Appeal No. 2005-2629
Application No. 10/377,474
the omega-3 polyunsaturated lipids and soy protein in amounts
taught in the present specification.1 Appellants' specification
discloses that "the emulsion of the invention comprises from
about 0.1 to about 50 percent polyunsaturated omega-3 or omega-6
lipids and from about 0.5 to about 5 percent soy protein" (see
sentence bridging pages 4 and 5). Consequently, since Cope
describes aqueous emulsions that comprise concentrations of
omega-3 polyunsaturated lipids and soy protein that are disclosed
by appellants to reduce the rate of oxidation of the lipids, we
find it reasonable to conclude that the soy protein-containing
aqueous emulsions of Cope reduce the rate of oxidation of the
omega-3 polyunsaturated lipid component of the emulsion. It is
well settled that when a prior art composition reasonably appears
to be substantially the same as a claimed composition, it is
eminently fair to place upon an applicant the burden of proving
that the prior art composition does not possess characteristics
attributed to the claimed composition. In re Spada, 911 F.2d
705, 708, 15 USPQ2d 1655, 1658 (Fed. Cir. 1990); In re Best,
562 F.2d 1252, 1255, 195 USPQ 430, 433 (CCPA 1977).
1 Please see pages 10 and 11 of the Examiner's Answer.
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