Appeal No. 2005-2629
Application No. 10/377,474
In the present case, while appellants make the argument that
the emulsions of Cope contain components that are not recited in
the appealed claims, appellants have advanced no compelling
rationale, let alone objective evidence, which demonstrates that
the soy protein of Cope would be rendered ineffective as an anti-
oxidant by the components of the reference composition. As
pointed out by the examiner, appealed claim 1 does not quantify
the amount of reduction in the rate of oxidation. Moreover, the
claims on appeal, by virtue of using "comprising," do not
preclude the presence of additional components which are not
recited. Since the USPTO does not have the facilities and
wherewithal to test the properties of prior art compositions, it
is fair to place upon appellants the burden of establishing that
the emulsions of Cope do not exhibit a reduction in the rate of
oxidation of the lipids due to the presence of the soy protein.
Appellants maintain that the formulation of Cope is not identical
with the composition of the appealed claims. However, it is not
necessary that the compositions be identical in order to fairly
place upon appellants the burden of demonstrating that the soy
protein of Cope does not reduce the rate of oxidation of the
omega-3 polyunsaturated lipid.
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