Snowdonia Research Sarl

Patent Trials and Appeals Board

Nov 16, 2021

2021004735 (P.T.A.B. Nov. 16, 2021)

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.
15/100,086 05/27/2016 Chris Oldknow STHP-044 9543
93726 7590 11/16/2021
EPA - BOZICEVIC FIELD & FRANCIS LLP
BOZICEVIC, FIELD & FRANCIS
201 REDWOOD SHORES PARKWAY
SUITE 200
REDWOOD CITY, CA 94065
EXAMINER
GEORGE, PATRICIA ANN
ART UNIT PAPER NUMBER
1793
NOTIFICATION DATE DELIVERY MODE
11/16/2021 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):
docket@bozpat.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte CHRIS OLDKNOW
Appeal 2021-004735
Application 15/100,086
Technology Center 1700
Before TERRY J. OWENS, KAREN M. HASTINGS, and
JEFFREY R. SNAY, Administrative Patent Judges.

HASTINGS, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Pursuant to 35 U.S.C. § 134(a), Appellant1 appeals from the
Examiner’s decision to reject claims 1, 5–8, 11, and 14. See Non-Final Act.
1. An oral hearing was held on Nov. 8, 2021.2 We have jurisdiction under
35 U.S.C. § 6(b).
We AFFIRM.

1 “Appellant” refers to “applicant” as defined in 37 C.F.R. § 1.42. Appellant
identifies the real party in interest as “Snowdonia Research Sarl” (Appeal
Br. 3).
2 A transcript of the hearing will be mailed in due course.
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CLAIMED SUBJECT MATTER
Claim 1, reproduced below, is illustrative of the claimed subject
matter:
1. A non-toxic artificial mineral water composition containing
bioavailable iron, said composition comprising:
ferrous ions at a concentration of 200 mg/l;
ferric ions at a concentration of 20 mg/l;
Ca2+ ions at a concentration of 170 mg/l; and
Mg2+ ions at a concentration of 40 mg/l,
wherein the composition is an aqueous solution having a pH of 3.0,
wherein the composition is an ingestible composition.

Appeal Br. 17 (Claims App.)
REFERENCES
The prior art relied upon by the Examiner is:
Name Reference Date
Bookwalter US 3,809,773 May 7, 1974
Yang (“Yang ’197”) US 2001/0051197 A1 Dec. 13, 2001
Hargreaves US 2006/0286259 A1 Dec. 21, 2006
Fernholz US 2009/0054290 A1 Feb. 26, 2009
Marshman US 2009/00617068 A1 Mar. 5, 2009
Yang WO 2013/109516 A1 July 25, 2013
Teucher, Enhancers of iron absorption: ascorbic acid and other
organic acids; Int. J. Vitamin Nutrition Res. 2004 Nov; 74(6):403–
19 (“Teucher”)

