Ex Parte Lystrup et al

Board of Patent Appeals and Interferences

Jan 23, 2009

10276463 (B.P.A.I. Jan. 23, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
__________

Ex parte KERN LYSTRUP, MICHAEL LAUDRUP,
MORGENS KREUTZFELDT, and LEIF KNUDSEN
__________

Appeal 2008-5506
Application 10/276,463
Technology Center 1600
__________

Decided: January 23, 2009
__________

Before TONI R. SCHIENER, LORA M. GREEN, and
RICHARD M. LEBOVITZ, Administrative Patent Judges.

GREEN, Administrative Patent Judge.

DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from the
Examiner’s final rejection of claims 17 and 19-32. We have jurisdiction
under 35 U.S.C. § 6(b).

STATEMENT OF THE CASE
The claims are directed to a dietary supplement in the form of a tablet.
Claim 17 and 27 are the independent claims on appeal, and read as follows:
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Application 10/276,463
17. A tablet containing a nutritional composition for dietary supplements
to a diet on a regular daily basis, said tablet comprising:
a vitamin portion comprising β-carotene, vitamin B1, vitamin B2,
vitamin B3, vitamin B5, vitamin B6, vitamin B12, folic acid, biotin, vitamin C,
vitamin D3 and vitamin E;
a mineral portion comprising calcium, magnesium, zinc, iron, iodine,
selenium and chrome;
at least 40% by weight microdispersed fish oil granulate containing
polyunsaturated fatty acids comprising eicosapentaenoic acid (EPA) and
docosahexaenoic acid (DHA);
wherein content amounts of each of the selected vitamins, minerals
and the fish oil content are proportionally selected in accordance with
desired daily requirements.

27. A tablet containing a nutritional composition for dietary supplements
to a diet on a regular daily basis, said tablet consisting of:
a vitamin portion, comprising, relative to total weight of the vitamin
portion in the tablet, the following vitamins:
0.1-0.2 % β-carotene,
0.03-0.05 % vitamin B1,
0.04-0.06 % vitamin B2,
0.4-0.5 % vitamin B3,
0.1-0.25 % vitamin B5,
0.04-0.07 % vitamin B6,
0.02-0.03 x 10-3 % vitamin B12,
0.004-0.008 % folic acid,
0.003-0.004 % biotin,
1-2 % vitamin C,
0.1-0.2 x 10-3 vitamin D3, and
0.2-0.4 % vitamin E;
a mineral portion comprising, relative to the total weight of the
mineral portion in the tablet, the following minerals:
8-12 % calcium,
3-4.5 % magnesium,
0.3-0.45 % zinc,
0.3-0.5 % iron,
0.0030-0.0060 % iodine,
0.0010-0.0020 % selenium, and
0.0010-0.0020 % chrome; and
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at least 40 % by weight of a microdispersed fish oil granulate
containing polyunsaturated fatty acids including eicosapentaenoic acid
(EPA) and docosahexaenoic acid (DHA); and excipients in an amount
sufficient to provide tabletting.

The Examiner relies on the following references:
Sultenfuss 5,514,382 May 07, 1996

Horn EP 0276772 A2 Mar. 03, 1988
Vogeler EP 0266323 A1 May 04, 1988
Lustenberger WO 99/53777 Oct. 28, 1999

We affirm.

ISSUE (Indefiniteness)
The Examiner contends that claims 17 and 19-32 do not meet the
requirements of 35 U.S.C. § 112, second paragraph.
Appellants contend that the claims do meet the requirements of 35
U.S.C. § 112, second paragraph.
Thus, the issue on appeal is: Whether the Examiner has met the
burden of establishing that claims 17 and 19-32 do not meet the
requirements of 35 U.S.C. § 112, second paragraph?

FINDINGS OF FACT
FF1 The Examiner rejects claims 17 and 19-32 under 35 U.S.C. § 112,
second paragraph, for failing to particularly point out and distinctly claim
the subject matter that Appellant regards as the invention (Ans. 7.).
FF2 The Examiner concludes that it is unclear “what amount of fish oil
applicant is claiming to incorporate into the tablet.” (Id.) According to the
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Examiner, the “recitation of ‘at least 40% micro dispersed fish oil
granulates’ does not provide a means of determining what percentage of the
fish oil granulates is actually fish oil, or specifically, what percentage are
EPA and DHA.” (Id.) The Examiner further concludes that there “does not
appear to be any criticality assessed to the percentage of the omega-3 fatty
acids in the instant claims.” (Id.)
FF3 As to claim 22, the Examiner concludes that it is unclear “if the
mineral portion further comprises selenium aminochelate in addition to
another selenium component of [sic] is the selenium component is selenium
aminochelate.” (Id.)

