Appeal No. 2005-1949
Application No. 09/829,168
have rendered the Appellant’s claim obvious is not sufficiently
explained by the Examiner.
Accordingly, and based upon the specific facts of this
application, we reverse the obviousness portion of this
rejection. We further reverse rejections (B), (C), and (D) which
are based upon obviousness over the “Admitted Prior Art” for the
same reason.
E) The Rejection of Claims 1 and 9 under 35 U.S.C. §102(b)
as anticipated by or alternatively, under 35 U.S.C. §103(a) as
obvious over, Meyer.
Claim 1 is as reproduced above. Claim 9 reads as follows:
9. The method of claim 1 in which said composition contains
from about 4 to 8% by weight lactose.
The examiner has found that Meyer discloses feeding dogs an
artificially produced canine milk substitute including 1-25%
lactose, at least 25% fat, and 30% protein composed of casein and
whey. (Final Rejection, page 5, last three lines).
The appellant has not challenged these findings.
The examiner has additionally found that Meyer discloses a
casein/whey ratio of 5.0:2.1. (Final rejection, page 5, last line
– page 6, line 1). Accordingly, the examiner has found Meyer
anticipates the instant claims 1 and 9.
Any differences that may exist, the examiner concludes,
would have been obvious.
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