Appeal No. 2006-1878 Page 8
Application No. 10/435,367
inherently contain soluble fiber, we find it reasonable in view of the dictionary definition
of fiber which indicates it is from a plant source3.
Appellants did not rebut this reasonable presumption. “Indeed, as anyone who is
even the least bit familiar with horses will rapidly recognize, oats fed to horses will pass
quickly through the stomach.” (Underlining removed.) Brief, page 28. This argument
rests on the mistaken belief that claim 1 requires that the soluble fiber be present in
amounts that would affect the food’s transit through the stomach. In our construction,
even trace amounts would suffice to meet the soluble fiber limitation. Accordingly, we
do not find Appellants’ argument to be persuasive.
Claim 16 was separately argued. This claim specifies that the soluble fiber is
beta-glucan. Appellants contend that beta-glucan is “neither taught nor suggested” by
the cited prior art. Brief, page 28. While there may be no explicit mention of beta-
glucan, its presence in the dietary supplement would be certain because, as admitted in
the instant application (¶ 52), it is a component of oat which, as discussed earlier, is
described in McKeown’s supplement along with other disclosed plant materials and
grains.
In sum, as stated by the Examiner, McKeown teaches all three elements of the
claimed composition. Answer, page 8, lines 10-11; page 13, lines 3-5; page 15,
lines 14-16. Inasmuch as all three elements required by claim 1 are taught by
McKeown, we also find that claim 1 is anticipated under § 102(b). Since “anticipation is
the epitome of obviousness,” we do not designate this as a new ground of rejection.
3 Fiber: “a filamentous matter from the bast tissue or other parts of plants.” The Random House College
Dictionary, Revised edition, Random House, Inc., 1975, page 490.
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