Appeal No. 2004-0973
Application No. 09/898,155
generally available to one of ordinary skill in the art that would have led that individual to
combine the relevant teachings of the references to arrive at the claimed invention.
See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
It is the examiner’s position that (Answer, page 4):
this [Hoffman] reference discloses a composition that contains valerian
and calcium carbonate. However, the reference does not specifically
teach adding the ingredients together in all the amounts claimed. The
amount of a specific ingredient in a composition is clearly a result effective
parameter that a person of ordinary skill in the art would routinely
optimize.
We agree with appellants that the examiner has provided sufficient evidence to
support a prima facie case of obviousness. Appellants have indicated for the record in
the Brief that the claims stand or fall together. We have selected claim 16 as the
representative claim. We have found herein that claim 16 is anticipated in view of
Hoffman. Anticipation being the epitome of obviousness, we also affirm the rejection of
the claims under 35 U.S.C. § 103 as being obvious in view of Hoffman. See In re
Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982). The rejection of the
claims for obviousness in view of Hoffman is affirmed.
35 U.S.C. 103(a)
Claims 16 -25 stand rejected under 35 U.S.C. 103(a) as obvious in view of
Shlyankevich. Claims 16 -25 stand rejected under 35 U.S.C. 103(a) as obvious in view
of Night Song.
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