Appeal 2006-2327
Application 10/239,287
It is prima facie obvious to combine two compositions each of which
is taught by the prior art to be useful for the same purpose, in order to form a
third composition which is to be used for the very same purpose. In re
Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980).
Here, the secondary references to Mohrman, Kealy, and Fritsch teach
coating compositions which contain acid as a palatability enhancer and
coating compositions which contain sugar as a palatability enhancer. In
light of these teachings, it would have been obvious for an artisan to provide
a third coating composition which contains both acid and sugar in order to
obtain their combined effect as palatability enhancers.1
The Appellants further argue that the applied references contain no
teaching or suggestion of pet food having a browned or seared appearance as
required by the appealed claims.
However, as indicated above, the primary references such as Brescia
teach cooking the pet foods disclosed therein via the same techniques used
by Appellants to create a browned or seared appearance. Thus, the primary
reference pet foods, when modified to include a coating of acid in
1The Appellants seem to believe that an artisan would have been concerned
that the combination of acid and sugar would interact in such a manner as to
militate against palatability. However, there is no basis for such a belief.
Indeed, the prior art teaches use of acid and sugar together in pet food albeit
not in the form of a coating (e.g., see Karwowski at ll. 21-34 of col. 8 and at
ll. 43-52 of col. 9)
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