Cornblatt, Brian et al.

Patent Trials and Appeals Board

Jan 14, 2020

14412176 - (D) (P.T.A.B. Jan. 14, 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.
14/412,176 12/30/2014 Brian Cornblatt 2043-807 1717
1009 7590 01/14/2020
KING & SCHICKLI, PLLC
800 CORPORATE DRIVE, SUITE 200
LEXINGTON, KY 40503
EXAMINER
CHOI, FRANK I
ART UNIT PAPER NUMBER
1616
NOTIFICATION DATE DELIVERY MODE
01/14/2020 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):
laura@iplaw1.net
uspto@iplaw1.net
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

Ex parte BRIAN CORNBLATT, GRACE CORNBLATT,
ANTON BZHELYANSKY, and ROBERT HENDERSON
____________

Appeal 2019-005191
Application 14/412,176
Technology Center 1600
____________

Before DONALD E. ADAMS, DAVID COTTA, and
MICHAEL A. VALEK, Administrative Patent Judges.

ADAMS, Administrative Patent Judge.

DECISION ON APPEAL
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from Examiner’s
decision to reject claims 15–48 (see Appeal Br. 5). 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 Nutramax
Laboratories, Inc. (Appellant’s December 14, 2018 Appeal Brief (Appeal
Br.) 3).
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STATEMENT OF THE CASE
Appellant discloses:
The present invention relates to the combination of a
sulforaphane precursor, an enzyme capable of converting the
sulforaphane precursor to sulforaphane, an enzyme potentiator,
and a milk thistle extract or powder. The present invention also
relates to the combination of a sulforaphane or a derivative
thereof and a milk thistle extract or powder. The present
invention also relates to the combination of a broccoli extract or
powder and a milk thistle extract or powder. The present
invention provides compositions and methods relating to these
combinations.
(Spec. ¶ 2.) Appellant’s claims 15, 27, 42, and 44 are representative and
reproduced below:
15. An orally administrable composition comprising a
synergistic combination of a broccoli extract or powder and a
milk thistle extract or powder.
(Appeal Br. 24.)
27. An orally administrable composition comprising a
synergistic combination of sulforaphane or a derivative thereof
and a milk thistle extract or powder.
(Id. at 25.)
42. An orally administrable composition, comprising a
synergistic combination of a broccoli extract or powder and a
milk thistle extract or powder providing a silibinin:sulforaphane
ratio of 1:2 to about 35:1.
(Id. at 27.)
44. A method of treating, reducing the occurrence of,
decreasing the symptoms associated with, and/or reducing
secondary recurrences of conditions associated with glutathione
in a subject in need thereof, comprising administering to the
subject an orally administrable composition comprising a
synergistic combination of sulforaphane and silibinin.
(Id.)
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Grounds of rejection before this Panel for review:
Claims 15–48 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over the combination of Kosbab,2 West,3 Schrieber,4 and Wu.5
Claims 15–23, 27–30, and 34–43 stand rejected under 35 U.S.C.
§ 101.

Obviousness:
ISSUE
Does the preponderance of evidence relied upon by Examiner support
a conclusion of obviousness?
FACTUAL FINDINGS (FF)
FF 1. Kosbab “relates to nutrient compositions and to therapeutic
compositions for the amelioration of cancer.” (Kosbab 1: 4–5).
FF 2. Kosbab’s compositions
can employ a mixture of different components having the same
or similar biochemical or therapeutic functionality. These
functionally similar components may differ in source (e.g.,
extracts of different plants), differ in chemical structure, differ
in specific site of action and/or differ in effective half-life on
administration. Such combinations of different components