PRINCIPLES OF LAW
“The test for definiteness is whether one skilled in the art would
understand the bounds of the claim when read in light of the specification.”
Miles Laboratories, Inc. v. Shandon, Inc., 997 F.2d 870, 875 (Fed. Cir.
1993). Claims are in compliance with 35 U.S.C. § 112, second paragraph, if
“the claims, read in light of the specification, reasonably apprise those
skilled in the art both of the utilization and scope of the invention, and if the
language is as precise as the subject matter permits.” Hybritech, Inc. v.
Monoclonal Antibodies, Inc., 802 F.2d 1367, 1385 (Fed. Cir. 1986). In
addition, “breadth is not to be equated with indefiniteness.” In re Miller,
441 F.2d 689, 693, (CCPA 1971); see also In re Hyatt, 708 F.2d 712, 714-15
(Fed. Cir. 1983).

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ANALYSIS
As to the Examiner’s concern set forth in FF2, Appellants argue that
the Specification teaches that the microdispersed fish oil granulate contains a
high concentration of EPA and DHA, but that the claims do not require any
specific percentage (App. Br. 9).
We agree. The independent claims specify that the tablet contains “at
least 40% by weight microdispersed fish oil granulate containing
polyunsaturated fatty acids comprising eicosapentaenoic acid (EPA) and
docosahexaenoic acid (DHA).” The claims thus encompass any relative
percentages of EPA and DHA. Thus, while the independent claims may
broadly claim the microdispersed fish oil granulate containing
polyunsaturated fatty acids, breadth is not to be equated with indefiniteness.
As to the Examiner’s concern set forth in FF3, claim 22 recites “[a]
tablet according to claim 17, wherein the mineral portion comprises
selenium aminochelate.” We thus agree with Appellants that it is clear that
the claim 22 limits the selenium as recited in claim 17 to selenium
aminochelate (App. Br. 10).

CONCLUSIONS OF LAW
We thus conclude that the Examiner has not met the burden of
establishing that claims 17 and 19-32 do not meet the requirements of 35
U.S.C. § 112, second paragraph. We thus reverse the rejection of claims 17
and 19-32 under 35 U.S.C. § 112, second paragraph, for failing to
particularly point out and distinctly claim the subject matter that Appellants
regard as the invention.

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ISSUE (Enablement)
The Examiner concludes that claims 17 and 19-32 do not meet the
enablement requirement of 35 U.S.C. § 112, first paragraph.
Appellants contend that that EP 0 272 772 describes a process for
preparing the fish oil granulate preparation, and thus the Specification
enables the skilled artisan to prepare the claimed dietary supplements.
Thus, the issue on Appeal is: Whether the Specification enables the
skilled artisan to prepare the claimed dietary supplements?

FINDINGS OF FACT
FF4 The invention relates “to a nutritional composition for use as a dietary
supplement.” (Spec. 1.)
FF5 The Specification teaches that “[i]t is widely acknowledged to enrich
the daily diet with a nutritional supplement such as one or more tablets
containing a selection of vitamins and minerals[,]” wherein the “daily
amount of tablets is chosen so that the vitamin and mineral contents of the
tablets correspond to recommended daily amounts.” (Id.)
FF6 Also recommended are fish oil supplements, which contain n-3 and n-
6 omega fatty acids, wherein the omega-3 fatty acids eicosapentaenoic acid
(EPA) and docasahexaenoic acid (DHA) are found only in fish oil (id.)
FF7 Fish oil is often taken as a capsule comprising the liquid form of the
fish oil, but some people who take such capsules may experience
gastrointestinal upset, and may burp up a “‘fishy’” smell even hours after
(id. at 1-2).
FF8 Thus, in order to get a complete supplement of both vitamins and
minerals, plus the omega-3 fatty acids found in fish oil, the Specification
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states that a person must take both the vitamin pills and a number of
capsules containing the fish oil (id. at 2).
FF9 The Specification then cites EP-A-0 276 772, which
describes a process for preparing a microdispersed, pulverulent
or aqueous fish oil preparation with a high concentration of the
active substances of the fish oil, in particular EPA and DHA.
This preparation of fish oil may result in a reduction of the bad
smell and taste of fish oil and is used in baby food and dry-
powdered milk as well as supplements in bakery and other
nutritional food products.

