Appeal 2007-1180
Application 10/405,742
certain pet food diets rather than to the compositions of claims 1-5 (Br. 6)
and that Wenger and Kearns disclose extrusion processes for fish food but
not the pet food compositions of the appealed claims (Br. 6-7). The
Appellants also argue that the applied references contain no teaching or
suggestion for combining them in such a manner as to yield the claimed
subject matter based upon a reasonable expectation of success (Br. 7-8).
For the reasons which follow, we will sustain the above-noted
rejection.
As an initial matter, we do not agree with all of the claim distinctions
urged by Appellants. For example, Hodgkins’ pet food composition (e.g.,
Example 3 at col. 15-16) includes the ingredients and amounts required by
composition claims 1-5. Moreover, Appellants have proffered no evidence
to show that the dimensional stability of Hodgkins' composition particles
differs from the dimensional stability required by claims 1-5. See In re Best,
562 F.2d 1252, 1255-56, 195 USPQ 430, 433-34 (CPA 1977).
Similarly, the fish food pellets of Wenger contain ingredients and
amounts falling within the scope of claims 1-5 (col. 1, ll. 39-65; claim 1 at
cols. 15-16). Moreover, the Appellants again have provided the record with
no evidence that the dimensional stability of Wenger's pellets differs from
the dimensional stability required by the appealed claims. Best, 562 F.2d at
1255-56, 195 USPQ at 433-34. In addition, Wenger's pellets are prepared
by extruding at increased shear as required by method claims 6 and 7 (col. 2,
ll. 17-18; col. 3, ll. 35-44).
We also do not agree with Appellants that an artisan would not have
been motivated to combine the applied reference teachings based upon a
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