Appeal No. 2006-2575
Application No. 10/025,567
We do not find Appellants’ argument persuasive. First, the Examiner
relies on the combined teachings of the references, and it is well settled that
“[n]on-obviousness cannot be established by attacking references
individually where the rejection is based upon the teachings of a
combination of references. . . . [The reference] must be read, not in
isolation, but for what it fairly teaches in combination with the prior art as a
whole.” In re Merck & Co., Inc., 800 F.2d 1091, 1097, 231 USPQ 375, 380
(Fed. Cir. 1986). In addition, Tokoro discloses all of the limitations of claim
5, and claims 1, 3, and 5 stand or fall together.
Appellants argue that
[T]here are no motivating directions or suggestions in these
references that would impel one skilled in the art to produce the
claimed method. There is no teaching of a method of
promoting the growth of food animals by binding IgY
immunoglobulins combined with IgM and IgA
immunoglobulins to protein-wasting immunogens to inhibit the
ability of the protein-wasting immunogens to adhere to the
rumen or intestinal tracts of food animals and to reduce the
ability of the immunogens to multiply.
(Br. 25-26 (emphasis added).)
We are not persuaded by Appellants’ argument. All of the pending
claims are directed to products, not processes. Thus, claim 5 does not
require a step of binding antibodies to a microorganism. Rather, claim 5
recites a dried composition comprising the non-shell portions of an egg that
contains IgY, IgA, and IgM antibodies to E. coli, Listeria, Salmonella or
Campylobacter.
As established supra, Tokoro describes a composition having the
exact ingredients required by claim 5. Tokoro therefore demonstrates that
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