(Id.)
FF10 The claimed invention combines the vitamins and minerals and the
fish oil into a single tablet (id. at 2-3). Moreover, the nutritional
composition may be specifically designed to meet different requirements,
such as age, geographic and/or cultural requirements, etc. (id. at 3).
FF11 In a preferred embodiment, the Specification teaches that the fish oil
granulates may comprise 60% by weight of the tablet (id. at 4).
FF12 The Specification indicates that “the handling of the fish oil
granulate[s] may be somewhat delicate,” and thus it should be stored under
nitrogen to shield from exposure to oxygen (id. at 8). Thus, according to the
Specification “it is important to expedite the tablet forming process during
the sub-processes of dosage, blending and mixture in order to avoid an
exposure time of the of the fish oil granulate that may cause a deterioration
of the granulate.” (Id.)
FF13 The Examiner rejects claims 17 and 19-32 under 35 U.S.C. § 112, first
paragraph, for lack of enablement (Ans. 3).
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FF14 The Examiner made the following findings with respect to the factors
set out in In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988). 1
FF15 The nature of the invention, state and predictability of the art, and
relative skill of those in the art: The Examiner notes that the invention is
drawn to a vitamin tablet comprising micro-dispersed fish oil granulate
(Ans. 5). While acknowledging that the level of skill in the art is high (M.D.
or Ph.D), the Examiner notes that the state of the art is to give fish oil in a
separate capsule, known as split dosing (id.).
FF16 Breadth of the claims: The Examiner finds that claim 17 is broad, in
that it recites a generic vitamin tablet, and the recitation of 40% fish oil
granulates comprises any amount of omega-3 fatty acids (id. at 6).
FF17 The amount of direction or guidance provided and the presence or
absence of working examples: The Examiner finds that the working
examples are “limited to disclosing specific percentages of components
present,” but that the Specification “provides no direction or guidance for
the preparation of the micro dispersed fish oil necessary to preparation of the
nutritional tablet.” (Id.)
FF18 The quantity of experimentation needed: The Examiner concludes that
because “of the known unpredictability of the art . . . and in the absence of
experimental evidence commensurate in scope with the claims, the skilled
artisan would not accept the assertion that the instantly claimed fish oil

1 The factual considerations discussed in Wands are: (1) the quantity of
experimentation necessary to practice the invention, (2) the amount of
direction or guidance presented, (3) the presence or absence of working
examples, (4) the nature of the invention, (5) the state of the prior art, (6) the
relative skill of those in the art, (7) the predictability or unpredictability of
the art, and (8) the breadth of the claims.
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granulate could be predictably incorporated into a vitamin tablet as inferred
in the claims and contemplated by the specification.” (Id. at 6-7.)

PRINCIPLES OF LAW
“When rejecting a claim under the enablement requirement of section
112, the PTO bears an initial burden of setting forth a reasonable explanation
as to why it believes that the scope of protection provided by that claim is
not adequately enabled by the description of the invention provided in the
specification of the application.” In re Wright, 999 F.2d 1557, 1561-62
(Fed. Cir. 1993).
“[T]o be enabling, the specification . . . must teach those skilled in the
art how to make and use the full scope of the claimed invention without
‘undue experimentation.’” Wright, 999 F.2d at 1561, (emphasis added),
quoted in Genentech, Inc. v. Novo Nordisk, A/S, 108 F.3d 1361, 1365, (Fed.
Cir. 1997). Thus, “there must be sufficient disclosure, either through
illustrative examples or terminology, to teach those of ordinary skill how to
make and how to use the invention as broadly as it is claimed.” In re Vaeck,
947 F.2d 488, 496 & n. 23, (Fed. Cir. 1991), quoted in Enzo Biochem, Inc. v.
Calgene, Inc., 188 F.3d 1362, 1374, (Fed. Cir. 1999). Some
experimentation, even a considerable amount, is not “undue” if, e.g., it is
merely routine, or if the specification provides a reasonable amount of
guidance as to the direction in which the experimentation should proceed.
See In re Wands, 858 F.2d 731, 737 (Fed. Cir. 1988).

