Ex Parte Öckerman

Patent Trial and Appeal BoardFeb 19, 2019

14104940 (P.T.A.B. Feb. 19, 2019)

UNITED STA TES p A TENT AND TRADEMARK OFFICE APPLICATION NO. FILING DATE FIRST NAMED INVENTOR 14/104,940 12/12/2013 Per-Arne Ockerman 21186 7590 02/21/2019 SCHWEGMAN LUNDBERG & WOESSNER, P.A. P.O. BOX 2938 MINNEAPOLIS, MN 55402 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. 3941.00lUSl 3021 EXAMINER THAKOR, DEV ANG K ART UNIT PAPER NUMBER 1619 NOTIFICATION DATE DELIVERY MODE 02/21/2019 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): uspto@slwip.com SLW@blackhillsip.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte PER-ARNE OCKERMAN Appeal2017-006288 Application 14/104,940 Technology Center 1600 Before ULRIKE W. JENKS, J. JOHN LEE, and KRISTI L. R. SA WERT, Administrative Patent Judges. JENKS, Administrative Patent Judge. DECISION ON APPEAL Appellant1 submits this appeal2 under 35 U.S.C. Â§ 134(a) involving claims directed to a nutritional supplement. Examiner rejected the claims as obvious. We have jurisdiction under 35 U.S.C. Â§ 6(b ). We AFFIRM. 1 Appellant is the Applicant, Sweet Wellness AB, which, according to the Brief, is the real party in interest. Appeal Br. 2. 2 We have considered, and herein refer to, the Specification of December 12, 2013 ("Spec."); Final Office Action of April 27, 2016 ("Final Act."); Appeal Brief of August 29, 2016 ("Appeal Br."); Examiner's Answer of January 10, 2017 ("Answer"); and Reply Brief of March 10, 2017 ("Reply Br."). Appeal2017-006288 Application 14/104,940 STATEMENT OF THE CASE Free radicals have been implicated as being important in the pathogenesis in a wide range of diseases and pathological processes, including various forms of cancer, type-2 diabetes mellitus, atherosclerosis, chronic inflammatory conditions, ischemia/reperfusion injury, sepsis, and some neurodegenerative diseases .... Oxidative stress is also thought to be involved in the development of many diseases including Parkinson's disease, Alzheimer's disease, heart failure, myocardial infarction, schizophrenia, bipolar disorder, fragile X syndrome, sickle cell disease, lichen planus, vitiligo, autism, and chronic fatigue syndrome. ROS [Reactive Oxygen Species] can also be beneficial, however, as they are used by the immune system as a way to attack and kill pathogens. Spec. ,r 14. Vitamins, minerals and trace elements, antioxidants, amino acids, probiotics, and other components, including biotin, inositol, and choline, are all compositions "that have been shown to treat or prevent diseases associated with oxidative stress." Id. ,r 18. Claims 13-18 and 20-29 are on appeal, and can be found in the Claims Appendix of the Appeal Brief. Claim 13 is representative of the claims on appeal, and reads as follows: 13. A composition comprising: (i) vitamin A, vitamin B1, vitamin B2, vitamin B3, vitamin Bs, vitamin B6, vitamin B12, vitamin C, vitamin D, vitamin E, vitamin K, folic acid, calcium source, potassium source, magnesium source, phosphate source, iodine, copper source, chromium source, manganese source, molybdenum source, selenium source, zinc source, lycopene, one or more carotenoids, one or more flavonoids, biotin, inositol, choline, one or more amino acids, (ii) a probiotic composition comprising the powder of one or more dried fruits and pollen extract or Terminalia arjuna or an extract thereof, (iii) fish oil, and (iv) one or more pharmaceutically acceptable excipients; 2 Appeal2017-006288 Application 14/104,940 wherein the composition effects a decrease in at least one of pulse wave velocity (PWV) values; and endothelial function (AIX) values in a patient. Appeal Br. (Claims Appendix). Appellant requests review of following rejections made by Examiner: I. Claims 13-18, 20, 23-25, and 27-29 under 35 U.S.C. Â§ I03(a) as unpatentable over Riley3 in view of Cooper, 4 Sultenfuss, 5 Kris-Etherton, 6 ProJoba,7 Lourens-Hattingh, 8 and Daikeler, 9 as evidenced by NIHI, 10 and NIH2, 11 and ProJoba2. 12 Final Act. 3--4. II. Claim 21 under 35 U.S.C. Â§ I03(a) as unpatentable over Riley in view of Cooper, Sultenfuss, Kris-Etherton, ProJ oba, Lourens-Hattingh, and 3 Riley et al., US 5,948,443, issued Sept. 7, 1999 ("Riley"). 