Federal Circuit disposition — 2012-1182

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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IN RE FRANK ROBERT DITTO
__________________________
2012-1182
(Serial No. 09/276,137)
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Appeal from the United States Patent and Trademark
Office, Board of Patent Appeals and Interferences.
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Decided: December 7, 2012
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FRANK R. D ITTO , of San Francisco, California, pro se.
RAYMOND T. CHEN , Solicitor, United States Patent
and Trademark Office, of Alexandria, Virginia, for appel-
lee. With him on the brief were MICHAEL S. FORMAN and
SCOTT C. WEIDENFELLER, Associate Solicitors. Of counsel
was THOMAS W. K RAUSE, Associate Solicitor.
__________________________
Before DYK , PROST, and REYNA , Circuit Judges.
PER C URIAM.
Frank Ditto (“Ditto”) filed Patent Application No.
09/276,137 (the “Ditto application”) for a domestic cat

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IN RE DITTO 2
breed produced by mating a Bobcat, Lynx, or Bobcat Lynx
species with a domestic cat. The examiner rejected all
twelve claims of the patent because, inter alia, the claims
were anticipated by prior art references and were directed
to non-statutory subject matter under 35 U.S.C. § 101.
The Board of Patent Appeals and Interferences (the
“Board”) affirmed these rejections. Because the Board was
correct in holding that Ditto’s application was anticipated,
we affirm.
BACKGROUND
The Ditto application was filed on March 25, 1999.
Independent claim 1 of the Ditto application recites “[a]
domestic cat breed produced by breeding a purebred cat
produced by mating a Bobcat, Lynx, or Bobcat Lynx
species with a domestic cat.” Appellee’s App. 42. Claims 2-
12 are dependent claims and recite characteristics of the
claimed domestic cat breed. Specifically, Ditto claims “[a]
cat according to claim 1, wherein” the “cat has a deep
voice like a Bobcat lynx”; “sings”; “communicates ver-
bally”; “responds to verbal commands”; “vocally responds,
[sic] to commands”; “bonds to one Alfa [sic] person like a
wolf”; “responds to vocal commands”; “uses paws in a
hand like manner”; “has webbed feet with extra padding
of long fur in between toes”; “climbs like a bobcat and does
not jump and light [sic] on it’s [sic] feet like other domes-
tic cats”; and “has two coats of fur a short coat and a long
coat.” Id. at 42.
Ditto’s written description for his claimed invention
asserts that the claimed breed is “[a] new and novel breed
of cat for breeding, show, and pet.” Id. at 36. It notes that
“[t]his particular cat is different from other breeds, as it’s
[sic] breeding origins can come from a Bobcat, Lynx, or
Bobcat lynx species, and [a] domestic cat.” Id. It asserts
that the cat is “bred into domesticity” but nonetheless

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IN RE DITTO 3
“maintain[s] the spirit and disposition of the wild.” Id.
The specification emphasizes that cats of “Bobcat, lynx, or
Bobcat lynx species” may be bred with domestic cats to
produce the claimed breed. Id. It further states that “[a]
unique and novel disposition of this breed is that the cat
has an extreme intelligence, confidence and loyalty,
behaving more like a dog than other domestic cats.” Id.
The claimed cats range from nine to forty pounds, come in
a variety of colors, have hind legs that are larger than
their front legs, may have spotted fur or a stump tail, and
have “sturdy muscular bodies.” Id. at 36-37.
In the cat breeding world, cat breeds are registered
with international organizations such as The Interna-
tional Cat Association (“TICA”). TICA classifies individual
cats according to a three-letter “registration status code,”
indicating the purity of the cat’s breeding. See TICA
Registration Codes, The International Cat Association,
http://www.tica-uk.org.uk/html/reg_codes.html (last
visited November 19, 2012). One of these codes, SBT, is
generally reserved for purebred cats with a three-
generation pedigree. Id. Nothing in the written descrip-
tion or claims of Ditto’s patent, however, explicitly refer-
ences the SBT level of breeding.
Two pieces of prior art are pertinent. The first is a
column titled “Home-grown Pixie-Bob is bound to capture
you,” published in The Seattle Times on July 10, 1994
(“Green”). Green describes a breed that developed natu-
rally as the result of a bobcat mating in a barn with a
family’s domestic cat. The article describes the breed as
having “a muscular, rangy body, thick legs, ticked coat,
loose skin and short tail . . . .” Appellee’s App. 45. The cats
typically weighed between eight and twenty-two pounds.
Green noted that “Pixie-Bobs are often called ‘dogs in
disguise’ because of their canine-like temperament” and
that they are “highly trainable.” Id. Carol Ann Brewer,

