Appeal No. 2006-1878 Page 16
Application No. 10/435,367
(a) the scope and contents of the prior art;
(b) the differences between the prior art and the claimed subject matter;
(c) the level of skill in the pertinent art; and
(d) evidence of secondary considerations.
After considering the record before us, it is our view that the scope and content of
the prior art clearly establishes that animal diets are routinely put together from a variety
of different sources and components. Appellants admit in the specification that the
racehorse diet “typically consists of a mixture of grains, molasses, nutrients, and feed
additives, usually with minimal hay in the form of one or two flakes with each meal.”
Specification, ¶ 15. McKeown’s formulation of a gluconeogenic compound and fatty
acid is characterized as “feed supplement product” which is “added to the feed for
ruminants.” McKeown, column 5, lines 18-19. Diet supplementation is also Kanter’s
objective, where a “neutraceutical” supplement containing stable oat oil is formulated.
“The supplement may be administered in various forms, such as a top dress liquid, or
may be included as an ingredient in a complete nutritional supplement.” Kanter,
column 2, lines 34-37. These facts show that it was conventional in the art to combine
components from many sources to create dietary feeds for animals. Furthermore, the
prior art indicates that the skilled artisan was familiar with the process of choosing
nutrient sources to formulate a feed with proper nutrient content. With this background,
we find that the art reasonably suggests combining nutritive supplements to have
arrived at the claimed invention.
Appellants urged that there is no motivation to have combined the references
because the “references being combined in the Section 103(a) rejections are not being
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