Appeal No. 2006-3290 Page 5
Application No. 10/072,823
teaching of the prior art and therefore . . . a claim to their joint use is not
patentable”).
Appellant asserts that Matsui produces aqueous hop extracts and “there
are active components in hops such as lupulone which cannot be extracted by
water and can only be extracted by alcohol or organic solvents. Thus it is not
clear if the extract in this reference actually contains lupulone.” Brief, page 6.
Appellant does not, however, direct our attention to any evidentiary basis to
support this assertion.4 Accordingly, we do not find this assertion persuasive.
Ito teaches that the active ingredient of Humulus lupulus can be extracted
with either an organic solvent (e.g., methanol) or with water. See Ito, paragraphs
37 and 49-52. See also paragraph 68 (50% ethanol extract of hops). There is
no evidence on this record to suggest that this active ingredient is not lupulone.
See Answer, page 4, where Examiner reasons since lupulone is “known in the art
to be in extracts of Humulus lupulus” there is no reason to expect that it would
not be present in the extracts taught by Ito and Matsui. Accordingly, we are not
persuaded by Appellant’s intimation that since Ito and Matsui fail to describe the
chemical contents of the extracts there is no evidence that lupulone is present in
the extracts of Ito and Matsui. Brief, page 6.
4 Attorney argument cannot take the place of evidence lacking in the record. Meitzner v. Mindick,
549 F.2d 775, 782, 193 USPQ 17, 22 (CCPA 1977).
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