Appeal No. 2006-1389 Page 5
Application No. 09/912,471
containing compounds in a soy protein material by an acid phosphatase enzyme
preparation in comparison with NATUPHOS® phytase enzyme” (Wong Declaration, ¶
4). According to Dr. Wong, “treatment with the acid phosphatase enzyme preparation
produced a soy material product in which 95.8% . . . of all ribonucleoside containing
compounds were either in their monomeric nucleoside form or their monomeric
nucleotide form – clearly indicating the degradation of most polymeric ribonucleic acids
in the soy material” (id.). The NATUPHOS® phytase enzyme, which does not contain
acid phosphatase, “degraded little or no polymeric ribonucleic acids” (id.).
“Furthermore,” appellants argue, “even if the FINASE[®] enzyme preparation
disclosed . . . as [Simell’s] preferred enzyme preparation always degrades ribonucleic
acids in the slurry of soy protein material, . . . disclosure of the use of the FINASE[®]
enzyme preparation in a soy material is insufficient to establish inherent anticipation
because the deliberate intent of [Simell] . . . is to degrade phytates with one or more
phytate-degrading enzymes, which can be accomplished . . . with other non- FINASE[®]
enzymes that do not result in the degradation of ribonucleic acids” (Appeal Brief, pages
12-13).
In short, appellants argue that “[i]t is irrelevant to a determination of anticipation
by inherency if a FINASE[®] enzyme preparation always degrades ribonucleic acids in
an aqueous slurry of a soy protein material in the process taught in the [Simell] patent
because [Simell’s] deliberate intent . . . is to degrade phytates in a soy protein material
with one or more phytate degrading enzymes that are not limited to FINASE[®] enzyme
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