Appeal 2006-2468
Application 10/149,875
Judge KRATZ, concurring-in-part and dissenting-in-part.
Upon consideration of the opposing arguments and evidence
presented on appeal, I agree that the Examiner’s § 103(a) rejection should be
affirmed for reasons stated in the per curiam opinion. Because I would also
affirm the Examiner's § 102(b) rejection on this record, I disagree with the
majority’s reversal thereof.
The law of anticipation does not require that the reference teach what
the Appellants are claiming, but only that the claims on appeal "read on"
something disclosed in the reference (see Kalman v. Kimberly-Clark Corp.,
713 F.2d 760, 772, 218 U.S.P.Q. 781, 789 (Fed. Cir. 1983).
Here, Appellants' argument with the Examiner’s anticipation
determination centers on the claimed ranges for the PFAP and RCT
components of the claimed reduced calorie fat composition. Appellants do
not dispute the Examiner’s determination that the PFAP and RCT of Seiden
correspond to Appellants' claimed PFAP and RCT components. In this
regard, Seiden discloses a reduced calorie fat composition that includes
PFAP and RCT components in amounts that substantially overlap and
embrace the PFAP and RCT components required by representative claims 1
and 3.6
6 Appellants do not dispute the Examiner’s determination that the PFAP and
RCT of Seiden correspond to Appellants' claimed PFAP and RCT. See
37 C.F.R. § 41.37 (c).
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