Ex Parte Marcussen et alDownload PDFPatent Trial and Appeal BoardJul 25, 201613627677 (P.T.A.B. Jul. 25, 2016) Copy Citation UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE 13/627,677 09/26/2012 25908 7590 07/27/2016 NOVOZYMES NORTH AMERICA, INC 60 EAST 42ND STREET SUITE 700 NEW YORK, NY 10165 FIRST NAMED INVENTOR Erik Marcussen 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. 5766-US-CNT[2] 7854 EXAMINER BADR, HAMID R ART UNIT PAPER NUMBER 1791 NOTIFICATION DATE DELIVERY MODE 07/27/2016 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): DOCKETING@novozymes.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ERIK MARCUSSEN and CHRISTIAN PEDERSEN Appeal2014-008459 Application 13/627,677 Technology Center 1700 Before ADRIENE LEPIANE HANLON, ROMULO H. DELMENDO, and CHRISTOPHER L. OGDEN, Administrative Patent Judges. HANLON, Administrative Patent Judge. DECISION ON APPEAL A. STATEMENT OF THE CASE The Appellants filed an appeal under 35 U.S.C. § 134 from a final rejection of claims 1-29 under 35 U.S.C. § 103(a) as unpatentable over De Lima et al. 1 in view of Herrman, 2 as evidenced by Motoi et al. 3 and Rowe. 4 We have jurisdiction under 35 U.S.C. § 6(b ). 1 US 6,136,772, issued October 24, 2000 ("De Lima"). 2 WO 97/43482, published November 20, 1997 ("Herrman"). 3 US 6,010,736, issued January 4, 2000 ("Motoi"). 4 Rowe et al., Handbook of Pharmaceutical Excipients 42 (Pharmaceutical Press 2003), identified in the Information Disclosure Statement dated April 2, 2013 ("Rowe"). We were not able to locate the Rowe publication in the electronic file Appeal2014-008459 Application 13/627,677 We AFFIRM. Independent claims 1 and 25 are reproduced below from the Claims Appendix of the Appeal Brief dated March 17, 2014 ("App. Br."). The limitations at issue are italicized. 1. A feed composition comprising at least one granule comprising a particulate component comprising one or more particles, wherein the particulate component constitutes less than 75of100 parts by weight of the granule and the particles have a mean size of more than 40 µm in its longest dimension. 25. A feed composition comprising at least one granule comprising a mixture of less than 7 5 of 100 parts by weight of a particulate component having a mean size of less than 100 µm in the longest dimension and more than 25 of 100 parts by weight of an enzyme or an enzyme and granulating agent, wherein the particulate component comprises a cereal grain flour, and wherein the granule comprises at least three particles of the particulate component, and wherein the particles of the particulate component have a span value of less than 2.5.[S] B. uISCUSSION De Lima discloses an enzyme-containing granulate, made up of enzyme- containing granules or particles, with extremely low tendency to dust formation. De Lima, col. 1, 11. 16-18. De Lima discloses that the enzyme-containing granulates of the invention are well suited for use in detergents, in animal feed compositions, in baking and in the treatment of textiles. De Lima, col. 10, 11. 3 7- 40. ("eDAN") of the instant Application. The Examiner relies on Rowe as evidence that bentonite has a particle size of 50-150 microns. Examiner's Answer dated June 4, 2014 ("Ans."), at 2. 5 The Appellants disclose that "'span' indicates the breadth of the PSD [Particle Size Distribution] and is expressed as: (D90-D10) I D50." Spec. 8, 11. 23-25. 2 Appeal2014-008459 Application 13/627,677 De Lima discloses that extremely low tendency to dust formation is achievable when the granules are based on suitably selected cores (particles). De Lima, col. 2, 11. 9-12. Preferred cores are said to comprise starch and/or modified starch, wherein exemplary starches include cassava. De Lima, col. 5, 11. 22-23, 48-5 3. The Examiner finds, and the Appellants do not dispute, that the particle size of the cassava starch core is 300-1000 microns (µm), i.e., a mean size of more than 40 µm as recited in claim 1. 6 Ans. 3. De Lima discloses that for most purposes, the cores are substantially spherical. De Lima, col. 4, 11. 42--48. De Lima discloses that the granules may comprise one or more outside coating layers and "[a] given coating layer may contribute from 0.5% to as much as 50% by weight of the finished granule." De Lima, col. 11, 11. 