Dairy Health Products, Inc. v. Patent of Ib A, Inc.

• Decision Date: 25 August 2010
• Docket Number: 016,APPEAL 2010-007335,Reexamination Control 95/001
• Court: Patent Trial and Appeal Board
• Parties: DAIRY HEALTH PRODUCTS, INC. Third Party Requester and Respondent v. Patent of IB A, INC Patent Owner and Appellant Patent 7, 208, 170 B2 Technology Center 3900

DAIRY HEALTH PRODUCTS, INC. Third Party Requester and Respondent v. Patent of IB A, INC Patent Owner and Appellant

Patent 7, 208, 170 B2 Technology Center 3900

APPEAL 2010-007335

Reexamination Control 95/001, 016

United States Patent and Trademark Office, Patent Trial and Appeal Board

August 25, 2010

FILING DATE 11/16/2007

Before ROMULO H. DELMENDO, RICHARD M. LEBOVITZ, and JEFFREY B ROBERTSON, Administrative Patent Judges.

DECISION ON APPEAL ^[1]

LEBOVITZ, Administrative Patent Judge.

This is a decision on the appeal from Examiner's rejections of claims 1-6 in an Inter Partes Reexamination of U.S. Patent No. 7, 208, 170. The Board's jurisdiction for this appeal is under 35 U.S.C. §§ 6, 134, and 315. We affirm the Examiner.

STATEMENT OF THE CASE

The patent in dispute in this appeal is U.S. Patent No. 7, 208 170 (issued Apr. 24, 2007) [hereinafter the '170 patent] assigned to IBA Inc. IB A is the patent owner and Appellant in this proceeding. The sole named inventor of the '170 patent is Lennart G. Petersson. Oral arguments were heard on July 7, 2010, a written transcript of which will be entered into the electronic record in due course.

The claims involved in this appeal are directed to methods of treating the skin of dairy cattle with a powdered composition comprising, as germicidally active materials, chlorhexidine and a zinc-containing material (claims 1-3) or chlorhexidine (claims 4-6). The purpose of the composition is to protect cow skin, especially teats of lactating cows, during severe cold and windy conditions, and to prevent intra mammary infection and mastitis, an infection of the cow udder ('170 patent, cols. 1-3).

A request for Inter Partes Reexamination was made by Dairy Health Products [hereinafter DHP] on November 16, 2007 pursuant to 35 U.S.C. §§ 311-318 and 37 C.F.R. § 1.915. DHP, who is the Third-Party Requester and Respondent in this appeal, cited six patents which were said to raise substantial new questions of patentability (Request for Inter Partes Reexamination 3-4). DHP proposed rejections based on the patents (id. at 4-9). The rejections were adopted in part by the Examiner with modifications.

DHP does not appeal the Examiner's decision not to adopt all the proposed rejections.

The Inter Partes Reexamination was closed on June 25, 2008 (Action Closing Prosecution) and a Right of Notice of Appeal (RAN) was mailed Feb. 12, 2009 indicating that claims 1-6, all the pending claims in the reexamination proceeding of the '170 patent, were rejected. Claims 1-6 were not amended during this proceeding and are identical to the claims that issued in the '170 patent.

The following rejections are appealed by IB A (Appellant's Third Amended Appeal Brief 1-2, Oct. 26, 2009 [hereinafter IBA Appl. Br.]):

1. Claims 1-6 under 35 U.S.C. § 103(a) as obvious in view of Westfall, ^[2] Noorlander, ^[3] and Rogozinski.^[4]

2. Claims 4-6 under 35 U.S.C. § 103(a) as obvious in view of Noorlander, Prince, ^[5] and Loosemore.^[6]

3. Claims 1-6 under 35 U.S.C. § 103(a) as obvious in view of Noorlander, Westfall, and Rogozinski.

4. Claims 4-6 under 35 U.S.C. § 103(a) as obvious in view of Rogozinski, Prince, Adkinson, ^[7] Huprich, ^[8] and/or Loosemore.

5. Claims 4-6 under 35 U.S.C. § 103(a) as obvious in view of Rogozinski, Adkinson, Huprich, and/or Loosemore, and Westfall and/or Bartnik.^[9]

Claims 1 and 4 are representative and read as follows:

1. A method of treating skin of dairy cattle, said method comprising applying a non-toxic, germicide, fungicide and healing composition in powdered form topically to said skin, said composition comprising (a) finely divided, particulate chlorhexidine acetate, (b) finely divided, particulate zinc-containing material selected from the group consisting of zinc chloride, zinc nitrate, zinc oxide, zinc phosphate, zinc peroxide, zinc iodide, elemental zinc and mixtures thereof and (c) an inert, powdered carrier, with said chlorhexidine acetate and said zinc-containing material being present in an amount to achieve effective germicidal activity.

4. A method of treating skin of dairy cattle, said method comprising applying a non-toxic, germicide, fungicide and healing composition in powdered form topically to said skin, said composition comprising (a) finely divided, particulate chlorhexidine acetate, and (b) an inert, powdered carrier, with said chlorhexidine acetate being present in an amount to achieve effective germicidal activity.

