Ex Parte Frantz

Patent Trial and Appeal Board

Mar 29, 2017

13642561 (P.T.A.B. Mar. 29, 2017)

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.
13/642,561 10/22/2012 Nolan Zebulon Frantz 9075-00-HL 8969
23909 7590 03/31/2017
COLGATE-PALMOLIVE COMPANY
909 RIVER ROAD
PISCATAWAY, NJ 08855
EXAMINER
RODRIGUEZ, RAYNA B
ART UNIT PAPER NUMBER
1628
NOTIFICATION DATE DELIVERY MODE
03/31/2017 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):
Paten t_Mail @ colpal. com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte NOLAN ZEBULON FRANTZ1
Appeal 2015-007031
Application 13/642,561
Technology Center 1600
Before ULRIKE W. JENKS, TIMOTHY G. MAJORS, and
DEVON ZASTROW NEWMAN, Administrative Patent Judges.
JENKS, Administrative Patent Judge.
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134(a) involving claims directed
to a method of controlling inflammation in a dog by administering a diet
containing antioxidants and fiber and monitoring biomarkers of
inflammation. The Examiner rejects the claims as obvious. We have
jurisdiction under 35 U.S.C. § 6(b).
We AFFIRM.
1 According to Appellant, the Real Party in Interest is Hill’s Pet Nutrition,
Inc. Br. 2.
Appeal 2015-007031
Application 13/642,561
Claims 1—5 and 7 are on appeal. Claim 1 is representative and is
reproduced in the “Claims Appendix” of Appellant’s Brief.
The Examiner rejected claims 1—5 and 7 under 35 U.S.C. § 103(a) as
unpatentable over Zicker2 in view of Paetau-Robinson,3 Waldron,4 Toll,5
and Jackson.6
Upon consideration of the evidence on this record and each of
Appellant’s contentions, we find that the preponderance of evidence on this
record supports the Examiner’s conclusions that the subject matter of
Appellant’s claims 1—5 and 7 are unpatentable over the combination of
Zicker, Paetau-Robinson, Waldron, Toll, and Jackson. Accordingly, we
affirm the Examiner’s rejections of each of these claims for the reasons set
forth in the Answer (Ans. 2—19) which we incorporate herein by reference.
We highlight the following points in response to Appellant’s
contentions: The combined references show that commercially available
dog foods generally contain similar nutritional components. The standard
ingredient concentration in dog food are as follows: 19.6—29.39 % crude
2 Zicker et al., US 2005/0232976 Al, published Oct. 20, 2005.
3 Paetau-Robinson et al., Foods with lipoic acid and elevated levels of
vitamin E and vitamin C correlate with whole blood antioxidant
concentrations and may protect geriatric dogs from oxidative stress, 6
Intern. J. Appl. Vet. Med. 93—100 (2008).
4 Waldron et al., WO 2006/002976 A2, published Jan. 12, 2006.
5 Phillip W. Toll, Nutritional Management: optimal osteoarthritis diet, in
Canine Osteoarthritis: Overview, Therapies, & Nutrition, Clinician’s Update
Supplement to NAVC Clinician’s Brief (2005).
6 Jackson et al., Effects of Dietary Fiber Content on Satiety in Dogs, 4 Vet.
Clin. Nutr. 130-134 (1997).
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Application 13/642,561
protein7; from 11.08—19.3 % fat8; from 421—894 IU/kg vitamin E9; from
0.6—1.14% phosphorus10; from 21—288 ppm vitamin C* 11; from 319—351
mg/kg carnitine12; 2.13 % crude fiber13; 14.67 % total dietary fiber (12.35 %
insoluble fiber and 2.32 % soluble fiber)14; and 0.79-1.35% calcium15. We
agree with the Examiner’s findings that most of the components listed in
claim 1 are components known to be generally incorporated into dog food
preparations in overlapping ranges, with the exception of lipoic acid and the
vegetable blend. The references disclose that the American Association of
Feed Control Officials (AAFCO) provides nutrient recommendations for
dog food, and the experimental food products disclosed in these references
appear to formulate the products with these recommendations in mind. See
Zicker |43; see also Paetau-Robinson 94 (“[t]he experimental food was
formulated in accordance with the AAFCO nutrient guide dogs and balanced
to meet maintenance requirements”).
