidence of record supports the Examiner’s determination that De Smet
anticipates and/or render obvious claims 3–5, 8, 9, 26, 28, 30, and 33–36.
Analysis
On balance, we find Appellant to have the better case. Claim 33, the
only independent claim, requires a BSH active bacteria comprising a BSH
activity that is between 6.1 and 113.6 fold higher than the BSH activity it
would have had if the bacteria were grown on the MRS medium. The
Examiner has not persuasive shown that De Smet teaches, explicitly or
inherently, a BSH bacteria that meets this limitation. Neither has the
Examiner persuasively shown that a skilled artisan would have had a
reasonable expectation of success in modifying De Smet’s disclosures to
arrive at a BSH bacteria having the recited BSH activity.
The Examiner asserts that De Smet teaches a natural strain of
Lactobacillus, H364, characterized by a BSH activity that is greater than the
BSH activity recited in claim 3. Ans. 10.
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We are not persuaded. Claim 3 recites an oral composition
comprising the BSH active bacteria of claim 34 (i.e., the BSH active bacteria
of claim 33 wherein the BSH activity is between 8.9 and 113.6 fold higher
than the BSH activity of the bacteria grown on MRS medium), and further
recites that “BSH activity is stable so that at least about 69.2% of [the] BSH
activity is retained when said . . . BSH active bacteria are stored for a time
period of at least 3 weeks.” Appeal Br. 27 Claims App.
As an initial matter, because claim 3 depends from claim 34 (which in
turn depends from claim 33), the anticipation and/or obviousness rejection
must still show that De Smet teaches or renders obvious the level of
comparative BSH activity recited in claim 34, namely that the BSH activity
is between 8.9 and 113.6 fold higher than the BSH activity of the bacteria
grown in MRS medium, even assuming that De Smet teaches a BSH active
bacteria comprising a BSH activity greater than the “absolute” level of BSH
activity recited in claim 3.
Furthermore, we are not persuaded that the Examiner has shown that
the H364 strain taught in De Smet has a BSH activity greater than that
recited in claim 3 (i.e., “BSH activity [that] degrades > 2253 µmol
glycodeoxycholic acid (GDCA)/gram wet bacterial pellet/hr when measured
over 30 minutes”). As Appellant points out, the Examiner’s initial
calculation of BSH activity was based on the activity per gram of bacterial
cell, even though claim 3 recites BSH activity per gram of wet bacterial
pellet. While the Examiner has revised her calculations based on the
statement in the First Martoni Declaration17 that “the concentration of

