Appeal 2006-3377
Application 09/929,075
DISCUSSION
Applying the law to the Examiner’s findings and those elaborated
above, we conclude the invention of claim 1 would have been obvious to
one of ordinary skill in the art, based on the cited prior art, particularly
Akamatsu. Akamatsu’s teaching that it is “preferred” 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.” Given this teaching,
the skilled artisan would have had a reasonable expectation of success.
Further, since claim 1 is not limited to compositions having unwanted
interactions, for example, carotenoids, Appellants’ arguments based on such
characteristics are unavailing.
Appellants appear to be arguing the skilled artisan would not expect
Akamatsu’s teachings to provide stable multicore structures but don’t
explain how their structures differ. (Br. 4-5.) They do not provide any
rebuttal evidence showing their solid preparations are more stable than those
of Akamatsu. Further, they do not provide any evidence showing their
process for making their claimed multicore structure varies from those
disclosed in the prior art, thereby overcoming any difficulties with the prior
art processes. Thus, we affirm the Examiner’s prima facie case of
unpatentability under 35 U.S.C. § 103(a).
CONCLUSION
In summary, Appellants’ invention of claim 1 would have been
obvious to one of ordinary skill in the art at the time the invention was made.
Thus, we affirm the Examiner’s rejection of claim 1 under 35 U.S.C.
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