Appeal No. 95-1151
Application No. 07/965,202
the use of that strain or the claimed product containing that strain.
One further point warrants attention. On return of this
application to the Examining Corps, we recommend that both
applicants and the examiner consider the following passage in
the specification, page 5, lines 13 through 20:
In each embodiment of the process according to
the invention, the S. thermophilus strain(s) may be
selected, for example, from the strains marketed for
the production of yogurts or isolated from yogurts.
The L. helveticus strain may be selected for its
ability to exclusively form lactic acid L(+), for
example from the strains marketed for the production
of cheese or acidifed [sic] milk or isolated from
cheeses or acidified milks. [Emphasis added.]
Does this mean to say that a strain of L. helveticus which
exclusively forms lactic acid L(+) was known in the art at the
time applicants' invention was made? Do applicants
acknowledge that the recited strain of L. helveticus which
exclusively forms lactic acid L(+) was a known strain,
marketed for the production of cheese or acidified milk at the
time their invention was made? In our judgment, these
questions are relevant to the patent-ability of applicants'
claimed subject matter and should be explored, in the first
instance, by the examiner.
REVERSED
-3-
Page: Previous 1 2 3 4 Next
Last modified: November 3, 2007