7 Protein: 23%, Zicker |11; 27.65—29.39%, Paetau-Robinson, table 1; 19.6—
20.1 %, Toll 6; 21.5%, Jackson, table 2.
8 Fat: 15%, Zicker |11; 11.08—13.59%, Paetau-Robinson, table 1; 14.3—19.3
%, Toll 6; 11.4 %, Jackson, table 2.
9 Vitamin E: 421—894 IU/kg of alpha-tocopherol, Paetau-Robinson, table 1;
698-851 IU/kg Toll 6.
10 Phosphorus: 0.6% Zicker |11; 0.68—1.14% Paetau-Robinson, table 1.
11 Vitamin C: 21—288 ppm, Paetau-Robinson, table 1.
12 Carnitine: 319-351 mg/kg, Toll 6.
13 Crude fiber: 2.13%, Jackson, table 2.
14 Total fiber: 14.67 % total dietary fiber comprising 12.35 % insoluble fiber
and 2.32 % soluble fiber, Jackson, table 2.
15 Calcium: 0.79-1.35%, Paetau-Robinson, table 1.
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Application 13/642,561
The issue is: Was there a reason to incorporate lipoic acid and the
vegetable blend with components that were already regularly contained in
commercial dog food preparations?
The Examiner relies on Zicker and Paetau-Robinson for providing
reasons to include lipoic acid and a vegetable blend within dog food
formulations. Zicker teaches that the incorporation of antioxidants such as
vitamin E, vitamin C, alpha-lipoic acid in a range from 150-4500 ppm, and
L-camitine in dog food leads to reduced levels of oxidized glutathione
(GSSG). Zicker H39, 42-44, 50, 52, 56, 57, and 63—65. “Chronic feeding
of alpha-lipoic acid in [the] diet is safe and effective. It improves the
reduced glutathione (GSH) to oxidized glutathione (GSSG) ratio” when
administered over the study period. Zicker H65, 63. Zicker collects blood
and measures oxidized and reduced glutathione levels over the study period
that can last up to several months. Zicker H50, 56, 63. Zicker also teaches
the inclusion of up to 5% of high oxygen radical absorbing capacity (ORAC)
plant materials and substituting this plant matter for low ORAC ingredients
such as com, a filler ingredient generally found in commercial dog food
preparations. Zicker ||29-38; see Jackson, table 2.
Like Zicker, Paetau-Robinson similarly studies oxidative stress in
dogs and their experimental food contains: protein, fat, calcium,
phosphorous, alpha-tocopherol (vitamin E), vitamin C, lipoic acid, com
meal, poultry meal, soybean meal, flaxseed, beet pulp, L-camitine, and other
ingredients. Paetau-Robinson, table 1. Thus, Zicker and Paetau-Robinson
combined establish that feeding dogs a diet containing antioxidants has been
“demonstrated [to produce] protective effects against oxidative stress for
geriatric animals.” Ans. 14; see Zicker |65. In addition, both Zicker and
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Application 13/642,561
Paetau-Robinson also suggest adding plant matter such as beet pulp, spinach
pomace, tomato pomace, carrot granules, and broccoli to dog food
preparations to increase ORAC content. See Zicker ||29-38; Paetau-
Robinson, table 1. Furthermore, Zicker suggests substitution of up to 5%
high ORAC plant matter for low ORAC ingredients such as com. Zicker
|29. Thus, the combination of Zicker and Paetau-Robinson suggest the
addition of lipoic acid and plant matter, including vegetable matter within
the claimed ranges.
