Appeal 2007-0861
Application 09/381,484
DHA itself. Therefore, we do not agree that Crozier would have taught
away from the claimed method.
Appellants also argue that the Specification provides evidence of
unexpected results. Specifically, Appellants assert that there was a “general
consensus among those of ordinary skill in the art” that DHA lowers weight
gain among preterm infants. (Br. 12-13, citing Crozier and two other
research papers). Appellants argue that, based on this expectation, “any
increase in weight gain due to DHA and ARA supplementation would be
unexpected. . . . Applicant not only states that the results obtained in the
present invention were surprising and unexpected, based on the knowledge
within the art (page 4, lines 7-21), but also supports that expectation with
specific data demonstrating the improved results” (id. at 13-14).
We do not agree that Appellants’ evidence overcomes the prima facie
case of obviousness. First, we disagree with Appellants’ position that those
skilled in the art would have expected DHA-supplemented infant formula to
cause slower growth compared to unsupplemented formula. Crozier states
that the effect seen in the prior experiments was likely due to the presence of
eicosapentaenoic acid in the fish oil that was used as a source of DHA
(Crozier, page S96, Summary) and recommends using other fish oils that are
low in that fatty acid (id. at S98, middle column). The two other studies
cited in the Brief are not of record. Thus, the evidence of record does not
support Appellants’ position that those skilled in the art would have
expected DHA supplementation to slow infant growth.
10
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: September 9, 2013