Appeal 2006-2130
Application 10/236,111
matter would have been obvious to one of ordinary skill in the art within the
meaning of § 103 in view of the applied prior art. Accordingly, we will
sustain the Examiner’s rejection for essentially the reasons expressed in the
Answer. We add the following for emphasis.
Appellant does not argue the claims separately. Thus, we select
claim 1 as the representative claim on which we shall decide this appeal.
Schul discloses or suggests compositions comprising a sterol ester
wherein the sterol moiety of the sterol ester is a phytosterol (plant sterol) and
the ester moiety is a blend of fatty acids comprising oleic acids in amounts
that overlap the representative claim 1 range of at least 80 percent oleic acid.
See, for example, paragraphs 0016, 0045, 0046 and 0048 of Schul. In this
regard, we note that the Examiner cites Baileys and Olive Oil Chemistry to
evidence that olive oil is known to contain up to 82 percent oleic acid.
Moreover, we note that Schul (para. 0045) teaches the use of high oleic
sunflower oil as a suitable fatty acid ester.2 Consequently, we agree with the
Examiner that the evidence relied upon makes out a prima facie case of
obvious for the subject matter of representative claim 1. See In re Peterson,
315 F.3d 1325, 1329-30, 65 USPQ2d 1379, 1382 (Fed. Cir. 2003) (“A
prima facie case of obviousness typically exists when the ranges of a
claimed composition overlap the ranges disclosed in the prior art…”); In re
Geisler, 116 F.3d 1465, 1469, 43 USPQ2d 1362, 1365 (Fed. Cir. 1997); and
In re Woodruff, 919 F.2d 1575, 1578, 16 USPQ2d 1934, 1936-37 (Fed. Cir.
1990).
2 Appellant acknowledges (Specification, p. 4, ll. 7-18) that known high oleic
sunflower oils contain oleic acid contents within the claimed range of at
least 80 percent oleic acid.
3
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