2 Kosbab, WO 00/07607, published Feb. 17, 2000.
3 West et al., US 2008/0311192 A1, published Dec. 18, 2008.
4 Sarah J. Schrieber et al., Differences in the Disposition of Silymarin
between Patients with Nonalcoholic Fatty Liver Disease and Chronic
Hepatitis C, 39 Drug Metabolism and Disposition, 2182–2190 (2011).
5 Lingyun Wu et al., Dietary approach to attenuate oxidative stress,
hypertension, and inflammation in the cardiovascular system, 101 PNAS
7094–7099 (2004).
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with similar activities provide synergistic nonadditive benefits
and improvements.
(Kosbab 2: 8–13.)
FF 3. Kosbab discloses that its compositions may include
“[s]ilymarin . . . an antioxidant bioflavonoid isolated from milk thistle” and
“[s]ulforaphane . . . an isothiocyanate derived from Cruciferae,” wherein
Kosbab discloses that “[b]roccoli sprout extracts are a good source of
sulforaphane” (Kosbab 4: 25; id. at 7: 18; id. at 18: 19–21 (emphasis
omitted)).
FF 4. Kosbab discloses the following formulations:
3. Formula III which comprises:
(i) pine bark extract, bilberry extract, grape seed
extract (leucoanthocyanidin), and ginkgo biloba;
(ii) vitamin C, vitamin E and vitamin A;
(iii) monoterpene, e.g., limonene;
(iv) antioxidant carotenoids, e.g., beta-carotene, lutein,
lycopene, luteolin, zeaxanthin or apo-carotenal
(beta-carotene being preferred);
(v) tea polyphenols;
(vi) absorbable zinc, calcium (e.g., calcium citrate,
calcium malate or calcium maltate citrate) and
magnesium (e.g., magnesium citrate, magnesium
malate or magnesium malate citrate);
(vii) genistein and chondroitin sulphate;
(viii) L-arginine or amino acid complex; and
(ix) a source of omega-3 fatty acids, particularly
conjugated dienoic fatty acids, e.g., linoleic acid
(ALA) and/or enosapentaenoic acid (EPA), a
preferred source is ground flax seed;.
4. Formula IV which comprises:
The components of Formula III; and
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protamine sulphate and/or glucosamine sulphate (a
preferred glycosaminoglycan and source of glycosamine,
a building block for collagen synthesis);
vitamin D3, preferably derivatives thereof which induce
little or substantially no hypercalcification (e.g., 22-oxa-
vitamin D3); and
branched amino acids.
5. Formula V which comprises:
The components of Formula IV and
quercitin;
Saw palmetto;
vitamin B12 and folic acid (or optionally vitamin B-
complex);
absorbable potassium and selenium;
alpha-lipoic acid (also called thiotic acid); and
allicin (or garlic extract);
Formula 5A which comprises the components of Formula
5 where the
antioxidant carotenoids are a mixture of beta-carotene
and lutein.
Formula 5B which comprises the components of Formula
5 which contains a mixture of chondroitin sulphate,
protamine sulphate and shark cartilage and where the
antioxidant carotenoids are a mixture of beta-carotene
and lutein.
6. Formula VI which comprises:
The components of Formula V, 5A or 5B and
silymarin;
curcumin;
niacinamide;
a source of essential fatty acids, particularly conjugated
dienoic fatty acids; for example, linoleic acid and
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one or more of sodium bicarbonate, betaine HCl or
pepsin.
(Kosbab 24: 9 – 25: 32.)
FF 5. Kosbab discloses that “[s]ulforaphane, an isothiocyate that can be
provided in extracts of broccoli sprouts can be combined with any of
Formulas I – XVIII to provide inhibition of carcinogenesis” (Kosbab 30: 29–
30).
FF 6. Kosbab discloses that the “Average Adult Daily Dose Range
(dose/day)” of “Silymarin (80% concentrate)” is “10 - 1,000 mg” (Kosbab
32).
FF 7. Kosbab discloses that “Average Adult Daily Dose Range (dose/day)”
of “Sulforaphane” is “1 mcg - 20 mg” (Kosbab 34).
FF 8. Kosbab’s compositions
can be provided in a variety of nutrient and dosage forms
including pills, tablets, capsules, lozenges, powders, solutions,
suspensions, injection dosage forms and the like. Compositions
of this invention can be administered to individuals orally,
intravenously, and by various forms of injection and various
forms of absorption (e.g., dermal, sublingual). Active
ingredients of the formulas of this invention can be combined
with excipients, fillers, buffering agents and the like to prepare
desired dosage forms. Generally preferred dosage forms are
those appropriate for oral administration. In cases of use for
cancer therapy, the optimum mode of administration can
depend upon the type of cancer.
(Kosbab 37: 21–29.)
FF 9. West “relates to a composition comprising enteric-coated
glucosinolate and enteric-coated betathioglucosidase enzyme particles”
(West ¶ 1; see also id. ¶ 19).
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FF 10. West discloses that “to prepare an active agent mixture comprising
glucosinolate, about 1 to about 50 percent glucosinolate is mixed with about
50 to about 99 percent composition comprising coating excipient and
optionally diluent to form a dry glucosinolate mixture” (West ¶ 37; see also
id. ¶ 62 (describing the preparation of glucosinolate particles)).
FF 11. West discloses that “to prepare an active agent mixture comprising
both glucosinolate and beta-thioglucosidease, the mixture is prepared by
combining about 0.5 to about 50 percent beta-thioglucosidase, about 0.5 to
about 50 percent glucosinolate, and about 1 to about 99 percent composition
comprising coating excipient and optionally diluent” (West ¶ 38).
FF 12. West discloses that “[t]he ingredients of the active agent mixture can
be combined in any convenient order,” wherein “[t]he resulting mixture is
stirred, mixed, blended, or agitated by any convenient means until a
homogenous dry mixture is formed” (West ¶ 39).
FF 13. Schrieber discloses the use of silymarin in the self-treatment of liver
diseases (Schreiber 2182, Abstract).
FF 14. Examiner relies on Wu to “disclose that glucoraphanin combined
with myrosinase increases glutathione levels” (Non-Final Act.6 5 (citing Wu
7094)).
FF 15. Appellant discloses that a study wherein cells of the human liver
cancer cell line, HepG2, were treated with, inter alia, various concentrations
of sulforaphane and silibinin, alone or in combination, demonstrating “that
the combination of sulforaphane and silibinin at each of the tested dosages

