Appeal No. 94-0591
Application 07/755,610
emulsion, we conclude that the “lipid phase” of the claimed lipid
emulsion is open to fatty acids which are not long-chain fatty
acids and other lipids, including triglycerides of medium-chain
fatty acids, but only in those abnormal amounts that persons
skilled in the art would not expect to find in “oils selected
from apricot, almond, groundnut, avocado, wheat, safflower,
rapeseed, coconut, cottonseed, lupin, maize, hazelnut, walnut,
olive, oenothera, palm, palm-kernel, peach, grape, rice, rye,
sesame, soybean, sunflower, tomato, linseed and citrus oils”
(Spec., p. 3, l. 17-22). See dependent Claim 2. Moreover, we
hold that the “long-chain fatty acids” of which the lipid phase
of the claimed lipid emulsion essentially consists read on long-
chain fatty acids in the form of their triglycerides found in
polyunsaturated vegetable oils (Babayan, p. 3, last para.).2
2 We note here Babayan’s teaching at p. 3, last para.,
that “[t]he long chain triglycerides may be polyunsaturated
vegetable oils such as, corn oil, peanut oil, safflower oil,
soybean oil, sunflower seed oil, and fish oils. The preferred
long chain triglyceride oils are safflower oil, soybean oil, and
sunflower seed oil.” Consistent with our holding that the “long-
chain fatty acids” of Claim 1 encompass the triglycerides thereof,
appellant stated at page 6, 1st full para., of their Appeal Brief
(emphasis added):
Since Appellant’s invention consists essentially of only
long-chain fatty acids, Babayan teaches away from the
claimed invention. Babayan is specifically directed
to a composition comprising a mixture of medium-chain
triglycerides and long-chain triglycerides. Babayan
requires the use of both medium-chain triglycerides and
long-chain triglycerides to increase protein synthesis
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