Appeal 2006-1223
Application 10/214,009
us that it would not have been obvious for one skilled in the art to combine
long and short chain fatty acids in a single satiation-enhancing composition.
Finally, Appellants argue that they have “explicitly shown . . . that
wherein non-optimized levels of SCFA and LCFA are dosed separately, to
separate dosing groups, the reduction in caloric intake amongst both dosing
groups is also found to be non-optimized. In contrast, where the SCFA and
LCFA are dosed together, in the same dosing group, using the same non-
optimized level of each, an effective, synergistic reduction of caloric intake
is achieved” (Br. 5).
We note that the specification states that “the combination of SCFA
and LCFA . . . results in a true synergistic response which is greater than
would have been expected” (Specification 5: 27-29). However,
[i]n order for a showing of “unexpected results” to be probative
evidence of non-obviousness, it falls upon the applicant to at
least establish: (1) that there actually is a difference between the
results obtained through the claimed invention and those of the
prior art; and (2) that the difference actually obtained would not
have been expected by one skilled in the art at the time of the
invention.
In re Freeman, 474 F.2d 1318, 1324, 177 USPQ 139, 143 (CCPA 1973).
The present specification contains several examples of compositions
containing both SCFA and LCFA, but none is compared in any way with a
composition containing one, but not the other. Thus, Appellants have not
established that there is a difference, synergistic or otherwise, between their
results and the results obtained using the compositions of the prior art.
Moreover, even assuming that there is a difference, Appellants have not
established that any such difference would have been unexpected to one of
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