Appeal 2006-2315
Application 10/437,163
a preponderance of the evidence, that the claimed oil-in-water emulsion
would have been obvious within the meaning of 35 U.S.C § 103(a).
FINDINGS OF FACT
1) Gelfand discloses a food product which is “an emulsion including
vegetable oils, yolk material and the aromatic substances resulting from
lactic acid fermentation of milk constituents.” (P. 1, ll. 3-7).
2) Gelfand teaches that the food product is made by pasteurizing a
suitable milk material and inoculating it with a viable culture, then
allowing the material to set at 70oF until “the proper amount of acid has
been developed and the organisms have produced a sufficient quantity of
flavoring constituents.” (P. 1, ll. 48-50).
3) Lactic acid bacteria, such as the bacteria used in yogurt and
acidophilus milk, are known to produce up to 3% lactic acid. (Jay, p.
256).
4) Gelfand then incorporates, by emulsification, the cultured milk into an
emulsion of oil and yolk material. (P. 1, ll. 94-99).
5) Milk is an oil-in-water emulsion. McGee, p. 14. Egg yolk and oil are
known to form a stable oil-in-water emulsion. (Lowe, p. 271, 5th para.).
6) Gelfand teaches that a sufficient amount of edible organic acid in
water solution is added to stabilize the product. (P. 2, ll. 88-94).
7) Gelfand states that a feature of the process involves “treating the
emulsion in such a manner as to retain the aromatic substances produced
by the bacteria of the milk product and at the same time, preventing the
product from putrifying at ordinary room temperature, although including
also yolk and vegetable oils.” (P. 1, ll. 24-29).
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