4 Cooper et al., US 6,299,896 Bl, issued Oct. 9, 2001 ("Cooper"). 5 Sultenfuss, US 5,514,382, issued May 7, 1996. 6 Penny M. Kris-Etherton et al., Fish Consumption, Fish Oil, Omega-3 Fatty Acids, and Cardiovascular Disease, 106 CIRCULATION 2747-57 (2002) ("Kris-Etherton"). 7 Dr Wallach's Youngevity: PROJOBA SHE'S COMPLETE-PACK, http://www.youngevity.net/product/PJ520.html (accessed Oct. 17, 2012). 8 Analie Lourens-Hattingh & Bennie C. Viljoen, Yogurt as Probiotic Carrier Food, 11 INT'LDAIRY J. 1-17 (2001) ("Lourens-Hattingh"). 9 Daikeler et al., US 2010/0291050 Al, published Nov. 18, 2010 ("Daikeler"). 10 National Institutes of Health, Vitamin D Fact Sheet for Health Professionals, http://ods.od.nih.gov/pdf/factsheets/VitaminD- HealthProfessional.pdf (accessed Nov. 7, 2014) ("NIHI"). 11 National Institutes of Health, Dietary Supplement Ingredient Database Frequently Asked Questions (FAQ), http:// dietarysupplementdatabase. usda.nih. gov /faq .html ( accessed Nov. 7, 2014) ("NIH2"). 12 ProJoba Polbax, https://www.youngevity.net/images/pdf/ProJoba/PN7.pdf (accessed Nov. 8, 2014) ("ProJoba2"). 3 Appeal2017-006288 Application 14/104,940 Daikeler, and further in view of Ruys, 13 Verdenelli, 14 or Kimoto. 15 Final Act. 11. III. Claims 22 and 26 under 35 U.S.C. Â§ I03(a) as unpatentable over Riley in view of Cooper, Sultenfuss, Kris-Etherton, ProJoba, Lourens-Rattingh, and Daikeler, and further in view of Giampapa, 16 Kesselman, 17 and Wolfrom, 18 as evidenced by Sloan. 19 Final Act. 12. Obviousness over Riley, Cooper, Sultenfuss, Kris-Etherton, ProJoba, Lourens-Hattingh, and Daikeler Each of the rejections 1.-111. rely on the combination of Riley, Cooper, Sultenfuss, Kris-Etherton, ProJoba, Lourens-Rattingh, and Daikeler. Because the same issue is dispositive for each of these rejections we will consider the rejections together. Appellant also does not argue the claims separately, therefore, we focus our analysis on claim 13, and claims 14--18 and 20-29 stand or fall with that claim. 37 C.F.R. Â§ 4I.37(c)(l)(iv). 13 Geert Ruys et al., Accuracy of Species Identity of Commercial Bacterial Cultures Intended for Pro Biotic or Nutritional Use, 157 RESEARCH IN MICROBIOLOGY 803-10 (2006) ("Ruys"). 14 Maria Cristina Verdenelli et al., Probiotic Properties of Lactobacillus rhamnosus and Lactobacillus paracasei Isolated from Human Faeces, 48 EUR. J. NUTR. 355-63 (2009) ("Verdenelli"). 15 R. Kimoto et al., Lactococci as Probiotic Strains: Adhesion to Human Enterocyte-Like Caco-2 Cells and Tolerance to Low pH and Bile, 29 LETTERS IN APPLIED MICROBIOLOGY 313-16 (1999) ("Kimoto"). 16 Giampapa, US 2004/0001817 Al, published Jan. 1, 2004. 17 Kesselman et al., US 4,740,373, issued Apr. 26, 1988 ("Kesselman"). 18 Wolfrom et al., US 4,326,523, issued Apr. 27, 1982 ("Wolfrom"). 19 Memorial Sloan Kettering Cancer Center, Quercetin, http://www.mskcc.org/cancer-care/herb/quercetin (accessed Nov. 7, 2014) (''Sloan"). 4 Appeal2017-006288 Application 14/104,940 Examiner relies on the teachings of Riley, Cooper, Sultenfuss, Kris-Etherton, ProJoba, Lourens-Hattingh, and Daikeler to arrive at the claimed formulation that is taught in the art for purpose of improving "cardiovascular health." Final Act. 9. Examiner interprets that the last "wherein" clause of the claim is directed to an intended use and, as such, does "not differentiate the structure of the composition from that in the prior art and are thus not given patentable weight." Id. Examiner concludes that compositions taught in the art to improve cardiovascular health would have been expected by one of ordinary skill in the art at the time of invention to also result in "an improvement of cardiovascular parameters ... on administration to a patient." Id. Appellant contends that the Office has cobbled together numerous references without providing a sufficiently articulated reason to do so (see Appeal Br. 6; Reply Br. 2); that the Office is relying on impermissible hindsight (see Appeal Br. 6; Reply Br. 2); and that the results presented in the Specification should rebut a prima facie case of obviousness (Appeal Br. 8). The issue is whether the preponderance of evidence of record supports Examiner's conclusion that the combination of references renders the nutritional supplement as claimed obvious. Findings of Fact We agree with and adopt the findings concerning the scope and content of the prior art as well as the conclusion as set forth in the Examiner's Answer and the Final Office Action. The findings of fact reproduced below are referenced to highlight certain pertinent evidence. 