6 Examiner’s October 6, 2017 Non-Final Office Action.
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had a synergistic effect compared to each component alone” (Spec.7 ¶¶ 91–
92; see also id. ¶ 93; Cornblatt Decl.8 ¶¶ 12–20).
FF 16. Appellant discloses that “[s]ynergy refers to the effect wherein a
combination of two or more components provides a result which is greater
than the sum of the effects produced by the agents when used alone” (Spec.
¶ 59).
ANALYSIS
Based on the combination of Kosbab, West, Schrieber, and Wu,
Examiner concludes that, at the time Appellant’s invention was made, it
would have been prima facie obvious “to combine milk thistle extract or
powder which contains silymarin or silymarin itself and broccoli sprout
extract or powder which contains sulforaphane or sulforaphane itself with
the expectation that the combination [of] silymarin and sulforaphane would
be effective in the treatment of cancer via their antioxidant properties”
(Ans.9 10). Examiner further reasons that because “one of ordinary skill in
the art would [have] expect[ed] that the combination of silymarin and
sulforaphane would also contain silibinins” it would have been prima facie
obvious to treat liver disease with a composition comprising milk thistle
extract and broccholi extract as suggested by the combination of Kosbab,
West, Schrieber, and Wu, because Schrieber discloses that “silymarin, which
is derived from milk thistle plant and contains silybins, is widely used for
self-treatment of liver disease” (id.; see also Non-Final Act. 6).