The Examiner relies on the teachings of Toll and Jackson for showing
that weight management is an important part in treating dogs with
osteoarthritis. Toll explains, “[t]he cycle of inflammation, degradation, and
chondrocyte damage in osteoarthritis can be promoted by joint stress
because of excess body weight.” Toll 6. While Jackson on the other hand
specifically looks at the incorporation of dietary fiber as providing a satiety
effect. Jackson establishes that commercial food preparations already
incorporate dietary fiber, but that the inclusion of vegetable fiber blend helps
to increase the total dietary fiber content including cmde dietary fiber both
of which help produce a satiety effect. See Jackson 3 (“These results
indicate that high fiber diets may provide a satiety effect when fed to dogs
and can help reduce caloric intake”). Jackson concludes “that high fiber
diets should be useful in controlling calorie intake [in dogs], such as in the
management or prevention of obesity.” Jackson 8.
Based on the AAFCO recommendations, dog food typically contains
some fiber in addition to protein, fat, vitamins, minerals, and antioxidants.
The combination of Zicker, Paetau-Robinson, and Jackson, however, further
supports the Examiner’s position that optimizing fiber and antioxidant levels
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Application 13/642,561
would improve weight loss and reduce oxidative stress in senior animals.
See Ans. 9. In re Alter, 220 F. 2d 454, 456, (CCPA 1955) (“[W]here 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.”).
Waldron teaches that “[ojxidative stress plays an important role in
both inflammation and tissue destruction in arthritis”, and supports
supplementing with antioxidants to control the damage in osteoarthritis
(OA). Waldron |19. Waldron explains that “[o]n a cellular and biochemical
level, OA is associated with increases in degradative enzymes (especially the
matrix metalloproteinases) released from chondrocytes in response to
inflammatory cytokines.” Waldron |3. “The cytokines believed to be of
greatest importance in OA include IL-1, IL-6 and TNFa.” Waldron |7.
Waldron also teaches “[t]he dietary formulations may also be used to
decrease production of matrix metalloproteinase and/or decrease production
of inflammatory cytokines”, as measured in serum and synovial fluid.
Waldron |79, see ]Hf85—88. Here, Zicker, Paetau-Robinson, and Waldron
each suggest that oxidative stress is harmful for animals and each proposes
the use of diet to reduce oxidative stress in the animals. Zicker measures the
level of GSH and GSSG ratio in blood over the study period to determine
the effect of the diet based on this one biomarker evaluation. Zicker |65.
Absent persuasive evidence to the contrary, it would have been obvious to
substitute one biomarker measurement for another biomarker measurement
to determine the stress level in an animal. “[An] [ejxpress suggestion to
substitute one equivalent for another need not be present to render such
substitution obvious.” In re Font, 675 F.2d 297, 301, (CCPA 1982); see
also In re Mayne, 104 F.3d 1339, 1340 (Fed. Cir. 1997) (“Because the
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Application 13/642,561
applicants merely substituted one element known in the art for a known
equivalent, this court affirms [the rejection for obviousness].”).
Appellant’s contention that “the mere identification of each element
from several different references is not sufficient to establish obviousness” is
also unpersuasive. Br. 4. Appellant’s response fails to persuasively identify
any error in the Examiner’s combination of the prior art. The test for
obviousness is what the combined teachings of the references, as a whole
would have suggested to those of ordinary skill in the art. In re Keller, 642
F.2d 413, 425 (CCPA 1981). The law does not require that the teachings of
the reference be combined for the reason or advantage contemplated by the
inventor, as long as some suggestion to combine the elements is provided by
the prior art as a whole. In re Beattie, 974 F.2d 1309, 1312 (Fed. Cir. 1992);
In re Kronig, 539 F.2d 1300, 1304 (CCPA 1976).
Appellant has not met this burden to show that the Examiner erred in
rejecting the claims, or otherwise persuasively rebutted the Examiner’s
response in the Answer’s “Response to Arguments” (Ans. 9—19) concerning
the combination of Zicker, Paetau-Robinson, Waldron, Toll, and Jackson.
Accordingly, we affirm the rejection of claim 1 under 35 U.S.C. § 103(a) as
being obvious. As claims 2—5 and 7 have not been argued separately, they
fall together with claim 1. 37 C.F.R. § 41.37(c)(l)(iv).
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Application 13/642,561
SUMMARY
We affirm the rejection of record.
TIME PERIOD FOR RESPONSE
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).
AFFIRMED
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