Thursday, January 31, 2013

KSR cited to affirm obviousness in CLAUS-HERZ


KSR is cited as to predictable results:

“The combination of familiar elements according to known methods is likely to be obvious when it does no more than yield predictable results.” KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 416 (2007).

As to ranges:

A prima facie case of obviousness exists where the claimed ranges “overlap or lie inside ranges disclosed in the prior art.” In re Wertheim, 541 F.2d 257, 267 (CCPA 1976); In re Woodruff, 919 F.2d 1575 (Fed. Cir. 1990).


“[A] prior art reference that discloses a range encompassing a somewhat narrower claimed range is sufficient to establish a prima facie case of obviousness.” In re Peterson, 315 F.3d 1325, 1330 (Fed. Cir. 2003). See also In re Harris, 409 F.3d 1339, 1341 (Fed. Cir. 2005).


The test for obviousness is what the combined teachings of the references as a whole would have suggested to those of ordinary skill in the art. In re Keller, 642 F.2d 413, 425 (CCPA 1981). Here, the combination of Trejo and Hoffman would suggest compositions comprising omega-3, omega-6, and zinc (FFs 1- 7, 9). Additionally, Trejo disclosed fatty acid compositions comprising gamma-linolenic acid (FF3), specifically, including a mixture of linoleic acid, gamma-linolenic acid, and arachidonic acid. We agree with the Examiner‟s position that arriving at the specific limitations recited in claim 8 would only require routine experimentation because the general working parameters were already disclosed in the combination of Trejo and Hoffman. In re Aller, 220 F.2d 454, 456 (CCPA 1955).


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