Appeal No. 2006-1878 Page 15
Application No. 10/435,367
McKeown, Howes, and Schaefer
Claims 22-24 and 52 stand rejected under 35 U.S.C. §103(a) as unpatentable
over McKeown in combination with Howes, and further in combination with Schaefer7.
Appellants did not specifically traverse the rejection over the Schaefer patent. In
their Brief, it was stated that this “ground of rejection is not being specifically appealed
because it relates only to dependent claims which will be patentable if the independent
claims upon which they depend are found to be patentable.” Brief, line spanning pages
13-14. Accordingly, we summarily affirm this rejection for the reasons discussed above.
All references cited in the rejection are related
Appellants argued that the Examiner had improperly combined the references
because they were unrelated to the problem addressed in their application. Brief,
page 15; Reply brief, page 5. We address this argument separately because Appellants
considered it a serious defect in the rejection, referring to it repeatedly in their briefs.
The five references cited by the Examiner are completely unrelated (both to each
other and the claimed invention) other than the fact that they all relate generally
to dietary supplements … Since each of the references deals with a different
unrelated problem, and since none of the references deal with the problem
contemplated by the present invention, there would have no reason for one
skilled in the art to make the combinations of references made by the Examiner.
Brief, page 15.
To establish obviousness, the Supreme Court in Graham v. John Deere,
383 U.S. 1, 148 USPQ 459 (1966) has required that the following factors be taken into
consideration:
7 Schaefer et al. (Schaefer), U.S. Pat. No. 5,505,968, issued Apr. 9, 1996
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