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IN RE DITTO 4
who is credited as the founder of the Pixie-Bob breed, is
quoted in the article and is referred to as the “Pixie-Bob
matriarch.” Id.
One year later, a newspaper article published in The
Bellingham Herald (“Porter”) described a new cat breed.
Porter explains that “[t]he breed is called Pixie-Bob, a
cross between bobcats and domestic cats.” Id. at 43.
Porter stated that, two weeks before publication of the
article, the Pixie-Bob was presented before TICA, where
the Pixie-Bob obtained “[o]verwhelming approval that
recognizes the cat as an official breed for showing and
judging”. Id. Porter added that “the optimum specimen of
a Pixie-Bob “retains the face and body features of a bob-
cat—tufts of hair over the ear, spotted fur, short tail—but
the general size and temperament of a domestic [cat].” Id.
The article notes that “[t]he cats are protective, like dogs,
and like to be on leashes,” and that they are “100 percent
people cats” with “stabilizing” personalities. Id. The
article prominently features Brewer.
After reviewing the Ditto application, the examiner
first rejected all twelve claims as directed to non-statutory
subject matter under 35 U.S.C. § 101 because the particu-
lar cat breed was known as a product of nature, resulting
from matings known to occur in the wild. The examiner
also rejected the claims as anticipated by both Porter and
Green under 35 U.S.C. §102(b).1
1 The examiner also rejected the claims under 35
U.S.C. §112 ¶ 1 as failing to comply with the enablement
requirement, finding that “[t]he specification only enables
a cat having all the claimed characteristics” and that
“[t]here is no guidance [in the specification] on achieving a
cat having none or a portion of these characteristics.”
Appellee’s App. 56-57. The Board reversed this rejection,
and enablement is not at issue in this appeal.

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IN RE DITTO 5
Ditto appealed to the Board, which issued a decision
on August 1, 2011. Its decision addressed claim 1 only,
because “[t]he claims have not been argued separately
and therefore stand or fall together.” Appellee’s App. 2
(citing 37 C.F.R. § 41.37(c)(1)(vii) (2011)). With respect to
the examiner’s non-statutory subject matter rejection, the
Board construed the claim term “purebred” as only requir-
ing breeding until a “desired effect is reached.” Id. at 7.
The Board found that “[n]o specific amount or type of
breeding is required to obtain a ‘purebred’ in light of the
teaching of the specification.” Id. Because naturally
occurring cats would have desired traits which satisfy the
requirements of claim 1, the Board held that the claim
covers non-statutory subject matter.
The Board also affirmed the examiner’s anticipation
rejection based on the claim construction. The Pixie-Bob
cat breed disclosed by Green and Porter satisfied the
requirement of claim 1 of being a breed produced by
mating a Bobcat species with a domestic cat and then
further mating to form a breed. Because the Board had
interpreted “purebred” as merely requiring breeding until
a “desired effect is reached,” there was sufficient evidence
“that the Pixie-Bob cats described in the Porter and Green
publications were bred to the point of achieving a desired
effect.” Id. at 14. Additionally, Ditto “provided no evidence
. . . suggest[ing] any difference between the Pixie-Bob cat
breed of Green and Porter and the claimed cats.” Id. at 15.
The Board also rejected Ditto’s attempt to read an “SBT
level” limitation into the court’s interpretation of pure-
bred, as the phrase did not appear in the claims or even in
Ditto’s specification.
The Board denied rehearing. This appeal followed.
This court has jurisdiction under 28 U.S.C §1295(a)(4)(A).

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IN RE DITTO 6
D ISCUSSION
When reviewing Board determinations, we review
“questions of law, such as claim construction and statu-
tory interpretation, de novo.” In re NTP, Inc., 654 F.3d
1268, 1273 (Fed. Cir. 2011). In particular, claim construc-
tion by the PTO is a question of law that we review de
novo. Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed.
Cir. 1998) However, “[t]he Board’s factual determinations,
including what the examiner considered during prosecu-
tion, are reviewed for substantial evidence.” NTP, 654
F.3d at 1273. Anticipation is a question of fact. In re
Gleave, 560 F.3d 1331, 1334-35 (Fed. Cir. 2009). What the
prior art discloses is also a factual inquiry. Para-
Ordnance Mfg., Inc. v. SGS Imps. Int’l, Inc., 73 F.3d 1085,
1088 (Fed. Cir. 1995).
I
We affirm the Board’s rejection on grounds of antici-
pation and do not reach its section 101 rejection. We begin
with claim interpretation. The parties argue for different
interpretations of “purebred.” Ditto contends that the
Board misinterpreted “purebred” as referring to breeding
to achieve “a desired effect”. Ditto urges that the term
refers to a breed that “has reached a point of stabilization
where the stabilized breed can reproduce itself on it’s [sic]
own.” Appellant’s Br. 1-2. He also argues that the diction-
ary definition of “breed” supports his position, and that
the claim should be limited to cats bred at the “SBT level”
(third generation) or perhaps that have reached a fifth
generation of breeding.
However, as the Board properly noted, claim terms
are given their broadest reasonable interpretation as they
would be understood by persons of ordinary skill in the
art in the light of specification. In re Zletz, 893 F.2d 319,
321-22 (Fed. Cir. 1989). The Board explained that Ditto