17 Declaration of Christopher J. Martoni under 37 C.F.R. § 1.132 (May 12,
2015).
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bacterial cells in a wet cell pellet is about 6 x 1010 Colony Forming Units
(CFU)/g cell wet weight” (First Martoni Decl. ¶ 10; Ans. 30), the Examiner
has not provided persuasive rebuttals as to the other points raised in the First
Martoni Declaration regarding the calculation, such as the fact that the BSH
activity in De Smet is expressed per 10 log10 cfu initially present per ml of
incubation mixture, even though the activity itself is measured at a later
stationary phase. First Martoni Decl. ¶ 11.
The Examiner asserts that “[o]nce a product appearing to be
substantially identical is found and a 102/103 rejection is made the burden
shifts to applicant.” Ans. 11. The Examiner finds that De Smet teaches a
bacteria substantially identical to the claimed bacteria in part because De
Smet describes BSH producing bacteria cultured on media under proper
conditions and teaches a plurality of growth medium components including
“various carbon sources (at least a glucose in the MRS medium), various
nitrogen sources (yeast extract, beef extract and peptone in the MRS
medium) and also a generic reducing agent (yeast extract, for example).” Id.
at 11–12. Accordingly, the Examiner asserts that “the differences [between
De Smet and claim 33], if any, are considered either anticipated . . . or are
considered so slight as to render it obvious based on the optimization of the
growth medium,” particularly in view of De Smet’s clear recognition that
“survival and activity of BSH-producing strains depends on the presence of
nutrients including carbon source . . . ; and that bile acid resistance of BSH
producing bacteria, particularly in the presence of nutrients, directly
correlates with higher level of BSH.” Id. at 10–12.
We are not persuaded. We agree that, “[w]here . . . the claimed and
prior art products are identical or substantially identical . . . the PTO can
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require an applicant to prove that the prior art products do not necessarily or
inherently possess the characteristics of his claimed product.” In re Best,
562 F.2d 1252, 1255 (CCPA 1977) (citation omitted). However, the
Examiner has not persuasively shown that, despite the difference in the
culture medium used in the cited prior art and the Specification, the
differences are so slight as to render the media to be “identical or
substantially identical.” Likewise, to the extent the Examiner argues that De
Smet inherently discloses the claimed BSH activity, we note that the alleged
“inherent result must inevitably result from the disclosed steps; ‘[i]nherency
. . . may not be established by probabilities or possibilities.’” In re
Montgomery, 677 F.3d 1375, 1380 (Fed. Cir. 2012) (citations omitted,
alteration in original).
As to the Examiner’s reliance on routine optimization to show
obviousness, we are not persuaded. Assuming De Smet provides a reason
for optimizing the growth medium to increase BSH activity, the Examiner
does not persuade us that De Smet provides a reasonable expectation of
success that optimizing bacterial culture media would increase BSH activity
to the extent claimed.
Accordingly, we reverse the Examiner’s rejection of claim 33 as
anticipated and/or obvious over De Smet. We reverse the Examiner’s
rejection of claims 3–5, 8, 9, 26, 28, 30, and 34–36, which depend from
claim 33, for the same reasons. Cf. In re Fritch, 972 F.2d 1260, 1266 (Fed.
Cir. 1992) (“[D]ependent claims are nonobvious if the independent claims
from which they depend are nonobvious.”).
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III.
Issue
The Examiner rejects claims 3–6, 8, 9, and 26–36 as being anticipated
by or obvious over Stanton. The Examiner rejects claims 3–6, 8, 9, 26–28,
30, 31, and 33–36 as being anticipated by or obvious over Casas. The
Examiner rejects claims 3–6, 8, 9, 26, 27, 30, 31, and 33–36 as being
anticipated by or obvious over Irmak. The same issues are dispositive for
each of these rejections; we thus discuss them together.
The Examiner finds that Stanton, Casas, and Irmak each teaches an
oral composition, or composition suitable for oral administration,
comprising Lactobacillus reuteri bacterial strain(s) that are “absolutely
identical bacterial strains as required by [certain claims encompassed by the
rejection,] as explicitly evidenced by their totally identical . . . accession
numbers,” and/or “belong to the same bacterial genus and species as recited
in [these and other claims encompassed by the rejection].” Ans. 13; see also
id. at 15, 17.
The Examiner finds that the cited references are silent with respect to
BSH activity and/or stability. (Id. at 13; see also id. at 15, 17) However, the
Examiner finds that the references anticipate the claims enumerated in the
rejections because
the cited bacterial compositions are identical compositions
as claimed because the identical bacterial st[r]ains
inherently possess the same biological functions and
characteristics including the same BSH activity and the
same stability under the same conditions as encompassed
by claim 3 and 4 and the same relative BSH increase under
generic suitable conditions as encompassed by claims 33–
36.
Ans. 13; see also id. at 15, 17.
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In the alternative, the Examiner asserts that,
with regard to some unidentified characteristics including
specific value or level of BSH and stability, the culture
conditions of the cited strains include the use of suitable
culture medium . . . containing suitable “growth medium
components” including a carbon source such as glucose
and a nitrogen sources including yeast extract, beef extract
and peptone as well as a generic reducing agent (yeast
extract, for example) as encompassed by claims 3, 8, 9 and
28. Thus, all cited bacteria . . . were cultured on "an
optimized plurality of growth medium components" as
encompassed by the claimed invention; and, therefore,
their BSH activity and stability “result from a plurality of
growth medium components” to the same degree as
encompassed by the pending claims.
. . .
Therefore, the differences between that which is
disclosed and that which is claimed are considered to be
so slight that the referenced bacterial compositions are
likely inherently possess the same characteristics of the
claimed bacterial compositions particularly in view of the
fact that they are identical strains and, therefore, are
capable to provide for identical activity and stability under
identical conditions. Thus the claimed bacterial
compositions would have been obvious to those skilled in
the art within the meaning of USC 103.
Ans. 12-13; see also id. at 14–15, 16–17.
Appellant contends that the cited art does not literally or inherently
disclose or suggest all elements of the claims, that a skilled artisan would not
have had a reasonable expectation of success in creating the claimed subject
