Appeal No. 2005-1949
Application No. 09/829,168
optimum or workable ranges by routine experimentation, and
appellants have the burden of proving any criticality. Boesch,
617 F.2d at 276, 205 USPQ at 218-19; Aller, 220 F.2d at 456, 105
USPQ at 235.
We must consider whether the teachings of the prior art,
taken as a whole, would have made obvious the claimed invention.
See In re Young, 927 F.2d 588, 591, 18 USPQ2d 1089, 1091 (Fed.
Cir. 1991).
As found above, Meyer describes synthetic dog milk
substitute which has more than 30% protein, preferably between
31-40% (Meyer, translation, page 3, lines 24-25). Claim 3
recites “about 38%” protein. The appellant has not demonstrated
why this limitation is critical or why the examiner is incorrect
that this limitation reflects optimization by routine
experimentation. Accordingly, we affirm this rejection as it
relates to claim 3.
Meyer also describes a synthetic dog milk substitute with a
fat content of more than 25% fat, preferably from 25.5 to 40%.
(Meyer, translation, page 4, lines 19-20). Claim 4 recites
“about 28%” fat. Again, the appellant has not demonstrated why
this limitation is critical or why the examiner is incorrect that
this limitation reflects optimization by routine experimentation.
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