ANALYSIS
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Appellants argue that since “EP 0,276,772 adequately describes a
process for preparing a microdispersed fish oil granulate, and since EP
0,276,772 is properly incorporated by reference, Applicants believe the
specification is properly enabled with regard to preparing a microdispersed
fish oil granulate, such that any person skilled in the art can make and use
the invention without undue experimentation.” (App. Br. 6) According to
Appellants, the Specification “identifies EP 0,276,772 as describing a
process for preparing a microdispersed fish oil preparation with high
concentrations of the active substances of fish oil,” and as EP 0,276,772 was
published on August 3, 1988, it was readily available to the ordinary artisan
well before the filing date of the instant Specification.
We conclude that Appellants have the better position. The
Specification teaches that the fish oil granulate may be made in accordance
with the teachings of EP 0,276,772 which has been publicly available since
August 3, 1988. In addition, the Examiner has not established that it would
require an undue amount of experimentation for the skilled artisan to prepare
a fish oil granulate, because, as acknowledged by the Examiner, the level of
skill is very high. Finally, the Specification teaches that handling of the
granulate may be delicate, and thus teaches that the granulate should be kept
under nitrogen and the processing of the tablet expedited in order to prevent
deterioration of the fish oil granulate (FF12), thus the Specification does
address incorporating the fish oil granulate into the dietary supplement.

CONCLUSIONS OF LAW
We conclude that the Specification enables the skilled artisan to
prepare the claimed dietary supplements, and we therefore reverse the
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rejection of claims 17 and 19-32 under 35 U.S.C. § 112, first paragraph, for
lack of enablement.

ISSUE (Obviousness)
The Examiner concludes that claims 17 and 19-26 are rendered
obvious by the combination of Lustenberger, Vogeler, and Horn; and that
claims 27-32 are rendered obvious by the combination of Sultenfuss,
Vogeler, and Horn.
Appellants contend that the references as combined do not teach a
dietary supplement comprising a microdispersed fish oil granulate, nor the
specific amount of 40% by weight required by the independent claims.
Thus, the issue on Appeal is: Do the references as combined render
obvious the claimed dietary supplement comprising a microdispersed fish oil
granulate, as well as the specific amount of 40% by weight required by the
independent claims?

