Appeal 2006-3377
Application 09/929,075
“One of the basic requirements of a prima facie case of obviousness is
there must be a reasonable expectation of success. . . . [T]here would not be
[a] reasonable expectation of success if only based on the knowledge of one
of ordinary skill in the art” because of known “unwanted interactions among
the carotenoids when in close contact.” (Br. 4-5.)
In view of these conflicting positions, we frame the issue to be
decided as follows:
In view of the cited prior art, particularly Akamatsu, would the skilled
artisan have been motivated to make a multicore structure having two cores
of different chemical compositions with a reasonable expectation of success?
FINDINGS OF FACT
Claim Interpretation
Claim 1 requires “a multicore structure in which at least two cores . . .
have a different chemical composition.”
The language of claim 1 does not limit the “chemical composition” to
any particular compositions.
Claim 1 is not limited to chemical compositions having unwanted
interactions, such as the carotenoids.
A “multicore structure is a particle species (secondary particle) having
a mean particle size of from 5 to 3000 µm . . . , in which a further particle
species (primary particle), called cores, is embedded in a matrix.” (Spec.
at 2.)
The Cited Prior Art
“Akamatsu et al. teach microcapsules of multi-core structure
comprising natural carotenoid for additive agents for food and
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