Appeal No. 2004-0339 Page 2
Application No. 09/462,678
Alexander 5,053,387 Oct. 1, 1991
Vester 6,203,818 Mar. 20, 2001
Henningfield et al. (Henningfield) WO 93/16595 Sept. 2, 1993
Claims 1, 2, 4-8, 10-12, 14-18 and 20 stand rejected under 35 U.S.C. § 103 as
unpatentable over Henningfield and Vester, while claims 9 and 19 stand rejected under
35 U.S.C. § 103 as unpatentable over Henningfield, Vester and Alexander.
We reverse both of these rejections.
DISCUSSION
In its broadest aspect, the claimed invention is directed to a nutritional
composition comprising proteins, carbohydrates and fats, and, in defined ratios, arginine
equivalents, ascorbic acid equivalents, "-tocopherol equivalents (e.g., vitamin E) and
flavenoids (claim 1).1
There are two rejections under 35 U.S.C. § 103, and each is founded on the
combination of Henningfield and Vester. We view the examiner’s proposed combination
of these two references as the dispositive issue in each of the rejections, so we will
discuss the rejections together.
Henningfield describes a “nutritional product for persons subjected to trauma or
surgery” (page 1) comprising partially digested protein (a certain portion of which is L-
arginine), carbohydrates and fats, as well as various minerals, salts, and vitamins A, B,
C, D and E. The product has a caloric density of about 1.2 to 1.5 Kcal/mL and a calorie
to nitrogen ratio of about 112:1 to 145:1 and is intended to “replace or maintain the
body’s normal level of nutrients by providing adequate energy substrates, protein, and
1 Arginine equivalents are “metabolic equivalents of arginine such as ornithine or
citrulline” (specification, page 2); ascorbic acid equivalents are “compounds that can be
transformed to ascorbic acid in the body, such as dehydroascorbic acid, ascorbyl
palmitate and other ascorbyl esters” (id., page 3); and "-tocopherol equivalents include
D-$-tocopherol, D-(-tocopherol, D-"-tocotrienol, etc. (id.).
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