Appeal No. 95-0523
Application No. 07/885,490
In our opinion, the examiner has engaged in impermissible
hindsight in the formulation of the rejection at issue,
particularly with respect to the expectation of success which
must be contained or suggested in the prior art.
For the reasons stated above we fail to find a prima
facie case of obviousness with respect to claims 1-26 based on
the art before us.
New Grounds of Rejection Under 37 CFR § 1.196(b)
Claims 24-26 are rejected under 35 U.S.C. § 102 as
anticipated by Mochizuki.
Mochizuki teaches a purified enzymatic composition which
is extracted from the fermentate of Aspergillus niger and
which comprises protease; polysaccharide degrading enzymes,
such as dextranase, "-amylase and $-amylase; lipase; lactase;
and sucrase. See Mochizuki column 1, line 66 through column
2, line 75. While we recognize that Mochizuki does not teach
"increasing digestibility of non-human milk baby formula"
claims 24-26 are directed to compositions rather than methods
of use and this claim language does not place a further
limitation on the composition. Moreover, the facility to
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