7 Appellant’s December 30, 2014 Specification.
8 Declaration of Dr. Grace Cornblatt, signed July 14, 2017.
9 Examiner’s April 18, 2019 Answer.
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Although Examiner may be correct in concluding that the
combination of Kosbab, West, Schrieber, and Wu suggests the treatment of
cancer and/or liver disease with a composition comprising silymarin and
sulforaphane, Examiner failed to establish an evidentiary basis on this record
to support a conclusion that the combination of Kosbab, West, Schrieber,
and Wu makes obvious a composition comprising a synergistic combination
of: (a) a broccoli extract or powder and a milk thistle extract or powder (see,
e.g., Appellant’s claims 15 and 42), (b) sulforaphane or a derivative thereof
and a milk thistle extract or powder (see, e.g., Appellant’s claim 27), or (c)
sulforaphane and silibinin (see, e.g., Appellant’s claim 44), or methods that
require the use of such a composition, as required by Appellant’s claimed
invention (see FF 1–14; cf. FF 15–16; see Appeal Br. 20 (“Appellant’s
claimed combination provides a synergistic effect that would not have been
predictable to the skilled artisan, and so the Office’s finding of prima facie
obviousness lacks proper support”)). Stated differently, Examiner failed to
establish an evidentiary basis on this record to support a conclusion that the
combination of Kosbab, West, Schrieber, and Wu suggest, or otherwise
make obvious, a composition that comprises the requisite components in a
particular concentration that necessarily results in a synergistic combination.
See In re Robertson, 169 F.3d 743, 745 (Fed. Cir. 1999) (citations and
internal quotation marks omitted) (“Inherency, however, may not be
established by probabilities or possibilities. The mere fact that a certain
thing may result from a given set of circumstances is not sufficient.”). To
the contrary, as Examiner appreciates, extraction processes known in the art
may result in an extract that does not contain the components, or
concentration of components, necessary to produce a synergistic
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combination (see Non-Final Act. 8; see also Ans. 8 (an “extract or powder
can be prepared or produced in such a way in which sulforaphane and/or
silibinin are not present”); Final Act 7 (finding that evidence of unexpected
results was not commensurate with the scope of the claims because the
evidence “only tests the combination of sulforaphane and silibinin at specific
concentrations”)).
We recognize that Kosbab discloses that compositions within the
scope of its disclosure “can employ a mixture of different components
having the same or similar biochemical or therapeutic functionality” and that
“[s]uch combinations of different components with similar activities provide
synergistic nonadditive benefits and improvements” (FF 2 (emphasis
added)). As Appellant’s explain, however, Kosbab “fails to specifically
teach or suggest a synergistic combination as claimed by the Appellant” and,
although, Kosbab suggests synergistic compositions, Kosbab “fails to
provide any disclosure or guidance affording the skilled artisan any
reasonable expectation of success of synergy of that combination” (Reply
Br.10 4 (emphasis omitted); see id. at 5 (citing Kosbab 4–23) (Appellant
contends that Kosbab “provides many potential candidates . . . with
absolutely no guidance provided to lead the skilled artisan to select
particular candidates even having the potential for synergy”)).
For the foregoing reasons, we are not persuaded by Examiner’s
conclusion that “one of ordinary skill in the art based on the teachings
of . . . [Kosbab] would expect that the combination of silymarin and
sulforaphane or silibinin and sulforaphane to exhibit synergistic activity”

10 Appellant’s June 17, 2019 Reply Brief.
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(Ans. 12). “[R]ejections on obviousness grounds cannot be sustained by
mere conclusory statements; instead, there must be some articulated
reasoning with some rational underpinning to support the legal conclusion of
obviousness.” In re Kahn, 441 F.3d 977, 988 (Fed. Cir. 2006).
Examiner finds that Appellant’s claims, which are drawn to, for
example,
a milk thistle extract or powder and/or broccoli extract or
powder without specifically claiming silibinin and sulforaphane
[are] not sufficient [to support a claim to composition
comprising a synergistic combination of a broccoli extract or
powder and a milk thistle extract or powder, because] . . . the
extract or powder does not require that both sulforaphane and
silibinin be present in said extract or powder as the extract or
powder can be prepared or produced in such a way in which
sulforaphane and/or silibinin are not present.
(Ans. 7–8; see also id. at 7 (Examiner finds that Appellant’s claims 42–46
are the only claims on Appeal that “specifically recite the combination of
silibinin and sulforaphane”).) Thus, Examiner concludes that Appellant’s
“evidence of synergy is not commensurate in scope with the claimed
invention” (Ans. 12). We are not persuaded.
As discussed above, all of Appellant’s claims require a composition,
or method of using a composition, that exhibits synergism (see Appeal Br.
24–28). The obviousness rejection fails because Examiner has not made out
a prima facie case with respect to the recited synergism requirement. We
need not decide whether Appellant’s evidence is reasonably commensurate
with the claims and sufficient to rebut the prima facie showing of
obviousness because that showing has not been made on the record before
us. In this regard, we note that Examiner does not reject the pending claims
on the basis that that Appellant’s Specification provides adequate written
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descriptive support to cover and enable the full scope of Appellant’s claimed
invention, i.e. a synergistic combination of: (a) a broccoli extract or powder
and a milk thistle extract or powder (see e.g., Appellant’s claims 15 and 42),
(b) sulforaphane or a derivative thereof and a milk thistle extract or powder
(see e.g., Appellant’s claim 27), or (c) sulforaphane and silibinin (see e.g.
Appellant’s claim 44), and methods that require the use of such
compositions, as required by Appellant’s claimed invention.
Thus, for the reasons set forth above, we find that Examiner failed to
establish an evidentiary basis on this record to support a conclusion that the
combination of Kosbab, West, Schrieber, and Wu makes obvious a
composition, or method of using a composition, within the scope of
Appellant’s claimed invention.
CONCLUSION
The preponderance of evidence relied upon by Examiner fails to
support a conclusion of obviousness. The rejection of claims 15–48 under
35 U.S.C. § 103(a) as unpatentable over the combination of Kosbab, West,
Schrieber, and Wu is reversed.