5 Appeal2017-006288 Application 14/104,940 FF 1. Riley teaches multivitamin and mineral supplements that contain antioxidants and are used for the "prevention and treatment of coronary heart disease." Riley, Abstract. The complete modular formulation with all add-ons is listed in the table below: Vitcrmin H,.1 Vlt.m:::~in B2. V'.t;,m(n B6 NiÂ¥>i:.~in Folatc,. VJ:imfo EL' Tfa:,tin (~:3k{(3t~) .:\lsli;ne'<'ium lE>tl ZitK~ \Â·h(~.g~~n~s.fÂ· Sd1mium C:hrcJ.n1i;.~:rn Cnppe:r Clâ€¢,llr.ymcÂ· Q,1J Vitaxnin /\ Dew, C\lix.,,s::nc {Vil. /\. ~,quiv:i konq Alph& C:irotc,,c Z-enx:1.nth ;~1 \/,t,,mil'l C: V),m.in D \',t,,min E Gr.iipc s~~.,h,;;l ii.O tn nbcm( 1GD mg &b.:.)i}l S{J.G ~Â·Â·J :'JbO\.lt gno rru::g :xb~~-3L 4.0 t1) nbnu:: S(J; mg t)b\_)~H- 05 tti r1.bou~ 40 m~g ;sbout 5.fJ tr) abr,[1~ :_7~.fJ{J ~U!...~g ;sbo~H 'H)~U} t,Â·) nhnut .l/OU tng ~bo~~t. .2.5.iJ to abo\J~ 500 m.g .:~b.:J~~t 1.0 L\) tl~.1011~ 20 Ing_ t~bo~~t 5.0 tr, ab ... Yu~ :1n n'::g ~ho~::t- Â·~ J.1 lr:1 ~;1.bou~ lU ~T~g ;~bouE JDJ} tc, afio\Jt ~.IJG n1cg t~b-::..,nt 1D.O to abo"Ut 3.f.10 meg ~b-=~uf 1}_() Lt"l ~1hou~ 4 ~ng .:~b,;:..,t~t 5 ,0 t0 abou~ 300 ~ug ,:b,mi '.:OG.1) tc, ab(Jm J:,,ilOG H..' ,,b,,,,i 5iJGJ1 to ab(,LH 1s,ooo m &b.;-.. ut SO.D to ;1bout 2}X.1IJ :11c_g ::~b.i~33L SO . .G ~j) ~1hcttt lt\t"!UL'i mcÂ·_g rXh:xH. 5{)J} to tJ.bt~nt .5JJOO ~x~~:g ~bom 5.0 tn abuu\ SUO mq? ~b.;':o~Sl :S:u} t.::, fl~:H.=nt ] .n()!) ~Â·ng i~h~)iH. (;J) tn $.b(.'t.H 4f}0 re ~bo~H. 5.0 trJ nbcng 1/JDO n1g ;ibo~~t CUJ t~J s.bom. 3UO st~g r'.)'.bo~~t OJ) tn ~:i.bom. 5f}0 ff~~} ;:~b\R~t 0.0 to about 700 n1g .:~bt.â€¢t~t O ,0 t0 sib,:.rnt 7 5D ff::g ~b-~,~>i .1 S.O to ,1bo~1t Â·J :-{'.if)() :11r; &.b,~Â·tst 1}0 to ahout 50D .mg .:~b\.â€¢i_.:l (LO Lu ahou~ SOD a::g ~~bn~~t 1}0 \_{) aMQ1-1~ 500 tng tir its h),:)eq~~{v;ikmt.~ -...,lhicb. n~;;yÂ· indBJ,;tit'flitÂ· ~t"'.id hiotm ~n;m,g .. :me.s~. seletlirn.n ::..:hr.c~rfi:m.n~ cop}-,Â·'er ... l'.CS:OllZ}'lh'e Q-10 ,:-S~Â·nrin}\ 'i:.itar~'lir~ CÂ· .... vit~D ...... -tti:1:H1iH E green. f=ea e-xtr.~.t R-1:;~.tthtJrne bt-!~f' e-A't.!.";.~c:r L-camitine qr~en:ih1"1 alpha l~pt)ii:. 3(:id i;:lti!ill.e~Â· g.arht::.: ~spi.rin>:- vimÂ·mif:;B2: vi.tasfilil B6 vit.1rrm~~ B3 fohc acid .~delliurn. chr~:Jinfun1 rooner C\..1-elli.~~ (~-1 (} :o..:it;1:.nall1A. li:&~3llihi.L.'e "'it.;unin C virai.illll D vitinlli1 E pot:1.:s;aiffi choline ifiill1:~l~Se sdf'nium cfil-:..minn~ vit:rrnin C vit:.::rllif~D iodme tt~i:rnrin riOOfi;:;~~1 pyri-dt1x1ne :lli'DlVbde'.!l:Uffi bi<,tl;,,:<;.,lK>id ~Exemplified. Modul:c 3 cif Ril.:cy doe5 m.>i contain '11e,-e ,:um1-mnents. St0e Riley Tabl-es Il.. and IlL 11 Appeal2017-006288 Application 14/104,940 Examiner concludes that it would have "been obvious to one of ordinary skill in the art to include the micronutrients disclosed by Cooper not found in Riley ... to provide [a] more complete supplementation of micronutrients." Final Act. 5. For the same reason, Examiner concludes that it would have been "obvious to one of ordinary skill in the art at the time of invention to [also] include molybdenum and inositol as taught by Sultenfuss in the composition of Riley and Cooper." Final Act. 6. The combination of Riley, Cooper, and Sultenfuss does not encompass fish oil. See Final Act. 6. Examiner finds that just like Riley teaches improving cardiovascular health, Kris-Etherton also teaches improving cardiovascular health, in this case with fish oil supplementation. Final Act. 6; FF6. Examiner concludes that "[i]t would have therefore been obvious to one of ordinary skill in the art at the time of invention to include 0.3-300 mg of fish oil as taught by Kris-Etherton in the composition of