Appeal 2006-2468
Application 10/149,875
composition complying with Appellants’ narrower claimed ranges of RCT
components (see representative claims 1 and 3).
To the extent that Appellants are asserting that the Kester Declaration
(Declaration of March 15, 2005) establishes unexpected results for the
claimed subject matter, we note that the question as to whether unexpected
advantages have been demonstrated is a factual question. In re Johnson,
747 F.2d 1456, 1460, 223 U.S.P.Q. 1260, 1263 (Fed. Cir. 1984). Thus, it is
incumbent upon Appellants to supply the factual basis to rebut the prima
facie case of obviousness established by the Examiner. See, e.g., In re
Klosak, 455 F.2d 1077, 1080, 173 U.S.P.Q. 14, 16 (C.C.P.A. 1972).
Appellants, however, do not provide an adequate explanation in the Brief as
to how the factual showing in the Declaration supports a conclusion of
unexpected advantages that is adequate to overcome the obviousness
rejection before us.
In particular, we note that the four reduced calorie fat compositions
subjected to an animal model test in the Kester Declaration were made using
a specific PFAP (a liquid sucrose polyester derived from cottonseed oil with
a specific fatty acid composition) and a specific RCT ( a structured
triglyceride comprised of 47.9% behenic acid, 21.6% caprylic acid, and
27.3 % capric acid). Neither of representative claims 1 and 3 is so limited as
to the PFAP and the RCT components of the fat composition. This is
particularly significant in that Seiden teaches that the particular amount of
RCT employed in the fat composition for a particular AAL or stool
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