Appeal No. 93-2111
Application 07/630,452
because it has more than 2 unesterified
hydroxyl groups. Sucrose hexa fatty acid
ester would be preferred because it has no
more than 2 unesterified hydroxyl groups. An
example of a highly preferred compound in
which all of the hydroxyl groups are
esterified with fatty acid is sucrose octa
fatty ester.
The examiner maintains that (Answer, pp.2-3):
Appellants' claims differ in the amount
of sucrose esters within the food product and
the distribution of the partially esterified
sucrose esters within the blend of sucrose
esters. It would have been obvious to one of
ordinary skill in the art at the time the
invention was made to alter the composition
of the sucrose polyester of EPA ''856 to
obtain the composition as claimed because it
is well known in the art that sucrose esters
that are only partially esterified are
digestible. The lower the number of fatty
acids esterified onto the sucrose molecule,
the greater its digestibility. See Mattson
et al., column 3, line 36 - column 4, line 8.
We agree with appellants that the combined teachings of EPA
'856 and Mattson lead one away from the claimed invention. Both
EPA '856 and Mattson would have taught one of ordinary skill in
the art that sucrose octa fatty acid esters, and at least hepta
fatty acid esters, are most preferred for use as fat substitutes
due to their decreased absorbability, and thus lower caloric
content. See Gillette Co. v. S.C. Johnson & Son, Inc., 919 F.2d
720, 724, 16 USPQ2d 1923, 1927 (Fed. Cir. 1990) (the closest
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