Appeal No. 2006-1226 Page 10
Application No. 10/272,382
We also reverse the rejection to the extent that it is based on this line of
reasoning. Gramaccioli et al. discloses that crystals of copper glutamate dihydrate
suitable for crystallographic studies could be formed by evaporation of an aqueous
solution of cupric nitrate and glutamic acid. Page 594. The reference, however, says
nothing to suggest that those crystals would be suitable for use in anything remotely
related to a toothpaste composition.
As Appellants have correctly pointed out, Gramaccioli et al. does not teach a
utility for the disclosed copper glutamate dihydrate crystals. While that is not an
impediment to a rejection for anticipation, it does impose a burden on the examiner of
articulating a reasonable basis on which a person of ordinary skill in the art would select
the copper glutamate dihydrate crystals of Gramaccioli et al. for inclusion in the
toothpaste composition of Wagner. The examiner has not done so and no adequate
basis for motivation is apparent to us. The rejection under § 103 is reversed.
Other Issue
The instant specification states that 1:2 metal-amino acid complexes are known.
See page 6, line 27, to page 7, line 8 (“The majority of the essential metal-amino acid
complexes can be classified under one of two major groups. . . . The second group of
metal amino acid complexes is that in which the ratio of the metal to amino acid is 1:2.”).
The specification also states that these complexes “must dissolve in the acid contents of
the gastrointestinal tract. Under the acidic conditions at the absorption site the
complexes re-equilibrate in solution to provide the 1:1 complexes and free amino acids.
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