Appeal No. 94-4461
Application 07/996,797
product as well as in terms of ratios of either protein source to carbohydrate source or a
ratio of Omega 3 acids to Omega 6 acids.
Stewart describes a pharmaceutical and dietetic composition which comprises a
mixture of Omega 3 acids and Omega 6 acids. At best, Stewart describes at column 5,
lines 46-54, that the fatty acid composition of that reference can be incorporated in “a
dietary margarine or other foodstuffs.” There is no explicit disclosure in Stewart that the
fatty acid composition of that reference should be incorporated in foodstuffs having a
protein and carbohydrate content. Thus, Stewart would not have suggested to one of
ordinary skill in the art to prepare a foodstuff as required by the claims on appeal.
The examiner attempts to rectify this deficiency of Stewart by repeatedly chanting
the mantra of “obvious to the skilled artisan.” See, e.g., pages 4-5 of the Examiner’s
Answer. However, it is well settled that a conclusion of obviousness must be based upon
facts, not generalities. In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA
1967), cert. denied, 389 U.S. 1057 (1968); In re Freed, 425 F.2d 785, 788, 165 USPQ
570, 572 (CCPA 1970).
The examiner’s rejection is reversed.
OTHER ISSUES
1. Proper dependent claims
4
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007