Appeal No. 2006-1878 Page 12
Application No. 10/435,367
contains other oils, including conjugated linoleic acid. Kanter, Abstract, column 2, lines
5-21. According to the Examiner, it “would have been obvious to a person of ordinary
skill in the art to substitute one known supplemental oil/triglyceride for another.” Office
action dated May 6, 2004, page 4. The Examiner also stated that the skilled artisan
would have been motivated to add oat oil to McKeown’s supplement in order to reduce
the incidence of gastric ulcers caused by high carbohydrate feed. Answer, page 13.
Appellants argued that “[t[he addition of the Kanter et al. fat supplement, which
uses oat oil to prevent the fat supplement from becoming rancid, has no purpose or
function which would suggest its addition to” McKeown or Howes. Brief, page 38.
We are not persuaded by Appellants’ arguments. Obviousness does not require
an express suggestion to have modified the prior art. Kahn, 441 F.3d at 987-88,
78 USPQ2d at 1336. Knowledge of a problem and how to solve it may substitute for
explicit directions. Id. Kanter states that fat sources utilized in feeds “all have short
shelf-lives under field conditions and will tend to become rancid.” Kanter, column 1,
lines 14-20. Fat is an essential component of McKeown’s supplement. McKeown,
Abstract. The skilled worker would have recognized that McKeown’s feed supplement
is susceptible to becoming rancid because of the presence of fats, but would have
known from Kanter that replacing at least a portion of the fat with oat oil would have
solved the problem. In our view, this establishes adequate motivation to have modified
McKeown’s supplement with Kanter’s teaching. Since Appellants have not given
sufficient reason to rebut this, we shall affirm the rejection as it applies to claims 3, 5-10,
and 46.
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