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IN RE DITTO 7
did not include a definition of “purebred” in either the
claims or the specification. Though the specification states
that the claimed cats are “bred with a domestic cat until
[they] reach[] Domestic standards,” and that such breed-
ing is done “until the desired effect is reached,” Appellee’s
App. 38, Ditto does not explain how either the terms
“Domestic standards” or “desired effect” supports an
interpretation of the term “purebred” that includes the
limitations he seeks (such as the reproducibility and SBT
level limitations). In our view, the Board properly held
that a person with ordinary skill in the art could interpret
“purebred” as “breeding until a desired effect is reached.”
Nothing in the dictionary definition of “breed” that ap-
pears in the record undermines this conclusion; it merely
reiterates that a “breed” is “a distinctive group of domes-
tic animals differentiated from the wild type under the
influence of man and usu[ally] incapable of maintaining
its distinctive qualities in nature” Webster’s Third New
International Dictionary of the English Language 274
(1993). These “distinctive qualities,” in our view, are akin
to the “desired effects” under the Board’s interpretation
that could be achieved as a result of any breeding that
occurs.
With regard to the SBT level, we, like the Board,
find no definition or description of that term in either the
claims or the specification. In addition, dependent claims
2-12 also do not reference the SBT level; they only recite
specific functional behaviors and characteristics of the cat
produced. There is also nothing in the specification or
claims suggesting that three or more generations of
breeding are required to achieve a purebred level, SBT or
otherwise. Thus, we hold that Ditto’s proposed interpreta-
tion is not supported by the specification, and we find no
error in the Board’s claim construction covering cats
which are bred to achieve any “desired effect.”

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IN RE DITTO 8
II
In light of the claim construction of “purebred,” we
consider whether the asserted claims are anticipated by
Porter and Green.
Ditto argues that the Green and Porter prior art
does not anticipate the claimed breed because, in his view,
the breed described in the references was not “considered
a purebred at this stage of the breeding chain known to
those skilled in the art.” Appellant’s Br. 6. He contends
that the Green and Porter articles only “suggest hopes of
joining a breeding program,” and that “possible accep-
tance as a breed” was not finalized until May 1998. Id.
This argument was squarely rejected by the Board, which
found that both Green and Porter described the Pixie-Bob
as a cat breed as of 1995. 2 Ditto did not file his patent
application until March 25, 1999, which is after May 1,
1998—the date at which Ditto acknowledges that the
Pixie-Bob was a recognized purebred breed. This date—
May 1, 1998—was when TICA placed the Pixie-Bob breed
into TICA’s Championship Category II.
Moreover, the Green and Porter references clearly
anticipate claim 1. They disclose characteristics of the
purebred cats that are desired effects. For example, Green
notes that Pixie-Bobs are “[o]ften characterized as ‘dogs in
disguise’ because of their canine-like temperament” and
that Pixie-Bobs are “highly trainable” and loyal. Appel-
lee’s App. 45. And Porter notes that “a Pixie-Bob . . .
retains the face and body features of a bobcat [and] the
2 The references articulate that “[t]he breed is
called Pixie-Bob, a cross between bobcats and domestic
cats,” Appellee’s App. 44, and that these cats could be the
result of a bobcat mating in a barn with a family’s domes-
tic cat. The presentation of the Pixie-Bob before TICA and
its recognition as “an official breed for showing and judg-
ing” were clearly stated in Porter’s article. Id.

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IN RE DITTO 9
general size and temperament of a domestic [cat]” and
that the cats have “stabilizing” personalities and are “100
percent people cats.” Id. at 43-44 (internal quotation
marks omitted). The similarities between Ditto’s claims
and written description of the breed and the prior art
references are striking. Substantial evidence supports the
Board’s conclusion that claim 1 is anticipated by Porter
and Green. The Pixie-Bob breed of cats describes cats that
were bred until certain “desired effects” were achieved.
We do not consider separately whether dependent claims
2-12 are anticipated because, as the board noted below,
these claims stand or fall together with claim 1. See 37
C.F.R. § 41.37(c)(1)(iv) (noting that, when claims are
argued to the Board as a group, “all claims subject to the
ground of rejection stand or fall together”). And on appeal,
Ditto has only made arguments with respect to claim 1.
Finally, Ditto argues that he was denied a proper
hearing and suffered prejudice. We observe that Ditto
was provided a full opportunity to prosecute and appeal,
and that both the examiner and the Board have carefully
and comprehensively analyzed his claims. There was no
procedural error.
For the above reasons, we affirm the Board’s deci-
sion.
COSTS
No costs.

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