REJECTION
Claims 1, 5, 7, 8, and 14 are rejected under 35 U.S.C. § 103 as being
unpatentable over the combined prior art of Yang, Teucher, Bookwalter,
Marshman, Yang ’197, and Fernholz. Non-Final Act. 3.
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Claims 6 and 11 are rejected under 35 U.S.C. § 103 as being
unpatentable over the combined prior art of Yang, Teucher, Bookwalter,
Marshman, Yang ’197, Fernholz, and Hargreaves. Non-Final Act. 9.
OPINION
Upon consideration of the evidence relied upon in this appeal and
each of Appellant’s contentions as set forth in the Appeal Brief and the
Reply Brief, we determine that Appellant has not identified reversible error
in the Examiner’s rejection (See generally Ans.). In re Jung, 637 F.3d 1356,
1365–66 (Fed. Cir. 2011) (explaining the Board’s long-held practice of
requiring Appellant(s) to identify the alleged error in the Examiner’s
rejection). We sustain the rejections for the reasons expressed by the
Examiner in the Final Office Action and the Answer.
We add the following primarily for emphasis.
It has been established that “the [obviousness] analysis need not seek
out precise teachings directed to the specific subject matter of the challenged
claim, for a court can take account of the inferences and creative steps that a
person of ordinary skill in the art would employ.” KSR Int’l Co. v. Teleflex
Inc., 550 U.S. 398, 418 (2007); see also In re Fritch, 972 F.2d 1260, 1264–
65 (Fed. Cir. 1992) (a reference stands for all of the specific teachings
thereof as well as the inferences one of ordinary skill in the art would have
reasonably been expected to draw therefrom).
Appellant has not sufficiently explained why the claimed subject
matter is “more than the predictable use of prior art elements according to
their established functions.” KSR, 550 U.S. at 417. (Ans. 3–9, 11–12).
In any event, Appellant does not substantively argue the Examiner’s
prima facie case of obviousness (Appeal Br. 8). Rather, Appellant’s
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arguments focus on the proffered evidence of unexpected results of the
bioavailable iron and iron uptake when the recited mineral water
composition is ingested due to a synergistic effect of having both calcium
and magnesium ions in combination with the ferric and ferrous ions in the
artificial mineral water (Appeal Br. 8–13; see generally Reply Br.).
Having determined that the Examiner has established a prima facie
case of obviousness, the issue becomes whether Appellant has properly
established any criticality to the claimed composition. Appellant relies upon
Specification Composition 3 for exemplifying the alleged synergistic effect,
and also relies upon a declaration filed August 8, 2019, by Dr. Sebastien
Fernaud and Dr. Mohammed Zariwala (Appeal Br. 10).
Turning to Appellant’s proffered evidence of unexpected results, it is
well established that the burden rests with Appellant to establish (1) that the
alleged unexpected results are, in fact, unexpected, (2) that the comparisons
are to the disclosure of closest prior art, and (3) that the supplied evidentiary
showing is commensurate in scope with the claimed subject matter. See In
re Klosak, 455 F.2d 1077, 1080 (CCPA 1972).3
As pointed out by the Examiner, claim 1 is open to any type of
ingredients/source for the claimed ions (Ans. 16). For example only, the
claim does not preclude other metal cations that may have a detrimental
effect on iron uptake (see, e.g., Spec. 4:16–20). The inventive Example 3
composition relied upon requires reverses osmosis water, pH adjustment

3 “It is well established that the objective evidence of nonobviousness must
be commensurate in scope with the claims.” In re Lindner, 457 F.2d 506,
508 (CCPA 1972).

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with sulfuric acid, pure CaSO4·2H2O for the Ca2+ ions, and all components
are filter sterilized via a 0.2 um pore size membrane filter (Spec. 7–8; Ans.
16–17; Non-Final Act. 13). None of these parameters are recited or required
in claim 1. Notably, claim 1 is open-ended and does not exclude any other
(non-toxic) components in the non-toxic mineral water composition. Claim
1 also does not require that the composition results in any specific amount of
bioavailable ions and/or iron uptake values. Appellant has also failed to
show any comparison to any prior art compositions (e.g., Ans. 19-20; e.g.,
Appeal Br. 12 (Appellant de facto states this is not needed because the
Specification provides “sufficient evidence of the synergistic effects . . .
compared to a control composition and compositions containing individual
components”)). Furthermore, as previously noted, claim 1 is open-ended
and permits the inclusion of any number of unclaimed components. Thus, it
is clear that the Specification’s inventive Example 3 discussed and relied
upon by Appellant is not commensurate in scope with the breadth of claim 1.
Furthermore, the Declarants’ discussion that one of ordinary skill in
the art would not have used either calcium or manganese ions in
combination with iron ions because such ions would decrease iron uptake (as
discussed at Appeal Br. 10) must be weighed against the applied prior art
which does suggest using all three ions in a mineral water (Ans. 6–8).
Furthermore, the applied prior art teaches that the use of ascorbic acid
enhances iron absorption (Ans. 5; Non-Final Act. 4). Declarants do not
appear to take this factor into account.
In light of these circumstances, and having weighed the evidence
offered against the obviousness rejections, we find that the preponderance of
the evidence supports the Examiner’s rejections, noting that Appellant does
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not present additional arguments for any of the dependent claims, even those
separately rejected.
Accordingly, we sustain the Examiner’s § 103 rejections of all the
claims on appeal.
CONCLUSION
The Examiner’s rejections are AFFIRMED.
DECISION SUMMARY
Claim(s)
Rejected
35 U.S.C.
§
Reference(s)/Basis Affirmed Reversed
1, 5, 7, 8, 14

103 Yang, Teucher,
Bookwalter,
Marshman, Yang
’197, Fernholz
1, 5, 7, 8, 14

6, 11 103 Yang, Teucher,
Bookwalter,
Marshman, Yang
’197, Fernholz, and
Hargreaves
6, 11
Overall
Outcome
1, 5–8, 11, 14
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). See 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED