Appeal No. 2006-1878 Page 9
Application No. 10/435,367
Connell v. Sears, Roebuck & Co., 722 F.2d 1542,1548, 220 USPQ 193, 198 (Fed. Cir.
1983).
Claims 2, 4, 11-21, 25-27, 30, 34, 41, 42, 44, 45, 47-51, 56-58, and 60 were not
separately argued.4 Consequently, we affirm the rejection of these claims under the
same grounds. In regard to claim 16, for the reasons set forth above, we find that this
separately argued claim is also anticipated under § 102(b) by McKeown.
Howes
The Examiner cited the Howes patent for its teaching of a nutricine that removed
mycotoxin from animal feeds as recited in claims 28, 29, 31-33, 35, 36, 53-55, and 61.
Answer, paragraph spanning pages 8-9. Contrary to Appellants’ argument, we agree
with the Examiner that Howes’ teaching is relevant to McKeown’s feed. The Howes
patent describes a composition that is capable of binding to mycotoxins which are
present in animal feeds. It is a combination of yeast cell wall extract and clay. Howes,
Abstract. “When admixed with feed or fed as a supplement, the compositions with their
surprisingly increased mycotoxin-binding capacity, decrease absorption or uptake of the
mycotoxins by the affected animal, thereby improving performance and health, and
reducing the incidence of mycotoxin-associated diseases.” Id., column 3, lines 23-28.
Howes describes the composition as generally beneficial to all animal feeds. “The
compositions provided by the present invention can be added to any commercially
available feedstuffs for livestock or companion animals including, but not limited to,
4 Appellants stated that independent claims 1, 43, 44, 57, 58, 59, 60, and 61 were separately argued
(Brief, page 14), but only indicated what the claims recite (Brief, pages 28-30). “A statement which
merely points out what a claim recites will not be considered an argument for separate patentability of the
claim.” 37 C.F.R § 41.37(c)(1)(vii).
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