Riley, Cooper, and Sultenfuss to provide cardiovascular benefits." Final Act. 6; see Ans. 11-12 ("to provide cardiovascular effect" and "that the compositions are independently recognized in the art as having the same purpose and the same effect (improved cardiovascular health) and thus it would have been obvious to combine them in the same composition"). The combination of Riley, Cooper, Sultenfuss, and Kris-Etherton does not encompass a probiotic in conjunction with a dried fruit powder or pollen extract. See Final Act. 6-7. Examiner finds that ProJoba teaches supplementation with probiotics and flower pollen extract in order "to provide energy and micronutrient supplementation together with healthy gut bacteria." Final Act. 7; FF7. Examiner further finds that one of ordinary skill in the art at the time the invention was filed would have known that 12 Appeal2017-006288 Application 14/104,940 "probiotics increase the bioavailability of the antioxidants contained in the superfoods and thus increase the antioxidant effect in the body" and, therefore, further motivating the inclusion of ProJoba's formulation with the combination taught by Riley, Cooper, Sultenfuss, and Kris-Etherton. Final Act. 8 (citing Daikeler ,r,r 22-24); FF8. Lourens-Hattingh suggests using yogurt as a vehicle for food. FF9. Examiner concludes that "[i]t would have therefore been obvious to one of ordinary skill in the art to use a yogurt carrier to deliver the composition of Projoba, i.e., the pro biotic and the pollen extract, within the overall composition of Riley, Cooper, Sultenfuss, Kris-Etherton, and Projoba." Final Act. 7. After considering the evidence and the arguments, we conclude the weight of the evidence favors the Examiner's conclusion of obviousness. Accordingly, we adopt the Examiner's reasoning (see Final Act. 3-18), and agree that the Examiner properly found Appellant's arguments unpersuasive (see Response to Argument, Ans. 3-20). We address Appellant's contentions below: Number of References Appellant contends that the Office has cobbled together numerous references without providing a sufficiently articulated reason to do so. See Appeal Br. 6; see Reply Br. 2. We are not persuaded and agree with Examiner that it has been recognized that reliance on a large number of references does not, without more, weigh against the obviousness of the claimed invention. See Ans. 4--5; see In re Gorman, 933 F.2d 982, 986 (Fed. Cir. 1991) ("The criterion, however, is not the number of references, but what they would have meant to a person of ordinary skill in the field of the invention."). Here, Examiner's 13 Appeal2017-006288 Application 14/104,940 reasons for combining the references is to provide a more complete micronutrient supplementation. See Ans. 9--11. Hindsight Appellant contends that "the Patent Office has engaged in impermissible hindsight by picking and choosing one or more elements recited in the instant claims from a thicket of journal articles." Appeal Br. 6; see also id. at 7 ("there is no good reason, except one based in impermissible hindsight, to supplement Riley's disclosure"); see also Reply Br. 3 ("an egregious example of reliance impermissible hindsight to arrive at the claimed invention"). While we are aware that hindsight bias often plagues determinations of obviousness, Graham v. John Deere Co., 383 U.S. 1, 36 (1966), we are also mindful that the Supreme Court has clearly stated that the "combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results." KSR, 550 U.S. at 416. Any judgment on obviousness is in a sense necessarily a reconstruction based upon hindsight reasoning, but so long as it takes into account only knowledge which was within the level of ordinary skill at the time the claimed invention was made and does not include knowledge gleaned only from applicant's disclosure, such a reconstruction is proper. In re McLaughlin, 443 F.2d 1392, 1395 (CCPA 1971). Appellant has not directed us to what teaching could only have been gleaned from the Specification and not from the prior art in order to support the contention that Examiner has impermissibly relied on hindsight. As such, we are not persuaded by Appellant's contention that Examiner's combination somehow required knowledge derived only from Appellant's Specification. 