2-5, 26-27. Thus, we find De Lima teaches that the cores (particles) may constitute less than 7 5 of 100 parts by weight of the granule as recited in claim 1. The Examiner also finds Herrman discloses an enzyme-containing granule comprising less than 7 5% by dry weight of a particulate component. Ans. 3. The Appellants do not direct us to any error in the Examiner's finding. The feed composition recited in claim 25 comprises, inter alia, "at least one granule comprising a mixture of less than 7 5 of 100 parts by weight of a particulate component having a mean size of less than 100 µm in the longest dimension ... and wherein the particles of the particulate component have a span value of less than 2.5." App. Br., Claims Appendix (emphasis added). 6 De Lima discloses that "the mean particle size of the granules (and in many cases, correspondingly, of the core particles therein) will suitably be in the range from 50 to 4000 µm, such as 200-2000 µm (e.g. in the range of 200-1000 µm)." De Lima, col. 10, 11. 30-33 (emphasis added); see also In re Peterson, 315 F.3d 1325, 1329 (Fed. Cir. 2003) ("even a slight overlap in range establishes a prima facie case of obviousness"). 3 Appeal2014-008459 Application 13/627,677 The Examiner finds Herrman discloses a particulate component comprising organic flour with a degree of grinding of 30 to 100%. Ans. 3 (citing Herrman 3, 11. 5-7). Herrman also discloses that the "flour source is ... ground to a particle size distribution with the primary proportion of particle sizes in the range of 500 to 5 µm; preferably the proportion of particles with a particle size of 300 to 500 µm does not exceed 10 wt%." Herrman 7, 11. 18-21; see also Ans. 4 (citing Herrman 4, 11. 19-21 ); App. Br. 7 (directing our attention to an example on page 20 of Herrman wherein pea fine flour or soy fine flour is the particulate component);7 Herrman 20, 11. 11-16 ("the particle size distribution of the pea or soy fine four that was used ... exhibited a very narrow particle size distribution under 150 µm with very fine quality: pea fine flour: 64 wt%< 36 µm [and] soy fine flour: 49 wt%< 36 µm"). As for the claimed span value, the Examiner finds that "[ s ]ince [Herrman] is using a cereal flour of fine particle size distribution, this span value is intrinsic in the flour particles disclosed by [Herrman]." Ans. 5. The Appellants do not direct us to any error in the Examiner's finding. Additionally, the Examiner concludes: [I]t would have been obvious to one having ordinary skill in the art at the time the invention was made; to use particles having the claimed dimensions since the general sizes of the particulate building blocks [e.g., flour] are taught by the prior art cited and thus following the teachings of prior art cited, one of ordinary skill in the art would have produced the overall enzyme granules having the claimed size and there does not appear to be anything critical about the size claimed. Absent any evidence to [the] contrary and based on the teachings of the reference[ s] cited, it would [have] be[ en] prima facie obvious to 7 The pages of the Appeal Brief are not numbered. Therefore, the numbering herein refers to the numbering automatically generated in the electronic file ("eDAN") of the instant Application. 4 Appeal2014-008459 Application 13/627,677 select the overlapping portions of the ranges and thus a reasonable expectation of success would have prevailed. Ans. 5. The Appellants have failed to establish otherwise. The Examiner concludes that it would have been obvious to one of ordinary skill in the art to substitute the granules of the feed composition of De Lima with the enzyme granules disclosed in Herrman. The Examiner finds that one of ordinary skill in the art would have been motivated to make the proposed modification "to produce feed compositions having enzyme granules of a narrow particle size distribution, i.e.