Appeal 2006-2115
Application 09/862,077
Appellants submit that one of ordinary skill in this art would not have
found in Lowe and Franzen any teaching or suggestion to combine the same
leading to the addition of a Tyrophagus putrescentiae growth inhibiting
amount of CLA to a tallow coated pet food product as claimed without
hindsight (Br. 12; Reply Br. 2). Appellants do not dispute that Lowe teaches
a method which includes the step of adding CLA to pet food compositions,
but point out that Lowe does not disclose either the claimed methods of
manufacture and of use which include the specific step of adding CLA to pet
food compositions for the purpose of inhibiting the growth of Tyrophagus
putrescentiae, or a tallow coated pet food product containing this ingredient
for the stated purpose (Br. 12-13; Reply Br. 2-3).
Appellants contend that Franzen adds an amino acid palatability
enhancer to dog food, thus teaching away from Lowe which teaches
weight-reducing dietary dog food compositions (Br. 13; Reply Br. 3-4). In
this respect, Appellants argue that “it is likely that enhancing the taste of dog
food . . . would cause an increase in a dog’s appetite” (id.). Appellants point
out that Franzen does not teach adding CLA to the dog food composition
and coating that composition with tallow (Br. 13; Reply Br. 2).
Thus, Appellants argue that Lowe and Franzen “are directed toward
diverse products having different objectives” such that Franzen teaches away
from Lowe, and therefore, would not have been combined by one of
ordinary skill in the art to arrive at the claimed invention (Br. 13; Reply Br.
2-4).
2 A discussion of Wheeler is unnecessary to our decision. See In re Jones,
958 F.2d 347, 349, 21 USPQ2d 1941, 1942 (Fed. Cir. 1992); In re Kronig,
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