Appeal No. 2006-1878 Page 13
Application No. 10/435,367
Claim 43 was separately argued by Appellants because it contains a pH balancer
which is not described in McKeown, Howes, or Kanter. Brief, page 41. We agree with
Appellants that the Examiner erred in including this claim in the rejection. Further
below, we designate a new ground of rejection for claim 43 over McKeown, Howes,
Kanter, and Sawhill.
McKeown, Howes, and Sawhill
Claims 37-40 and 59 stand rejected under 35 U.S.C. § 103(a) as unpatentable
over McKeown in combination with Howes, and further in combination with Sawhill6.
These claims require the presence of a “pH balancer.” The Examiner considered
it obvious to have included a pH balancer in McKeown’s supplement in view of the
Sawhill patent which describes the addition of buffers in animal diets to avoid changes
in pH that occur after food ingestion. Sawhill, column 1, line 5-64. “At the time the
invention was made, it would have been obvious to a person of ordinary skill in the art to
add a buffer to a feed supplement to maintain a pH that is safe for the livestock.” Office
action dated May 6, 2004, page 5; Answer, page 14.
Appellants challenged the rejection. “The addition of the feed supplement block
of Sawhill, which is a lick block for cattle to counter low pH in the rumen . . . has no
purpose or function which would suggest its addition to either the ketosis-inhibiting feed
supplement of McKeown et al. or the mycotoxin-eliminating composition of Howes et al.”
Brief, page 48.
As we understand the rejection, the Examiner is relying on Sawhill for the
6 Sawhill, U.S. Pat. No. 4,729,896, issued Mar. 8, 1988
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