Appeal No. 2006-1878 Page 3
Application No. 10/435,367
Appellants provided separate reasons for the patentability of claim 43. Id., paragraph
spanning pages 39-40. This claim does not stand or fall with the other claims in the
rejection. Appellants did not separately address the patentability of claims in the
remaining two rejections. These claims stand or fall together.
We begin with claim construction because that is necessary to understand the
scope and meaning of the claims to reach the question of obviousness. Independent
claim 1 is representative since it contains the same three components present in all the
independent claims.
1. A dietary supplement for use in treating and/or inhibiting digestive tract ulcers,
comprising:
a polar lipid supplement which strengthens the mucous gut membrane
lining the inside wall of the stomach;
a soluble fiber which slows the passage of foodstuffs ingested together
with the dietary supplement through the stomach; and
a nutricine which increases the integrity of digestive tract membranes.
We also reproduce claim 43, since it was separately argued:
43. A feed supplement for use in treating and/or inhibiting digestive tract
ulcers in horses or other animals, comprising:
an oat oil-based polar lipid supplement;
ß-glucan (beta-glucan) soluble fiber;
a surfactant amino acid-based nutricine which increases the integrity of
digestive tract membranes;
a nutricine which absorbs mycotoxins and/or pathogens in the digestive
tract; and
a pH balancer that is added to the other ingredients in the feed
supplement to keep the pH of the feed supplement at an approximately neutral
pH level.
The dietary supplement claimed in claim 1 contains three components: polar
lipid, soluble fiber, and a nutricine. The polar lipid “strengthens the mucous gut
membrane” in the stomach. According to the specification, this involves “producing
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