Appeal No. 2004-0974 Page 7
Application No. 10/117,169
Brief, pages 1-2. We have been unable to locate a translation of Weil in the
official Image File Wrapper. Since neither Appellant nor we have access to the
translation that the examiner allegedly obtained, we will not consider Weil.
Thus, we are left with a rejection of claims 5-9 based on the combined
disclosures of Balch, Dawson, Zheng, Scott, and Ashmead. Since these
references were cited in both of the examiner’s § 103 rejections, our analysis
applies to both rejections.
The examiner characterized these references as follows: “Balch teaches
using vitamin E, zinc, and vitamin B6 to treat impotence. . . . Dawson teaches
using vitamin C to improve sperm quality. . . . Zheng teaches using ferulic acid to
treat male infertility. . . . Scott teaches using selenium to improve sperm
quality. . . . [Ashmead] teaches using vitamin B12 to improve male sexual
health.” Examiner’s Answer, page 5. The examiner concluded that,
[b]ased on the disclosure by the references that these substances
are used in male fertility enhancing compositions, an artisan of
ordinary skill would have a reasonable expectation that a
combination of the substances would also be useful in creating
compositions to improve male fertility. Therefore, the artisan would
have been motivated to combine . . . vitamins C, E, B6, B12,
selenium, . . . ferulic acid . . ., and zinc into a single composition.
Id., page 6.
Appellant argues that “[e]ach of the references has been relied on to pick
and choose an element of the claimed invention using the present invention as a
guide. However, such hindsight reconstruction cannot form an adequate basis
for any obviousness holding.” Appeal Brief, page 11.
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