Appeal No. 2002-0534 Page 8
Application No. 08/551,326
• “[I]t must be emphasized that any increased protein requirement
is restricted to athletes participating in intense programs. They
do not apply to ‘casual lifters’ or ‘weekend warriors.’ It may be
some time before nutrition experts agree on the optimal protein
intake in elite athletes.” Page 125.
• “It makes little sense for average healthy active adults
consuming non-vegetarian diets to concern themselves with
protein sources or protein supplements. As long as the
minimum daily requirement for total protein is met and essential
amino acids are provided, careful scrutiny of protein sources or
paying money for expensive supplements is a waste of time.
However, for the athlete involved in heavy weight training,
consideration of the quantity, composition, and quality of
proteins may be essential.” Page 126.
• “[A]thletes who are considering protein supplements should
probably use balanced peptide formulas rather than individual
free form amino acids.” Page 128.
• “[I]f essential amino acids are in short supply, the ability to use
other amino acids for protein synthesis will be impaired. Again,
the answer is to eat foods that contain the essential amino
acids, and, if necessary, a supplement containing the correct
balance of amino acids.” Page 128.
Thus, Fahey teaches at best that protein supplements might be helpful for
“elite athletes” who are “participating in intense programs” or “heavy weight
training.” On the other hand, Monteleone’s conclusion regarding the cortisol-
blunting effect of phosphatidylserine was based on data gathered from subjects
who did not “participat[e] regularly in any kind of sport.” Page 243. The
examiner has not adequately explained what would have led the ordinarily skilled
artisan, with no knowledge of the present disclosure, to combine teachings that
were taught to be applicable to such different groups of people. See In re
Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed. Cir. 1999)
(“Measuring a claimed invention against the standard established by section 103
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