Subject Matter Eligibility:
ISSUE
Does the preponderance of evidence of record support Examiner’s
finding that Appellant’s claimed invention is directed to patent-ineligible
subject matter?
ANALYSIS
Although 35 U.S.C. § 101 provides that “[w]hoever invents or
discovers any new and useful process, machine, manufacture, or
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composition of matter, or any new and useful improvement thereof, may
obtain a patent therefor . . .,” the Supreme Court has determined that there
are exceptions to what is patentable. Specifically, “laws of nature, natural
phenomena, and abstract ideas” are not eligible subject matter. See
Diamond v. Diehr, 450 U.S. 175, 185 (1981). To determine if claimed
subject matter is statutorily eligible in light of these judicial exceptions the
Supreme Court has articulated a two-step framework in Mayo Collaborative
Services v. Prometheus Labs., Inc., 566 U.S. 66 (2012), and later cases.
Specifically,
[f]irst, we determine whether the claims at issue are directed to
one of those patent-ineligible concepts. . . . If so, we then ask,
“[w]hat else is there in the claims before us?” . . . To answer
that question, we consider the elements of each claim both
individually and “as an ordered combination” to determine
whether the additional elements “transform the nature of the
claim” into a patent-eligible application.
Alice Corp. v. CLS Bank Int’l, 573 U.S. 216, 217 (2014) (quoting Mayo, 566
U.S. at 78). Thus, we must determine whether the claim is directed to a
judicially determined patent-ineligible concept and, if so, then ask if there is
anything in the claim that transforms it into patent-eligible subject matter.
On January 7, 2019 the USPTO published revised guidance on the
application of § 101 (see 2019 Guidelines11). After determining that claimed
subject matter falls within the four categories of patentable subject matter
identified in 35 U.S.C. § 101, the 2019 Guidelines provides a “revised step
2A,” which corresponds to the first step of the Alice/Mayo test articulated
above, to determine whether a claim is directed to a judicial exception (see

11 USPTO, 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed.
Reg. 50-57 (2019).
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2019 Guidelines, 84 Fed. Reg. at 53-54). In a first prong of revised step 2A,
the Examiner must determine whether the claim recites a judicial exception
(see id. at 54). If a judicial exception is identified, the second prong requires
a determination of whether the judicial exception is integrated into a
practical application (see id.). If so, the inquiry ends and the claim is
determined to be directed to eligible subject matter under the 2019
Guidelines (see id. at 54 (“When the exception is so integrated [into a
practical application], then the claim is not directed to a judicial exception
(Step 2A: NO) and is eligible. This concludes the eligibility analysis.”)). If
not, the analysis continues to determine if the claim provides an inventive
concept (see id. at 56).
The USPTO subsequently updated the 2019 Guidelines (see October
2019 Update12). The October 2019 Update provides that when evaluating
whether a claim recites a judicial exception at the first prong of step 2A, the
claim is evaluated to determine whether it sets forth or describes a product of
nature in accordance with the guidance in MPEP §§ 2016.04(b) and (c),
including the markedly different characteristics analysis (see id. at 1).
Applying the 2019 Guidance and October 2019 Update, we find that
Appellant’s claims are directed to patent eligible subject matter.

Step 1:
Appellant’s claims 15–23, 27–30, and 34–43 are drawn to
compositions, a statutory category of invention.

