Appeal 2006-1223
Application 10/214,009
Additionally, we note that Appellants have not argued the claims
separately. Therefore, we will focus on claim 1 as representative of the
claimed subject matter, and claims 2 and 4-17 will stand or fall with claim 1.
37 C.F.R. § 41.37(c)(1)(vii).
REFERENCES
The Examiner relies on the following references:
Wagstaff US 5,635,535 Jun. 3, 1997
Portman US 6,207,638 B1 Mar. 27, 2001
Jandacek WO 02/00042 A2 Jan. 3, 2002
OBVIOUSNESS
Portman and Wagstaff
The Examiner rejected claims 1, 2, and 4-17 under 35 U.S.C. § 103(a)
as unpatentable over Portman and Wagstaff. As discussed above,
Appellants elected the composition comprising calcium propionate and ethyl
oleate for prosecution on the merits.
According to the Examiner, Wagstaff “teaches a composition for
reducing body weight comprising . . . [a] daily dosage of calcium propionate
[of] 0.1 gram to 5 grams” (Answer 3).
In addition, Portman “teaches a composition useful for treating
obesity, and enhancing and extending satiety comprising oleic acids in the
amount of 1-4 gram[s], calcium, and insoluble fiber” (Answer 3). We note
that Appellants do not dispute the Examiner’s assertion that “one of ordinary
skill in the art would have seen the employment of the ester of oleic acid as
an obvious variation to the employment of oleic acid” (id.).
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