Appeal No. 2005-0406 Page 2
Application No. 10/187,616
The references relied upon by the examiner are:
Walsh 6,139,872 Oct. 31, 2000
Forusz et al. (Forusz) 6,436,446 Aug. 20, 2002
(102(e) date Jul. 30, 1999)
Balch et al. (Balch), PAGET’S DISEASE OF BONE IN A PRESCRIPTION FOR
NUTRITIONAL HEALING: A PRACTICAL A-Z REFERENCE TO DRUG FREE REMEDIES USING
VITAMINS, MINERALS, HERBS & FOOD SUPPLEMENTS, pp. 417 (2ND ed., Avery
Publishing, New York 1997)
GROUND OF REJECTION
Claims 1 and 2 stand rejected under 35 U.S.C. § 103. As evidence of
obviousness the examiner relies on Forusz, Balch and Walsh.
We reverse.
DISCUSSION
As best we can understand the examiner’s rejection, Forusz is relied upon
to teach (column 2, lines 37-40), “a composition that includes a supplement to
provide the dietary needs of individuals for nutrients to support adequate bone
density and a healthy skeletal system.” The composition of Forusz comprises
Calcium 500-2000 mg
Magnesium 100-700 mg
Isoflavones (soy) 50-200 mg
…
Vitamin D3[1] 400-800 IU
Vitamin K[2] 35-85 µg
….
Forusz, however, does not teach folic acid as a component of the composition.
See Answer, page 5. To make up for this deficiency, the examiner relies on
1 According to the examiner (Answer, page 4), appellant defines vitamin D as “cholecalciferol
(p.2, [i]nstant specification).” The examiner finds (id.), Forusz discloses that the vitamin D used
therein is “[v]itamin D3 (cholecalciferol).” See Forusz, column 3, lines 15-20.
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