Appeal No. 1996-3469
Application No. 08/268,708
The examiner has the initial burden of establishing a prima facie case of obviousness. In
re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992). That has not
been done here.
Neither the claimed pH of 3.2 to 3.6 nor the claimed weight ratio of the citric acid to the
citrate buffer salt of 2.7-3.5:1 are taught. Nevertheless, Examiner rests on the fact that Sakai
and Wakabayashi teach carbonated drinks containing citric acid and a citrate buffer and that
"Sabatura discloses variations in the citric-citrate ratios . . . for fruit flavor beverage mixes"
(Examiner's Answer, p. 4). Sabatura teaches a dry mix. All three references teach aspartame.
Based on this, examiner concludes that
to vary ratios as claimed in each of Sakai et al. or Wakabayashi et al. would
have only involved only the ordinary skill of one in the art. Appellants are doing
no more than varying the conventional citric-citrate ratio of beverage
preparations for the expected consequence of the mixture.
Examiner's Answer, p. 4. Moreover, the "claimed pH would appear to be within the scope of
the applied references" and "it would have been obvious that different ratios of acids to buffers
are required if a product is more or less acid."
We are not persuaded that the two references to carbonated drinks with citric acid and
citrate buffer and the third reference to a dry mix, in which the citric acid and citrate acid buffer
ration can be adjusted, would lead one of ordinary skill to select the particularly claimed weight
ratio of the citric acid to the citrate buffer salt of 2.7-3.5:1 with a pH of 3.2-3.5 as to a non-
carbonated beverage. If anything, based on the combined references, it would have been
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