Appeal No. 1997-2080
Application No. 08/159,939
separated from the non-yeast-like cells . . . grown and . . . visually isolated based on their
degree of pigmentation.” Finally, “pullulan of very high molecular weight may be obtained
by subjecting A. pullulans to fermentation conditions and neutralizing the fermentation broth
to a pH value of about 7 after the pH broth has stabilized at its characteristic low pH” or by
“heat treating the accumulated pullulan for a time period and at a temperature sufficient to
deactivate any pullulan decomposing enzymes.” Id., pages 4 and 5.
Discussion
In deciding patentability issues under 35 U.S.C. § 103, the court observed in
Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1567-68, 1 USPQ2d 1593, 1597
(Fed. Cir. 1987), “[a]nalysis begins with a key legal question -- what is the invention
claimed?” since “[c]laim interpretation . . . will normally control the remainder of the
decisional process."
All of the present claims are directed to a method of producing substantially non-
pigmented pullulan by subjecting A. pullulans to a fermentation process. As maintained by
appellants, and as acknowledged by the examiner, certain of the claims additionally
require enrichment of A. pullulans cultures for yeast-like cells, followed by selection of a
non-pigmented strain (claims 7, 21-24, 29, 30, 33, and 36). Brief, page 12 and
Examiner’s Answer, page 3. Claims 31, 32, 34, 35, and 37 require the use of specific
strains of A. pullulans (or mutants thereof with defined properties); claims 24, 29, 30, 33,
34, 36 and 37 require post-harvest heating of the pullulan to inactivate enzymes; claims 7,
6
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