Appeal No. 2002-0534 Page 5
Application No. 08/551,326
blood.” Id. Finally, the examiner relies on each of Alekseyeva, Hager, Solgar,
and Corti-PS for their disclosures of soy-derived phosphatidylserine.
The examiner concluded that when the cited references are
[t]aken together, it would have been obvious to one of ordinary skill
in the art to provide a soy-derived phosphatidylserine supplement,
in an appropriate amount, of the purpose of reducing stress-related
inductions of cortisol, which, as a result, minimizes muscle
breakdown, and for additionally providing a source of protein for
enhancing muscle development during physical training regimens.
As such, ingestion of a protein supplement in conjunction with a
soy-derived phosphatidylserine supplement would intrinsically
enhance the assimilation of the dietary protein supplement barring
evidence to the contrary.
Id., page 9.
Appellant argues, inter alia, that the examiner’s rejection is based on
hindsight (Appeal Brief, pages 11 and 13), that the cited references do not
suggest the claim limitations requiring ingesting protein along with soy-derived
phosphatidylserine (see the Appeal Brief, page 14), and that Monteleone’s
disclosure of intravenously administered phosphatidylserine would not have
suggested the claimed invention to a “serious sports nutrition specialist of good
intent” (Appeal Brief, page 15).1
“In rejecting claims under 35 U.S.C. § 103, the examiner bears the initial
burden of presenting a prima facie case of obviousness. Only if that burden is
met, does the burden of coming forward with evidence or argument shift to the
applicant.” In re Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir.
1 Appellant also argues that he has submitted evidence showing commercial success, recognition
and adoption by others, and long-felt need in the art. See the Appeal Brief, page 12. Since we
conclude that the references cited by the examiner do not support a prima facie case of
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