Appeal 2007-0861
Application 09/381,484
In addition, Appellants have not compared the claimed method to the
closest prior art. The closest prior art in this case is provided by Kyle, not
Crozier, as argued by Appellants (Br. 17). Kyle discloses infant formula
containing ARA and DHA in amounts “equivalent to human breast milk,”
which the Examiner has stated (and Appellants have not disputed) are 26
mg/100 kcal ARA and 8 mg/100 kcal DHA. Kyle differs from claim 1 in
only two ways: (1) the amounts of ARA and DHA are slightly lower than
the levels recited in instant claim 1, and (2) Kyle does not disclose feeding
the disclosed formula to preterm infants.
Thus, the appropriate comparison for showing unexpected results
would be Kyle’s formula fed to full-term infants compared to the formula
recited in claim 1 fed to preterm infants. The results of such a comparison
are not of record, and thus Appellants have not shown that the claimed
method provides unexpectedly superior results compared to the closest prior
art.
SUMMARY
The cited references support a prima facie case of obviousness with
respect to claim 1, which Appellants have not rebutted. We therefore affirm
the rejection of claim 1. Claims 2-5 and 21 fall with claim 1.
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