Appeal 2006-1223
Application 10/214,009
skill in the art at the time of the invention. Accordingly, we are not
persuaded by Appellants’ assertion that the claimed composition, or any
other composition described in the specification, results in “an effective,
synergistic reduction of caloric intake” (Br. 5).
We conclude that the Examiner has set forth a prima facie case that
claim 1 would have been obvious over the cited prior art, which Appellants
have not adequately rebutted by argument or evidence. As discussed above,
claims 2 and 4-17 stand or fall with claim 1. We therefore affirm the
Examiner’s rejection of the claims under 35 U.S.C. § 103(a) as unpatentable
over Wagstaff and Portman.
Jandacek and Wagstaff
The Examiner also rejected claims 1, 2, and 4-17 under 35 U.S.C.
§ 103(a) as unpatentable over Jandacek and Wagstaff.
Wagstaff’s teachings are discussed above. According to the
Examiner, “Jandacek [ ] teaches a composition useful for treating obesity,
and enhancing and extending satiety comprising a satiety agent, e.g., ethyl
oleate, in the amount of 0.04-1.0 g/kg body weight” (Answer 4).
Again, relying on the rationale expressed in Kerkhoven, the Examiner
concludes that “it would have been prima facie obvious to a person of
ordinary skill in the art . . . to make a composition comprising both calcium
propionate and ethyl oleate because it is prima facie obvious to combine two
compositions each of which is taught in the prior art to be useful for the
same purpose in order to form [a] third composition that is to be used for the
very same purpose” (Answer 4-5).
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