Appeal No. 2004-0339 Page 3
Application No. 09/462,678
other nutrients essential for tissue repair and recovery” (id.). In other words, the product
is intended to serve as a food substitute.
Vester describes a “nutritional supplement formulation” intended “to aid[ ] in
preventing, delaying the onset of and/or slowing the progression of atherosclerosis[,]”
“containing a prophylactically effective amount of one or more flavonoids and folic acid
or folate” (column 2, lines 1-6). According to Vester, “[t]he combined use of these two
supplements is believed to respond to . . . common conditions implicated in
cardiovascular disease such as . . . oxidation of blood lipids in arterial walls” (column 2,
lines 23-27). The flavonoids and folic acid or folate “may [additionally] be combined in
an oral dosage with other well known nutritional supplements and/or non-flavonoid
antioxidants, e.g., selenium, vitamin E (tocopherol, particularly "-tocopherol, etc.),
vitamin C (ascorbic acid) and coenzyme Q10” (column 2, lines 28-32). Finally, Vester
suggests that “[f]lavonoids appear to act by protecting LDL against oxidation, as they
inhibit the generation of lipid peroxides and also may help protect alpha-tocopherol
(vitamin E), a major lipophilic antioxidant carried in lipoproteins, from being consumed
by oxidation in LDL” (column 3, lines 26-30).
The examiner concedes that Henningfield “does not teach the exact percentages
of all the individual components of the composition,” and does “not teach the claimed
flavenoids” at all (Answer, page 4). Nevertheless, the examiner concludes that “it would
have been within the scope of a skilled artisan to optimize the amounts of vitamins,
amino acids, proteins, fats . . . arginine, vitamin A, C[,] etc., in the compositions of
[Henningfield], with an expectation to provide the optimum immune response in trauma
or surgery patients” (id.). In addition, according to the examiner, “both [Henningfield]
and Vester teach nutritional compositions and thus [ ] are in the same field of endeavor”
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