Appeal No. 95-4713
Application 07/856,157
recitation of an antioxidant”. The thrust of the § 103 rejection
is the proposed incorporation of antioxidant in Vishnupad’s
composition, per the teachings of Marks.
The finding that “[t]he claims differ [from Vishnupad] in
the recitation of an antioxidant” (Examiner’s Answer, page 3,
last paragraph) is clearly erroneous. The examiner does not
point to any portion of Vishnupad disclosing the gelling agent
recited in claim 1 (c), namely, “a high molecular weight
polyacrylic acid gelling agent neutralized to a pH of about 3 to
about 7". Furthermore, in the main Brief before the Board,
paragraph bridging pages 8 and 9, appellant argues that Vishnupad
does not disclose or suggest the specific gelling agent recited
in the claims on appeal. The examiner does not come to grips
with that argument.
Where, as here, the examiner’s rejection under 35 USC § 103
is predicated on a clearly erroneous factual finding, the
rejection cannot stand. Accordingly, the rejection of claims 1
through 3 and 5 through 16 under 35 USC § 103 as unpatentable
over the combined disclosures of Vishnupad and Marks is reversed.
REVERSED
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Last modified: November 3, 2007