14 Appeal2017-006288 Application 14/104,940 We recognize that picking and choosing among various disclosures is inappropriate in an anticipatory rejection, however, [ s ]uch picking and choosing may be entirely proper in the making of a 103, obviousness rejection, where the applicant must be afforded an opportunity to rebut with objective evidence any inference of obviousness which may arise from the similarity of the subject matter which he claims to the prior art. In re Arkley, 455 F.2d 586, 587-88 (CCPA 1972). Appellant has not explained why picking and choosing in the context of the current obviousness rejection is not appropriate, and we agree with the Examiner's rationale for selecting and combining the teachings as set forth in the Final Action. Accordingly, we are not persuaded by Appellant's contentions. Here, Examiner relies on the teachings of Riley to disclose a multivitamin that is administered to patients for the purpose of preventing or treating coronary heart disease. FFl. Riley's disclosure provides various modules for this purpose. See FF 1. Riley further teaches that the formulas disclosed can be combined with other synergistic dietary and nutritional compounds. FF3. In other words, Riley is not limited to the formulations presented but instead contemplates formulations that contain additional elements. Examiner looks to the teachings of Cooper and Sultenfuss to arrive at a composition that contains all the vitamins and micronutrients listed in claim 13. Examiner's rationale for combining Cooper and Sultenfuss with Riley is that it is obvious to combine compositions, each of which is taught in the prior art to be useful for the same purpose, in this case reducing coronary artery disease. Ans. 8 ( citing Kerkhoven, 626 F .2d at 850); see FFl, FF4, FF5. Examiner incorporates fish oil based on the teachings of Kris-Etherton that establishes that the ingestion of fish oil reduces the incidence of 15 Appeal2017-006288 Application 14/104,940 cardiovascular disease. FF6. Again, the reason for combining the references is to arrive at a composition that is used for the same purpose, in this case treating patients at risk of cardiovascular disease. The inclusion of ProJoba with the other components is "to provide energy and micronutrient supplementation together with healthy gut bacteria." Final Act. 7; Ans. 12-13; FF7. We find no error with Examiner's reason for combining ProJoba's formulation with the combination of Riley, Cooper, Sultenfuss, and Kris-Etherton, namely, for incorporating additional micronutrients to ensure a complete blend in addition to helping boost overall energy and gut health. See Ans. 12-13. We additionally note that ProJoba's superoxide dismutase is a powerful antioxidant, and adding another antioxidant to those already disclosed by Riley, Cooper, Sultenfuss, and Kris-Etherton would simply boost the ability of the formulation to further prevent oxidation of low density lipoproteins in coronary arterial walls, as suggested in Riley. See Riley, Abstract; FFl. Accordingly, we find no error with Examiner's articulated rationale. Lacks Articulated Reason Appellant contends that "the Patent Office does not provide any reasoning as to why Riley would have wanted or needed to include vitamin K, a potassium source, iodine, and choline." Appeal Br. 6; see Reply Br. 2. We recognize that Riley does not want to combine aspirin with some vitamins because they may interfere with aspirin's benefits. FF3. Riley, however, also teaches formulations that do not contain aspirin. Thus, there is no persuasive evidence suggesting that vitamin K, a potassium source, iodine, and choline cannot reasonably be added to Riley's modules that are free of aspirin. 