FINDINGS OF FACT
FF19 The Examiner rejects claims 17 and 19-26 under 35 U.S.C. § 103(a)
as being obvious over the combination of Lustenberger, Vogeler, and Horn
(Ans. 8). As Appellants do not argue claims 19-26 separately from claim
17, those claims stand or fall with claim 17. 37 C.F.R. § 41.37(c)(1)(vii).
FF20 The Examiner also rejects claims 27-32 under 35 U.S.C. § 103(a) as
being obvious over the combination of Sultenfuss, Vogeler, and Horn.
Again, as Appellants do not argue claims 28-32 separately from claim 27,
those claims stand or fall with claim 27.
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FF21 The Examiner cites Lustenberger for teaching a nutritional
composition comprising a non-milk derived protein source, a dietary fiber
and/or fiber-like substance, a source of polyunsaturated fatty acid, vitamins
and minerals, which may be ingested in the form of a pill, capsule, tablet,
chewable candies, tabs, or liquid form (id.)
FF22 In addition, Lustenberger is cited for teaching that fish oils are the
preferred source of long chain polyunsaturated fatty acids, which oils
generally contain 15-25% DHA and 5-15% EPA (id.).
FF23 Lustenberger further teaches that it is preferable that the daily amount
of nutrients be provided in a single dose, and that the dietary supplement
may take the form of a pill, capsule, tablet, etc. (Lustenberger 6).
FF24 The Examiner cites Sultenfuss for teaching “‘a daily vitamin and
mineral supplement for women comprising vitamin A, beta-carotene, niacin,
riboflavin, pantothenic acid, pyridoxine, cyanocobalamin, biotin, para-
aminobenzoic acid, inositol, choline, vitamin C, vitamin D, vitamin E,
vitamin K, boron, calcium, chromium, copper, iodine, iron, magnesium,
manganese, molybdenum, selenium, zinc and bioflavonoid.’” (Ans. 11
(quoting Sultenfuss abstract).)
FF25 The Examiner notes that Lustenberger does not teach that the
polyunsaturated fatty acids can be in a form of a granulate added to the
tablet (Ans. 8). The Examiner also notes that Sultenfuss does not teach the
addition of “polyunsaturated fatty acids in the form of a granulate.” (Id. at
11.)
FF26 Vogeler is cited by the Examiner for teaching “the manufacture of a
granulate containing a gamma-lineoic acid (GLA), eicosapentaenoic acid
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(EPA), and or docohexanenoic acid (DHA), especially for the preparation of
tablets.” (Id. at 9 and 11.)
FF27 The Examiner also cites Vogeler for teaching that the granular form of
EPA and DHA can easily be prepared into tablets, and also provides
examples of additives such as vitamins, enzymes, and minerals (id.).
FF28 Vogeler also teaches that tablets are preferred as “the dosage of active
substance[s] can be varied within a much wider range [as] compared with
capsules.” (Vogeler 3, ll. 22-23.)
FF29 Vogeler also teaches that granulates in which the oil-powder mixture
contains 2-75% of a marine oil (id. at 2, ll. 59-62).
FF30 Horn is cited by the Examiner for teaching “‘a process which gives
fish oil preparations in which the oil component is present in a very high
concentration and in extremely finely divided and readily dispersable, stable
colloidal form in a liquid or pulverulent matrix, and in which the unpleasant
taste and odor are suppressed designed the finely divided nature.’” (Ans. 9
and 12 (quoting Horn 1-2.)
FF31 The Examiner finds further that Horn teaches that such preparations
are of interest as nutritional supplements and may be administered as tablets
(Ans. 9).
FF32 Horn is drawn to “a process for converting fish oil into an aqueous or
pulverulent, water-soluble form which can be used as a substantially
tasteless and odorless oral prophylactic against the development of
atherosclerotic changes.” (Horn 1.)
FF33 The Examiner concludes that it would have been obvious to optimize
the concentrations of the components of the tablet (Ans. 10 and 12 (citing
MPEP 2144.05)).
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FF34 The Examiner also concludes that it would have been obvious to
combine the teachings of Lustenberger or Sultenfuss with the teachings of
Vogeler and Horn, “since ‘fish oils having a content of EPA and DHA
which are administered in the form of gelatin capsules are bulky and not
very acceptable to the patient. After the gelatin wall of the capsule
dissolves, the oil is released in the form of macroscopic drops with [sic]
prevents rapid absorption.’” (Ans. 10 and 13 (quoting Horn p. 1).)

PRINCIPLES OF LAW
The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) the level of ordinary skill in the art; (3) the differences between the
claimed invention and the prior art; and (4) secondary considerations of
nonobviousness, if any. Graham v. John Deere Co., 383 U.S. 1, 17 (1966).
The Supreme Court has recently emphasized that “the [obviousness] analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court can take account of the inferences and
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l v. Teleflex Inc., 550 U.S. 398, ___, 127 S. Ct. 1727, 1741 (2007). “The
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. at 1739.
Moreover, an “[e]xpress suggestion to substitute one equivalent for another
need not be present to render such substitution obvious.” In re Fout, 675
F.2d 297, 301 (CCPA 1982). As noted by the Court,

If a person of ordinary skill can implement a predictable
variation, § 103 likely bars its patentability. For the same
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reason, if a technique has been used to improve one device, and
a person of ordinary skill would recognize that it would
improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.

Id. at 1740.
In addition, determining the optimum values of result effective
variables is ordinarily within the skill of the art. See In re Boesch, 617 F.2d
272, 276 (CCPA 1980); see also In re Aller, 220 F.2d 454, 456 (CCPA
1955) (“[W]here general conditions of a claim are disclosed in the prior art,
it is not inventive to discover the optimum or workable ranges by routine
experimentation.”).

