Appeal 2006-2858
Application 10/169,910
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).
This finding demonstrates that the calorific value (energy value) involved is
a recognized result effective variable. Thus, we concur with the Examiner
that optimization of a calorific value, a result effective variable, is well
within the ambit of one of ordinary skill in the art. In re Boesch, 617 F.2d
272, 276, 205 USPQ 215, 219 (CCPA 1980) (Optimization of a variable
which is recognized in the prior art to be a result effective variable would
ordinarily be within the skill in the art.). This is especially true in this
instance since the calorific values are well known in the nutritional art to be
a result effective variable for weight control purposes.
Accordingly, for the factual findings set forth above and in the
Answer, we concur with the Examiner that Staples alone, or in combination
with Millman, would have rendered the subject matter recited in claims 1, 2,
and 4 through 22 obvious within the meaning of 35 U.S.C. § 103.
VII. ORDER
The decision of the Examiner is affirmed.
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