16 Appeal2017-006288 Application 14/104,940 In this case, Examiner is not relying on any teaching in Riley to additionally incorporate vitamin K, potassium, iodine, and choline into Riley's formulation. Instead, Examiner relies on the teaching of Cooper to espouse the benefits of vitamin K, potassium, iodine, and choline, and motivate the inclusion of these components with Riley for the purpose of producing a more complete micronutrient mix. See Final Act. 5. There is already much overlap between the composition taught in Riley and the composition taught in Cooper. See supra p. 11 (Riley, Cooper, and Sultenfuss comparison table). Cooper additionally teaches that the "multi- vitamin and mineral supplement ... may reduce cardiovascular risk by decreasing the susceptibility of LDL to oxidation." Cooper 15:30-34, 14:32- 34 ("[T]he multi-vitamin and mineral supplement ... may reduce cardiovascular risk by decreasing homocysteine levels."). We see no error with the Examiner's reliance on these noted benefits taught in Cooper to motivate the inclusion of additional components into Riley's formulations lacking aspirin. Examiner relies on the rationale that it is reasonable to combine two components, each taught to be beneficial for the same purpose, in order to formulate another composition that would function for the same purpose. See Ans. 8 ( citing Kerkhoven, 626 F .2d at 850). Sultenfuss teaches a daily multivitamin and multimineral supplement that contains molybdenum and inositol. FF5. Examiner reasons that it would have "been obvious to include other micronutrients not found in the composition of Riley and Cooper (including molybdenum and inositol) to ensure the most complete supplementation possible." Ans. 10. Sultenfuss explains that molybdenum helps metabolize fats and inositol helps remove fats from arteries. FF5. These teachings in Sultenfuss reasonably support 17 Appeal2017-006288 Application 14/104,940 Examiner's inclusion of these components into a supplement that is used for the treatment of cardiovascular disease as suggested in Riley. Fish oil is also shown to reduce the risk of cardiovascular disease. FF6. Thus, inclusion of fish oil into the vitamin supplement of Riley for the purpose of reducing the risk of cardiovascular disease is reasonable. See Final Act. 6; see Ans. 11 ("[t]he cited motivation to include fish oil was to provide cardiovascular effects"). We find no error with Examiner's rationale for incorporating fish oil with Riley's composition. Examiner's motivation to include ProJoba's formulation with Riley was "both to include energy and to provide micronutrient supplementation." Ans. 11. We find no error with Examiner's combination and note that in addition to probiotics, the ProJoba formulation also contains superoxide dismutase, a powerful antioxidant. See FF6. Riley recognizes the benefit for improved life expectancy by maintaining "antioxidants, and the enzymes superoxide dismutase (SOD), catalase, and glutathione peroxidase, in the liver, heart and brain." Riley 10:12-16; see also id. at 2:9-14 ("that antioxidant micronutrients are involved in preventing molecular biological processes affecting health and disease at the subcellular and submolecular level. It is current thought that free-radical effects on cells and tissues can be modified by antioxidant micronutrients reducing cellular damage"); see id. 6:5-24. Riley teaching of incorporating antioxidant micronutrients in the formulation further supports Examiner's reason of including ProJoba's formulation with Riley, namely for the purpose of providing a more complete micronutrient supplementation. 18 Appeal2017-006288 Application 14/104,940 Accordingly, for these reasons we are not persuaded by Appellant's contention that the rejection lacks an articulated reason for making the combination. Lacks Amino Acid Element Appellant contends that "[ t ]he Patent Office has made a factual error when it states that Riley discloses 'one or more amino acids ( taurine and L- camitine ). ' Neither one of those compounds is an amino acid, though at least camitine appears to be biosynthesized from the amino acids lysine and methionine." Appeal Br. 6 n.26. We are not persuaded by Appellant's contention, because, as Examiner points out, taurine is known in the art as an amino acid, albeit a sulfur group-based (rather than carboxy group-based) amino acid. Ans. 14. Here, claim 