Appeal 2007-2556
Application 10/274,711
level of skill in the art.27 Those of skill in the art were aware of the panoply
of common additions to health foods and drinks, including the advantages
and disadvantages of each. They knew an ingredient could be included for
more than one use, including both a health-related and an unrelated use. For
instance, cranberry could be added to as a flavoring or to address urinary
tract infections. Amino acids could be supplements in their own right or
chelators for mineral supplements.
ANALYSIS
The reason to combine need not be the same as the appellant's stated
purpose.28 In the present case, appellant's stated purpose is not a limitation
in claim 1 anyhow. Moreover, the appellant's stated purpose of maintaining
bladder function is inherently met by the use of cranberry juice, something
all three references recommend.
Collins teaches the use of all of the ingredients in claim 1 as part of a
food supplement. Thus, the reason for combining Collins with Zhao and
Mehansho is moot since the subject matter of claim 1 would have been
obvious in view of Collins alone.
Collins, Zhao and Mehansho belong to the same art, food
supplements, and independently teach all or nearly all of the ingredients of
claim 1 as standard additions to a food supplement. When standard
27 Ex parte Jud, 2006 WL 4080053 at *2 (BPAI) (rehearing with expanded
panel).
28 In re Dillon, 919 F.2d 688, 692-94, 16 USPQ2d 1897, 1901-02 (Fed. Cir.
1990) (en banc).
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