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Ex Parte Ferruzzi - Page 11
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Board of Patent Appeals and Interferences > 2006 > Ex Parte Ferruzzi - Page 11
Appeal No. 2006-2609 Page 11
Application No. 10/359,165
Weber teaches that the preferred acids are edible organic acids, including citric
acid, phosphoric acid, eight other acids, and mixtures thereof, and that citric acid and
malic acid are most preferred. Col. 18, lines 34-38. We agree with the examiner that it
would have been prima facie obvious to include any of these ten acids, including a
mixture of citric acid and phosphoric acid, in the composition of Weber, in amounts that
would provide the desired pH. “[I]t is not inventive to discover the optimum or workable
ranges by routine experimentation.” In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235
(CCPA 1955) (emphasis added).
“Only if the ‘results of optimizing a variable’ are ‘unexpectedly good’ can a patent
be obtained for the claimed critical range. In re Antonie, 559 F.2d 618, 620, 195 USPQ
6, 8 (CCPA 1977).” In re Geisler, 116 F.3d 1465, 1469, 43 USPQ2d 1362, 1365 (Fed.
Cir. 1997). Appellant has provided no evidence, such as evidence of unexpectedly
superior results, to show that the types and amounts of acids recited in the claims would
have been nonobvious to those skilled in the art.
For the reasons discussed above, we conclude that the examiner has set forth a
prima facie case that claim 1 would have been obvious and that Appellant has not
rebutted this prima facie case. Therefore, we affirm the rejection of claim 1.
Claims 2-25 fall with claim 1.
Summary
The examiner’s position is supported by the preponderance of the evidence of
record. Therefore, we affirm the rejection of claims 1-25 under 35 U.S.C. § 103.
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Last modified: November 3, 2007
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