Appeal No. 2004-0340 Page 6
Application No. 09/847,121
modular formulations “provide the right amount of the right micronutrients at the
right time to avoid and overcome the problems commonly seen with vitamin
supplementation today.” Column 5, lines 22-25.
Thus, Riley describes the disclosed modular formulations as providing
advantages over compositions comprising all of the disclosed micronutrients in a
single composition. Modifying the reference’s teaching as suggested by the
examiner—by combining the components of the different modules into a single
composition—would destroy the very advantages touted by Riley. Thus, we do
not agree with the examiner that Riley would have rendered obvious the
composition of the instant claims.
The examiner argues that Riley discloses that “Modules 1-3 . . . may be
administered together or independent of one another.” Column 6, lines 40-42.
Thus, “[i]f one were to consider each module as a dosage form such as a tablet,
following the teaching of Riley one would take the three tablets (Modules 1-3)
concomitantly.” Examiner’s Answer, page 4. The examiner argues that
Appellant’s argument—that three tablets do not suggest a single composition—
amounts to an argument that “the difference between the instant claims and
Riley’s teaching is that Riley teaches a modular formulation comprising Vitamins
A, C, D, E and quercetin in more than one tablet while appellant teaches Vitamins
A, C, D, E and quercetin in a single tablet.” Examiner’s Answer, page 5.
We agree with the examiner that this difference is what distinguishes the
claimed composition from those disclosed in the prior art. We also agree with the
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