Appeal No. 2005-2267 Page 3
Application No. 09/870,899
omega-3 fatty acids, … the particular time for the administration
such as about 30 days before a first mating through a second
mating, and stabilizing the fish oil by prilling.
Id.
The examiner relies on Boudreaux to make up for deficiency in Fritsche
relating to appellants’ claimed ratio of omega-6 fatty acids to omega-3 fatty acids.
According to the examiner (Answer, page 5), Boudreaux teaches, “the range of
the ratio of omega-6 fatty acids to omega-3 fatty acids … in the composition to be
administered to animals is within the instant claim.” The examiner accounts for
all other deficiencies in Fritsche by simply asserting that they would have been
obvious to a person of ordinary skill in the art. See Answer, pages 5-6.
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness.” In re Rijckaert, 9 F.3d
1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). The test of obviousness is
“whether the teachings of the prior art, taken as a whole, would have made
obvious the claimed invention.” In re Gorman, 933 F.2d 982, 986, 18 USPQ2d
1885, 1888 (Fed. Cir. 1991). In our opinion, the combination of references relied
upon by the examiner fail to establish a prima facie case of obviousness.
As appellants point out (Brief, page 9), notwithstanding the examiner’s
assertion, Fritsche “teaches that administering to pregnant sows a feed
composition supplemented with 3.5% or 7% by weight of menhaden fish oil does
not increase the number of live pigs born per litter, does not increase birth
weights, and does not increase weaning weights.” See e.g., Fritsche, page
1843, column 1, second full paragraph, “the number of live pigs born per litter …
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