Appeal 2006-3377
Application 09/929,075
ISSUE ON APPEAL
The Examiner found “Akamatsu et al. teach microcapsules of multi-
core structure comprising natural carotenoid for additive agents for food and
pharmaceuticals. The core particles contain the natural carotenoid, and have
a particle size of 0.01 to 5 µm. The microcapsules have mean particles size
of 50 to 3,000 µm. See, particularly, col. 1, lines 6-16, lines 35-42, col. 2,
lines 43-58, col. 4, line 45 to col. 5, line 23.” (Office Action (hereafter
“OA”) 3 (mailed 4/09/2003) (incorporated in Final Office Action 2 (mailed
October 28, 2003).) “Akamatsu et al. specifically state: ‘The natural
carotenoid which can be used herein includes palm oil carotenoid, donariera
algae carotenoid, carrot carotenoid, alfalfa carotenoid, corn carotenoid, and
tomato carotenoid alone or in admixture of two or more. It is preferred that
at least two carotenoids selected from a-carotenoid, b-carotenoid, r-
carotenoid, and lycopene be contained.’ Col. 3, lines 22-32” (Answer 6-7
(emphasis added)). “Possessing this teaching, and in view the fact that
individual carotenoids are available as fine particle[s], it would have been
obvious to incorporate different carotenoid particles into a multiple core
structure.” (Id.)
Appellants contend
each of the multiple core structures shown in the cited art
contains the same active ingredient(s). . . . Conversely, the
present invention . . . claims multiple core structures with
more than one active ingredient with at least two cores of a
multicore structure having a different chemical composition.
. . . [O]ne would not have been motivated to pick and choose
elements from the examiner’s cited reference[s] to arrive at
the present claims.
Substitute Brief on Appeal (“Br.”) 4 (received Nov. 1, 2005).
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