Appeal No. 2004-0974 Page 10
Application No. 10/117,169
fertility. On the contrary, such additional components can be administered
separately and are simply “beneficial to make sure that the animal is receiving a
balanced vitamin and mineral preparation.” Column 5, lines 20-27. Thus, we
conclude that the examiner has not adequately shown that Ashmead would have
suggested adding vitamin B12, specifically, to a composition for enhancing male
fertility.
In sum, although we agree with the examiner that the cited references
would have suggested combining some of the components recited in claim 5, we
conclude that the claimed composition as a whole would not have been
suggested by the cited references. We therefore reverse the rejection of claim 5.
Claims 6-9 depend on claim 5 and therefore the rejection necessarily fails with
respect to them as well.
New Ground of Rejection
Under the provisions of 37 CFR § 1.196(b), we make the following new
ground of rejection: claims 1-4, 10, 11, and 15 are rejected under 35 U.S.C. § 112,
second paragraph, as indefinite.
Claims 1-4 and 15 are directed to a composition that includes, among
other things, “antioxidants, including green tea, vitamin C, vitamin E or selenium.”
This limitation is indefinite. It is clear from the use of “antioxidants” that the
composition must include at least two antioxidants. More than that, however, we
cannot say. The claim language is open to at least three interpretations. It could
mean that at least two antioxidants are required, and must be selected from
those recited. Or it could mean that at least two antioxidants are required, and at
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