Appeal No. 95-2633
Application 08/121,663
is whether the prior art teaches or suggests an olive oil having these characteristics. More specifically, does
the prior art teach or suggest an olive oil “suitable for use as an enteral or parenteral foodstuff” or an olive
oil containing formulation having an “acceptably low amount of peroxides, free acids and pigments” suitable
for enteral, parenteral, and nutritional administration.
The examiner relies on the Larson patent as evidence that the product-by-process claims are not
patentable. Larson relates to liquid diet formulations. Larson’s disclosed formulation includes “a lipid
[(fat)] component of safflower oil or a suitable equivalent.” Larson, col. 4, lines 33-34 (emphasis and
bracketed material added). Larson goes on to teach that the
fatty component in the diet may be provided in various forms. Natural fat
components such as, for example, safflower oil, soybean oil, corn oil, cotton seed
oil, coconut oil, olive oil, and the like, may be used.
Larson, col. 5, lines 29-32 (emphasis added). While the patent exemplifies the use of safflower oil, the
above-quoted language expressly teaches that olive oil is a “suitable equivalent” to safflower oil. In view
of this clear suggestion and direction, it would have been prima facie obvious for one having ordinary skill
in the art to use olive oil in the Larson formulations.
Larson also teaches that it
is intended that this composition be used for enteral feeding, either orally or by
intubation, for patients suffering from malnourishment and conditions associated
therewith as well as for maintenance of patients with compromised digestive and/or
absorptive function which can arise from a variety of causes.
Larson, col 4, lines 56-62. Thus, Larson expressly teaches a foodstuff suitable enteral feeding. The olive-
oil containing formulations suggested by Larson meet the limitation of claim 5 that the formulation be
“suitable for use as an enteral or parenteral foodstuff.”
The Larson formulations also appear to meet the limitations of claims 14 and 15, that the
formulations have “an acceptably low amount of peroxides, free acids and pigments” for both enteral and
parenteral and nutritional administration. Larson’s teaching that the diet formulation is suitable for
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Last modified: November 3, 2007