Appeal No. 95-2416
Application 07/892,484
mixed with one ounce of ground red pepper per pound of
supplement. As stated above, wheat bran is a “birdseed” included
by the language of appealed claim 1, “birdseed selected from the
group consisting of...wheat”. Further, it is undisputed that red
pepper is a capsaicin containing material. In the amount
described, i.e., a composition containing 1/16th red pepper, it
is reasonable to conclude that Cartwright’s “poultry-powder”
contains capsaicin within the ratio range claimed (i.e. about 1
part in 200 to about 1 part in 100,000 by weight as required by
claim 1 or about 1 part in 200 to 1 part in 10,000 by weight as
required by claim 7). That Cartwright fails to expressly
describe the poultry-powder supplement as containing an effective
amount of capsaicin “for repelling animals having capsaicin
sensitive receptors” is of no moment with respect to the
examiner’s rejection. It is settled law that the discovery of a
new property or use of a previously known composition, even when
that property and use are unobvious from the prior art, cannot
impart patentability to claims to the known composition. In re
Spada, 911 F.2d 705, 708, 15 USPQ2d 1655, 1657 (Fed. Cir. 1990);
Titanium Metals Corp. of America v. Banner, 778 F.2d 775, 780-82,
227 USPQ 773, 777-78 (Fed. Cir. 1985); In re Pearson, 494 F.2d
1399, 1403, 181 USPQ 641, 644 (CCPA 1974).
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