Appeal No. 2006-2463
Application No. 10/065,326
invention must be literally present, arranged as in the claim.@ Richardson v. Suzuki
Motor Co., Ltd., 868 F.2d 1226, 1236, 9 USPQ2d 1913, 1920 (Fed. Cir. 1989).
It is recommended that the examiner take a step back and reconsider the
rejection of the claims for anticipation over Davenport and consider whether a rejection
of the claims for obviousness in view of Davenport would be more appropriate. The
examiner should determine whether every element of the claimed invention is literally
present, arranged as in the pending claim in the disclosure of Davenport, or whether
one of ordinary skill in the art is required to engage in some degree of choice among
various aspects of different embodiments described in Davenport. If no specific
example of administering the claimed composition is found in Davenport, it is
recommended that the examiner consider a rejection of all of the claims for
obviousness, instead of anticipation.
In addition, the examiner should carefully consider the relevance of Davenport to
claim 11 which requires that the omega-3 fatty acids be present in an amount from 1 to
about 5%.
2. The examiner should consider the relevance of Ishihara et al., U.S. Patent
No. 6,297,280 B1 to the pending claims. Example 2 of Ishihara describes
administration of cat food to animals to suppress behavior problems. The example
describes administration of a specific food to one of nine cats. Cat "BB" received a
food containing a DHA powder comprising 5% DHA. See also Example 3, test animals
3
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