Appeal 2006-2858
Application 10/169,910
This finding demonstrates that the calorific values (energy values) involved
are a recognized result effective variable.
9. Calorific values are also well known in the nutritional art to be a result
effective variable for weight control purposes.
10. Optimization of calorific values, a result effective value, is well within
the ambit of one of ordinary skill in the art.
VII. ANALYSiS
The Appellants have not disputed the Examiner’s finding at page 3 of
the Answer that Staples describes a nutritional drink comprising at least one
protein, at least one carbohydrate (sweetener) and at least one salt (sodium
ion) with an osmolarity ranging from 140 to 375 mOsmol/kg (Br. 3-4). Nor
have the Appellants disputed the Examiner’s determination at page 6 of the
Answer 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 in the
nutritional drink described in Staples (id.). The Appellants’ only argument
is that Staples would not have suggested the claimed energy value of 40-60
kcal/100ml of the drink (Br. 3). In support of this position, the Appellants
refer to a beverage in Staples’ Example 1 which is said to have an energy
value of 72 food Calories per 240 mililiter (30 food Calories per 100 ml (30
kcal per 100ml of the drink)) and an osmolarity of 276 mOsmol/kg (Br. 3
and Staples, Example 1).
Therefore, the dispositive question is whether Staples would have led
one of ordinary skill in the art to provide the claimed energy value (defined
in terms of kcal/100 ml of drink) to its nutritional drink comprising at least
6
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