Appeal 2007-1180
Application 10/405,742
reasonable expectation of success to thereby achieve the subject matter
defined by the appealed claims. For example, Hodgkins expressly teaches
that her low carbohydrate, high-protein and fat pet food can be made using
methods known to those skilled in the art including extrusion (col. 11, ll. 52-
56). Further, Wenger teaches using an extrusion process for making a low
carbohydrate, high-protein and fat fish food. Under these circumstances, it
would have been obvious for an artisan to employ the extrusion process of
Wenger in order to make the pet food of Hodgkins in light of the
compositional similarities of the Wenger and Hodgkins food compositions
and in light Hodgkins' express teaching of using an extrusion process for
making her pet food. While we recognize that Wenger's composition is used
as an aquatic feed for fish, this fact does not forestall an obviousness
conclusion. As the Supreme Court has recently explained, "[w]hen a work is
available in one field of endeavor, design incentives and other market forces
can prompt variations of it, either in the same field or a different one" KSR
Int'l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1740, 82 USPQ2d 1385, 1395
(Fed. Cir. 2007).
Finally, Appellants argue that "Wegner [sic, Wenger] teaches away
from the present invention by encouraging the use of liquid fat, fat that
would tend not to be retained by the food particle" (Br. 8). This argument,
which appears to be applicable only to dependent claim 5, is unpersuasive.
This is because the record before us contains no evidence that liquid fat
militates against fat retention. Indeed, the Appellants explicitly teach
providing their pet food composition with fat from any source including
liquid fat (Specification para. bridging 2-3).
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