Ex parte TAKEUCHI et al. - Page 5




          Appeal No. 94-4307                                                           
          Application 07/919,267                                                       


          would have been anticipated by the reference relied upon for the             
          rejection.  Accordingly, the rejection of claims 1-12 under 35               
          U.S.C.  102(b) is reversed.                                                 
                              Rejection for Obviousness                                
               In the alternative, the examiner rejected all of the                    
          appealed claims under 35 U.S.C.  103 as being unpatentable over             
          Japanese Laid Open Application 2-174649.  For substantially the              
          same reasons as given above, this rejection too must fail.  The              
          examiner has failed to present evidence or any analysis of the               
          prior art which would have led a skilled artisan to the claimed              
          subject matter, i.e. to add chitosan or hydrolyzed chitosan or a             
          mixture thereof to a solution containing thaumatin and a                     
          substance that decreases the sweetness of thaumatin.  See In re              
          Brouwer, 77 F.3d 422, 425, 37 USPQ2d 1663, 1666 (Fed. Cir. 1996);            
          In re Ochiai, 71 F.3d 1565, 1570, 37 USPQ2d 1127, 1131 (Fed. Cir.            
          1995).  According to appellants, the sweetness of thaumatin                  
          decreases when an aqueous solution of thaumatin contains coloring            
          agents or polysaccharides (specification, paragraph bridging                 
          pages 1 and 2).  They have discovered that adding chitosan or                
          hydrolyzed chitosan or a mixture thereof to such a solution will             
          effectively prevent the decrease in sweetness of thaumatin.  The             
          problem and appellants’ solution of the problem is not addressed             

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