Appeal 2006-2468
Application 10/149,875
consistency benefit depends on the particular RCT and the PFAP employed.
See, e.g., column 12, lines 5-10 of Seiden. Thus, the results presented in the
Kester Declaration are based on tested compositions that are not
commensurate in scope with both the RCT and PFAP component of the
composition and the amounts thereof (only 22.5% and 30 % RCT tested)
required by either representative claim 1 or 3. See In re Dill, 604 F.2d 1356,
1361, 202 U.S.P.Q. 805, 808 (C.C.P.A. 1979).
Moreover, Seiden teaches that higher levels (about 60 to about 90
weight percent) of RCT are not required for the stool /AAL benefit when
liquid polyol polyesters are employed. In this regard, a specific liquid
sucrose polyester was employed as the PFAP in the fat tests reported in the
Keister Declaration. Thus, Seiden is generally suggestive of the stool
consistency benefits asserted by Appellants.
In sum, Appellants have not fairly demonstrated unexpected results
for the claimed subject matter based on the limited tests furnished in the
Kester Declaration, especially given the strong prima facie case of
obviousness presented by the teachings of Seiden.
Having reconsidered all of the evidence of record proffered by the
Examiner and Appellants, we have determined that the evidence of
obviousness, on balance, outweighs the evidence of nonobviousness. Hence,
we conclude that the claimed subject matter as a whole would have been
obvious to one of ordinary skill in the art. Accordingly, we affirm the
Examiner’s Section 103(a) rejection.
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