[,] granules of uniform size, which can be accurately dosed and which prevent particle segregation in a mixture comprising animal feed." Ans. 5---6. The Appellants argue that Herrman is not analogous art, and thus, is not properly combined with De Lima in the rejection on appeal. More specifically, the Appellants argue that "Herrman is not from the same field of endeavor as the claimed invention" because "Herrman simply relates to an enzyme granulate for washing and cleaning." App. Br. 3. The Appellants also argue that "the purpose of the enzyme granules in Herrman is for use in washing and cleaning applications, which relates to a solution to [a] problem very different than that addressed by the Appellants in a feed composition." App. Br. 4. In the Appeal Brief, the Appellants do not identify their field of endeavor or the problem solved by their invention. In re Wood, 599 F.2d 1032, 1036 (CCPA 1979) (determination that a reference is from a nonanalogous art considers whether the reference "is within the field of the inventor's endeavor" and if it is not, whether the reference "is reasonably pertinent to the particular problem with which the inventor was involved"). Nonetheless, we find the Appellants' argument that 5 Appeal2014-008459 Application 13/627,677 Herrman is not from the Appellants' field of endeavor to contradict statements made in their own Specification. More specifically, the Appellants disclose: The enzyme containing mixer granule according to the invention is useful where ever enzymes are to be stored alone or to be incorporated in another dry product, and an improved enzyme stability is needed to enable good storage and/or processability properties of the enzyme in the granule. . . . [T]he invention provides a composition comprising the granule of the invention. The composition is preferably a detergent composition .... Spec. 24, 11. 17-28; see also Spec. 6, 11. 17-23 (invention provides a feed composition, a flour and/ or baking and/ or dough composition, and a detergent composition comprising the disclosed granular enzyme product). Thus, a preponderance of the evidence of record supports a finding that Herrman is from the Appellants' field of endeavor. 8 The Appellants also argue that the overall particle size distribution of the enzyme granules disclosed in De Lima is relatively narrow, i.e., for at least 90% of the particles in a given sample, the ratio between the largest and the smallest particle size is less than 4:1, and most preferably less than 1.5:1. App. Br. 9 (citing De Lima, col. 10, 11. 51-56). On the other hand, the Appellants argue that in Herrman Examples 2.1 and 2.2, the ratio between the largest and the smallest 8 In the Reply Brief, the Appellants argue that "in the present specification it is a stated technical problem to provide more controlled size and/or size distribution of enzyme mixer granulation products." Reply Brief dated August 1, 2014 ("Reply Br."), at 3. The Appellants argue that "the washing and cleaning compositions of the Herrman reference are not reasonably pertinent to the technical problems faced by the inventors in development of the claimed feed compositions comprising granules with a narrow size distribution." Reply Br. 4. Suffice it to say that Herrman is from the Appellants' field of endeavor. Therefore, it is not necessary to consider the second prong of the Wood test, i.e., whether Herrman "is reasonably pertinent to the particular problem with which the inventor was involved." Wood, 599 F.2d at 1036. 6 Appeal2014-008459 Application 13/627,677 particles is 5:1. App. Br. 9 (citing Herrman 23, 25). Thus, the Appellants argue that "one of skill in the art would not consider use of enzyme granules of Herrman in a feed composition of De Lima, because the size distribution is not within the narrow range described by De Lima." App. Br. 9. The Appellants' argument is not persuasive of reversible error. Claim 25 recites that "the particles of the particulate component have a span value of less than 2.5." App. Br., Claims Appendix (emphasis added). The portions of Herrman relied on by the Appellants relate to granule size, not particle size. See Herrman 23 ("Acceptable granules 200-1000 µm"); Herrman 25 ("Acceptable granules 200- 1000 µm"). Notably, in Example 2b, Herrman expressly discloses that the particle size distribution of the pea flour (corresponding to the claimed particles of the particulate component) "exhibited a very narrow particle size distribution." Herrman 20. For the reasons set forth above and reasons provided in the Examiner's Answer, the§ 103(a) rejection of claims 1-29 is sustained. C. DECISION The decision of the Examiner is affirmed. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l). AFFIRMED 7 Copy with citationCopy as parenthetical citation