Appeal 2006-3377
Application 09/929,075
pharmaceuticals. The core particles contain the natural carotenoid, and have
a particle size of 0.01 to 5 µm. The microcapsules have mean particle[]
size[s] 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.” (OA 3.)
Akamatsu’s coating material is “based on gelatin” (col. 3, ll. 11-13),
just as Appellants’ coating material can be (Spec. at 6, ll. 1-2); and
Akamatsu’s core material “contains natural carotenoid, [and] an edible oil”
(col. 3, ll. 18-21), just as Appellants’ can (Spec. at 3, l. 45 to 4, l. 2; Spec. at
6, ll. 36-38).
“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)).
Akamatsu teaches their “microcapsule has a strength enough to
protect natural carotenoid from oxidation and deterioration . . . ” (Abstract).
Khachick, Ausick, and Horn are relied upon to address additional
limitations in claims 2-10 and 19 and are not required to determine the
patentability of claim 1.
Other Findings
Akamatsu’s suggestion to combine “at least two carotenoids” in their
multicore structures would have motivated the skilled artisan to make the
multicore structure of claim 1 “having at least two cores,” each with a
“different chemical composition.”
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