13 requires the use of "one or more" amino acids, meaning that a single amino acid is sufficient to meet the claim limitation. Riley teaches compositions that contain camitine and/or taurine. Even if camitine is not an amino acid, there is sufficient evidence in the record to establish that taurine does meet this limitation. See Ans. 14--15. Therefore, Riley's composition meets the claim limitation of "one or more" amino acids. Additionally, we note that the ProJoba composition, relied on by the Examiner to teach flower pollen extract in conjunction with probiotics, also discloses that the composition contains amino acids. See FF7. Accordingly, we are not persuaded by Appellant's contention that the references in combination do not disclose the limitation of one or more amino acids. Unexpected Results Appellant contends that Examiner has not considered "clinical data obtained from actual patients showing that compositions comprising the 19 Appeal2017-006288 Application 14/104,940 claimed components 'mitigates cardiovascular disease (CVD) risk factors as determined by pulse wave velocity (PWV) and augmentation index (AIX)."' Appeal Br. 7-8. We are not persuaded by Appellant's contention. As Examiner explains, "[ t ]he submission of evidence that a new product possesses unexpected properties does not necessarily require a conclusion that the claimed invention is nonobvious." Ans. 16 (citing In re Payne, 606 F.2d 303 (CCPA 1979)). Examiner explains that "cardiovascular benefits such as those observed by Appellant would have been expected from the prior art composition." Ans. 17. "Riley explicitly teaches cardiovascular benefits of the composition (see rejection and see abstract of Riley), and indeed, the cardiovascular benefits are even the motivation for combining Riley with Kris-Etherton." Id. In other words, Examiner relies on the teachings of Riley and Kris-Etherton to suggest that one of ordinary skill would have treated the same patient population with the nutritional supplement. "[I]t is not required ... that the prior art disclose or suggest the properties newly- discovered by an applicant in order for there to be a prima facie case of obviousness." In re Dillon, 919 F.2d 688, 697 (Fed. Cir. 1990); see also Atlas Powder Co. v. Ireco, Inc., 190 F.3d 1342, 1347 (Fed. Cir. 1999) ("[T]he discovery of a previously unappreciated property of a prior art composition, or of a scientific explanation for the prior art's functioning, does not render the old composition patentably new to the discoverer."). Mere recognition of latent properties in the prior art does not render nonobvious an otherwise known invention. In re Prindle, 297 F .2d 251, 254 (CCPA 1962). 20 Appeal2017-006288 Application 14/104,940 Examiner explains that Appellant's reliance on the results in the Specification are not persuasive because they are not compared to the closest prior art. See Ans. 15-16; see also Ex parte Obiaya, 227 USPQ 58, 60 (BP AI 1985) ("The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious."). Here, the record supports that Examiner has considered the Appellant's evidence, but finds the evidence insufficient to overcome the prima facie case. See Ans. 15-20. We find no error with the Examiner's consideration of the clinical data. We affirm the rejection of claim 13 under 35 U.S.C. Â§ 103(a) as unpatentable over Riley, Cooper, Sultenfuss, Kris-Etherton, ProJoba, Lourens-Hattingh, and Daikeler as evidenced byNIHl, NIH2, and ProJoba2. Claims 14--18, 20, 23-25, and 27-29 were not separately argued and fall with claim 13. Appellant does not provide additional arguments with respect to the rejection of claim 21 (see Appeal Br. 1 O); accordingly, we affirm this rejection for the same reason discussed above for claim 13. Appellant does not provide additional arguments with respect to the rejection of claim 22 and 26 (see Appeal Br. 10); accordingly, we affirm this rejection for the same reason discussed above for claim 13. 21 Appeal2017-006288 Application 14/104,940 SUMMARY We affirm the rejection of all claims. 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. Â§ 1.136(a). AFFIRMED 22