PRIOR ART FACTS

Westfall

1. Westfall describes compositions and methods "for the prevention of mastitis in milk producing animals. . . The composition is applied to the teat of... a cow either by dipping the teat therein or spraying the composition thereon." (Westfall, Abstract.)

2. The "compositions comprise a source of zinc, preferably zinc gluconate, and chlorhexidine." (Id.)

3. "Mastitis is typically caused by bacteria, such as Streptococcus agalactiae and Staphylococcus aureus which enter the teat through the teat orifice. These bacteria account for about 90 percent of all udder infections." (Id. at col. 1, 11.27-30.)

4. "A method for preventing mastitis comprises applying the composition [a combination of chlorhexidine and zinc] to the teat of a mammal, such as a cow." (Id. at col. 2, ll. 45-48.)

5. "The composition can be applied to the teats of a cow by dipping the teats therein. Alternatively, the composition can be sprayed on to the teats, for example, as an aerosol." (Id. at col. 2, ll. 49-51.)

6. "For cows that are lactating, teat dips have long been used as a preventative for mastitis." (Id. at col. 1, ll. 48-50.)

7. "An aerosol spray generally may include the same or a slightly modified composition of the liquid dip and is sprayed on to the teat. The aerosol spray . . . can have a chilling effect on the teat, causing the sphincter muscle and teat orifice to contract, providing a further obstacle to prevent bacterial entry." (Id. at col. 1, ll. 58-64.)

Noorlander

8. Noorlander describes a dry composition comprising allantoin, ascorbic acid, and an inert, powdered carrier, where the carrier is effective in holding the active ingredients on the skin surface (Noorlander, col. 1, ll. 49-53 & col. 2, 11.1-3).

9. "In the cold winter months, however, the dry composition is particularly advantageous. A wet composition applied to the teats of cows during wet and cold atmospheric conditions can cause chapping and frost damage of the teats. The dry composition does not have any such deleterious effect, and a 90% or better reduction in bacteria numbers on the teats of cows treated with the dry composition can be achieved" (id. at col. 2, ll. 5-15).

10. Noorlander describes its composition as advantageous for treating dairy animals for mastitis caused by several types of bacteria including Pseudomonas, Staphylococcus and Streptococcus (id. at col. 2, ll. 43-50).

11. Noorlander describes applying its dry composition to the teats of several cows showing symptoms of mastitis, resulting in "a 90% or better reduction in the number of bacteria" (id. at col. 2, ll. 56-62).

12. "In essentially all instances, the teats of the cows no longer showed pressure of mastitis causing bacteria." (Id. at col. 2, ll. 66-67.)

13. Tables 1 and 2 display the results of the experiment, showing the number of bacteria colonies 30 minutes and 45 minutes after application (id. at col. 3). Noorlander does not explain how the reduction in bacterial colonies were measured, but Noorlander mentions swabs and plates (id. at col. 3, ll. 5-15), suggesting that the teat may have been swabbed and then the swab smeared on a bacterial plate to transfer the bacteria to the plat and then determine subsequent bacterial growth.

14. Noorlander also states that "[l]aboratory experiments have shown conclusively that the compositions of this invention are very effective in killing those type bacteria." (Id. at col. 2, ll. 53-55.)

Rogozinski

15. Rogozinski describes a topical composition comprising chlorhexidine diacetate and chloroxylenol to treat topical infections of bacteria or fungus (Rogozinski, at col. 2, ll. 16-21).

16. The composition is a powder (id. at col. 1, ll. 8-10; Abstract).

17. In a preferred embodiment, zinc stearate is also present (id. at col. 4, ll. 23-24).

18. Rogozinski teaches that its composition is effective for treating Staphylococcus (id. at col. 5, ll. 32-33, 45-50, & 60-66 (Nos. 5 & 6)).

Price

19. Price describes a composition for treating bovine mastitis which comprises chlorhexidine (Price, at col. 1, ll. 6-8 & col. 3, lines 23-24).

20. Price teaches that the bovine teat may be dipped into the composition and allowed to dry to form a film (id. at col. 4, ll. 5-20).

21. Price states that its composition can be applied to the bovine udder by any suitable method (id. at col. 4, ll. 5-7).

Loosemore

22. Loosemore describes a composition for treating mastitis which comprises chlorhexidine (Loosemore, Abstract, col. 1, ll. 29-30, & col. 3, ll. 43-45), the latter which Loosemore characterizes as "an established germicidal agent" and a preferred embodiment (id. at col. 3, ll. 10-11 & 38-47).

23. The composition is a solution dip that forms a barrier film on the skin (id. at Abstract & col. 2, ll. 44-60).

24. Loosemore discloses that "[m]any disinfectant agents have been used in test dips, among them: iodine, chlorine, chlorine dioxide, chlorhexidine, fatty acids, anionic surfactants and quaternary ammonium compounds." (Id. at col. 1, 11.49-52.)

Huprich

25. Huprich describes a composition for treating mastitis that includes chlorhexidine and a film-forming component (Huprich col. 3, ll. 3-6, col. 4, 11. 8-15, & col. 7, 1. 65 to col. 8, 1. 35).

26. The composition can be used to treat mastitis in cows (id. at col. 1,...