ANALYSIS
Appellants argue as to the combination of Lustenberger, Vogeler, and
Horn, that neither Lustenberger or Vogeler teach or suggest the limitation of
a microsdispersed fish oil granulate, and “there exists no suggestion or
motivation in these references themselves, nor in the knowledge available to
one ordinary skill in the art to modify the teachings of the references to form
the claimed invention.” (App. Br. 10-11). Appellants argue that while
Lustenberger states that the supplement can be provided as the form of a pill,
the disclosure as a whole is drawn to a food product, “in particular a food
product that can provide protein, dietary fiber, and carbohydrates to pregnant
and lactating women, as well as polyunsaturated fats, minerals, and
vitamins.” (Id. at 11.) Appellants argue further that there is nothing in
Lustenberger that would suggest at a tablet comprising at least 40% fish oil
granulate, or at least 60% fish oil granulate as required by claim 19, and in
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fact, examples 1 and 3 “each contain relatively low amounts of encapsulated
fish oil, i.e., less than 8% by weight.” (Id. at 12.)
As to Vogeler, Appellants argue that there “is no disclosure
concerning microdispersion, nor microencapsulation, and the disclosed
granular size is far too large to qualify as such.” (Id. at 13.) Moreover,
Appellants assert, there is no teaching or suggestion in Horn “to use the
particular vitamins and minerals as presently claimed, or any teaching or
suggestion to use at least 40% by weight of the fish oil microemulsions.”
(Id. at 13-14.) Thus, Appellants assert, the “tablet according to claim 17 is a
completely new kind of product,” and there is no suggestion in Horn, or any
of the references, “of this new type of product making use of microdispersed
fish oil granulate in combination with the recited selection of vitamins and
minerals.” (Id. at 14.)
Lustenberger teaches a dietary supplement containing all of the
components of the independent claims (see FF21-22), although not teaching
that the polyunsaturated fatty acids may be added to the supplement in the
form of a microdispersed fish oil granulate (see FF25). In addition,
Lustenberger teaches that the dietary supplement may be in the form of a
tablet, although not specifically exemplifying such a form.
Vogeler teaches a granular form of EPA and DHA that may be easily
formed into tablets, wherein the tablets may also comprise vitamins and
minerals (FF27). Vogeler also teaches an advantage of the tablet form, such
as that the dosage of active substances may be more widely varied.
Finally, Horn teaches a microdispersed fish oil granulate (FF30,
FF32), and teaches the advantages of such a preparation, such as that the
unpleasant taste and odor of the fish oil are suppressed (FF30). In addition,
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Horn specifically teaches that such preparations are of interest as nutritional
supplements and may be administered as tablets.
Thus, we agree with the Examiner, and conclude that it would have
been obvious to combine the microdispersed fish oil granulate of Horn into
the supplement of Lustenberger given that both Horn and Lustenberger teach
dietary supplements in the form of a tablet. Moreover, Vogeler teaches that
dietary supplements having vitamins, minerals, and a granular form of EPA
and DHA (the essential polyunsaturated fatty acids found in fish oil) were
known in the art.
As to the specific amounts of each of the components of the tablet,
including the amount of microdispersed fish oil granulate, in the absence of
a showing of criticality of the amount, it would have obvious and well
within the level of skill of the ordinary artisan to optimize those amounts to
meet a specific dietary need (see, e,g. FF10).
Appellants argue again as to the combination of Sultenfuss, Vogeler,
and Horn, that either Sultenfuss or Vogeler teach the combination of a
microdispersed fish oil granulate, nor the specific amount of 40% by weight
(App. Br. 15). Specifically, according to Appellants, Sultenfuss do not
discuss the addition of fish oil, and at best, suggests a split solution wherein
the vitamins and minerals are provided in one tablet and the fish oil is
provided in a second tablet (id. at 16).
As noted above, Vogeler teaches a dietary supplement comprising an
essential oil granulate, vitamins, and minerals. Thus, it would have been
obvious to the ordinary artisan to incorporate microdispersed fish oil
granulates of Horn into a vitamin and mineral tablet as suggested by
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Sultenfuss to obtain the art recognized benefits of the fish oil, as well as a
reduction in the fish oil taste and smell as taught by Horn.
The remainder of Appellants arguments (see, e.g., App. Br. 16-17)
were also made with respect to the rejection over the combination of
Lustenberger, Vogeler, and Horn, and thus are addressed above.

CONCLUSIONS OF LAW
We thus conclude the references as combined render obvious the
claimed dietary supplement comprising a microdispersed fish oil granulate,
as well as the specific amount of 40% by weight required by the independent
claims. We therefore affirm the rejection of claims 17 and 19-26 under 35
U.S.C. § 103(a) as being obvious over the combination of Lustenberger,
Vogeler, and Horn; as well as the rejection of claims 27-32 under 35
U.S.C. § 103(a) as being obvious over the combination of Sultenfuss,
Vogeler, and Horn.

TIME LIMITS
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a).

AFFIRMED

dm

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