Appeal No. 2006-1878 Page 11
Application No. 10/435,367
“An applicant may rebut a prima facie case of obviousness by providing a
‘showing of facts supporting the opposite conclusion.’ Such a showing dissipates the
prima facie holding and requires the examiner to ‘consider all of the evidence anew.’
Rebuttal evidence may show, for example, that the claimed invention achieved
unexpected results relative to the prior art.” In re Kumar, 418 F.3d 1361, 1368,
76 USPQ2d 1048, 1052 (Fed. Cir. 2005) (internal citations omitted).
We recognize that the instant application states “the dietary supplement of the
present invention” yields a “synergistic” result. Specification, ¶ 26. However, we do not
find that the examples beginning on page 29 show evidence of synergy, i.e., that the
combination shows substantially more effect than any of the ingredient’s acting alone.
Id., ¶ 26. For the foregoing reasons, we conclude that the Examiner has provided
adequate evidence to establish a case of prima facie obviousness. On the record
before us, we do not find a sufficient showing to rebut it. Accordingly, this rejection is
affirmed as it relates to claims 28, 29, 31-33, 35, 36, 53-55, and 61.
McKeown, Howes, and Kanter
Claims 3, 5-10, 43, and 46 stand rejected under 35 U.S.C. § 103(a) as
unpatentable over McKeown in combination with Howes, and further in combination with
Kanter5.
The Examiner rejected dependent claims that required oat oil as the source of
the polar lipid over the Kanter patent. Kanter describes “highly stable” oat oil that also
5 Kanter et al. (Kanter), U.S. Pat. No. 6,410,067, issued Jun. 25, 2002
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: November 3, 2007