Appeal 2006-2858
Application 10/169,910
2. The Appellants have not disputed the Examiner’s determination that
one of ordinary skill in the art would have been led to employ the amount of
the electrolytes and/or minerals recited in claim 12, as suggested by
Millman, in the nutritional drink described in Staples.
3. The Appellants’ only argument is that Staples would not have
suggested the claimed energy value of 40-60 kcal/100ml of drink.
4. Staples’ Example 1 shows a beverage having an energy value of 72
food Calories per 240 mililiter (30 food Calories per 100 ml (30 kcal per
100ml of beverage)) and an osmolarity of 276 mOsmol/kg.
5. Staples’ disclosure is not limited to its Example 1. Staples, for
example, describes beverages having an osmolarity ranging from 140 to 375
mOsmol/kg (not limited to an exemplified beverage having an osmolarity of
276 mOsmol/kg). These osmolarity values overlap with the Appellants’
claimed and preferred osmolarity values.
6. The Appellants have acknowledged at page 3 of the Specification that
the energy value is linked to or related to the osmolarity.
7. Staples, by teaching an osmolarity ranging from 140 to 375
mOsmol/kg, necessarily teaches beverages having corresponding energy
values, including those claimed.
8. The Appellants have not disputed the Examiner’s finding at page 3 of
the Answer that:
[I]t would have been within the skill of the ordinary worker to
add more ingredients to increase the caloric value of the drink.
The reference discloses that in choosing the amounts and types
of any of the ingredients, . . . they must be balanced to achieve
the desired osmolarity and . . . the sweetener . . . limited in
order to achieve the balance (page 13, lines 12-25).
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