Appeal 2007-0861
Application 09/381,484
Appellants argue, however, that the prior art taught that adding DHA
alone to infant formula resulted in a slowing of weight gain compared to
unsupplemented formula (Br. 3, last paragraph). Appellants argue that
“Crozier teaches away from the present invention” because it “cites a study
in which DHA from fish oil was administered to preterm infants and the
‘growth’ and ‘weight gain’ of the infants was ‘significantly depressed.’” (Id.
at 11.) Appellants argue that “[w]hile Crozier does suggest supplementing
DHA and ARA into the diets of preterm infants, it is . . . not for the purpose
of enhancing weight gain” (id. at 12).
We do not find this argument persuasive. First, for the reasons
discussed above, Crozier’s reasons for suggesting the claimed method are
irrelevant to whether the method would have been obvious.
Second, we do not agree that Crozier teaches away from the claimed
method. Crozier does indeed discuss “[e]arly experiments [that] looked at
formula supplemented with fish oil since fish oil contained preformed DHA”
(Crozier, p. S96, Summary). Crozier reports that in those experiments
“growth was significantly depressed” (id.). Crozier does not, however,
attribute this effect to the DHA in the formula; it states that the effect “may
be due to the presence in fish oil of eicosapentaenoic acid (EPA, 20 : 5 n-3)
which has structural similarities to” ARA. Crozier recommends as a source
of DHA “[c]ertain fish oils [that] are low in EPA” as “acceptable ingredients
in infant formula” (id. at S98, middle column).
Thus, a person of skill in the art would understand Crozier to teach
that the slowed weight gain found in previous experiments was a result of
using a source of DHA that also contained EPA, rather than a result of the
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