Appeal No. 2006-1878 Page 7
Application No. 10/435,367
Appellants maintained that a nutricine which increases the integrity of the
digestive tract was not taught by the combination of McKeown and Howes (Brief,
pages 29-30), but in making this argument, they apparently ignored McKeown’s
teaching that glutamine – which they admit fulfills this purpose – be included in its feed
supplement. Accordingly, we do not find merit in their argument.
In addition to the gluconeogenic compound, a fatty acid is also present in
McKeown’s feed supplement. McKeown, column 5, lines 18-20; column 6, lines 7-12.
Palm seed oil is listed as an example (id., column 6, lines 7-12), which is also described
in the instant specification as a suitable source of polar lipid (Specification, page 21,
lines 1-5). Appellants did not challenge the Examiner’s finding that McKeown’s fatty
acid meets the polar lipid limitation. We have no reason to conclude differently.
The other component present in claim 1 is a “soluble fiber which slows the
passage of foodstuffs ingested together with the dietary supplement through the
stomach.” We have construed this limitation to require that the soluble fiber have the
capability to slow the movement of food from the stomach, but not to require that the
amount of fiber present in the supplement is in fact effective to achieve this result.
McKeown teaches that “inert carriers” may be present in the supplement. As an
example, the patent lists about thirteen different plant materials, including corn, oat and
other grains and grasses. McKeown, column 6, lines 38-42; column 9-10, claim 1.
Although no support was cited for the presumption that these plant materials would
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