12 October 2019 Update: Subject Matter Eligibility, available at
https://www.uspto.gov/PatentEligibility.
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Step 2A, Prong One:
Appellant’s claims 15–23, 34–37, 42, and 43 recite mixtures of
broccoli extract or powder and milk thistle extract or powder, i.e., plant
extracts or powders, which are nature-based products (see Appeal Br. 24–28;
Non-Final Act. 2–3; Ans. 3–5; see generally Appendix 1 to the October
2019 Update Example 44).
Appellant’s claims 27–30 and 38–41 recite mixtures of sulforaphane
or a derivative thereof and a milk thistle extract or powder (see Appeal Br.
25 and 27). Appellant discloses that sulforaphane, or a derivative thereof,
may be obtained from plants, i.e., broccoli, and, therefore, is a nature-based
product (see Spec. ¶ 40).
Thus, Appellant’s claims 15–23, 27–30, and 34–43 recite mixtures of
nature-based products. Because: (a)(i) broccoli extract or powder or (a)(ii)
sulforaphane and (b) milk thistle extract or powder “do not occur together in
nature, there is no naturally occurring counterpart mixture for comparison,
and so the claimed mixture is compared to its naturally occurring
components” ((a)(i) broccoli extract or (a)(ii) powder or sulforaphane and
(b) milk thistle extract or powder) (cf. October 2019 Update Example 44).
Because Appellant’s claims 15–23, 27–30, and 34–43 recite nature-
based product limitations, the markedly different characteristics analysis is
used to determine if the nature-based product limitation is a product of
nature exception (see October 2019 Update 1).
Applying the markedly different characteristics analysis we find that
there is no indication on this record that mixing these components changes
the structure of the components, but the mixture has a changed functional
property, specifically, Appellant’s claims require a composition, wherein the
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combined components exhibit synergism, which is different than the mere
sum of the characteristics of the individual components (see FF 16; see also
October 2019 Update Example 44).
For the reasons set forth above with respect to the obviousness
rejection, there is no evidence on this record to support a finding that a
person of ordinary skill in this art would have expected the combination of
components required by Appellant’s claimed invention would exhibit
synergism. For the same reasons, we are not persuaded by Examiner’s
assertions that Appellant’s claims do not “require both sulforaphane and
silibinin in combination in synergistically effective amounts,” that the
claimed extracts may not contain sulforaphane or silibinin, or that
Appellant’s disclosure does not support claims drawn to a composition
comprising a synergistic combination of: a broccoli extract or powder and a
milk thistle extract or powder (see, e.g., Appellant’s claims 15 and 42) or
sulforaphane or a derivative thereof and a milk thistle extract or powder (see,
e.g., Appellant’s claim 27) (see Non-Final Act. 3; Ans. 5–7).13
Thus, Appellant’s claimed mixture is unlike the bacterial mixture of
Funk Brothers, which was held ineligible because each species of bacteria in
the mixture continued to have “the same effect it always had,” i.e., it lacked
markedly different characteristics. Funk Brothers Seed Co. v. Kalo
Inoculant Co., 333 U.S. 127, 131 (1948), discussed in Ass’n for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 591 (2013) (explaining
that the bacterial mixture of Funk Brothers “was not patent eligible because
the patent holder did not alter the bacteria in any way”). Because the

13 As previously noted, the Examiner has not rejected any of the pending
claims for failure to comply with the written description requirement.
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claimed mixture here has a different effect (the changed glycemic control
characteristics) than its natural counterparts, it has markedly different
characteristics, and therefore is not a “product of nature” exception.
Because no judicial exception is recited, the claim cannot be directed
to an exception. Thus, Appellant’s claims are directed to patent-eligible
subject matter.
CONCLUSION
The preponderance of evidence of record fails to support Examiner’s
finding that Appellant’s claimed invention is directed to patent-ineligible
subject matter. The rejection of claims 15–23, 27–30, and 34–43 under 35
U.S.C. § 101 is reversed.

DECISION SUMMARY
In summary:
Claims
Rejected
35 U.S.C. § Reference(s)/Basis Affirmed Reversed
15–48 103 Kosbab, West,
Schrieber, Wu
15–48
15–23,
27–30,
34–43
101 Eligibility 15–23,
27–30,
34–43
Overall
Outcome
15–48

REVERSED