Ex Parte Hastings et alDownload PDFPatent Trial and Appeal BoardOct 6, 201611339135 (P.T.A.B. Oct. 6, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 111339,135 0112512006 4743 7590 10/11/2016 MARSHALL, GERSTEIN & BORUN LLP 233 SOUTH WACKER DRIVE 6300 WILLIS TOWER CHICAGO, IL 60606-6357 FIRST NAMED INVENTOR Carl W. Hastings 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 ATTORNEY DOCKET NO. CONFIRMATION NO. 30106/3 965 7 5370 EXAMINER CHEN, CATHERYNE ART UNIT PAPER NUMBER 1655 NOTIFICATION DATE DELIVERY MODE 10/11/2016 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): mgbdocket@marshallip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte CARL W. HASTINGS, DAVID J. BARNES, and SCOTT C. KUB EL 1 Appeal 2014-001569 Application 11/339, 135 Technology Center 1600 Before ERIC B. GRIMES, JACQUELINE T. HARLOW, and KRISTI L. R. SA WERT, Administrative Patent Judges. GRIMES, Administrative Patent Judge. DECISION ON APPEAL This is an appeal under 35 U.S.C. § 134 involving claims to a dietary supplement, which have been rejected as obvious. We have jurisdiction under 35 U.S.C. § 6(b). We reverse. STATEMENT OF THE CASE Claims 1-10 are on appeal. Claim 1 is the only independent claim and reads as follows: 1 Appellants identify the Real Party in Interest as Reliv International, Inc. (Appeal Br. 3.) Appeal2014-001569 Application 11/339, 135 1. A dietary supplement for reducing cholesterol comprising: at least one phytosterol source; at least one soluble fiber source; at least one guggulsterone source; at least one policosanol source; an extract of Salvia miltiorrhiza; and, an anthocyanin source. DISCUSSION All of the claims on appeal stand rejected under 35 U.S.C. § 103(a) based on a combination of references that includes W eisspapir, 2 Hong, 3 Smith, 4 Howard, 5 and Guthrie6 (Ans. 4--11 ). The same issue is dispositive for all of the rejections. The Examiner finds that W eisspapir discloses a dietary supplement comprising the first four ingredients of the claimed composition, specifically "natural soluble fiber, psyllium husk ... , phytosterols, sitostanol ... , guggulipid (a fat mobilizing nutrient), guggul, gug[g]ulsterones ... , [and] polycosanol, octacosanol." (Id. at 5.) The Examiner also finds that "Smith teaches water-soluble dietary fiber compositions from oat substrate ... for lowering serum cholesterol." (Id.) The Examiner finds that "Hong teaches Salvia miltiorrhiza as a pharmaceutical composition for lowering cholesterol." (Id.) The Examiner finds that Howard "teaches supplements to prevent coronary heart disease 2 Weisspapir et al., US 2002/0103139 Al, published Aug. 1, 2002. 3 Hong et al., US 6,589,572 B2, issued July 8, 2003. 4 Smith, US 5,458,893, issued Oct. 17, 1995. 5 Howard et al., US 6,642,277 Bl, issued Nov. 4, 2003. 6 Guthrie, US 2006/0013861 Al, published Jan. 19, 2006. 2 Appeal2014-001569 Application 11/339, 135 with anthocyanin-containing powder" and "Guthrie teaches flavonoids including anthocyanins ... lowers cholesterol." (Id.) The Examiner concludes that it would have been obvious to combine the ingredients recited in claim 1 because "it is prima facie obvious to combine two or more ingredients each of which is taught by the prior art to be useful for the same purpose" (id.) and "an artisan of ordinary skill would reasonably expect that ingredients used to control cholesterol levels could be used as the types [of] cardiovascular health supplements taught by the references" (id. at 6). Appellants argue, among other things, that a person of ordinary skill in the art would not have considered it obvious to combine an extract from Salvia miltiorrhiza with guggul (a source of guggulsterone, as recited in claim 1) because both of them are known anticoagulants. (Appeal Br. 6-7.) In support of their position, Appellants cite the MedlinePlus entry for danshen (Salvia miltiorrhiza).7 (Appeal Br. 6-7.) We agree with Appellants that the rejection is not supported by a preponderance of the evidence. MedlinePlus states that "[ d]anshen (Salvia miltiorrhiza) is widely used in traditional Chinese medicine." (MedlinePlus page 1.) MedlinePlus also states that "[b ]ecause danshen can inhibit platelet aggregation and has been reported to potentiate (increase) the blood-thinning effects of warfarin, it should be avoided in patients ... taking anticoagulant (blood-thinning) drugs, herbs, or supplements." (Id.) 7 "Danshen (Salvia miltiorrhiza)," MedlinePlus, National Library of Medicine, Sept. 1, 2005 (cited in an Information Disclosure Statement filed June 24, 2010). 3 Appeal2014-001569 Application 11/339, 135 Under the heading "Interactions with Herbs and Dietary Supplements," MedlinePlus states that [d]anshen may increase the risk of bleeding when taken with herbs and supplements that are believed to increase the risk of bleeding. Multiple cases of bleeding have been reported with the use of Ginkgo biloba, and fewer cases with garlic and saw palmetto. Numerous other agents may theoretically increase the risk of bleeding, although this has not been proven in most cases. Some examples include: ... guggul. (Id. at page 4.) Weisspapir discloses that "[t]he gum resin extract from the bark of Commiphora mukul (gugul) contains a combination of steroids, diterpenoids, alipathic esters, and carbohydrates. Of considerable pharmacological interests are the unique steroids found in Commiphora mukul, the guggulsterones." (Weisspapir i-f 27.) Weisspapir states that "[ e ]xperiments showed that guggul lowered the serum cholesterol levels and body weight of hypercholesterolemic rabbits and protected the animals against hypercholesterolemia." (Id. i-f 28.) Hong discloses "a composition for treating hypertension and lowering cholesterol level, which contains the mixed extract of Panax notoginseng and Salvia miltiorrhiza as an active ingredient." (Hong 5:14--17.) The Examiner correctly noted (Ans. 5---6) that it is generally obvious to combine two ingredients that are known to be useful for the same purpose (e.g., lowering cholesterol). However, in view of the express guidance in MedlinePlus to avoid combining Salvia miltiorrhiza and guggul, we agree with Appellants that the combination of ingredients recited in claim 1 on appeal would not have been obvious to a person of ordinary skill in the art. 4 Appeal2014-001569 Application 11/339, 135 The Examiner responded to Appellants' argument by noting that "any nutritional compound may have side effects" (Ans. 14), but did not provide any evidence or sound technical reasoning on which to conclude that a skilled worker would have considered the claimed composition to be obvious notwithstanding the specific warning in MedlinePlus against combining guggul and a Salvia miltiorrhiza extract. We therefore conclude that the rejection of claim 1 is not supported by a preponderance of the evidence. The remaining rejections on appeal also rely on the combination of Weisspapir, Hong, Smith, Howard, and Guthrie, and on the same reasoning. (Ans. 7-11.) For the reasons discussed above, therefore, those rejections are also not supported by a preponderance of the evidence, and are reversed as well. SUMMARY We reverse all of the rejections on appeal. REVERSED 5 Copy with citationCopy as parenthetical citation