Appeal No. 2005-2267 Page 8
Application No. 09/870,899
For the foregoing reasons, we reverse the rejection of claims 1-6, 8, 9, 13-
20, 23, 25, 41 and 71-102 under 35 U.S.C. § 103 as being unpatentable over
Abayasekare.
SECONDARY EVIDENCE
Having determined that the examiner has not established a prima facie
case of obviousness, we find it unnecessary to discuss the Orr Declaration relied
on by appellants to rebut any such prima facie case.
OTHER ISSUES
Prior to taking any further action on the merits, we encourage the
examiner to consider Yeh et al., “Enrichment of (n-3) fatty acids of suckling rats
by maternal dietary menhaden oil,” J. Nutr., Vol. 120, page 436 (1990).
According to Fritsche (page 1843, column 1, second full paragraph), “the
observations of Yeh, who reported a 5 to 10% greater weight gain in the rats
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