matter based, and that the claimed subject matter “was a surprising result
that has resulted in commercial success.” Appeal Br. 22.
The issue with respect to these rejections is whether a preponderance
of the evidence of record supports the Examiner’s determination that
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Stanton, Casa, or Irmak anticipate and/or render obvious the claims
enumerated in the rejections.
Analysis
On balance, we find Appellant to have the better case. Although
Stanton, Casa, and Irmak each disclose Lactobacillus reuteri strains that
have the same accession numbers as those recited in the claims, the
Examiner has not provided persuasive evidence that these strains comprise
BSH activity between 6.1 and 113.6 fold higher than if the bacteria were
grown in MRS medium, as recited by independent claim 33.
We acknowledge the Examiner’s position that “identical bacterial
st[r]ains inherently possess the same biological functions and characteristics
including the same BSH activity and the same stability under the same
conditions as encompassed by claim 3 and 4 and the same relative BSH
increase under generic suitable conditions as encompassed by claims 33–
36.” Ans. 13; see also id. at 15, 17.
We agree that “[a] reference may anticipate inherently if a claim
limitation that is not expressly disclosed ‘is necessarily present, or inherent,
in the single anticipating reference.’” In re Montgomery, 677 F.3d at 1379–
80 (citations omitted). However, “[t]he inherent result must inevitably result
from the disclosed steps; ‘[i]nherency . . . may not be established by
probabilities or possibilities.’” Id. at 1380 (citations omitted, second bracket
in original).
In this case, the Examiner has not provided persuasive evidence that
Stanton, Casa, and Irmak teach growing their Lactobacillus reuteri strains in
conditions that would result in the recited BSH activity. Thus, the Examiner
has not shown that Stanton, Casa, and Irmak inherently anticipate the claims.
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The Examiner notes that the cited references teach culturing their
Lactobacillus reuteri strains in media “containing suitable ‘growth medium
components’ including a carbon source such as glucose and a nitrogen
sources including yeast extract, beef extract and peptone as well as a generic
reducing agent (yeast extract, for example),” which are very similar to the
growth medium components disclosed in some of the dependent claims.
See, e.g. Ans. 14. The Examiner asserts that the differences between the
prior art and the claims “are . . . so slight that the referenced bacterial
compositions are likely [to] inherently possess the same characteristics of the
claimed bacterial compositions,” especially because they are identical strains
to those claimed and thus capable of providing for the same activity and
stability under identical conditions. Accordingly, the Examiner assert in the
alternative that the claimed bacterial compositions would have been obvious
to those skilled in the art within the meaning of 35. U.S.C. § 103. See, e.g.,
id. at 13 (emphasis added).
Although we understand the Examiner’s point, we remain
unpersuaded. Once again, “‘[i]nherency . . . may not be established by
probabilities or possibilities.’” In re Montgomery, 677 F.3d at 1380
(citations omitted, alteration in original). Furthermore, while we agree that,
“[w]here . . . the claimed and prior art products are identical or substantially
identical . . . the PTO can require an applicant to prove that the prior art
products do not necessarily or inherently possess the characteristics of his
claimed product,” In re Best, 562 F.2d at 1255 (citation omitted), the
Examiner has not persuasively shown that, the differences between the
culture media used in the cited prior art and the media used Specification are
so slight as to render the media “identical or substantially identical.”
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Accordingly, we reverse the Examiner’s rejection of claim 33 as
anticipated by and/or obvious over Stanton, Casa, or Irmak. We reverse the
Examiner’s rejection of claims 3–6, 8, 9, 26–32, and 34–36, which depend
from claim 33, for the same reasons. Cf. In re Fritch, 972 F.2d 1260, 1266
(Fed. Cir. 1992) (“[D]ependent claims are nonobvious if the independent
claims from which they depend are nonobvious.”).
IV.
Issue
The Examiner rejects claims 3–5, 8–10, 26–28, 30, 31, and 33–36 as
obvious over De Smet, Martoni, and Sridevi. The Examiner rejects claims
3–5, 8–12, 14, 15, 26–28, 30, 31, and 33–36 as obvious over De Smet,
Martoni, Sridevi, DeSimone, Truong-Le, Shah, and Capela. The Examiner
rejects claims 3–6, 8–12, 14, 15, and 26–36 as obvious over De Smet,
Martoni, Sridevi, DeSimone, Truong-Le, Shan, Capela, Stanton, Casa, and
Irmak. The same issues are dispositive for each of these rejections; we thus
discuss them together.
The Examiner finds that De Smet and Martoni disclose “compositions
comprising highly BSH active bacteria belonging to Lactobacillus,
Bifidobacteria, including the species of Lactobacillus reuteri that degrade
GDCA and TDCA.” Ans. 20.
The Examiner finds that De Smet discloses a “plurality of grow[th]
medium components” comprising “various carbon sources (glucose in MRS
medium), various nitrogen sources (yeast extract, beef extract and peptone in
MRS medium) and also a generic reducing agent (yeast extract) within the
meaning of claims 8 and 9.” Id.; see also id. at 21. The Examiner finds that
De Smet teaches that “survival and activity of BSH-producing strains
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depends on the presence of nutrients including carbon source” and that
“bile acid resistance of BSH producing bacteria, particularly in the
presence of nutrients, directly correlates with the higher level of BSH.”
Id. at 21–22. Similarly, the Examiner finds that Sridevi teaches
“optimization of BHS activities of bacterial strains belonging to the genus of
Lactobacillus . . . by using carbon sources including sucrose, maltose,
fructose . . . and nitrogen sources including various combinations of beef
extract, malt extract, yeast extract and peptone.” Id. at 21.
Accordingly, the Examiner concludes that
it would have been obvious to [one of] ordinary skill in the art at the
time the claimed invention was made to modify and/or to improve
activity of the oral bacterial compositions by modifying appropriate
fermentation medium components and by increasing amounts of
biologically active bacteria that are capable to degrade GDCA and
TDCA in order to provide for the increased BSH effects of the oral
bacterial compositions with a reasonable expectation of success
because the prior art clearly recognizes that presence of bacterial
nutrients and optimization of bacterial culture media provide for
enhanced BSH activity as adequately taught and/or suggested by De
Smet and by Sridevi.
Id. at 22.18
Appellant contends that the cited art does not literally or inherently
disclose or suggest all elements of the claims, that a skilled artisan would not

