Appeal 2007-0861
Application 09/381,484
be 5-42 mg/100 kcal of ARA2 and 1.7-17 mg/100 kcal of DHA (id.).3 The
Examiner concludes that a
person of ordinary skill in the art would have been motivated to
make a infant formula with the particular amount of ARA and
DHA herein and use the same for feeding pretermed infant,
because preterm infants are known to be in need of food with
sufficient amount of ARA and DHA and the particular amounts
of ARA and DHA herein are overlapped with the amounts
range known in the art. The particular amount herein is
considered obvious variation within the known range.
(Id. at 4-5.)
We agree with the Examiner that the cited references support a prima
facie case of obviousness. Kyle teaches that “ARA and docosahexaneoic
acid (DHA) are critical elements of muscle, organ and vascular tissues”
(Kyle, col. 1, ll. 26-28). Kyle discloses an infant formula supplemented with
“a blend of DHA single cell oil and ARA single cell oil” to provide “ARA
and DHA levels equivalent to human breast milk” (id. at col. 13, ll. 25-55).
Kyle does not specifically teach feeding the disclosed infant formula to
preterm infants.
Crozier states that
2 Again, the Answer states the units in “mg/kcal” rather than mg/100 kcal
but since the Examiner bases his calculations on the amount of infant
formula required to provide 100 kcal of energy (Answer 4), it is apparent
that “mg/100 kcal” was intended. Appellants’ calculations (see fn. 3) are
consistent with this understanding.
3 Appellants calculate the amounts to be 6.3-52.9 mg/100 kcal ARA and 2.6-
26.5 mg/100 kcal DHA. (Br. 7: 1-3; 10: 13-15.) We need not resolve whose
calculations are correct, however, since both calculated ranges overlap with
the ranges recited in claim 1.
4
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