18 The Examiner also cites Martoni, DeSimone, Truong-Le, Shan, and
Capela for teaching limitations relating to various depending claims, such as
inclusion of cysteine in the growth medium components, techniques and
materials for preserving and storing biologically active bacteria, inclusion of
additional agents in the claimed oral composition. Id. at 21, 23–24. The
Examiner cites Stanton, Casa, and Irmak for the specific strains of
Lactobacillus reuteri recited in certain dependent claims as well as various
growth media components. Id. at 25–26.
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have had a reasonable expectation of success in creating the claimed subject
matter based, and that the claimed subject matter “was a surprising result
that has resulted in commercial success.” Appeal Br. 22.
The issue with respect to these rejections is whether a preponderance
of the evidence of record supports the Examiner’s determination that
Stanton, Casa, or Irmak anticipate and/or render obvious the claims
enumerated in the rejections.
Analysis
On balance, we find Appellant to have the better case. As discussed
above, we find that De Smet does not anticipate the limitation in
independent claim 33 regarding BSH activity. In this set of rejections the
Examiner asserts that the claims are nevertheless obvious in light of, e.g., De
Smet and Sridevi, because these prior art references teaches that “presence
of bacterial nutrients and optimization of bacterial culture media provide for
enhanced BSH activity.” Ans. 22.
We agree with the Examiner that, “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 Aller, 220
F.2d 454, 456 (CCPA 1955). In this case, however, the general conditions
of a claim are not disclosed in De Smet and Sridevi, because neither De
Smet nor Sridevi provides a skilled artisan with a reasonable expectation that
optimizing bacterial culture media could increase BSH activity to the extent
claimed. For instance, although Sridevi teaches optimizing culture
conditions in order to increase BSH activity, it also teaches only a 2.9-fold
increase in BSH production, not the at least 6.1-fold increase in BSH activity
recited in the claims. Sridevi Abstract.
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Accordingly, we reverse the Examiner’s rejection of claim 33 as
obvious over (1) De Smet, Martoni, and Sridevi, (2) De Smet, Martoni,
Sridevi, DeSimone, Truong-Le, Shah, and Capela, and (3) De Smet,
Martoni, Sridevi, DeSimone, Truong-Le, Shan, Capela, Stanton, Casa, and
Irmak. We reverse the Examiner’s rejections of claims 3–6, 8–12, 14, 15,
26–32, and 34–36 for the same reasons. In re Fritch, 972 F.2d 1260, 1266
(Fed. Cir. 1992) (“[D]ependent claims are nonobvious if the independent
claims from which they depend are nonobvious.”).
SUMMARY
For the reasons above, we reverse the Examiner’s decision rejecting
claims 3–6, 8–12, 14, 15, and 26–36.

Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
3–6, 8–11,
15, 26–36
101 3–6, 8–11,
15, 26–36
3–5, 8, 9, 26,
28, 30, 33–36
102(b)

De Smet 3–5, 8, 9,
26, 28, 30,
33–36
3–5, 8, 9, 26,
28, 30, 33–36
103(a)

De Smet 3–5, 8, 9,
26, 28, 30,
33–36
3–6, 8, 9, 26–
36
102(a)

Stanton 3–6, 8, 9,
26–36
3–6, 8, 9, 26–
36
103(a)

Stanton 3–6, 8, 9,
26–36
3–6, 8, 9, 26-
28, 30, 31,
33–36
102(a)

Casas 3–6, 8, 9,
26–28, 30,
31, 33–36
3–6, 8, 9, 26-
28, 30, 31,
33–36
103(a)

Casas 3–6, 8, 9,
26–28, 30,
31, 33–36
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Claims
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
3–6, 8, 9, 26,
27, 30, 31,
33–36
102(a)

Irmak 3–6, 8, 9,
26, 27, 30,
31, 33–36
3–6, 8, 9, 26,
27, 30, 31,
33–36
103(a)

Irmak 3–6, 8, 9,
26, 27, 30,
31, 33–36
3–5, 8–10,
26, 28, 30,
33–36
103(a)

De Smet, Martoni 3–5, 8–10,
26, 28, 30,
33–36
3–5, 8–10,
26–28, 30,
31, 33–36
103(a)

De Smet, Martoni,
Sridevi

3–5, 8–10,
26–28, 30,
31, 33–36
3–5, 8–12,
14, 15, 26–
28, 30, 31,
33–36
103(a)

De Smet, Martoni,
Sridevi, DeSimone,
Truong-Le, Shah,
Capela
3–5, 8–12,
14, 15, 26–
28, 30, 31,
33–36
3–6, 8–12,
14, 15, 26–36
103(a)

De Smet, Martoni,
Sridevi, DeSimone,
Truong-Le, Shah,
Capela, Stanton,
Casa, Irmak
3–6, 8–12,
14, 15, 26–
36
Overall
Outcome
3–6, 8–12,
14, 15, 26–
36

REVERSED